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Legislation Crest

Employment Rights Act 1996

1996 CHAPTER 18

An Act to consolidate enactments relating to employment rights.

[22nd May 1996]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1For the extent of this Act generally, see s. 244; in particular, provisions which refer to shop workers and betting workers extend to England and Wales only

Modifications etc. (not altering text)

C1Act restricted (22.8.1996) by 1996 c. 17, ss. 21, 46 (with s. 38)

Act restricted (25.11.1998 for specified purposes and otherwise 8.5.2000) by 1998 c. 45, s. 6, Sch. 3 para. 10; S.I. 1998/2952, art. 2; S.I. 2000/1173, art. 2(2)(b)

C2Act modified (E.W.) (11.9.1998) by 1998 c. 18, ss. 54(2), 55(2), Sch. 4 para. 9(2)

Act modified (25.11.1998 for specified purposes and otherwise 8.5.2000) by 1998 c. 45, s. 6, Sch. 3 para. 9(3); S.I. 1998/2952, art. 2; S.I. 2000/1173, art. 2(2)(b)

Act modified (27.9.1999) by 1999 c. 22, ss. 105, 108(3), Sch. 14 Pt. II paras. 2(1)(b), 4(b), 7(2), Pt. V para. 33(7)(b) (with Sch. 14 para. 7(2))

Act modified (1.4.2000) by S.I. 2000/935, art. 3

Act modified (S.) (1.4.2000) by 2000 asp 1, s. 10, Sch. 2 para. 8(3); S.S.I. 2000/10, art. 2(3)

Act modified (12.1.2000) by 1999 c. 29, s. 410(5) (with Sch. 12 para. 9(1)); S.I. 1999/3434, art. 2

Act modified (3.7.2000) by 1980 c. 66, s. 266B(7) (as inserted (3.7.2000) by 1999 c. 29, s. 265 (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(c), Sch. Pt. 3)

Act modified (1.11.2000) by 2000 c. 27, s. 3(8), Sch. 3 para. 9; S.I. 2000/2917, art. 2

Act modified (E.W.) (30.11.2000) by 2000 c. 43, ss. 21(4)-(6), 22(5)-(8), 23, 80(3)

Act modified (15.1.2001) by 2000 c. 38, ss. 240, 250, Sch. 26 para. 12(b); S.I. 2000/3376, art. 2

Act modified (30.1.2001) by 2000 c. 38, s. 211, Sch. 15 para. 11; S.I. 2001/57, art. 2, Sch. 1

Act modified (30.1.2001) by 2000 c. 38, s. 218, Sch. 19 para. 12(b); S.I. 2001/57, art. 2, Sch. 1

Act modified (1.2.2001) by 2000 c. 38, s. 215(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 41(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 217, Sch. 18 para. 16(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 220, Sch. 21 para. 13(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 240, Sch. 25 para. 12; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (S.) (prosp.) by 2001 asp 10, ss. 86(3), 113(1)

C3Act applied (1.9.1999) by 1998 c. 31, s. 54, Sch. 16 para. 27(3)(b) (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1

Act applied (1.9.1999) by 1998 c. 31, s. 55, Sch. 17 paras. 24(4)(b), 27 (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1

Act applied (with modifications) (1.9.1999) by S.I. 1999/2277, art. 5(1)

Act applied (S.) (8.9.2000) by 2000 asp 10, s. 29, Sch. 4 para. 6(3) (with s. 32); S.S.I. 2000/312, art. 2

Act applied (6.11.2000) by 2000 c. 26, s. 118(4)(5); S.I. 2000/2957, art. 2(1), Sch. 1

Act applied (with modifications) (8.12.2002) by The Paternity and Adoption Leave Regulations 2002 (S.I. 2002/2788), reg. 30(2)(b)

C4Act: power to modify conferred (25.2.1999 for certain purposes and otherwise 1.4.1999) by 1999 c. 2, ss. 15(1)(2)(b), 28(2); S.I. 1999/527, art. 2(b), Sch. 2

Act: power to amend conferred (25.10.1999) by 1999 c. 26, s. 19(3)(f); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I

Act: power to apply conferred (25.10.1999) by 1999 c. 26, s. 23(1)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I

Act: power to amend or apply conferred (8.7.2002) by Employment Act 2002 (c. 22), ss. 45(3)(d)(i), 55(2)

C5Act amended (E.W.) (1.4.2001) by 2000 c. 43, s. 4, Sch. 1 para. 3(5); S.I. 2001/919, art. 2(e) (with art. 3)

C7Act: modified (8.6.2005 for certain purposes, otherwise 24.7.2005) by Railways Act 2005 (c. 14), ss. 1, 12, 60, Sch. 2 para. 9(1)(b); S.I. 2005/1444, art. 2, Sch. 1; S.I. 2005/1909, art. 2, Sch.

C12Act applied (with modifications) (10.3.2020) by The Parental Bereavement Leave Regulations 2020 (S.I. 2020/249), regs. 1, 15 (with reg. 2)

C14Act applied (E.W.S.) (with modifications) (6.4.2024) by The Carer’s Leave Regulations 2024 (S.I. 2024/251), regs. 1(2), 14 (with reg. 2(1))

Commencement Information

I1Act not in force at Royal Assent: see s. 243

I2This Act has effect with the omission of s. 219(3)(d)(4)(a)(iv) until the relevant commencement date as defined by Sch. 2 Part II para. 18(2) of this Act. See Sch. 2 Part II para. 18.

I3This Act has effect with the omission of sections 46, 58, 59, 60, and 102 until the relevant commencement date as defined by Sch. 2 Part II para 15(2) of this Act. See Sch. 2 Part II para. 15.

Part IE+W+S Employment particulars

Right to statements of employment particularsE+W+S

1 Statement of initial employment particulars.E+W+S

(1)Where [F1a worker] begins employment with an employer, the employer shall give to [F2the worker] a written statement of particulars of employment.

[F3(2)Subject to sections 2(2) to (4)—

(a)the particulars required by subsections (3) and (4) must be included in a single document; and

(b)the statement must be given not later than the beginning of the employment.]

(3)The statement shall contain particulars of—

(a)the names of the employer and [F4worker],

(b)the date when the employment began, and

(c)[F5in the case of a statement given to an employee,] the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

(4)The statement shall also contain particulars, as at a specified date not more than seven days before the statement [F6(or the instalment of a statement given under section 2(4) containing them)] is given, of—

(a)the scale or rate of remuneration or the method of calculating remuneration,

(b)the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

[F7(c)any terms and conditions relating to hours of work including any terms and conditions relating to—

(i)normal working hours,

(ii)the days of the week the worker is required to work, and

(iii)whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined.]

(d)any terms and conditions relating to any of the following—

(i)entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the [F8worker’s] entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

(ii)incapacity for work due to sickness or injury, including any provision for sick pay, F9...

[F10(iia)any other paid leave, and]

(iii)pensions and pension schemes,

[F11(da)any other benefits provided by the employer that do not fall within another paragraph of this subsection,]

(e)the length of notice which the [F12worker] is obliged to give and entitled to receive to terminate his contract of employment [F13or other worker’s contract],

(f)the title of the job which the [F14worker] is employed to do or a brief description of the work for which he is employed,

(g)where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

[F15(ga)any probationary period, including any conditions and its duration,]

(h)either the place of work or, where the [F16worker] is required or permitted to work at various places, an indication of that and of the address of the employer,

(j)any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, F17...

(k)where the [F18worker] is required to work outside the United Kingdom for a period of more than one month—

(i)the period for which he is to work outside the United Kingdom,

(ii)the currency in which remuneration is to be paid while he is working outside the United Kingdom,

(iii)any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

(iv)any terms and conditions relating to his return to the United Kingdom.

[F19(l)any training entitlement provided by the employer,

(m)any part of that training entitlement which the employer requires the worker to complete, and

(n)any other training which the employer requires the worker to complete and which the employer will not bear the cost of.]

(5)Subsection (4)(d)(iii) does not apply to [F20a worker] of a body or authority if—

(a)the [F21worker’s] pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act, and

(b)any such provision requires the body or authority to give to a new [F22worker] information concerning the [F23worker’s] pension rights or the determination of questions affecting those rights.

[F24(6)In this section “probationary period” means a temporary period specified in the contract of employment or other worker’s contract between a worker and an employer that—

(a)commences at the beginning of the employment, and

(b)is intended to enable the employer to assess the worker’s suitability for the employment.]

Textual Amendments

2 Statement of initial particulars: supplementary.E+W+S

(1)If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (4) of that section, or under any of the other paragraphs of subsection (3) or (4) of that section, that fact shall be stated.

(2)A statement under section 1 may refer the [F25worker] for particulars of any of the matters specified in [F26subsection (4)(d)(ii) to (iii) and (l)] of that section to the provisions of some other document which is reasonably accessible to the [F25worker].

(3)A statement under section 1 may refer the [F27worker] for particulars of either of the matters specified in subsection (4)(e) of that section to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the [F27worker].

[F28(4)A statement, insofar as it relates to the particulars required by section1(4)(d)(iii), (j) and (l) and the note required by section 3—

(a)may be given in instalments; and

(b)must be given not later than two months after the beginning of the employment, even where the employment ends before that date. ]

(5)Where before the end of the period of two months after the beginning of [F29a worker’s] employment the [F30worker] is to begin to work outside the United Kingdom for a period of more than one month, [F31any instalment of a statement given under subsection (4)] shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

F32(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

3 Note about disciplinary procedures and pensions.E+W+S

(1)A statement under section 1 shall include a note—

(a)specifying any disciplinary rules applicable to [F33the worker] or referring [F33the worker] to the provisions of a document specifying such rules which is reasonably accessible to [F33the worker],

[F34(aa)specifying any procedure applicable to the taking of disciplinary decisions relating to [F35the worker], or to a decision to dismiss [F35the worker], or referring [F35the worker] to the provisions of a document specifying such a procedure which is reasonably accessible to [F35the worker],]

(b)specifying (by description or otherwise)—

(i)a person to whom [F36the worker] can apply if dissatisfied with any disciplinary decision relating to him [F37or any decision to dismiss him], and

(ii)a person to whom [F38the worker] can apply for the purpose of seeking redress of any grievance relating to his employment,

and the manner in which any such application should be made, and

(c)where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document explaining them which is reasonably accessible to [F39the worker].

(2)Subsection (1) does not apply to rules, disciplinary decisions, [F40decisions to dismiss] grievances or procedures relating to health or safety at work.

F41(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F41(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F42(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34S. 3(1)(aa) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 35(2), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

F37Words in s. 3(1)(b)(i) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 35(3), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

F40Words in s. 3(2) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 35(4), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

F42S. 3(5) omitted (6.4.2016 unless brought into force earlier by an order under s. 56(1) of the amending Act) by virtue of Pensions Act 2014 (c. 19), s. 56(4), Sch. 13 para. 67

4 Statement of changes.E+W+S

(1)If, after the material date, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall give to [F43the worker] a written statement containing particulars of the change.

(2)For the purposes of subsection (1)—

(a)in relation to a matter particulars of which are included or referred to in a statement given under section 1 F44... , the material date is the date to which the statement relates,

(b)in relation to a matter particulars of which—

(i)are included or referred to in an instalment of a statement given under [F45section 2(4)]

F46(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the material date is the date to which the instalment relates, and

(c)in relation to any other matter, the material date is the date by which a statement under section 1 is required to be given.

(3)A statement under subsection (1) shall be given at the earliest opportunity and, in any event, not later than—

(a)one month after the change in question, or

(b)where that change results from [F47the worker] being required to work outside the United Kingdom for a period of more than one month, the time when he leaves the United Kingdom in order to begin so to work, if that is earlier.

(4)A statement under subsection (1) may refer [F48the worker] to the provisions of some other document which is reasonably accessible to [F48the worker] for a change in any of the matters specified in [F49sections 1(4)(d)(ii) to (iii)] and 3(1)(a) and (c).

(5)A statement under subsection (1) may refer [F50the worker] for a change in either of the matters specified in section 1(4)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to [F50the worker].

(6)Where, after an employer has given to [F51a worker] a statement under section 1, either—

(a)the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

(b)[F52in the case of a statement given to an employee,] the identity of the employer is changed in circumstances in which the continuity of the employee’s period of employment is not broken,

and subsection (7) applies in relation to the change, the person who is the employer immediately after the change is not required to give to [F53the worker] a statement under section 1; but the change shall be treated as a change falling within subsection (1) of this section.

(7)This subsection applies in relation to a change if it does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by sections 1 to 3 to be included or referred to in the statement under section 1.

(8)A statement under subsection (1) which informs an employee of a change such as is referred to in subsection (6)(b) shall specify the date on which the employee’s period of continuous employment began.

Textual Amendments

5 Exclusion from rights to statements.E+W+S

(1)Sections 1 to 4 apply to [F54a worker] who at any time comes or ceases to come within the exceptions from those sections provided by [F55section] 199, and under section 209, as if his employment with his employer terminated or began at that time.

(2)The fact that section 1 is directed by subsection (1) to apply to [F56a worker] as if his employment began on his ceasing to come within the exceptions referred to in that subsection does not affect the obligation under section 1(3)(b) to specify the date on which his employment actually began.

Textual Amendments

F55Words in s. 5(1) substituted (25.10.1999) by 1999 c. 26, s. 32(3); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 7(2))

6 Reasonably accessible document or collective agreement.E+W+S

In sections 2 to 4 references to a document or collective agreement which is reasonably accessible to [F57a worker] are references to a document or collective agreement which—

(a)[F58the worker] has reasonable opportunities of reading in the course of his employment, or

(b)is made reasonably accessible to [F59the worker] in some other way.

Textual Amendments

7 Power to require particulars of further matters.E+W+S

The Secretary of State may by order provide that section 1 shall have effect as if particulars of such further matters as may be specified in the order were included in the particulars required by that section; and, for that purpose, the order may include such provisions amending that section as appear to the Secretary of State to be expedient.

[F607A Use of alternative documents to give particularsE+W+S

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

(a)an employer gives [F61a worker] a document in writing in the form of a contract of employment [F62or other worker’s contract] 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 [F63in that section save for the particulars specified in section 2(4) and], and

[F64(c)the document is given not later than the beginning of the employment.]

(2)The employer’s duty under section 1 in relation to any matter shall be treated as met if the document given to the [F65worker] 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 [F66worker] 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 [F67worker] 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 [F68worker] 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 [F69worker] 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.

Textual Amendments

F60Ss. 7A, 7B inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 37, 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

7B Giving of alternative documents before start of employmentE+W+S

A document in the form of a contract of employment [F70or other worker’s contract] or letter of engagement given by an employer to [F71a worker] before the beginning of the [F72worker’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.]

Textual Amendments

F60Ss. 7A, 7B inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 37, 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

Right to itemised pay statementE+W+S

8 Itemised pay statement.E+W+S

(1)[F73A worker] has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.

(2)The statement shall contain particulars of—

(a)the gross amount of the wages or salary,

(b)the amounts of any variable, and (subject to section 9) any fixed, deductions from that gross amount and the purposes for which they are made,

(c)the net amount of wages or salary payable, F74...

(d)where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment; [F75and

(e)where the amount of wages or salary varies by reference to time worked, the total number of hours worked in respect of the variable amount of wages or salary either as—

(i)a single aggregate figure, or

(ii)separate figures for different types of work or different rates of pay.]

Textual Amendments

9 Standing statement of fixed deductions.E+W+S

(1)A pay statement given in accordance with section 8 need not contain separate particulars of a fixed deduction if—

(a)it contains instead an aggregate amount of fixed deductions, including that deduction, and

(b)the employer has given to [F76the worker], at or before the time at which the pay statement is given, a standing statement of fixed deductions which satisfies subsection (2).

(2)A standing statement of fixed deductions satisfies this subsection if—

(a)it is in writing,

(b)it contains, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

(i)the amount of the deduction,

(ii)the intervals at which the deduction is to be made, and

(iii)the purpose for which it is made, and

(c)it is (in accordance with subsection (5)) effective at the date on which the pay statement is given.

(3)A standing statement of fixed deductions may be amended, whether by—

(a)addition of a new deduction,

(b)a change in the particulars, or

(c)cancellation of an existing deduction,

by notice in writing, containing particulars of the amendment, given by the employer to [F76the worker].

(4)An employer who has given to [F77a worker] a standing statement of fixed deductions shall—

(a)within the period of twelve months beginning with the date on which the first standing statement was given, and

(b)at intervals of not more than twelve months afterwards,

re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (3).

(5)For the purposes of subsection (2)(c) a standing statement of fixed deductions—

(a)becomes effective on the date on which it is given to [F76the worker], and

(b)ceases to be effective at the end of the period of twelve months beginning with that date or, where it is re-issued in accordance with subsection (4), with the end of the period of twelve months beginning with the date of the last re-issue.

Textual Amendments

10 Power to amend provisions about pay and standing statements.E+W+S

The Secretary of State may by order—

(a)vary the provisions of sections 8 and 9 as to the particulars which must be included in a pay statement or a standing statement of fixed deductions by adding items to, or removing items from, the particulars listed in those sections or by amending any such particulars, and

(b)vary the provisions of subsections (4) and (5) of section 9 so as to shorten or extend the periods of twelve months referred to in those subsections, or those periods as varied from time to time under this section.

EnforcementE+W+S

11 References to [F78employment tribunals].E+W+S

[F79(1)Where an employer does not give a worker a statement as required by section 1, 4 or 8 (either because the employer gives the worker no statement or because the statement the employer gives does not comply with what is required), the worker may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned.]

(2)Where—

[F80(a)a statement purporting to be a statement under section 1 or 4, or a pay statement or a standing statement of fixed deductions purporting to comply with section 8 or 9, has been given to a worker, and]

(b)a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,

either the employer or [F81the worker] may require the question to be referred to and determined by an [F78employment tribunal].

(3)For the purposes of this section—

F82(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a question as to the particulars which ought to have been included in a pay statement or standing statement of fixed deductions does not include a question solely as to the accuracy of an amount stated in any such particulars.

(4)An [F78employment tribunal] shall not consider a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made—

(a)before the end of the period of three months beginning with the date on which the employment ceased, or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months.

F83(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F84(6)[F85Section] 207B (extension of time limits to facilitate conciliation before institution of proceedings) also applies for the purposes of subsection (4)(a).]

Textual Amendments

F78Words in s. 11(1)(2)(4) and sidenote to s. 11 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F82S. 11(3)(a) omitted (6.4.2016 unless brought into force earlier by an order under s. 56(1) of the amending Act) by virtue of Pensions Act 2014 (c. 19), s. 56(4), Sch. 13 para. 68

Modifications etc. (not altering text)

C15S. 11: power to apply conferred (1.4.1999) by 1998 c. 39, s. 12(4)(a) (with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

12 Determination of references.E+W+S

(1)Where, on a reference under section 11(1), an [F86employment tribunal] determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4, the employer shall be deemed to have given to the [F87worker] a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.

(2)On determining a reference under section 11(2) relating to a statement purporting to be a statement under section 1 or 4, an [F86employment tribunal] may—

(a)confirm the particulars as included or referred to in the statement given by the employer,

(b)amend those particulars, or

(c)substitute other particulars for them,

as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the [F88worker] in accordance with the decision of the tribunal.

(3)Where on a reference under section 11 an [F86employment tribunal] finds—

(a)that an employer has failed to give [F89a worker] any pay statement in accordance with section 8, or

(b)that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that section or section 9,

the tribunal shall make a declaration to that effect.

(4)Where on a reference in the case of which subsection (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of [F90the worker] during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay [F90the worker] a sum not exceeding the aggregate of the unnotified deductions so made.

(5)For the purposes of subsection (4) a deduction is an unnotified deduction if it is made without the employer giving [F91the worker], in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by section 8 or 9.

Textual Amendments

F86Words in s. 12(1)(2)(3) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C16S. 12: power to apply conferred (1.4.1999) by 1998 c. 39, s. 12(4)(a)(with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Part IIE+W+S Protection of wages

Modifications etc. (not altering text)

C17Pt. 2 modified (1.4.1999) by 1998 c. 39, s. 18(1)(a)(2) (with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Deductions by employerE+W+S

13 Right not to suffer unauthorised deductions.E+W+S

(1)An employer shall not make a deduction from wages of a worker employed by him unless—

(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3)Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4)Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5)For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6)For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7)This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

[F92(8)In relation to deductions from amounts of qualifying tips, gratuities and service charges allocated to workers under Part 2B, subsection (1) applies as if—

(a)in paragraph (a), the words “or a relevant provision of the worker’s contract” were omitted, and

(b)paragraph (b) were omitted.]

Textual Amendments

14 Excepted deductions.E+W+S

(1)Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

(a)an overpayment of wages, or

(b)an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2)Section 13 does not apply to a deduction from a worker’s wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

(4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

(a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b)otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

(5)Section 13 does not apply to a deduction from a worker’s wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker’s having taken part in that strike or other action.

(6)Section 13 does not apply to a deduction from a worker’s wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Payments to employerE+W+S

15 Right not to have to make payments to employer.E+W+S

(1)An employer shall not receive a payment from a worker employed by him unless—

(a)the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the payment.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3)For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(4)For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(5)Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker’s employer.

16 Excepted payments.E+W+S

(1)Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the reimbursement of the employer in respect of—

(a)an overpayment of wages, or

(b)an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2)Section 15 does not apply to a payment received from a worker by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3)Section 15 does not apply to a payment received from a worker by his employer where the worker has taken part in a strike or other industrial action and the payment has been required by the employer on account of the worker’s having taken part in that strike or other action.

(4)Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Cash shortages and stock deficiencies in retail employmentE+W+S

17 Introductory.E+W+S

(1)In the following provisions of this Part—

  • “cash shortage” means a deficit arising in relation to amounts received in connection with retail transactions, and

  • “stock deficiency” means a stock deficiency arising in the course of retail transactions.

(2)In the following provisions of this Part “retail employment”, in relation to a worker, means employment involving (whether or not on a regular basis)—

(a)the carrying out by the worker of retail transactions directly with members of the public or with fellow workers or other individuals in their personal capacities, or

(b)the collection by the worker of amounts payable in connection with retail transactions carried out by other persons directly with members of the public or with fellow workers or other individuals in their personal capacities.

(3)References in this section to a “retail transaction” are to the sale or supply of goods or the supply of services (including financial services).

(4)References in the following provisions of this Part to a deduction made from wages of a worker in retail employment, or to a payment received from such a worker by his employer, on account of a cash shortage or stock deficiency include references to a deduction or payment so made or received on account of—

(a)any dishonesty or other conduct on the part of the worker which resulted in any such shortage or deficiency, or

(b)any other event in respect of which he (whether or not together with any other workers) has any contractual liability and which so resulted,

in each case whether or not the amount of the deduction or payment is designed to reflect the exact amount of the shortage or deficiency.

(5)References in the following provisions of this Part to the recovery from a worker of an amount in respect of a cash shortage or stock deficiency accordingly include references to the recovery from him of an amount in respect of any such conduct or event as is mentioned in subsection (4)(a) or (b).

(6)In the following provisions of this Part “pay day”, in relation to a worker, means a day on which wages are payable to the worker.

18 Limits on amount and time of deductions.E+W+S

(1)Where (in accordance with section 13) the employer of a worker in retail employment makes, on account of one or more cash shortages or stock deficiencies, a deduction or deductions from wages payable to the worker on a pay day, the amount or aggregate amount of the deduction or deductions shall not exceed one-tenth of the gross amount of the wages payable to the worker on that day.

(2)Where the employer of a worker in retail employment makes a deduction from the worker’s wages on account of a cash shortage or stock deficiency, the employer shall not be treated as making the deduction in accordance with section 13 unless (in addition to the requirements of that section being satisfied with respect to the deduction)—

(a)the deduction is made, or

(b)in the case of a deduction which is one of a series of deductions relating to the shortage or deficiency, the first deduction in the series was made,

not later than the end of the relevant period.

(3)In subsection (2) “the relevant period” means the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

19 Wages determined by reference to shortages etc.E+W+S

(1)This section applies where—

(a)by virtue of an agreement between a worker in retail employment and his employer, the amount of the worker’s wages or any part of them is or may be determined by reference to the incidence of cash shortages or stock deficiencies, and

(b)the gross amount of the wages payable to the worker on any pay day is, on account of any such shortages or deficiencies, less than the gross amount of the wages that would have been payable to him on that day if there had been no such shortages or deficiencies.

(2)The amount representing the difference between the two amounts referred to in subsection (1)(b) shall be treated for the purposes of this Part as a deduction from the wages payable to the worker on that day made by the employer on account of the cash shortages or stock deficiencies in question.

(3)The second of the amounts referred to in subsection (1)(b) shall be treated for the purposes of this Part (except subsection (1)) as the gross amount of the wages payable to him on that day.

(4)Accordingly—

(a)section 13, and

(b)if the requirements of section 13 and subsection (2) of section 18 are satisfied, subsection (1) of section 18,

have effect in relation to the amount referred to in subsection (2) of this section.

20 Limits on method and timing of payments.E+W+S

(1)Where the employer of a worker in retail employment receives from the worker a payment on account of a cash shortage or stock deficiency, the employer shall not be treated as receiving the payment in accordance with section 15 unless (in addition to the requirements of that section being satisfied with respect to the payment) he has previously—

(a)notified the worker in writing of the worker’s total liability to him in respect of that shortage or deficiency, and

(b)required the worker to make the payment by means of a demand for payment made in accordance with the following provisions of this section.

(2)A demand for payment made by the employer of a worker in retail employment in respect of a cash shortage or stock deficiency—

(a)shall be made in writing, and

(b)shall be made on one of the worker’s pay days.

(3)A demand for payment in respect of a particular cash shortage or stock deficiency, or (in the case of a series of such demands) the first such demand, shall not be made—

(a)earlier than the first pay day of the worker following the date when he is notified of his total liability in respect of the shortage or deficiency in pursuance of subsection (1)(a) or, where he is so notified on a pay day, earlier than that day, or

(b)later than the end of the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

(4)For the purposes of this Part a demand for payment shall be treated as made by the employer on one of a worker’s pay days if it is given to the worker or posted to, or left at, his last known address—

(a)on that pay day, or

(b)in the case of a pay day which is not a working day of the employer’s business, on the first such working day following that pay day.

(5)Legal proceedings by the employer of a worker in retail employment for the recovery from the worker of an amount in respect of a cash shortage or stock deficiency shall not be instituted by the employer after the end of the period referred to in subsection (3)(b) unless the employer has within that period made a demand for payment in respect of that amount in accordance with this section.

21 Limit on amount of payments.E+W+S

(1)Where the employer of a worker in retail employment makes on any pay day one or more demands for payment in accordance with section 20, the amount or aggregate amount required to be paid by the worker in pursuance of the demand or demands shall not exceed—

(a)one-tenth of the gross amount of the wages payable to the worker on that day, or

(b)where one or more deductions falling within section 18(1) are made by the employer from those wages, such amount as represents the balance of that one-tenth after subtracting the amount or aggregate amount of the deduction or deductions.

(2)Once an amount has been required to be paid by means of a demand for payment made in accordance with section 20 on any pay day, that amount shall not be taken into account under subsection (1) as it applies to any subsequent pay day, even though the employer is obliged to make further requests for it to be paid.

(3)Where in any legal proceedings the court finds that the employer of a worker in retail employment is (in accordance with section 15 as it applies apart from section 20(1)) entitled to recover an amount from the worker in respect of a cash shortage or stock deficiency, the court shall, in ordering the payment by the worker to the employer of that amount, make such provision as appears to the court to be necessary to ensure that it is paid by the worker at a rate not exceeding that at which it could be recovered from him by the employer in accordance with this section.

22 Final instalments of wages.E+W+S

(1)In this section “final instalment of wages”, in relation to a worker, means—

(a)the amount of wages payable to the worker which consists of or includes an amount payable by way of contractual remuneration in respect of the last of the periods for which he is employed under his contract prior to its termination for any reason (but excluding any wages referable to any earlier such period), or

(b)where an amount in lieu of notice is paid to the worker later than the amount referred to in paragraph (a), the amount so paid,

in each case whether the amount in question is paid before or after the termination of the worker’s contract.

(2)Section 18(1) does not operate to restrict the amount of any deductions which may (in accordance with section 13(1)) be made by the employer of a worker in retail employment from the worker’s final instalment of wages.

(3)Nothing in section 20 or 21 applies to a payment falling within section 20(1) which is made on or after the day on which any such worker’s final instalment of wages is paid; but (even if the requirements of section 15 would otherwise be satisfied with respect to it) his employer shall not be treated as receiving any such payment in accordance with that section if the payment was first required to be made after the end of the period referred to in section 20(3)(b).

(4)Section 21(3) does not apply to an amount which is to be paid by a worker on or after the day on which his final instalment of wages is paid.

EnforcementE+W+S

23 Complaints to [F93employment tribunals].E+W+S

(1)A worker may present a complaint to an [F93employment tribunal]—

(a)that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)),

(b)that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)),

(c)that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

(d)that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).

(2)Subject to subsection (4), an [F93employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—

(a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3)Where a complaint is brought under this section in respect of—

(a)a series of deductions or payments, or

(b)a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates,

the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

[F94(3A)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).]

(4)Where the [F93employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

[F95(4A)An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.

(4B)Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j).]

[F96(5) No complaint shall be presented under this section in respect of any deduction made in contravention of section 86 of the M1 Trade Union and Labour Relations (Consolidation) Act 1992 (deduction of political fund contribution where certificate of exemption or objection has been given).]

Textual Amendments

F93Words in s. 23(1)(2)(4) and sidenote to s. 23 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F96S. 23(5) inserted (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 18; S.I. 1998/1658, art. 2(1), Sch. 1 (with art. 3)

Modifications etc. (not altering text)

C18S. 23(1)(a) extended (1.4.1999) by 1998 c. 39, s. 20(1)(a) (with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Marginal Citations

24 Determination of complaints.E+W+S

[F97(1)]Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer—

(a)in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13,

(b)in the case of a complaint under section 23(1)(b), to repay to the worker the amount of any payment received in contravention of section 15,

(c)in the case of a complaint under section 23(1)(c), to pay to the worker any amount recovered from him in excess of the limit mentioned in that provision, and

(d)in the case of a complaint under section 23(1)(d), to repay to the worker any amount received from him in excess of the limit mentioned in that provision.

[F98(2)Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.]

Textual Amendments

25 Determinations: supplementary.E+W+S

(1)Where, in the case of any complaint under section 23(1)(a), a tribunal finds that, although neither of the conditions set out in section 13(1)(a) and (b) was satisfied with respect to the whole amount of the deduction, one of those conditions was satisfied with respect to any lesser amount, the amount of the deduction shall for the purposes of section 24(a) be treated as reduced by the amount with respect to which that condition was satisfied.

(2)Where, in the case of any complaint under section 23(1)(b), a tribunal finds that, although neither of the conditions set out in section 15(1)(a) and (b) was satisfied with respect to the whole amount of the payment, one of those conditions was satisfied with respect to any lesser amount, the amount of the payment shall for the purposes of section 24(b) be treated as reduced by the amount with respect to which that condition was satisfied.

(3)An employer shall not under section 24 be ordered by a tribunal to pay or repay to a worker any amount in respect of a deduction or payment, or in respect of any combination of deductions or payments, in so far as it appears to the tribunal that he has already paid or repaid any such amount to the worker.

(4)Where a tribunal has under section 24 ordered an employer to pay or repay to a worker any amount in respect of a particular deduction or payment falling within section 23(1)(a) to (d), the amount which the employer is entitled to recover (by whatever means) in respect of the matter in relation to which the deduction or payment was originally made or received shall be treated as reduced by that amount.

(5)Where a tribunal has under section 24 ordered an employer to pay or repay to a worker any amount in respect of any combination of deductions or payments falling within section 23(1)(c) or (d), the aggregate amount which the employer is entitled to recover (by whatever means) in respect of the cash shortages or stock deficiencies in relation to which the deductions or payments were originally made or required to be made shall be treated as reduced by that amount.

26 Complaints and other remedies.E+W+S

Section 23 does not affect the jurisdiction of an [F99employment tribunal] to consider a reference under section 11 in relation to any deduction from the wages of a worker; but the aggregate of any amounts ordered by an [F99employment tribunal] to be paid under section 12(4) and under section 24 (whether on the same or different occasions) in respect of a particular deduction shall not exceed the amount of the deduction.

Textual Amendments

F99Words in s. 26 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

SupplementaryE+W+S

27 Meaning of “wages” etc.E+W+S

(1)In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including—

(a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise,

(b)statutory sick pay under Part XI of the M2Social Security Contributions and Benefits Act 1992,

(c)statutory maternity pay under Part XII of that Act,

[F100(ca)[F101statutory paternity pay] under Part 12ZA of that Act,

(cb)statutory adoption pay under Part 12ZB of that Act,]

[F102(cc)statutory shared parental pay under Part 12ZC of that Act,]

[F103(cd)statutory parental bereavement pay under Part 12ZD of that Act,]

[F104(ce)any amount of qualifying tips, gratuities and service charges allocated to the worker under Part 2B of this Act,]

(d)a guarantee payment (under section 28 of this Act),

(e)any payment for time off under Part VI of this Act or section 169 of the M3Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc.),

(f)remuneration on suspension on medical grounds under section 64 of this Act and remuneration on suspension on maternity grounds under section 68 of this Act,

[F105(fa)remuneration on ending the supply of an agency worker on maternity grounds under section 68C of this Act.]

(g)any sum payable in pursuance of an order for reinstatement or re-engagement under section 113 of this Act,

(h)any sum payable in pursuance of an order for the continuation of a contract of employment under section 130 of this Act or section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992, and

(j)remuneration under a protective award under section 189 of that Act,

but excluding any payments within subsection (2).

(2)Those payments are—

(a)any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker’s wages in respect of any such advance),

(b)any payment in respect of expenses incurred by the worker in carrying out his employment,

(c)any payment by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office,

(d)any payment referable to the worker’s redundancy, and

(e)any payment to the worker otherwise than in his capacity as a worker.

(3)Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part—

(a)be treated as wages of the worker, and

(b)be treated as payable to him as such on the day on which the payment is made.

(4)In this Part “gross amount”, in relation to any wages payable to a worker, means the total amount of those wages before deductions of whatever nature.

(5)For the purposes of this Part any monetary value attaching to any payment or benefit in kind furnished to a worker by his employer shall not be treated as wages of the worker except in the case of any voucher, stamp or similar document which is—

(a)of a fixed value expressed in monetary terms, and

(b)capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).

Textual Amendments

F100S. 27(1)(ca)(cb) inserted (8.12.2002) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 25; S.I. 2002/2866, art. 2(2) Sch. 1 Pt. 2

Marginal Citations

[F106PART 2AU.K.Zero hours workers

Textual Amendments

27AExclusivity terms unenforceable in zero hours contractsU.K.

(1)In this section “zero hours contract” means a contract of employment or other worker's contract under which—

(a)the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and

(b)there is no certainty that any such work or services will be made available to the worker.

(2)For this purpose, an employer makes work or services available to a worker if the employer requests or requires the worker to do the work or perform the services.

(3)Any provision of a zero hours contract which—

(a)prohibits the worker from doing work or performing services under another contract or under any other arrangement, or

(b)prohibits the worker from doing so without the employer's consent,

is unenforceable against the worker.

(4)Subsection (3) is to be disregarded for the purposes of determining any question whether a contract is a contract of employment or other worker's contract.

27BPower to make further provision in relation to zero hours workersU.K.

(1)The Secretary of State may by regulations make provision for the purpose of securing that zero hours workers, or any description of zero hours workers, are not restricted by any provision or purported provision of their contracts or arrangements with their employers from doing any work otherwise than under those contracts or arrangements.

(2)In this section, “zero hours workers” means—

(a)employees or other workers who work under zero hours contracts;

(b)individuals who work under non-contractual zero hours arrangements;

(c)individuals who work under worker's contracts of a kind specified by the regulations.

(3)The worker's contracts which may be specified by virtue of subsection (2)(c) are those in relation to which the Secretary of State considers it appropriate for provision made by the regulations to apply, having regard, in particular, to provision made by the worker's contracts as to income, rate of pay or working hours.

(4)In this section “non-contractual zero hours arrangement” means an arrangement other than a worker's contract under which—

(a)an employer and an individual agree terms on which the individual will do any work where the employer makes it available to the individual and the individual agrees to do it, but

(b)the employer is not required to make any work available to the individual, nor the individual required to accept it,

and in this section “employer”, in relation to a non-contractual zero hours arrangement, is to be read accordingly.

(5)Provision that may be made by regulations under subsection (1) includes provision for—

(a)modifying—

(i)zero hours contracts;

(ii)non-contractual zero hours arrangements;

(iii)other worker's contracts;

(b)imposing financial penalties on employers;

(c)requiring employers to pay compensation to zero hours workers;

(d)conferring jurisdiction on employment tribunals;

(e)conferring rights on zero hours workers.

(6)Provision that may be made by virtue of subsection (5)(a) may, in particular, include provision for exclusivity terms in prescribed categories of worker's contracts to be unenforceable, in cases in which section 27A does not apply.

For this purpose an exclusivity term is any term by virtue of which a worker is restricted from doing any work otherwise than under the worker's contract.

(7)Regulations under this section may—

(a)make different provision for different purposes;

(b)make provision subject to exceptions.

(8)For the purposes of this section—

(a)“zero hours contract” has the same meaning as in section 27A;

(b)an employer makes work available to an individual if the employer requests or requires the individual to do it;

(c)references to work and doing work include references to services and performing them.

(9)Nothing in this section is to be taken to affect any worker's contract except so far as any regulations made under this section expressly apply in relation to it.]

[F107PART 2BU.K.TIPS, GRATUITIES AND SERVICE CHARGES

Textual Amendments

F107Part 2B inserted (31.7.2023 for specified purposes) by Employment (Allocation of Tips) Act 2023 (c. 13), ss. 1, 14(2); S.I. 2023/876, reg. 3(a)

Requirement to deal with tips, gratuities and service chargesU.K.

27CQualifying tips, gratuities and service chargesU.K.

(1)This Part makes provision for—

(a)how employers must deal with qualifying tips, gratuities and service charges, and

(b)the Secretary of State to issue a code of practice to promote fairness and transparency in relation to the distribution of qualifying tips, gratuities and service charges.

(2)In this Part “qualifying tips, gratuities and service charges” means—

(a)employer-received tips, and

(b)worker-received tips which—

(i)are subject to employer control, or

(ii)are connected with any other worker-received tips which are subject to employer control.

(3)An “employer-received tip” is an amount paid by a customer of an employer by way of a tip, gratuity or service charge (however described) which—

(a)is received upon its payment or subsequently by the employer or an associated person, or

(b)is received upon its payment by a person under a payment arrangement made between the employer and that person.

(4)A “worker-received tip” is an amount paid by a customer of an employer by way of a tip, gratuity or service charge (however described) which—

(a)is received upon its payment by a worker of the employer, and

(b)is not subsequently received by the employer or an associated person.

(5)For the purposes of subsection (2)(b)—

(a)a worker-received tip is subject to employer control if the employer or an associated person exercises control or significant influence over the allocation of the tip;

(b)a worker-received tip (“tip A”) is connected with another worker-received tip which is subject to employer control (“tip B”) if—

(i)both tips are paid at, or are otherwise attributable to, the same place of business, and

(ii)tip A is paid later in the week, or in the week following the week, in which tip B is paid.

(6)In this section the “amount paid by a customer of an employer by way of a tip, gratuity or service charge” means the actual amount paid by the customer (and accordingly any deductions from the amount paid, whether deducted by the employer or any other person, are to be disregarded when determining the amount paid by the customer).

(7)An amount paid by a customer of an employer is not paid by way of a tip, gratuity or service charge to the extent that the amount represents payment of value added tax.

(8)If an amount is not paid in money, it can be a qualifying tip, gratuity or service charge only if it is paid in the form of a voucher, stamp, token or similar item which is—

(a)of a fixed value expressed in monetary terms, and

(b)capable of being exchanged (whether on its own or together with other vouchers, stamps, tokens or items, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).

(9)In this section—

  • “payment arrangement” means an arrangement between an employer and another person under which payments made by customers of the employer are to be received by the other person instead of the employer;

  • “week” means any period of seven days beginning with a Monday (and ending with a Sunday).]

[F10827DHow tips etc must be dealt withU.K.

(1)An employer must ensure that the total amount of the qualifying tips, gratuities and service charges paid at, or otherwise attributable to, a place of business of the employer is allocated fairly between workers of the employer at that place of business.

(2)Where a worker is allocated an amount of employer-received tips in accordance with subsection (1), that amount is payable to the worker by the employer.

(3)In determining what would be a fair allocation of qualifying tips, gratuities and service charges under this section or section 27E (non-public places of business), regard must be had to the relevant provisions of any code of practice issued under this Part.

(4)See also sections 27E (non-public places of business) and 27F (independent troncs).

Textual Amendments

27ENon-public places of businessU.K.

(1)This section applies where—

(a)qualifying tips, gratuities and service charges are paid at, or are otherwise attributable to, a non-public place of business of an employer (the “non-public tips”), and

(b)the employer also has one or more public places of business.

(2)The employer may comply with the requirement in section 27D(1) to ensure that the total amount of the non-public tips is allocated fairly between workers of the employer at the non-public place of business by instead ensuring that the total amount of the non-public tips is allocated fairly between both—

(a)workers of the employer at the non-public place of business, and

(b)workers of the employer at one or more public places of business of the employer.

(3)In this section—

  • “non-public place of business” means a place of business that is not a public place of business;

  • “public place of business” means a place of business where interaction between—

    (a)

    customers of the employer, and

    (b)

    workers of the employer,

    occurs wholly or mainly face-to-face.]

Textual Amendments

[F10927FIndependent troncsU.K.

(1)In this section “relevant tips” means the qualifying tips, gratuities and service charges that—

(a)are paid at, or are otherwise attributable to, a place of business of an employer, and

(b)are paid during a reference period.

(2)Where—

(a)the employer makes arrangements for the total amount of the relevant tips to be allocated between workers of the employer at the place of business by an independent tronc operator, and

(b)it is fair for the employer to make those arrangements,

the employer is to be treated as having ensured that the total amount of the relevant tips is allocated fairly between workers of the employer at the place of business in accordance with section 27D(1).

(3)Where—

(a)the employer makes arrangements for a part of the total amount of the relevant tips to be allocated between workers of the employer at the place of business by an independent tronc operator, and

(b)it is fair for the employer to make those arrangements,

the employer is to be treated as having ensured that that part of the total amount of the relevant tips is allocated fairly between workers of the employer at the place of business in accordance with section 27D(1).

(4)In determining whether it would be fair for an employer to make the arrangements mentioned in subsection (2) or (3), regard must be had to the relevant provisions of any code of practice issued under this Part.

(5)Section 27D(2) does not apply to an amount which—

(a)by virtue of subsection (2) or (3), is treated as having been allocated fairly between workers, and

(b)is payable to the worker by the independent tronc operator.

(6)For the purposes of this section “an independent tronc operator” is a person who the employer reasonably considers to be operating, or intending to operate, independently of the employer, arrangements under which—

(a)the total amount of qualifying tips, gratuities and service charges subject to the arrangements is allocated between workers of the employer at the relevant place of business by the person,

(b)such allocated qualifying tips, gratuities and service charges are payable to such workers by the person or by the employer (or partly by the person and partly by the employer),

(c)amounts payable to workers by the person in accordance with paragraph (b) are not subject to unauthorised deductions by the person, and

(d)all payments made to workers in accordance with paragraph (b) are payments to which paragraph 5(1) of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001 (S.I. 2001/1004) (payments disregarded in the calculation of earnings)—

(i)applies by virtue of the payments meeting the condition in paragraph 5(3) of that Part, or

(ii)would apply by virtue of the payments meeting the condition in paragraph 5(3) of that Part if the modifications in subsection (7) were made to paragraph 5 of that Part.

(7)The modifications are—

(a)each reference to a “secondary contributor” is to be read as a reference to an “employer”;

(b)each reference to an “earner” is to be read as a reference to a “worker”.

(8)The Secretary of State may by regulations—

(a)amend the definition of “independent tronc operator” in this section in consequence of the making of social security contributions regulations, and

(b)consequentially amend any other provision of this Part.

(9)In this section—

  • “reference period” means a period of at least one day, as determined by the employer from time to time;

  • “social security contributions regulations” means any regulations making provision related to social security contributions of employers or workers;

  • “unauthorised deduction” means a deduction that is not required or authorised to be made by virtue of a statutory provision.]

Textual Amendments

[F11027GWhen tips etc must be dealt withU.K.

The employer must—

(a)ensure that a qualifying tip, gratuity or service charge is allocated in accordance with section 27D(1), and

(b)make any payment that the employer is required to make to a worker under section 27D(2) as a result of that allocation,

no later than the end of the month following the month in which the tip, gratuity or service charge was paid by the customer.]

Textual Amendments

[F11127HAgency workersU.K.

(1)In this Part an “eligible agency worker” is an individual—

(a)who is supplied by a person (the “agent”) to do work for another person (the “principal”) under a contract or other arrangements made between the agent and the principal, but

(b)who is not, as respects that work, a worker of the principal because of the absence of a worker’s contract between the individual and the principal, and

(c)who is not a party to a contract under which the individual undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

(2)Where an eligible agency worker does work for the principal at a place of business of the principal, this Part applies as if—

(a)the eligible agency worker were a worker of the principal, and

(b)the principal were the employer of the eligible agency worker.

(3)Where an amount is payable to an eligible agency worker under section 27D(2)—

(a)the amount may instead be paid to the agent (within the period specified in section 27G);

(b)the employer must not make any unauthorised deductions from the amount (whether or not the amount is paid to the agent under paragraph (a)).

(4)Where an amount is paid to the agent under subsection (3)—

(a)the amount becomes payable to the eligible agency worker by the agent before the end of the month after the month in which the agent is paid the amount under subsection (3), and

(b)the agent must not make any unauthorised deductions from the amount.

(5)In this section “unauthorised deduction” means a deduction that is not required or authorised to be made by virtue of a statutory provision.

(6)In this Part a reference to an eligible agency worker includes, where the context requires, a reference to a former eligible agency worker.]

Textual Amendments

[F112InformationU.K.

Textual Amendments

F112Ss. 27I, 27J and cross-heading inserted (31.7.2023 for specified purposes) by Employment (Allocation of Tips) Act 2023 (c. 13), ss. 6, 14(2); S.I. 2023/876, reg. 3(a)

27IWritten policyU.K.

(1)Where qualifying tips, gratuities and service charges are paid at, or are otherwise attributable to, a place of business of an employer on more than an occasional and exceptional basis, the employer must have a written policy on dealing with qualifying tips, gratuities and service charges for the place of business.

(2)A written policy for a place of business must include the following information—

(a)whether the employer requires or encourages customers to pay tips, gratuities and service charges at the place of business;

(b)how the employer ensures that all qualifying tips, gratuities and service charges paid at, or otherwise attributable to, the place of business are dealt with in accordance with this Part, including how the employer allocates qualifying tips, gratuities and service charges between workers at the place of business.

(3)Where an employer is required by this section to have a written policy for a place of business, the employer must make the written policy available to all workers of the employer at the place of business.

(4)Subsection (5) applies in a case where—

(a)an employer is not required by this section to have a written policy for a place of business, but

(b)the employer would be required by this section to have such a written policy if worker-received tips paid at, or otherwise attributable to, the place of business were qualifying tips, gratuities and service charges.

(5)In that case, the employer must make the following information available to all workers of the employer at the place of business—

(a)the fact that the employer is not required by this section to have a written policy for the place of business, and

(b)the reasons why the employer is not required by this section to have such a written policy.

(6)Where—

(a)an employer makes a written policy available to workers at a place of business under this section, and

(b)the employer subsequently amends that policy,

the employer must make the amended version of the policy available to all workers of the employer at the place of business.

27JRecordsU.K.

(1)Where qualifying tips, gratuities and service charges are paid at, or are otherwise attributable to, a place of business of an employer on more than an occasional and exceptional basis, the employer must—

(a)create a record of how every qualifying tip, gratuity and service charge paid at, or otherwise attributable to, the place of business has been dealt with in accordance with this Part, and

(b)maintain that record for a period of three years beginning with the date on which the qualifying tip, gratuity or service charge was paid.

(2)The record required by subsection (1) must include—

(a)the amount of qualifying tips, gratuities and service charges paid at, or otherwise attributable to, the place of business;

(b)the amount of those qualifying tips, gratuities and service charges—

(i)that the employer allocated to workers of the employer at the place of business;

(ii)that the employer arranged to be allocated to workers of the employer at the place of business by an independent tronc operator in accordance with section 27F.

(3)A worker of an employer may make a written request for the employer to provide the following records for a period specified in the request in relation to a place of business of the employer that the worker worked at—

(a)the amount of qualifying tips, gratuities and service charges paid at, or otherwise attributable to, the place of business;

(b)the amount of those qualifying tips, gratuities and service charges—

(i)that the employer allocated to the worker;

(ii)that the employer arranged to be allocated to workers of the employer at the place of business by an independent tronc operator in accordance with section 27F.

(4)Where—

(a)an employer receives a request from a worker under subsection (3) for records in relation to a place of business of the employer, and

(b)the employer is required by this section to maintain those records,

the employer must, within the response period, provide the worker with the requested records in respect of the period specified in the request or a substantially similar period.

(5)Subsection (6) applies in a case where—

(a)an employer receives a request from a worker under subsection (3) for records in relation to a place of business of the employer,

(b)the employer is not required by this section to maintain those records, but

(c)the employer would be required by this section to maintain those records if worker-received tips paid at, or otherwise attributable to, the place of business were qualifying tips, gratuities and service charges.

(6)In that case, the employer must, within the response period, notify the worker—

(a)that the employer is not required by this section to maintain the requested records, and

(b)of the reasons why the employer is not required by this section to maintain those records.

(7)A worker may request records under this section in respect of a period only if—

(a)the period is a period of one month or two or more consecutive months,

(b)the period begins no more than three years before the date of the request,

(c)the period ends before the date of the request, and

(d)the worker worked for the employer at any time during each month that forms part of the request.

(8)A worker may not make more than one request for records under this section in any three month period.

(9)Except as provided by subsection (10), a disclosure of information required by subsection (4) does not breach—

(a)any obligation of confidence owed by the person making the disclosure, or

(b)any other restriction on the disclosure of information (however imposed).

(10)Subsection (4) does not require a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account).

(11)In this section—

  • “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act);

  • “date of the request” means the date that the request is received by the employer;

  • “response period” means the period of four weeks beginning with the date of the request.]

[F113EnforcementU.K.

Textual Amendments

F113Ss. 27K-27M and cross-heading inserted (31.7.2023 for specified purposes) by Employment (Allocation of Tips) Act 2023 (c. 13), ss. 7, 14(2); S.I. 2023/876, reg. 3(a)

27KComplaints to employment tribunal about tips etcU.K.

(1)A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with—

(a)section 27D (how tips etc must be dealt with), or

(b)section 27G (when tips etc must be dealt with),

in relation to the worker.

(2)An eligible agency worker may also present a complaint to an employment tribunal that an agent has failed to comply with the requirement to make a payment to the eligible agency worker that the agent was required to make under section 27H(4).

(3)An employment tribunal must not consider a complaint under this section unless it is presented before the end of the period of twelve months beginning with the date of the failure to comply.

(4)But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of twelve months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

(5)If a complaint is presented under this section in respect of a series of failures to comply, the reference in subsection (3) to the date of the failure to comply is to the date of the last failure in the series.

(6)An eligible agency worker may present a complaint under subsection (2) whether or not the eligible agency worker also presents a complaint under subsection (1).

(7)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3).

27LDetermination of complaints about tips etcU.K.

(1)If an employment tribunal finds a complaint under section 27K well founded—

(a)it must make a declaration to that effect, and

(b)it may—

(i)in the case of a complaint under section 27K(1), make an order requiring the employer to deal with qualifying tips, gratuities and service charges that were paid at, or were otherwise attributable to, a place of business of the employer in accordance with this Part;

(ii)in the case of a complaint under section 27K(2), make an order requiring the agent to make a payment to the eligible agency worker of the amount that the agent was required under section 27H to pay to the eligible agency worker.

(2)An order made under subsection (1)(b)(i) may in particular—

(a)require the employer to revise an allocation made by the employer under section 27D;

(b)make a recommendation to the employer regarding that allocation;

(c)require the employer to make a payment to one or more workers of the employer in accordance with this Part (including a worker who is not the complainant).

(3)A recommendation made under subsection (2)(b) is not binding on an employer, but is to be admissible in evidence in proceedings before an employment tribunal; and any provision of the recommendation which appears to the tribunal to be relevant to any question arising in the proceedings is to be taken into account in determining that question.

(4)An order made under subsection (1)(b)(i) following a complaint presented by a worker does not prevent a different worker from presenting a complaint under this Part in relation to the same employer or the same qualifying tips, gratuities and service charges.

27MCompensation: dealing with tips etcU.K.

(1)If an employment tribunal makes a declaration under section 27L(1)(a), it may order the employer or agent (as the case may be) to pay to the complainant such amount, not exceeding £5,000, as the tribunal considers appropriate in all the circumstances to compensate the complainant for any financial loss sustained by the complainant which is attributable to the matter complained of.

(2)The tribunal may make an order under this section whether or not an order under section 27L(1)(b) has been made.]

[F11427NComplaints to employment tribunal about informationU.K.

(1)A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with a requirement in section 27I (written policy) or 27J (records).

(2)An employment tribunal must not consider a complaint under this section unless it is presented before the end of the period of three months beginning with the date of the failure to comply.

(3)But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

(4)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).

Textual Amendments

27ODetermination of complaints about informationU.K.

(1)If an employment tribunal finds a complaint under section 27N well founded—

(a)it must make a declaration to that effect, and

(b)it may make an order requiring the employer to comply with the requirement in accordance with section 27I or 27J.

(2)If an employment tribunal makes a declaration under subsection (1)(a), it may order the employer to pay to the worker such amount, not exceeding £5,000, as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of.

(3)The tribunal may make an order under subsection (2) whether or not an order referred to in subsection (1)(b) has been made.]

Textual Amendments

[F115Code of practice about tips etcU.K.

Textual Amendments

27PIssue of code of practiceU.K.

(1)The Secretary of State may issue a code of practice under section 27Q for the purpose of promoting fairness and transparency in the distribution of qualifying tips, gratuities and service charges.

(2)The Secretary of State may from time to time revise the whole or any part of a code of practice and issue that revised code of practice under section 27Q.

27QProcedure for issue of code of practiceU.K.

(1)If the Secretary of State proposes to issue a code of practice under this section the Secretary of State must—

(a)consult ACAS;

(b)publish a draft of the code of practice;

(c)consider any representations made about the draft code of practice and modify the draft code of practice accordingly.

(2)If the Secretary of State decides to proceed with the draft code of practice, the Secretary of State must—

(a)lay it before both Houses of Parliament, and

(b)if it is approved by resolution of each House, issue the code of practice in the form of the draft.

(3)A code of practice issued under this section comes into effect on such day as the Secretary of State may by regulations appoint.

27RConsequential revision of code of practiceU.K.

(1)A code of practice issued under section 27Q may be revised by the Secretary of State in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

(2)In this section “subsequent statutory provisions” means provisions made by or under an Act of Parliament and coming into force after the code of practice was issued.

(3)If the Secretary of State proposes to revise a code of practice under this section, the Secretary of State must lay a draft of the revised code of practice before each House of Parliament.

(4)If within the period of 40 days beginning with the day on which the draft is laid before Parliament, or, if copies are laid before the two Houses on different days, with the later of the two days, either House so resolves, no further proceedings are to be taken thereon, but without prejudice to the laying before Parliament of a new draft.

(5)In reckoning the period of 40 days no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(6)If no such resolution is passed, the Secretary of State must issue the code of practice in the form of the draft and it comes into effect on such day as the Secretary of State may by regulations appoint.

27SRevocation of code of practiceU.K.

A code of practice issued under this Part may be revoked by the Secretary of State by regulations.

27TFailure to comply with code of practiceU.K.

(1)In proceedings before an employment tribunal, a code of practice issued under this Part is to be admissible in evidence, and any provision of the code of practice which appears to the tribunal to be relevant to any question arising in the proceedings is to be taken into account in determining that question.

(2)A failure on the part of an employer to observe any provision of a code of practice issued under this Part does not of itself render the employer liable to any proceedings.]

[F116GeneralU.K.

Textual Amendments

F116Ss. 27U-27Y and cross-heading inserted (31.7.2023 for specified purposes) by Employment (Allocation of Tips) Act 2023 (c. 13), ss. 10, 14(2); S.I. 2023/876, reg. 3(c)

27UNo restitution claims by employerU.K.

(1)This section applies where—

(a)a worker is allocated an amount of qualifying tips, gratuities and service charges in accordance with section 27D(1) (the “original allocation”),

(b)the employment tribunal makes an order under section 27L(1)(b)(i) that has the effect of requiring the employer to revise that allocation,

(c)the employer subsequently revises the amount of qualifying tips, gratuities and service charges allocated to the worker (the “revised allocation”), and

(d)the amount of the revised allocation is less than the amount of the original allocation.

(2)The difference between the amount of the revised allocation and the amount of the original allocation is not payable by the worker to the employer (and accordingly the employer may not bring proceedings in a court or tribunal to recover from the worker or an agent (as the case may be) the difference between such amounts based wholly or partly on the employment tribunal order).

(3)For the meaning of “agent”, see section 27H.

27VRelationship with contractual rightsU.K.

(1)An entitlement of a worker to be allocated qualifying tips, gratuities and service charges under this Part does not affect any contractual right of the worker to receive an amount representing qualifying tips, gratuities and service charges under a contract of employment (“contractual tips”).

(2)But—

(a)any contractual tips paid to a worker by an employer of that worker in respect of any period are to go towards discharging any liability of that employer to allocate qualifying tips, gratuities and service charges to that worker in respect of that period under this Part, and

(b)any qualifying tips, gratuities and service charges allocated by an employer to a worker under this Part in respect of any period are to go towards discharging any liability of that employer to pay contractual tips to that worker in respect of that period.

27WRestrictions on contracting out of this PartU.K.

(1)A prohibited reimbursement provision in an agreement between an employer and a worker (whether in a contract of employment or not) is void.

(2)A provision in an agreement is a “reimbursement provision” if it purports—

(a)to require the worker to make a payment to the employer, or

(b)to reduce any part of the wages payable to the worker by the employer.

(3)A reimbursement provision is “prohibited” if there is a relationship between—

(a)the payment or reduction, or the amount of the payment or reduction, under the reimbursement provision, and

(b)either—

(i)the worker being allocated qualifying tips, gratuities and service charges, or

(ii)the worker receiving worker-received tips that are not qualifying tips, gratuities and service charges.

(4)The circumstances in which there is a relationship of the kind mentioned in subsection (3) include circumstances where—

(a)the possibility of the worker being allocated qualifying tips, gratuities and service charges,

(b)the amount of qualifying tips, gratuities and service charges to be allocated to the worker,

(c)the possibility of the worker receiving worker-received tips that are not qualifying tips, gratuities and service charges, or

(d)the amount of worker-received tips that are not qualifying tips, gratuities and service charges to be received by the worker,

is wholly or partly dependent on the reimbursement provision having been agreed.

(5)This section is without prejudice to section 203 (restrictions on contracting out).

27XInterpretationU.K.

(1)In this Part—

  • “customer”, in relation to an employer, includes any person who is provided with services by the employer;

  • “place of business”, in relation to an employer, includes any location where the activities of the employer’s business are carried out (whether on a permanent or temporary basis).

(2)Where a qualifying tip, gratuity or service charge is—

(a)attributable to a place of business, but

(b)paid at a different place of business,

this Part applies to the qualifying tip, gratuity or service charge only in relation to the place of business to which it is attributable.

(3)Where an employer-received tip or a worker-received tip is neither paid at, nor otherwise attributable to, a place of business of the employer, this Part applies as if—

(a)the tip were attributable to a place of business of the employer, and

(b)all workers of the employer were at that place of business (whether or not those workers were also at any other place of business of the employer).

(4)Where subsection (3) applies in relation to two or more employer-received tips or worker-received tips, all such tips are attributable (in accordance with that subsection) to the same place of business of the employer.

(5)For the purposes of this Part an employer and a person are to be treated as associated if—

(a)one is a company of which the other (directly or indirectly) has control, or

(b)both are companies of which a third person (directly or indirectly) has control,

and “associated person” is to be construed accordingly.

27YApplicationU.K.

This Part applies in respect of tips, gratuities and service charges paid by customers on or after the date on which section 27D comes into force.]

Part IIIE+W+S Guarantee payments

28 Right to guarantee payment.E+W+S

(1)Where throughout a day during any part of which an employee would normally be required to work in accordance with his contract of employment the employee is not provided with work by his employer by reason of—

(a)a diminution in the requirements of the employer’s business for work of the kind which the employee is employed to do, or

(b)any other occurrence affecting the normal working of the employer’s business in relation to work of the kind which the employee is employed to do,

the employee is entitled to be paid by his employer an amount in respect of that day.

(2)In this Act a payment to which an employee is entitled under subsection (1) is referred to as a guarantee payment.

(3)In this Part—

(a)a day falling within subsection (1) is referred to as a “workless day”, and

(b)“workless period” has a corresponding meaning.

(4)In this Part “day” means the period of twenty-four hours from midnight to midnight.

(5)Where a period of employment begun on any day extends, or would normally extend, over midnight into the following day—

(a)if the employment before midnight is, or would normally be, of longer duration than that after midnight, the period of employment shall be treated as falling wholly on the first day, and

(b)in any other case, the period of employment shall be treated as falling wholly on the second day.

29 Exclusions from right to guarantee payment.E+W+S

(1)An employee is not entitled to a guarantee payment unless he has been continuously employed for a period of not less than one month ending with the day before that in respect of which the guarantee payment is claimed.

(2)F117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An employee is not entitled to a guarantee payment in respect of a workless day if the failure to provide him with work for that day occurs in consequence of a strike, lock-out or other industrial action involving any employee of his employer or of an associated employer.

(4)An employee is not entitled to a guarantee payment in respect of a workless day if—

(a)his employer has offered to provide alternative work for that day which is suitable in all the circumstances (whether or not it is work which the employee is under his contract employed to perform), and

(b)the employee has unreasonably refused that offer.

(5)An employee is not entitled to a guarantee payment if he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

Textual Amendments

F117S. 29(2) omitted (1.10.2002) by virtue of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(2) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

30 Calculation of guarantee payment.E+W+S

(1)Subject to section 31, the amount of a guarantee payment payable to an employee in respect of any day is the sum produced by multiplying the number of normal working hours on the day by the guaranteed hourly rate; and, accordingly, no guarantee payment is payable to an employee in whose case there are no normal working hours on the day in question.

(2)The guaranteed hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day in respect of which the guarantee payment is payable.

(3)But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a)the average number of normal working hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is payable, or

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4)The considerations referred to in subsection (3)(b) are—

(a)the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract, and

(b)the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5)If in any case an employee’s contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsections (2) and (3) have effect as if for the references to the day in respect of which the guarantee payment is payable there were substituted references to the last day on which the original contract was in force.

31 Limits on amount of and entitlement to guarantee payment.E+W+S

(1)The amount of a guarantee payment payable to an employee in respect of any day shall not exceed [F118£38].

(2)An employee is not entitled to guarantee payments in respect of more than the specified number of days in any period of three months.

(3)The specified number of days for the purposes of subsection (2) is the number of days, not exceeding five, on which the employee normally works in a week under the contract of employment in force on the day in respect of which the guarantee payment is claimed.

(4)But where that number of days varies from week to week or over a longer period, the specified number of days is instead—

(a)the average number of such days, not exceeding five, calculated by dividing by twelve the total number of such days during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is claimed, and rounding up the resulting figure to the next whole number, or

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of the employee’s normal working days in a week, not exceeding five, having regard to such of the considerations specified in subsection (5) as are appropriate in the circumstances.

(5)The considerations referred to in subsection (4)(b) are—

(a)the average number of normal working days in a week which the employee could expect in accordance with the terms of his contract, and

(b)the average number of such days of other employees engaged in relevant comparable employment with the same employer.

(6)If in any case an employee’s contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsections (3) and (4) have effect as if for the references to the day in respect of which the guarantee payment is claimed there were substituted references to the last day on which the original contract was in force.

[F119(7)The Secretary of State may by order vary—

(a)the length of the period specified in subsection (2);

(b)a limit specified in subsection (3) or (4).]

Textual Amendments

F119S. 31(7) substituted (25.10.1999) by 1999 c. 26, s. 35; S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I

Modifications etc. (not altering text)

C19S. 31(1): power to amend conferred (17.12.1999) by 1999 c. 26, s. 34(1)(a); S.I. 1999/3374, art. 2(a) (with art. 3)

32 Contractual remuneration.E+W+S

(1)A right to a guarantee payment does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(2)Any contractual remuneration paid to an employee in respect of a workless day goes towards discharging any liability of the employer to pay a guarantee payment in respect of that day; and, conversely, any guarantee payment paid in respect of a day goes towards discharging any liability of the employer to pay contractual remuneration in respect of that day.

(3)For the purposes of subsection (2), contractual remuneration shall be treated as paid in respect of a workless day—

(a)where it is expressed to be calculated or payable by reference to that day or any part of that day, to the extent that it is so expressed, and

(b)in any other case, to the extent that it represents guaranteed remuneration, rather than remuneration for work actually done, and is referable to that day when apportioned rateably between that day and any other workless period falling within the period in respect of which the remuneration is paid.

33 Power to modify provisions about guarantee payments.E+W+S

The Secretary of State may by order provide that in relation to any description of employees the provisions of—

(a)sections 28(4) and (5), 30, 31(3) to (5) (as originally enacted or as varied under section 31(7)) and 32, and

(b)so far as they apply for the purposes of those provisions, Chapter II of Part XIV and section 234,

shall have effect subject to such modifications and adaptations as may be prescribed by the order.

34 Complaints to [F120employment tribunals].E+W+S

(1)An employee may present a complaint to an [F120employment tribunal] that his employer has failed to pay the whole or any part of a guarantee payment to which the employee is entitled.

(2)An [F120employment tribunal] shall not consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal—

(a)before the end of the period of three months beginning with that day, or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

[F121(2A)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).]

(3)Where an [F120employment tribunal] finds a complaint under this section well-founded, the tribunal shall order the employer to pay to the employee the amount of guarantee payment which it finds is due to him.

Textual Amendments

F120Words in s. 34(1)(2)(3) and sidenote to s. 34 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

35 Exemption orders.E+W+S

(1)Where—

(a)at any time there is in force a collective agreement, or an agricultural wages order, under which employees to whom the agreement or order relates have a right to guaranteed remuneration, and

(b)on the application of all the parties to the agreement, or of the Board making the order, the appropriate Minister (having regard to the provisions of the agreement or order) is satisfied that section 28 should not apply to those employees,

he may make an order under this section excluding those employees from the operation of that section.

(2)In subsection (1) “agricultural wages order” means an order made under—

F122(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)section 3 of the M4Agricultural Wages (Scotland) Act 1949.

(3)In subsection (1) “the appropriate Minister” means—

(a)in relation to a collective agreement or to an order such as is referred to in subsection (2)(b), the Secretary of State, F123...

F123(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The Secretary of State shall not make an order under this section in respect of an agreement unless—

(a)the agreement provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee claims that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement and those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached, or

(b)the agreement indicates that an employee to whom the agreement relates may present a complaint to an [F124employment tribunal] that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement.

(5)Where an order under this section is in force in respect of an agreement indicating as described in paragraph (b) of subsection (4) an [F124employment tribunal] shall have jurisdiction over a complaint such as is mentioned in that paragraph as if it were a complaint falling within section 34.

(6)An order varying or revoking an earlier order under this section may be made in pursuance of an application by all or any of the parties to the agreement in question, or the Board which made the order in question, or in the absence of such an application.

Textual Amendments

F122S. 35(2)(a) repealed (1.10.2013 for E.) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 20 para. 2; S.I. 2013/1455, art. 3(b), Sch. 2 (with art. 4(2)(4)) (as amended (7.9.2013) by S.I. 2013/2271, art. 2)

F123S. 35(3)(b) and word in s. 35(3)(a) repealed (1.10.2013 for E.) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 20 para. 2; S.I. 2013/1455, art. 3(b), Sch. 2 (with art. 4(2)(4)) (as amended (7.9.2013) by S.I. 2013/2271, art. 2)

F124Words in s. 35(5) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Marginal Citations

Part IVE+W+S Sunday working for shop and betting workers

Protected shop workers and betting workersE+W+S

36 Protected shop workers and betting workers.E+W+S

(1)Subject to subsection (5), a shop worker or betting worker is to be regarded as “protected” for the purposes of any provision of this Act if (and only if) subsection (2) or (3) applies to him.

(2)This subsection applies to a shop worker or betting worker if—

(a)on the day before the relevant commencement date he was employed as a shop worker or a betting worker but not to work only on Sunday,

(b)he has been continuously employed during the period beginning with that day and ending with the day which, in relation to the provision concerned, is the appropriate date, and

(c)throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker.

(3)This subsection applies to any shop worker or betting worker whose contract of employment is such that under it he—

(a)is not, and may not be, required to work on Sunday, and

(b)could not be so required even if the provisions of this Part were disregarded.

(4)Where on the day before the relevant commencement date an employee’s relations with his employer had ceased to be governed by a contract of employment, he shall be regarded as satisfying subsection (2)(a) if—

(a)that day fell in a week which counts as a period of employment with that employer under section 212(2) or (3) or under regulations under section 219, and

(b)on the last day before the relevant commencement date on which his relations with his employer were governed by a contract of employment, the employee was employed as a shop worker or a betting worker but not to work only on Sunday.

(5)A shop worker is not a protected shop worker, and a betting worker is not a protected betting worker, if—

(a)he has given his employer an opting-in notice on or after the relevant commencement date, and

(b)after giving the notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday.

(6)In this Act “opting-in notice”, in relation to a shop worker or a betting worker, means written notice, signed and dated by the shop worker or betting worker, in which the shop worker or betting worker expressly states that he wishes to work on Sunday or that he does not object to Sunday working.

(7)[F125Subject to subsection (8),] in this Act “the relevant commencement date” means—

(a)in relation to a shop worker, 26th August 1994, and

(b)in relation to a betting worker, 3rd January 1995.

[F126(8) In any provision of this Act which applies to Scotland by virtue of section 1(5) of the Sunday Working (Scotland) Act 2003 (extension to Scotland of provisions which refer to shop workers and betting workers), “ the relevant commencement date ” means, in relation to Scotland, the date on which that section came into force. ]

Extent Information

E2S. 36, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

37 Contractual requirements relating to Sunday work.E+W+S

(1)Any contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday on or after that date, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday on or after that date.

(2)Subject to subsection (3), any agreement entered into after the relevant commencement date between a protected shop worker, or a protected betting worker, and his employer is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday.

(3)Where, after giving an opting-in notice, a protected shop worker or a protected betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be protected), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

F127(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of section 36(2)(b), the appropriate date—

(a)in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, F128. . .

F127(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E3S. 37, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

F128Word “and” after s. 37(5)(a) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 6(b), Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

38 Contracts with guaranteed hours.E+W

(1)This section applies where—

(a)under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the employer is, or may be, required to provide him with shop work, or betting work, for a specified number of hours each week,

(b)under the contract the shop worker or betting worker was, or might have been, required to work on Sunday before that date, and

(c)the shop worker has done shop work, or the betting worker betting work, on Sunday in that employment (whether or not before that day) but has, on or after that date, ceased to do so.

(2)So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall not be regarded as requiring the employer to provide him with shop work, or betting work, on weekdays in excess of the hours normally worked by the shop worker or betting worker on weekdays before he ceased to do shop work, or betting work, on Sunday.

(3)For the purposes of section 36(2)(b), the appropriate date in relation to this section is any time in relation to which the contract is to be enforced.

39 Reduction of pay etc.E+W

(1)This section applies where—

(a)under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the shop worker or betting worker was, or might have been, required to work on Sunday before the relevant commencement date,

(b)the shop worker has done shop work, or the betting worker has done betting work, on Sunday in that employment (whether or not before that date) but has, on or after that date, ceased to do so, and

(c)it is not apparent from the contract what part of the remuneration payable, or of any other benefit accruing, to the shop worker or betting worker was intended to be attributable to shop work, or betting work, on Sunday.

(2)So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall be regarded as enabling the employer to reduce the amount of remuneration paid, or the extent of the other benefit provided, to the shop worker or betting worker in respect of any period by the relevant proportion.

(3)In subsection (2) “the relevant proportion” means the proportion which the hours of shop work, or betting work, which (apart from this Part) the shop worker, or betting worker, could have been required to do on Sunday in the period (“the contractual Sunday hours”) bears to the aggregate of those hours and the hours of work actually done by the shop worker, or betting worker, in the period.

(4)Where, under the contract of employment, the hours of work actually done on weekdays in any period would be taken into account in determining the contractual Sunday hours, they shall be taken into account in determining the contractual Sunday hours for the purposes of subsection (3).

(5)For the purposes of section 36(2)(b), the appropriate date in relation to this section is the end of the period in respect of which the remuneration is paid or the benefit accrues.

Opting-out of Sunday workE+W+S

40 Notice of objection to Sunday working.E+W+S

(1)A shop worker or betting worker to whom this section applies may at any time give his employer written notice, signed and dated by the shop worker or betting worker, to the effect that he objects to Sunday working.

(2)In this Act “opting-out notice” means a notice given under subsection (1) by a shop worker or betting worker to whom this section applies.

(3)This section applies to any shop worker or betting worker who under his contract of employment—

(a)is or may be required to work on Sunday (whether or not as a result of previously giving an opting-in notice), but

(b)is not employed to work only on Sunday.

Extent Information

E4S. 40, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

41 Opted-out shop workers and betting workers.E+W+S

(1)Subject to subsection (2), a shop worker or betting worker is to be regarded as “opted-out” for the purposes of any provision of this Act if (and only if)—

(a)he has given his employer an opting-out notice,

(b)he has been continuously employed during the period beginning with the day on which the notice was given and ending with the day which, in relation to the provision concerned, is the appropriate date, and

(c)throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker.

(2)A shop worker is not an opted-out shop worker, and a betting worker is not an opted-out betting worker, if—

(a)after giving the opting-out notice concerned, he has given his employer an opting-in notice, and

(b)after giving the opting-in notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday.

[F129(3)In this Act “notice period”, in relation to an opted-out shop worker or an opted-out betting worker, means—

(a)in the case of an opted-out shop worker who does shop work in or about a large shop, the period of one month beginning with the day on which the opting-out notice concerned was given;

(b)in any other case, the period of three months beginning with that day.

This subsection is subject to sections 41D(2) and 42(2).]

Extent Information

E5S. 41, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

F129S. 41(3) substituted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 2

Modifications etc. (not altering text)

[F13041ANotice of objection by shop workers to working additional hours on SundayE+W+S

(1)A shop worker may at any time give to his or her employer a written notice, signed and dated by the shop worker, to the effect that he or she objects to doing shop work for additional hours on Sunday.

(2)In this Part—

  • “additional hours” means any number of hours of shop work that a shop worker is (or could be) required to work under a contract of employment on Sunday that are (or would be) in excess of the shop worker's normal Sunday working hours;

  • “objection notice” means a notice given under subsection (1).

(3)The “normal Sunday working hours” of a shop worker are to be calculated in accordance with regulations.

(4)Regulations under this section may provide—

(a)for the calculation to be determined (for example) by reference to the average number of hours that the shop worker has worked on Sundays during a period specified or described in the regulations;

(b)for a calculation of the kind mentioned in paragraph (a) to be varied in special cases;

(c)for the right to give an objection notice not to be exercisable in special cases (and subsection (1) is subject to provision made by virtue of this paragraph).

(5)Provision under subsection (4)(b) or (c) may, in particular, include provision—

(a)about how the calculation of normal Sunday working hours is to be made in the case of a shop worker who has not been employed for a sufficient period of time to enable a calculation to be made as otherwise provided for in the regulations;

(b)for the right to give an objection notice not to be exercisable by such a shop worker until he or she has completed a period of employment specified or described in the regulations.

(6)But regulations under this section may not include provision preventing a shop worker who has been continuously employed under a contract of employment for a period of one year or more from giving to the employer an objection notice.

(7)Regulations under this section may make different provision for different purposes.

Textual Amendments

F130Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

41BExplanatory statement: persons who become shop workersE+W+S

(1)This section applies where a person becomes a shop worker who, under a contract of employment, is or may be required to do shop work on Sundays.

(2)The employer must give to the shop worker a written statement informing the shop worker of the following rights—

(a)the right to object to working on Sundays by giving the employer an opting-out notice (if section 40 applies to the shop worker);

(b)the right to object to doing shop work for additional hours on Sundays by giving the employer an objection notice.

(3)The statement must be given before the end of the period of two months beginning with the day on which the person becomes a shop worker as mentioned in subsection (1).

(4)An employer does not fail to comply with subsections (2) and (3) in a case where, before the end of the period referred to in subsection (3), the shop worker has given to the employer an opting-out notice (and that notice has not been withdrawn).

(5)A statement under this section must comply with such requirements as to form and content as regulations may provide.

(6)Regulations under this section may make different provision for different purposes.

Textual Amendments

F130Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

41CExplanatory statement: shop workers at commencement dateE+W+S

(1)This section applies where—

(a)under a contract of employment a shop worker is or may be required to do shop work on Sundays, and

(b)the shop worker was employed under that contract on the day before the commencement date.

(2)The shop worker's employer must give to the shop worker a written statement informing the shop worker of the rights mentioned in section 41B(2).

(3)The statement must be given before the end of the period of two months beginning with the commencement date.

(4)An employer does not fail to comply with subsections (2) and (3) in a case where, before the end of the period referred to in subsection (3), the shop worker has given to the employer an opting-out notice (and that notice has not been withdrawn).

(5)A statement under this section must comply with such requirements as to form and content as regulations may provide.

(6)Regulations under this section may make different provision for different purposes.

(7)In this section “commencement date” means the date appointed by regulations under section 44 of the Enterprise Act 2016 for the coming into force of section 33 of, and Schedule 5 to, that Act.

Textual Amendments

F130Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

41DFailure to give explanatory statement under section 41B or 41CE+W+S

(1)This section applies if an employer fails to give to a shop worker a written statement in accordance with—

(a)section 41B(2) and (3), or

(b)section 41C(2) and (3).

(2)If the shop worker gives to the employer an opting-out notice, the notice period under section 41(3) that applies in relation to the shop worker is varied as follows—

(a)if the notice period under that provision would have been one month, it becomes 7 days instead;

(b)if the notice period under that provision would have been three months, it becomes one month instead.

(3)If the shop worker gives to the employer an objection notice, the relevant period under section 43ZA(2) that applies in relation to the shop worker is varied as follows—

(a)if the relevant period under that provision would have been one month, it becomes 7 days instead;

(b)if the relevant period under that provision would have been three months, it becomes one month instead.]

Textual Amendments

F130Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

42 Explanatory statement [F131: betting workers].E+W+S

(1)Where a person becomes a F132... betting worker to whom section 40 applies, his employer shall, before the end of the period of two months beginning with the day on which that person becomes such a worker, give him a written statement in the prescribed form.

(2)If—

(a)an employer fails to comply with subsection (1) in relation to any F133... betting worker, and

(b)the F134... betting worker, on giving the employer an opting-out notice, becomes F135... an opted-out betting worker,

section 41(3) has effect in relation to the F136... betting worker with the substitution for “three months” of “one month”.

(3)An employer shall not be regarded as failing to comply with subsection (1) in any case where, before the end of the period referred to in that subsection, the F137... betting worker has given him an opting-out notice.

F138(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Subject to subsection (6), the prescribed form in the case of a betting worker is as follows—

“ Statutory Rights in Relation to Sunday Betting WorkE+W+S

You have become employed under a contract of employment under which you are or can be required to do Sunday betting work, that is to say, work—

at a track on a Sunday on which your employer is taking bets at the track, or

in a licensed betting office on a Sunday on which it is open for business.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to do Sunday betting work once three months have passed from the date on which you gave the notice.

Your notice must—

be in writing;

be signed and dated by you;

say that you object to doing Sunday betting work.

For three months after you give the notice, your employer can still require you to do all the Sunday betting work your contract provides for. After the three month period has ended, you have the right to complain to an [F139employment tribunal] if, because of your refusal to do Sunday betting work, your employer—

dismisses you, or

does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to do Sunday betting work or that you do not object to doing Sunday betting work and then agreeing with your employer to do such work on Sundays or on a particular Sunday.”

(6)The Secretary of State may by order amend the prescribed [F140form] set out in [F141subsection (5)].

Extent Information

E6S. 42, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

F131Words in s. 42 heading inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(2)

F132Words in s. 42(1) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(3)

F133Words in s. 42(2)(a) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(4)(a)

F134Words in s. 42(2)(b) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(4)(b)(i)

F135Words in s. 42(2)(b) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(4)(b)(ii)

F136Words in s. 42(2) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(4)(c)

F137Words in s. 42(3) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(5)

F138S. 42(4) omitted (4.5.2016 for specified purposes) by virtue of Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(6)

F139Words in s. 42(4)(5) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F140Word in s. 42(6) substituted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(7)(a)

F141Words in s. 42(6) substituted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 4(7)(b)

Modifications etc. (not altering text)

43 Contractual requirements relating to Sunday work [F142: opting-out notices].E+W+S

(1)Where a shop worker or betting worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(2)Subject to subsection (3), any agreement entered into between an opted-out shop worker, or an opted-out betting worker, and his employer is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(3)Where, after giving an opting-in notice, an opted-out shop worker or an opted-out betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

F143(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of section 41(1)(b), the appropriate date—

(a)in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, F144. . .

F143(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E7S. 43, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

F142Words in s. 43 heading inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 5

F144Word “and” after s. 43(5)(a) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 7(b), Sch. 9(2); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

[F14543ZAContractual requirements relating to working additional hours on Sundays: objection noticesE+W+S

(1)Where a shop worker gives to his or her employer an objection notice, any agreement entered into between the shop worker and the employer becomes unenforceable to the extent that—

(a)it requires the shop worker to do shop work for additional hours on Sunday after the end of the relevant period, or

(b)it requires the employer to provide the shop worker with shop work for additional hours on Sunday after the end of that period.

(2)The “relevant period” is—

(a)in the case of a shop worker who is or may be required to do shop work in or about a large shop, the period of one month beginning with the day on which the objection notice is given;

(b)in any other case, the period of three months beginning with that day.

This subsection is subject to section 41D(3).

(3)A shop worker who has given an objection notice may revoke the notice by giving a further written notice to the employer.

(4)Where—

(a)a shop worker gives to the employer a notice under subsection (3), and

(b)after giving the notice the shop worker expressly agrees with the employer to do shop work for additional hours on Sunday (whether on Sundays generally or on a particular Sunday),

the contract of employment between the shop worker and the employer is to be taken to be varied to the extent necessary to give effect to the terms of the agreement.

(5)The reference in subsection (1) to any agreement—

(a)includes the contract of employment under which the shop worker is employed immediately before giving the objection notice;

(b)includes an agreement of a kind mentioned in subsection (4), or a contract of employment as taken to be varied under that subsection, only if an objection notice is given in relation to the working of additional hours under that agreement or contract as varied.

Textual Amendments

F145Ss. 43ZA, 43ZB inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 6

43ZBInterpretationE+W+S

(1)In this Part—

  • “additional hours” has the meaning given in section 41A(2);

  • “large shop” means a shop which has a relevant floor area exceeding 280 square metres;

  • “objection notice” has the meaning given in section 41A(2);

  • “regulations” means regulations made by the Secretary of State.

(2)In the definition of “large shop” in subsection (1)—

(a)“shop” means any premises where there is carried on a trade or business consisting wholly or mainly of the sale of goods;

(b)“relevant floor area” means the internal floor area of so much of the large shop in question as consists of or is comprised in a building.

(3)For the purposes of subsection (2), any part of the shop which is not used for the serving of customers in connection with the sale or display of goods is to be disregarded.

(4)The references in subsections (2) and (3) to the sale of goods does not include—

(a)the sale of meals, refreshments or alcohol (within the meaning of the Licensing Act 2003 or, in relation to Scotland, the Licensing (Scotland) Act 2005 (asp 16)) for consumption on the premises on which they are sold, or

(b)the sale of meals or refreshments prepared to order for immediate consumption off those premises.]

Textual Amendments

F145Ss. 43ZA, 43ZB inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 6

[F146Part IVAE+W+S Protected disclosures

Textual Amendments

F146Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

43A Meaning of “protected disclosure”.E+W+S

In this Act a “ protected disclosure ” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

43B Disclosures qualifying for protection.E+W+S

(1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [F147 is made in the public interest and ] tends to show one or more of the following—

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4)A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

Textual Amendments

F147Words in s. 43B(1) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 17, 103(2) (with s. 24(6))

43C Disclosure to employer or other responsible person.E+W+S

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure F148 ...—

(a)to his employer, or

(b)where the worker reasonably believes that the relevant failure relates solely or mainly to—

(i)the conduct of a person other than his employer, or

(ii)any other matter for which a person other than his employer has legal responsibility,

to that other person.

(2)A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

Textual Amendments

F148Words in s. 43C(1) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(1)(a), 103(2) (with s. 24(6))

43D Disclosure to legal adviser.E+W+S

A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice.

43E Disclosure to Minister of the Crown.E+W+S

A qualifying disclosure is made in accordance with this section if—

(a)the worker’s employer is—

(i)an individual appointed under any enactment [F149(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)] by a Minister of the Crown [F149or a member of the Scottish Executive], or

(ii)a body any of whose members are so appointed, and

(b) the disclosure is made F150 ... to a Minister of the Crown [F149 or a member of the Scottish Executive ] .

Textual Amendments

F149Words in s. 43E inserted (27.7.2000) by S.I. 2000/2040, art. 2, Sch. Pt. I para. 19(2)(3) (with art. 3)

F150Words in s. 43E(b) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(1)(b), 103(2) (with s. 24(6))

43F Disclosure to prescribed person.E+W+S

(1)A qualifying disclosure is made in accordance with this section if the worker—

(a) makes the disclosure F151 ... to a person prescribed by an order made by the Secretary of State for the purposes of this section, and

(b)reasonably believes—

(i)that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

(ii)that the information disclosed, and any allegation contained in it, are substantially true.

(2)An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.

Textual Amendments

F151Words in s. 43F(1)(a) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(1)(c), 103(2) (with s. 24(6))

[F15243FAPrescribed persons: duty to report on disclosures of informationE+W+S

(1)The Secretary of State may make regulations requiring a person prescribed for the purposes of section 43F to produce an annual report on disclosures of information made to the person by workers.

(2)The regulations must set out the matters that are to be covered in a report, but must not require a report to provide detail that would enable either of the following to be identified—

(a)a worker who has made a disclosure;

(b)an employer or other person in respect of whom a disclosure has been made.

(3)The regulations must make provision about the publication of a report, and such provision may include (but is not limited to) any of the following requirements—

(a)to send the report to the Secretary of State for laying before Parliament;

(b)to include the report in another report or in information required to be published by the prescribed person;

(c)to publish the report on a website.

(4)The regulations may make provision about the time period within which a report must be produced and published.

(5)Regulations under subsections (2) to (4) may make different provision for different prescribed persons.]

Textual Amendments

43G Disclosure in other cases.E+W+S

(1)A qualifying disclosure is made in accordance with this section if—

F153( a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)[F154the worker] reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)any of the conditions in subsection (2) is met, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)The conditions referred to in subsection (1)(d) are—

(a)that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b)that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c)that the worker has previously made a disclosure of substantially the same information—

(i)to his employer, or

(ii)in accordance with section 43F.

(3)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

(a)the identity of the person to whom the disclosure is made,

(b)the seriousness of the relevant failure,

(c)whether the relevant failure is continuing or is likely to occur in the future,

(d)whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e)in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f)in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4)For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

Textual Amendments

F153S. 43G(1)(a) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(2)(a), 103(2) (with s. 24(6))

F154Words in s. 43G(1)(b) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(2)(b), 103(2) (with s. 24(6))

43H Disclosure of exceptionally serious failure.E+W+S

(1)A qualifying disclosure is made in accordance with this section if—

F155( a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)[F156the worker] reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)the relevant failure is of an exceptionally serious nature, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

Textual Amendments

F155S. 43H(1)(a) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(3)(a), 103(2) (with s. 24(6))

F156Words in s. 43H(1)(b) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(3)(b), 103(2) (with s. 24(6))

43J Contractual duties of confidentiality.E+W+S

(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

43K Extension of meaning of “worker” etc. for Part IVA. E+W+S

(1) For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who—

(a)works or worked for a person in circumstances in which—

(i)he is or was introduced or supplied to do that work by a third person, and

(ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b)contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”,

[F157( ba )works or worked as a person performing services under a contract entered into by him with [F158NHS England] [F159under [F160section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,] the National Health Service Act 2006 or with a Local Health Board under [F161section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,] the National Health Service (Wales) Act 2006],]

[F162( bb )works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J [F163or 17Q] of the National Health Service (Scotland) Act 1978,]

(c)[F164works or worked as a person providing services] in accordance with arrangements made—

(i)by [F165[F158NHS England] [F166under section 126 of the National Health Service Act 2006,] or][F167Local Health Board] under [F168section 71 or 80 of the National Health Service (Wales) Act 2006], or

( ii ) by a Health Board under section [F1692C, 17AA, 17C,] F170 . . . 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

[F171(cb) is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2001 (S.I. 2002/253), or]

(d)is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i)under a contract of employment, or

(ii)by an educational establishment on a course run by that establishment;

and any reference to a worker’s contract, to employment or to a worker being “ employed ” shall be construed accordingly.

(2) For the purposes of this Part “ employer ” includes—

(a)in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

[F172(aa)in relation to a worker falling within paragraph (ba) of that subsection, [F173[F158NHS England], or the] Local Health Board referred to in that paragraph,]

[F174(ab)in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph,]

(b)in relation to a worker falling within paragraph (c) of that subsection, [F175NHS England or the board] referred to in that paragraph, and

(c)in relation to a worker falling within paragraph [F176(cb) or] (d) of that subsection, the person providing the work experience or training.

(3) In this section “ educational establishment ” includes any university, college, school or other educational establishment.

[F177(4) The Secretary of State may by order make amendments to this section as to what individuals count as “ workers ” for the purposes of this Part (despite not being within the definition in section 230(3)).

F177( 5 )An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.]

Textual Amendments

F160Words in s. 43K(1)(ba) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(2)(a), 103(2) (with s. 24(6))

F161Words in s. 43K(1)(ba) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(2)(b), 103(2) (with s. 24(6))

F163Words in s. 43K(1)(bb) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(3), 103(2) (with s. 24(6))

F164Words in s. 43K(1)(c) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(4)(a), 103(2) (with s. 24(6))

F167Words in s. 43K(1)(c)(i) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. {para. 27(2)}

F169Words in s. 43K(1)(c)(ii) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(4)(b), 103(2) (with s. 24(6))

F177S. 43K(4)(5) inserted (25.4.2013 for specified purposes) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(7), 103(1)(i)(2) (with s. 24(6))

Modifications etc. (not altering text)

C25S. 43K(1)(bb) modified (S.) (1.4.2004) by The General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004 (S.S.I. 2004/163), art. 96(2)(d)

C26S. 43K(1)(c)(ii) modified (temp) (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(10), 103(2) (with s. 24(6))

[F17843KA Application of this Part and related provisions to policeE+W+S

(1)For the purposes of—

(a)this Part,

(b)section 47B and sections 48 and 49 so far as relating to that section, and

(c)section 103A and the other provisions of Part 10 so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 103A,

a person who holds, otherwise than under a contract of employment, the office of constable or an appointment as a police cadet shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being “ employed ” and to his “ employer ” shall be construed accordingly.

(2) In this section “ the relevant officer ” means—

(a)in relation to a member of a police force or a special constable appointed for a police area, the chief officer of police;

[F179(b)in relation to a member of a police force seconded to the [F180National Crime Agency to serve as a National Crime Agency officer], that Agency; and]

(d)in relation to any other person holding the office of constable or an appointment as police cadet, the person who has the direction and control of the body of constables or cadets in question.]

Textual Amendments

F179S. 43KA(2)(b) substituted for s. 43KA(2)(b)(c) (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178, Sch. 4 para. 85; S.I. 2006/378, art. 4(1), Sch. (subject to art. 4(2)-(7))

F180Words in s. 43KA(2)(b) substituted (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 8 para. 50; S.I. 2013/1682, art. 3(v)

43L Other interpretative provisions.E+W+S

(1)In this Part—

  • “ qualifying disclosure ” has the meaning given by section 43B;

  • “ the relevant failure ”, in relation to a qualifying disclosure, has the meaning given by section 43B(5).

(2)In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any enactment.

(3)Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.]

Part VE+W+S Protection from suffering detriment in employment

Rights not to suffer detrimentE+W+S

[F18143MJury serviceE+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee—

(a)has been summoned under the Juries Act 1974, [F182Part 1 of the Coroners and Justice Act 2009], the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or

(b)has been absent from work because he attended at any place in pursuance of being so summoned.

(2)This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.

(3)For the purposes of this section, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration.

(4) In subsection (3) “ a relevant period ” means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in subsection (1)(a). ]

Textual Amendments

44 Health and safety cases.E+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

(a)having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b)being a representative of workers on matters of health and safety at work or member of a safety committee—

(i)in accordance with arrangements established under or by virtue of any enactment, or

(ii)by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

[F183(ba)the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),]

(c)being an employee at a place where—

(i)there was no such representative or safety committee, or

(ii)there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

F184(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F185(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F186(1A)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that—

(a)in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or

(b)in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.]

(2)For the purposes of subsection [F187(1A)(b)] whether steps which [F188a worker] took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3)[F189A worker] is not to be regarded as having been subjected to any detriment on the ground specified in subsection [F190(1A)(b)] if the employer shows that it was (or would have been) so negligent for [F191the worker] to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4)F192. . . This section does not apply where the [F193worker is an employee and the] detriment in question amounts to dismissal (within the meaning of [F194Part X]).

Textual Amendments

F183S. 44(1)(ba) inserted (1.10.1996) by S.I. 1996/1513, reg. 8

F194Words in s. 44(4) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I (with Sch. 3 para. 2)

45 Sunday working for shop and betting workers.E+W+S

(1)An employee who is—

(a)a protected shop worker or an opted-out shop worker, or

(b)a protected betting worker or an opted-out betting worker,

has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

(2)Subsection (1) does not apply to anything done in relation to an opted-out shop worker or an opted-out betting worker on the ground that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

(3)An employee who is a shop worker or a betting worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee gave (or proposed to give) an opting-out notice to his employer.

(4)Subsections (1) and (3) do not apply where the detriment in question amounts to dismissal (within the meaning of Part X).

(5)For the purposes of this section a shop worker or betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—

(a)a failure to pay remuneration in respect of shop work, or betting work, on a Sunday which he has not done,

(b)a failure to provide him with any other benefit, where that failure results from the application (in relation to a Sunday on which the employee has not done shop work, or betting work) of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or

(c)a failure to provide him with any work, remuneration or other benefit which by virtue of section 38 or 39 the employer is not obliged to provide.

(6)Where an employer offers to pay a sum specified in the offer to any one or more employees—

(a)who are protected shop workers or opted-out shop workers or protected betting workers or opted-out betting workers, or

(b)who under their contracts of employment are not obliged to do shop work, or betting work, on Sunday,

if they agree to do shop work, or betting work, on Sunday or on a particular Sunday subsections (7) and (8) apply.

(7)An employee to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to make the offer to him or to pay him the sum specified in the offer.

(8)An employee who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay him the sum specified in the offer.

(9)For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the date of the act or failure to act.

(10)For the purposes of subsection (9)—

(a)where an act extends over a period, the “date of the act” means the first day of that period, and

(b)a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

Extent Information

E8S. 45, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

[F19545ZASunday working for shop workers: additional hoursE+W+S

(1)Subsection (2) applies where a shop worker has given an objection notice to his or her employer and the notice has not been withdrawn.

(2)The shop worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer done on the ground that the shop worker refused (or proposed to refuse) to do shop work for additional hours on Sunday or on a particular Sunday.

(3)Subsection (2) does not apply to anything done on the ground that the shop worker refused (or proposed to refuse) to do shop work for additional hours on any Sunday or Sundays falling before the end of the relevant period.

(4)A shop worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer on the ground that the shop worker gave (or proposed to give) an objection notice to the employer.

(5)Subsections (2) and (4) do not apply where the detriment in question amounts to dismissal (within the meaning of Part 10).

(6)For the purposes of this section, a shop worker who does not do shop work for additional hours on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—

(a)a failure to pay remuneration in respect of doing shop work for additional hours on Sunday which the shop worker has not done, or

(b)a failure to provide any other benefit where the failure results from the application (in relation to a Sunday on which the shop worker has not done shop work for additional hours) of a contractual term under which the extent of the benefit varies according to the number of hours worked by, or the remuneration paid to, the shop worker.

(7)Subsections (8) and (9) apply where—

(a)an employer offers to pay a sum specified in the offer to a shop worker if he or she agrees to do shop work for additional hours on Sunday or on a particular Sunday, and

(b)the shop worker—

(i)has given an objection notice to the employer that has not been withdrawn, or

(ii)is not obliged under a contract of employment to do shop work for additional hours on Sunday.

(8)A shop worker to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure—

(a)to make the offer to the shop worker, or

(b)to pay the shop worker the sum specified in the offer.

(9)A shop worker who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay the shop worker the sum specified in the offer.

(10)In this section—

  • “additional hours” and “objection notice” have the meanings given by section 41A(2);

  • “relevant period” means the period determined by section 43ZA(2) (but subject to section 41D(3)).]

Textual Amendments

F195S. 45ZA inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 7

[F19645A Working time cases.E+W+S

(1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker—

(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M5 Working Time Regulations 1998,

(b)refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

(c)failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations,

(d)being—

(i)a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or

(ii)a candidate in an election in which any person elected will, on being elected, be such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate,

(e)brought proceedings against the employer to enforce a right conferred on him by those Regulations, or

(f)alleged that the employer had infringed such a right.

(2)It is immaterial for the purposes of subsection (1)(e) or (f)—

(a)whether or not the worker has the right, or

(b)whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.

(3)It is sufficient for subsection (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) This section does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part X F197 . . ..

[F198(5)A reference in this section to the Working Time Regulations 1998 includes a reference to

[F199(a)]the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F200(b)the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.]

[F201(c)the Cross-border Railway Services (Working Time) Regulations 2008]

[F202(d)the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58).]]]

Textual Amendments

F196S. 45A inserted (1.10.1998) by S.I. 1998/1833, reg. 31(1)

Marginal Citations

46 Trustees of occupational pension schemes.E+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

(2)F203. . .this section does not apply where the detriment in question amounts to dismissal (within the meaning of [F204Part X]).

[F205(2A)This section applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).]

(3)In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the M6Pension Schemes Act 1993) established under a trust.

Textual Amendments

F204Words in s. 46(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2(2))

F205S. 46(2A) inserted (11.11.1999 for specified purposes and otherwise 25.4.2000) by 1999 c. 30, s. 18, Sch. 2 para. 19(2); S.I. 2000/1047, art. 2(2), Sch. Pt. II

Modifications etc. (not altering text)

C27S. 46 applied (11.11.1999 for specified purposes and otherwise 8.10.2001) by 1999 c. 30, s. 6(1), 89(1)(5)(a) (with s. 8(6)); S.I. 2000/1047, art. 2(2), Sch. Pt. V

Commencement Information

I4S. 46 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

47 Employee representatives.E+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being—

(a)an employee representative for the M7purposes of Chapter II of Part IV of the M8Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F206regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006] , or

(b)a candidate in an election in which any person elected will, on being elected, be such an employee representative,

he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

[F207(1A) An employee has the right not to be subjected to any detriment by any act, or by any deliberate failure to act, by his employer done on the ground of his participation in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F208 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ] . ]

(2)F209. . . This section does not apply where the detriment in question amounts to a dismissal (within the meaning of [F210Part X]).

Textual Amendments

F206Words in s. 47(1)(a) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(a)

F207S. 47(1A) inserted (28.7.1999) by S.I. 1999/1925, reg. 12

F208Words in s. 47(1A) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(a)

F210Words in s. 47(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

Marginal Citations

[F21147A Employees exercising right to time off work for study or training.E+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer or the principal (within the meaning of section 63A(3)) done on the ground that, being a person entitled to—

(a)time off under section 63A(1) or (3), and

(b)remuneration under section 63B(1) in respect of that time taken off,

the employee exercised (or proposed to exercise) that right or received (or sought to receive) such remuneration.

(2)F212 . . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F213 Part X ] ). ]

Textual Amendments

F211S. 47A inserted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 10 (with s. 42(8)); S.I. 1999/987, art. 2

F213Words in s. 47A(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

[F21447B Protected disclosures.E+W+S

(1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[F215(1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

(a)by another worker of W's employer in the course of that other worker's employment, or

(b)by an agent of W's employer with the employer's authority,

on the ground that W has made a protected disclosure.

(1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.

(1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.

(1D)In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker—

(a)from doing that thing, or

(b)from doing anything of that description.

(1E)A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if—

(a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and

(b)it is reasonable for the worker or agent to rely on the statement.

But this does not prevent the employer from being liable by reason of subsection (1B).]

(2)F216 . . . This section does not apply where—

(a)the worker is an employee, and

(b)the detriment in question amounts to dismissal (within the meaning of [F217Part X]).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K. ]

Textual Amendments

F214S. 47B inserted (2.7.1999) by 1998 c. 23, s. 2; S.I. 1999/1547, art. 2

F217Words in s. 47B(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

[F21847C Leave for family and domestic reasons.E+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

(2)A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to—

(a)pregnancy, childbirth or maternity,

[F219(aa)time off under section 57ZE,]

[F220(ab)time off under section 57ZJ or 57ZL,]

(b)ordinary, compulsory or additional maternity leave,

[F221(ba)ordinary or additional adoption leave,]

[F222(bb)shared parental leave,]

[F223(bc)carer’s leave,]

(c)parental leave,

[F224(ca)F225 ... paternity leave,]

[F226(cb)parental bereavement leave,] or

(d)time off under section 57A.

(3)A reason prescribed under this section in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement.

(4)Regulations under this section may make different provision for different cases or circumstances.

[F227(5)An agency worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the temporary work agency or the hirer done on the ground that—

(a)being a person entitled to—

(i)time off under section 57ZA, and

(ii)remuneration under section 57ZB in respect of that time off,

the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration,

(b)being a person entitled to time off under section 57ZG, the agency worker exercised (or proposed to exercise) that right,

(c)being a person entitled to—

(i)time off under section 57ZN, and

(ii)remuneration under section 57ZO in respect of that time off,

the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration, or

(d)being a person entitled to time off under section 57ZP, the agency worker exercised (or proposed to exercise) that right.

(6)Subsection (5) does not apply where the agency worker is an employee.

(7) In this section the following have the same meaning as in the Agency Workers Regulations 2010 ( S.I. 2010/93)—

  • “agency worker”;

  • “hirer”;

  • “temporary work agency”.]]

Textual Amendments

F227S. 47C(5)-(7) inserted (1.10.2014 for specified purposes, 5.4.2015 for specified purposes) by Children and Families Act 2014 (c. 6), ss. 129(1), 139(6); S.I. 2014/1640, arts. 4(b), 6(e)

[F22847D Tax creditsE+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that—

(a)any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right conferred on the employee by regulations under section 25 of the Tax Credits Act 2002,

(b)a penalty was imposed on the employer, or proceedings for a penalty were brought against him, under that Act, as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, such a right, or

(c)the employee is entitled, or will or may be entitled, to working tax credit.

(2)It is immaterial for the purposes of subsection (1)(a) or (b)—

(a)whether or not the employee has the right, or

(b)whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and (if applicable) the claim that it has been infringed must be made in good faith.

(3)Subsections (1) and (2) apply to a person who is not an employee within the meaning of this Act but who is an employee within the meaning of section 25 of the Tax Credits Act 2002, with references to his employer in those subsections (and sections 48(2) and (4) and 49(1)) being construed in accordance with that section.

(4)Subsections (1) and (2) do not apply to an employee if the detriment in question amounts to dismissal (within the meaning of Part 10).]

Textual Amendments

F228S. 47D inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(2); S.I. 2002/1727, art. 2

[F22947E Flexible workingE+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee—

(a)made (or proposed to make) an application under section 80F,

F230( b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)brought proceedings against the employer under section 80H, or

(d)alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

(2)This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.]

Textual Amendments

[F23147FStudy and trainingE+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employee's employer done on the ground that the employee—

(a)made (or proposed to make) a section 63D application,

(b)exercised (or proposed to exercise) a right conferred on the employee under section 63F,

(c)brought proceedings against the employer under section 63I, or

(d)alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

(2)This section does not apply if the detriment in question amounts to dismissal within the meaning of Part 10.]

Textual Amendments

F231S. 47F inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40(3), 269(4); S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

[F23247GEmployee shareholder statusE+W+S

(1)An employee has the right not to be subjected to a detriment by any act, or any deliberate failure to act, by the employee's employer done on the ground that the employee refused to accept an offer by the employer for the employee to become an employee shareholder (within the meaning of section 205A).

(2)This section does not apply if the detriment in question amounts to dismissal within the meaning of Part 10.]

Textual Amendments

EnforcementE+W+S

48 Complaints to [F233employment tribunals].E+W+S

(1)An employee may present a complaint to an [F233employment tribunal] that he has been subjected to a detriment in contravention of section [F23443M,] [F23544(1)] , 45, [F23646, 47, 47A,][F23747C(1)] [F238, 47E [F239, 47F or 47G]].

[F240(1XA)A worker may present a complaint to an employment tribunal that the worker has been subjected to a detriment in contravention of section 44(1A).]

[F241(1YA)A shop worker may present a complaint to an employment tribunal that he or she has been subjected to a detriment in contravention of section 45ZA.]

[F242(1ZA)A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 45A.]

[F243(1A)A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.]

[F244(1AA)An agency worker may present a complaint to an employment tribunal that the agency worker has been subjected to a detriment in contravention of section 47C(5) by the temporary work agency or the hirer.]

[F245(1B)A person may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47D.]

(2)On [F246a complaint under subsection (1), [F247(1XA),] (1ZA), (1A) or (1B)] it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[F248(2A)On a complaint under subsection (1AA) it is for the temporary work agency or (as the case may be) the hirer to show the ground on which any act, or deliberate failure to act, was done.]

(3)An [F233employment tribunal] shall not consider a complaint under this section unless it is presented—

(a)before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(4)For the purposes of subsection (3)—

(a)where an act extends over a period, the “date of the act” means the last day of that period, and

(b)a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer[F249, a temporary work agency or a hirer] shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[F250(4A)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3)(a).]

[F251(5)In this section and section 49 any reference to the employer [F252includes—]

[F252(a)where] a person complains that he has been subjected to a detriment in contravention of section 47A, the principal (within the meaning of section 63A(3)).

[F253(b)in the case of proceedings against a worker or agent under section 47B(1A), the worker or agent.]]

[F254(6) In this section and section 49 the following have the same meaning as in the Agency Workers Regulations 2010 ( S.I. 2010/93)—

  • “agency worker”;

  • “hirer”;

  • “temporary work agency”.]

Textual Amendments

F233 Words in s. 48(1)(3) and sidenote to s. 48 substituted (1.8.1998) by 1998 c. 8 , s. 1(2)(a)(b) (with s. 16(2) ); S.I. 1998/1658 , art. 2(1) , Sch. 1

F234 Words in s. 48(1) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24) , ss. 40(2) , 59(2)-(4) ; S.I. 2005/872 , arts. 4 , 5 , Sch. (subject to arts. 6-12 )

F236 Words in s. 48(1) substituted (1.9.1999) by 1998 c. 30 , s. 44(1) , Sch. 3 para. 11(a) (with s. 42(8) ); S.I. 1999/987 , art. 2

F238 Words in s. 48(1) substituted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22) , ss. 40 , 269(4) , Sch. 1 para. 2 ; S.I. 2010/303 , art. 4 , Sch. 3 (with arts. 8-14 ) (as amended by S.I. 2010/1151 , art. 22 )

F241S. 48(1YA) inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 8

F242 S. 48(1ZA) inserted (1.10.1998) by S.I. 1998/1833 , reg. 31(2)

F243 S. 48(1A) inserted (2.7.1999) by 1998 c. 23 , s. 3 ; S.I. 1999/1547 , art. 2

F245 S. 48(1B) inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21) , s. 27 , Sch. 1 para. 1(3) ; S.I. 2002/1727 , art. 2

F251 S. 48(5) inserted (1.9.1999) by 1998 c. 30 , s. 44(1) , Sch. 3 para. 11(b) (with s. 42(8) ); S.I. 1999/987 , art. 2

F252 Words in s. 48(5) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24) , ss. 19(2)(a) , 103(3) (with s. 24(6) ); S.I. 2013/1455 , art. 2(a) (with art. 4(2) )

Modifications etc. (not altering text)

C28 S. 48 applied (4.9.2000) by 1999 c. 26 , s. 12(2) (with ss. 14 , 15 ); S.I. 2000/2242 , art. 2

C31 S. 48(2)-(4) applied (with modifications) (1.11.1998) by 1998 c. 39 , s. 24(2)(a) ; S.I. 1998/2574 , art. 2(1) , Sch. 1

S. 48(2)-(4) extended (with modifications) (5.10.1999) by 1999 c. 10 , ss. 7 , 20(2) , Sch. 3 para. 2(2)(a)

S. 48(2)-(4) applied (with modifications) (15.1.2000) by S.I. 1999/3323 , reg. 32(2)(a)

C32 S. 48(2)-(4) applied (with modifications) (8.10.2004) by The European Public Limited- Liability Company Regulations 2004 (S.I. 2004/2326) , regs. 1(2) , 45(2)

C33 S. 48(2)-(4) applied (with modifications)(6.4.2005) by The Information and Consultation of Employees Regulations 2004 (S.I. 2004/3426) , regs.1(1) , 33(2) (with reg. 3 )

C36 S. 48(2)-(4) applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30) , ss. 56(2) , 149(1) (with s. 56(3)-(6) )

C37 S. 48(2)-(4) applied (with modifications) (1.10.2009) by The European Public Limited- Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401) , reg. 32(2) (with reg. 41 )

C38 S. 48(2)-(4) applied (with modifications) (30.6.2012) by Pensions Act 2008 (c. 30) , ss. 56(2) , 149(1) (with s. 56(3)-(6) ); S.I. 2012/1682 , art. 2 , Sch. 2

49 Remedies.E+W+S

(1)Where an [F255employment tribunal] finds a complaint [F256under section 48(1), [F257(1XA),] (1ZA), (1A) or (1B)] well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

[F258(1A)Where an employment tribunal finds a complaint under section 48(1AA) well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the temporary work agency or (as the case may be) the hirer to the complainant in respect of the act or failure to act to which the complaint relates.]

(2)Subject to subsections [F259(5ZA),] (5A) and (6) the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement to which the complaint relates, and

(b)any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3)The loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and

(b)loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.

(4)In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

(5)Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

[F260(5ZA)Where—

(a)the complaint is made under section 48(1XA),

(b)the detriment to which the worker is subjected is the termination of his or her contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 100.]

[F261(5A)Where—

(a)the complaint is made under section 48 (1ZA),

(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 101A. ]

[F262(6)Where—

(a)the complaint is made under section 48(1A),

(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A. ]

[F263(6A)Where—

(a)the complaint is made under section 48(1A), and

(b)it appears to the tribunal that the protected disclosure was not made in good faith,

the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%.]

[F264(7)Where—

(a)the complaint is made under section 48(1B) by a person who is not an employee, and

(b)the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002,

any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the complainant had been an employee and had been dismissed for the reason specified in section 104B.]

Textual Amendments

F255Words in s. 49(1) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F261S. 49(5A) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(b)

F262S. 49(6) inserted (2.7.1999) by 1998 c. 23, s. 4(3); S.I. 1999/1547, art. 2

F264S. 49(7) inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(4); S.I. 2002/1727, art. 2

Modifications etc. (not altering text)

C40S. 49 applied (with modifications) (1.11.1998) by 1998 c. 39, s. 24(2)(a)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1

S. 49 restricted (1.11.1998) by 1998 c. 39, s. 14(3)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1

S. 49 applied (with modifications) (15.1.2000) by S.I. 1999/3323, reg. 32(2)(a)

S. 49 extended (with modifications) (5.10.1999) by 1999 c. 10, ss. 7, 20(2), Sch. 3 para. 2(2)(a)

C41S. 49 applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6))

C42S. 49 applied (with modifications) (30.6.2012) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6)); S.I. 2012/1682, art. 2, Sch. 2

C43S. 49(1)-(5) applied (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 45(3)

C44S. 49(1)-(5) applied (with modifications) (6.4.2005) by The Information and Consultation of Employees Regulations 2004 (S.I. 2004/3426), regs.1(1), 33(2) (with reg. 3)

C48S. 49(1)-(5) applied (1.10.2009) by The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 32(3) (with reg. 41)

[F265 Application to police of rights relating to health and safetyE+W+S

Textual Amendments

F265S. 49A and crossheading inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2

F266 49A Application to police of section 44 and related provisions.E+W+S

(1)For the purposes of section 44, and of sections 48 and 49 so far as relating to that section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as police cadet shall be treated as employment by the relevant officer under a contract of employment.

[F267(2) In this section “ the relevant officer ”, in relation to—

(a)a person holding the office of constable, or

(b)a person holding an appointment as a police cadet,

means the person who under section 51A of the Health and Safety at Work etc. Act 1974 is to be treated as his employer for the purposes of Part 1 of that Act. ]]

Textual Amendments

F266S. 49A inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2

[F268PART 5AE+W+SProtection for applicants for employment etc in the health service

Textual Amendments

49BRegulations prohibiting discrimination because of protected disclosureE+W+S

(1)The Secretary of State may make regulations prohibiting an NHS employer from discriminating against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.

(2)An “applicant”, in relation to an NHS employer, means an individual who applies to the NHS employer for—

(a)a contract of employment,

(b)a contract to do work personally, or

(c)appointment to an office or post.

(3)For the purposes of subsection (1), an NHS employer discriminates against an applicant if the NHS employer refuses the applicant's application or in some other way treats the applicant less favourably than it treats or would treat other applicants in relation to the same contract, office or post.

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

(a)make provision as to circumstances in which discrimination by a worker or agent of an NHS employer is to be treated, for the purposes of the regulations, as discrimination by the NHS employer;

(b)confer jurisdiction (including exclusive jurisdiction) on employment tribunals or the Employment Appeal Tribunal;

(c)make provision for or about the grant or enforcement of specified remedies by a court or tribunal;

(d)make provision for the making of awards of compensation calculated in accordance with the regulations;

(e)make different provision for different cases or circumstances;

(f)make incidental or consequential provision, including incidental or consequential provision amending—

(i)an Act of Parliament (including this Act),

(ii)an Act of the Scottish Parliament,

(iii)a Measure or Act of the National Assembly for Wales, or

(iv)an instrument made under an Act or Measure within any of sub-paragraphs (i) to (iii).

(5)Subsection (4)(f) does not affect the application of section 236(5) to the power conferred by this section.

(6)“NHS employer” means an NHS public body prescribed by regulations under this section.

(7)“NHS public body” means—

(a)[F269NHS England];

[F270(b)an integrated care board;]

(c)a Special Health Authority;

(d)an NHS trust;

(e)an NHS foundation trust;

(f)the Care Quality Commission;

F271(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F272(ga)the Health Services Safety Investigations Body;]

(h)the Health Research Authority;

F273(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j)the National Institute for Health and Care Excellence;

F274(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(l)a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;

(m)the Common Services Agency for the Scottish Health Service;

(n)Healthcare Improvement Scotland;

(o)a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978;

(p)a Special Health Board constituted under that section.

(8)The Secretary of State must consult the Welsh Ministers before making regulations prescribing any of the following NHS public bodies for the purposes of the definition of “NHS employer”—

(a)a Special Health Authority established under section 22 of the National Health Service (Wales) Act 2006;

(b)an NHS trust established under section 18 of that Act;

(c)a Local Health Board established under section 11 of that Act.

(9)The Secretary of State must consult the Scottish Ministers before making regulations prescribing an NHS public body within any of paragraphs (m) to (p) of subsection (7) for the purposes of the definition of “NHS employer”.

(10)For the purposes of subsection (4)(a)—

(a)“worker” has the extended meaning given by section 43K, and

(b)a person is a worker of an NHS employer if the NHS employer is an employer in relation to the person within the extended meaning given by that section.]

Textual Amendments

[F275PART 5BE+W+SRedundancy during a protected period of pregnancy

Textual Amendments

49DRedundancy during a protected period of pregnancyE+W+S

(1)The Secretary of State may, by regulations, make provision about redundancy during, or after, a protected period of pregnancy.

(2)A protected period of pregnancy is a period relating to the pregnancy of an employee that is calculated in accordance with regulations made by the Secretary of State.

(3)Provision made by virtue of subsection (1) may include—

(a)provision requiring an employer to offer alternative employment;

(b)provision for the consequences of failure to comply with the regulations (which may include provision for dismissal to be treated as unfair for the purposes of Part 10).

(4)Provision made by virtue of subsection (2) may include provision for the protected period of pregnancy to begin after the end of the pregnancy.]

Part VIE+W+S Time off work

Public dutiesE+W+S

50 Right to time off for public duties.E+W+S

[F276(1)An employer shall permit an employee of his who is—