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Employment Act 2002

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Prospective

Part 3 E+W+SDispute resolution etc.

Statutory proceduresE+W+S

29 Statutory dispute resolution proceduresE+W+S

(1)Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect.

(2)The Secretary of State may by order—

(a)amend Schedule 2;

(b)make provision for the Schedule to apply, with or without modifications, as if—

(i)any individual of a description specified in the order who would not otherwise be an employee for the purposes of the Schedule were an employee for those purposes; and

(ii)a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

(3)Before making an order under this section, the Secretary of State must consult the Advisory, Conciliation and Arbitration Service.

30 Contracts of employmentE+W+S

(1)Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.

(2)Subsection (1) shall have effect notwithstanding any agreement to the contrary, but does not affect so much of an agreement to follow a particular procedure as requires the employer or employee to comply with a requirement which is additional to, and not inconsistent with, the requirements of the statutory procedure.

(3)The Secretary of State may for the purpose of this section by regulations make provision about the application of the statutory procedures.

(4)In this section, “contract of employment” has the same meaning as in the Employment Rights Act 1996 (c. 18).

31 Non-completion of statutory procedure: adjustment of awardsE+W+S

(1)This section applies to proceedings before an employment tribunal relating to a claim under any of the jurisdictions listed in Schedule 3 by an employee.

(2)If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—

(a)the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b)the statutory procedure was not completed before the proceedings were begun, and

(c)the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee—

(i)to comply with a requirement of the procedure, or

(ii)to exercise a right of appeal under it,

it must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.

(3)If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—

(a)the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b)the statutory procedure was not completed before the proceedings were begun, and

(c)the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

(4)The duty under subsection (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

(5)Where an award falls to be adjusted under this section and under section 38, the adjustment under this section shall be made before the adjustment under that section.

(6)The Secretary of State may for the purposes of this section by regulations—

(a)make provision about the application of the statutory procedures;

(b)make provision about when a statutory procedure is to be taken to be completed;

(c)make provision about what constitutes compliance with a requirement of a statutory procedure;

(d)make provision about circumstances in which a person is to be treated as not subject to, or as having complied with, such a requirement;

(e)make provision for a statutory procedure to have effect in such circumstances as may be specified by the regulations with such modifications as may be so specified;

(f)make provision about when an employee is required to exercise a right of appeal under a statutory procedure.

(7)The Secretary of State may by order—

(a)amend Schedule 3 for the purpose of—

(i)adding a jurisdiction to the list in that Schedule, or

(ii)removing a jurisdiction from that list;

(b)make provision, in relation to a jurisdiction listed in Schedule 3, for this section not to apply to proceedings relating to claims of a description specified in the order;

(c)make provision for this section to apply, with or without modifications, as if—

(i)any individual of a description specified in the order who would not otherwise be an employee for the purposes of this section were an employee for those purposes, and

(ii)a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

32 Complaints about grievancesE+W+S

(1)This section applies to the jurisdictions listed in Schedule 4.

(2)An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—

(a)it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b)the requirement has not been complied with.

(3)An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—

(a)it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

(b)less than 28 days have passed since the day on which the requirement was complied with.

(4)An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if—

(a)it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

(b)the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint.

(5)In such circumstances as the Secretary of State may specify by regulations, an employment tribunal may direct that subsection (4) shall not apply in relation to a particular matter.

(6)An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if—

(a)the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b)the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c. 17) (employment tribunal procedure regulations).

(7)The Secretary of State may for the purposes of this section by regulations—

(a)make provision about the application of the procedures set out in Part 2 of Schedule 2;

(b)make provision about what constitutes compliance with paragraph 6 or 9 of that Schedule;

(c)make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;

(d)make provision for paragraph 6 or 9 of that Schedule to have effect in such circumstances as may be specified by the regulations with such modificiations as may be so specified.

(8)The Secretary of State may by order—

(a)amend, repeal or replace any of subsections (2) to (4);

(b)amend Schedule 4;

(c)make provision for this section to apply, with or without modifications, as if—

(i)any individual of a description specified in the order who would not otherwise be an employee for the purposes of this section were an employee for those purposes, and

(ii)a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

(9)Before making an order under subsection (8)(a), the Secretary of State must consult the Advisory, Conciliation and Arbitration Service.

(10)In its application to orders under subsection (8)(a), section 51(1)(b) includes power to amend this section.

33 Consequential adjustment of time limitsE+W+S

(1)The Secretary of State may, in relation to a jurisdiction listed in Schedule 3 or 4, by regulations make provision about the time limit for beginning proceedings in respect of a claim concerning a matter to which a statutory procedure applies.

(2)Regulations under this section may, in particular—

(a)make provision extending, or authorising the extension of, the time for beginning proceedings,

(b)make provision about the exercise of a discretion to extend the time for beginning proceedings, or

(c)make provision treating proceedings begun out of time as begun within time.

34 Procedural fairness in unfair dismissalE+W+S

(1)Part 10 of the Employment Rights Act 1996 (c. 18) (unfair dismissal) is amended as follows.

(2)After section 98 there is inserted—

98A Procedural fairness

(1)An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a)one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b)the procedure has not been completed, and

(c)the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2)Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3)For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act.

(3)In section 112 (the remedies: orders and compensation), at the end there is inserted—

(5)Where—

(a)an employee is regarded as unfairly dismissed by virtue of section 98A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason), and

(b)an order is made in respect of the employee under section 113,

the employment tribunal shall, subject to subsection (6), also make an award of four weeks’ pay to be paid by the employer to the employee.

(6)An employment tribunal shall not be required to make an award under subsection (5) if it considers that such an award would result in injustice to the employer.

(4)In section 117 (under which an award of compensation falls to be made if an employee is reinstated or re-engaged in pursuance of an order under section 113, but the terms of the order are not fully complied with), after subsection (2) there is inserted—

(2A)There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113.

(5)In section 123 (compensatory award) at the end there is inserted—

(8)Where the amount of the compensatory award falls to be calculated for the purposes of an award under section 117(3)(a), there shall be deducted from the compensatory award any award made under section 112(5) at the time of the order under section 113.

(6)In section 120 (basic award: minimum in certain cases) after subsection (1) there is inserted—

(1A)Where—

(a)an employee is regarded as unfairly dismissed by virtue of section 98A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

(b)an award of compensation falls to be made under section 112(4), and

(c)the amount of the award under section 118(1)(a), before any reduction under section 122(3A) or (4), is less than the amount of four weeks’ pay,

the employment tribunal shall, subject to subsection (1B), increase the award under section 118(1)(a) to the amount of four weeks’ pay.

(1B)An employment tribunal shall not be required by subsection (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.

Employment particularsE+W+S

35 Particulars of procedures relating to discipline or dismissalE+W+S

(1)Section 3 of the Employment Rights Act 1996 (c. 18) (note about disciplinary rules and procedures) is amended as follows.

(2)In subsection (1) (which requires a statement under section 1 of that Act to include a note specifying the disciplinary rules and procedures applying to an employee), after paragraph (a) there is inserted—

(aa)specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee,.

(3)In that subsection, in paragraph (b)(i) (which requires the note to specify a person for the employee to apply to if he is dissatisfied with a disciplinary decision) after “him” there is inserted “ or any decision to dismiss him ”.

(4)In subsection (2) (which provides that the note does not need to specify the rules and procedures relating to health and safety at work) after “decisions,” there is inserted “ decisions to dismiss ”.

36 Removal of exemption for small employersE+W+S

In section 3 of the Employment Rights Act 1996 (c. 18) (note about disciplinary rules and procedures), subsections (3) and (4) (exemptions for undertakings with less than 20 employees) shall cease to have effect.

37 Use of alternative documents to give particularsE+W+S

In Part 1 of the Employment Rights Act 1996 (employment particulars), after section 7 there is inserted—

7A Use of alternative documents to give particulars

(1)Subsections (2) and (3) apply where—

(a)an employer gives an employee a document in writing in the form of a contract of employment or letter of engagement,

(b)the document contains information which, were the document in the form of a statement under section 1, would meet the employer’s obligation under that section in relation to the matters mentioned in subsections (3) and (4)(a) to (c), (d)(i), (f) and (h) of that section, and

(c)the document is given after the beginning of the employment and before the end of the period for giving a statement under that section.

(2)The employer’s duty under section 1 in relation to any matter shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under that section, would meet the employer’s obligation under that section in relation to that matter.

(3)The employer’s duty under section 3 shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under section 1 and the information included in the form of a note, would meet the employer’s obligation under section 3.

(4)For the purposes of this section a document to which subsection (1)(a) applies shall be treated, in relation to information in respect of any of the matters mentioned in section 1(4), as specifying the date on which the document is given to the employee as the date as at which the information applies.

(5)Where subsection (2) applies in relation to any matter, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date in relation to that matter for the purposes of section 4(1).

(6)Where subsection (3) applies, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date for the purposes of section 4(1) in relation to the matters of which particulars are required to be given under section 3.

(7)The reference in section 4(6) to an employer having given a statement under section 1 shall be treated as including his having given a document by virtue of which his duty to give such a statement is treated as met.

7B Giving of alternative documents before start of employment

A document in the form of a contract of employment or letter of engagement given by an employer to an employee before the beginning of the employee’s employment with the employer shall, when the employment begins, be treated for the purposes of section 7A as having been given at that time.

38 Failure to give statement of employment particulars etc.E+W+S

(1)This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 5.

(2)If in the case of proceedings to which this section applies—

(a)the employment tribunal finds in favour of the employee, but makes no award to him in respect of the claim to which the proceedings relate, and

(b)when the proceedings were begun the employer was in breach of his duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18) (duty to give a written statement of initial employment particulars or of particulars of change),

the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

(3)If in the case of proceedings to which this section applies—

(a)the employment tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and

(b)when the proceedings were begun the employer was in breach of his duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996,

the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

(4)In subsections (2) and (3)—

(a)references to the minimum amount are to an amount equal to two weeks’ pay, and

(b)references to the higher amount are to an amount equal to four weeks’ pay.

(5)The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

(6)The amount of a week’s pay of an employee shall—

(a)be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c. 18), and

(b)not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week’s pay).

(7)For the purposes of Chapter 2 of Part 14 of the Employment Rights Act 1996 as applied by subsection (6), the calculation date shall be taken to be—

(a)if the employee was employed by the employer on the date the proceedings were begun, that date, and

(b)if he was not, the effective date of termination as defined by section 97 of that Act.

(8)The Secretary of State may by order—

(a)amend Schedule 5 for the purpose of—

(i)adding a jurisdiction to the list in that Schedule, or

(ii)removing a jurisdiction from that list;

(b)make provision, in relation to a jurisdiction listed in Schedule 5, for this section not to apply to proceedings relating to claims of a description specified in the order;

(c)make provision for this section to apply, with or without modifications, as if—

(i)any individual of a description specified in the order who would not otherwise be an employee for the purposes of this section were an employee for those purposes, and

(ii)a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

GeneralE+W+S

39 Unfair dismissal: adjustments under sections 31 and 38E+W+S

In the Employment Rights Act 1996 (c. 18), after section 124 there is inserted—

124A Adjustments under the Employment Act 2002

Where an award of compensation for unfair dismissal falls to be—

(a)reduced or increased under section 31 of the Employment Act 2002 (non-completion of statutory procedures), or

(b)increased under section 38 of that Act (failure to give statement of employment particulars),

the adjustment shall be in the amount awarded under section 118(1)(b) and shall be applied immediately before any reduction under section 123(6) or (7).

40 Interpretation of Part 3E+W+S

In this Part—

  • employer” and “employee” have the same meanings as in the Employment Rights Act 1996 (c. 18);

  • statutory procedure” means a procedure set out in Schedule 2.

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