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

E1 For 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)

C1 Act 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)

C2 Act 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)

C3 Act 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)

C4 Act: 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)

C5 Act 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)

C6 Act modified (1.7.2004) by The British Transport Police (Transitional and Consequential Provisions) Order 2004 (S.I. 2004/1573), arts. 1, 6(8)(b)

C7 Act: 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.

C8 Act: modified (W.) (12.5.2006) by The Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 (S.I. 2006/1073), arts. 1(1), 5(1)

C9 Act modified (21.2.2009) by The Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009 (S.I. 2009/317), art. 3, Sch.

C10 Act applied (with modifications) (8.2.2011) by The Investment Bank Special Administration Regulations 2011 (S.I. 2011/245), regs. 1, 27(a), Sch. 6 Pt. 1

C11 Act excluded (7.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(2), Sch. 5 para. 15(1)(2)(b); S.I. 2013/1682, art. 3(m)

Commencement Information

I1 Act not in force at Royal Assent: see s. 243

I2 This 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.

I3 This 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 I E+W+S Employment particulars

Right to statements of employment particulars E+W+S

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

(1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

(2) The statement may (subject to section 2(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.

(3) The statement shall contain particulars of—

(a) the names of the employer and employee,

(b) the date when the employment began, and

(c) 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 (or the instalment 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),

(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

(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 employee’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, and

(iii) pensions and pension schemes,

(e) the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

(f) the title of the job which the employee 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,

(h) either the place of work or, where the employee 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, and

(k) where the employee 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.

(5) Subsection (4)(d)(iii) does not apply to an employee of a body or authority if—

(a) the employee’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 employee information concerning the employee’s pension rights or the determination of questions affecting those rights.

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 employee for particulars of any of the matters specified in subsection (4)(d)(ii) and (iii) of that section to the provisions of some other document which is reasonably accessible to the employee.

(3) A statement under section 1 may refer the employee 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 employee.

(4) The particulars required by section 1(3) and (4)(a) to (c), (d)(i), (f) and (h) shall be included in a single document.

(5) Where before the end of the period of two months after the beginning of an employee’s employment the employee is to begin to work outside the United Kingdom for a period of more than one month, the statement under section 1 shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

(6) A statement shall be given to a person under section 1 even if his employment ends before the end of the period within which the statement is required to be given.

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 the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee,

[F1 (aa) specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee,]

(b) specifying (by description or otherwise)—

(i) a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him [F2 or any decision to dismiss him] , and

(ii) a person to whom the employee 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 the employee.

(2) Subsection (1) does not apply to rules, disciplinary decisions, [F3 decisions to dismiss] grievances or procedures relating to health or safety at work.

(3) F4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 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)

F2 Words 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)

F3 Words 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)

F4 S. 3(3)(4) repealed (1.11.2004) by Employment Act 2002 (c. 22), ss. 36, 54, 55(2), Sch. 8; S.I. 2004/1717, art. 2(2) (subject to art. 3); S.I. 2004/2822, art. 2(b)

F5 S. 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 the employee 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 otherwise than in instalments, 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 section 1, or

(ii) are required by section 2(4) to be included in a single document but are not included in an instalment of a statement given under section 1 which does include other particulars to which that provision applies,

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 the employee 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 the employee to the provisions of some other document which is reasonably accessible to the employee for a change in any of the matters specified in sections 1(4)(d)(ii) and (iii) and 3(1)(a) and (c).

(5) A statement under subsection (1) may refer the employee 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 the employee.

(6) Where, after an employer has given to an employee 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) 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 the employee 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.

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

(1) Sections 1 to 4 apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided by [F6 section] 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 an employee 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

F6 Words 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 an employee are references to a document or collective agreement which—

(a) the employee has reasonable opportunities of reading in the course of his employment, or

(b) is made reasonably accessible to the employee in some other way.

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.

[F7 7A Use of alternative documents to give particulars E+W+S

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

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

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

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

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

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

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

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

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

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

Textual Amendments

F7 Ss. 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 employment E+W+S

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

Textual Amendments

F7 Ss. 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 statement E+W+S

8 Itemised pay statement. E+W+S

(1) An employee 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, and

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

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 the employee, 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 the employee.

(4) An employer who has given to an employee 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 the employee, 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.

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.

Enforcement E+W+S

11 References to [F8 employment tribunals]. E+W+S

(1) Where an employer does not give an employee a statement as required by section 1, 4 or 8 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an [F8 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—

(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 an employee, 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 the employee may require the question to be referred to and determined by an [F8 employment tribunal].

(3) For the purposes of this section—

F9 (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 [F8 employment 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.

[F10 (5) Section 207A(3) (extension because of mediation in certain European cross-border disputes) applies for the purposes of subsection (4)(a).]

[F11 (6) [F12 Section] 207B (extension of time limits to facilitate conciliation before institution of proceedings) also applies for the purposes of subsection (4)(a).]

Textual Amendments

F8 Words 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

F9 S. 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

F10 S. 11(5) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 31

F11 S. 11(6) inserted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 16; S.I. 2014/253, art. 3(g)

F12 Word in s. 11(6) substituted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 3

Modifications etc. (not altering text)

C12 S. 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 [F13 employment 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 employee 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 [F13 employment 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 employee in accordance with the decision of the tribunal.

(3) Where on a reference under section 11 an [F13 employment tribunal] finds—

(a) that an employer has failed to give an employee 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 the employee 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 the employee 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 the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by section 8 or 9.

Textual Amendments

F13 Words 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)

C13 S. 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 II E+W+S Protection of wages

Modifications etc. (not altering text)

C14 Pt. II(ss. 13-27) 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 employer E+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.

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 employer E+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 employment E+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.

Enforcement E+W+S

23 Complaints to [F14 employment tribunals]. E+W+S

(1) A worker may present a complaint to an [F14 employment 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 [F14 employment 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.

[F15 (3A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F16 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2).]

(4) Where the [F14 employment 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.

[F17 (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).]

[F18 (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

F14 Words 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

F15 S. 23(3A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 32

F16 Words in s. 23(3A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 17; S.I. 2014/253, art. 3(g)

F17 S. 23(4A)(4B) inserted (8.1.2015) by The Deduction from Wages (Limitation) Regulations 2014 (S.I. 2014/3322), regs. 1(1), 2 (with reg. 4)

F18 S. 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)

C15 S. 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

M1 1992 c. 52.

24 Determination of complaints. E+W+S

F19 (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.

[F20 (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

F19 S. 24 renumbered (6.4.2009) as s. 24(1) by Employment Act 2008 (c. 24), ss. 7(1)(a), 22(1)(a); S.I. 2008/3232, art. 2 (with Sch. paras. 1, 5)

F20 S. 24(2) inserted (6.4.2009) by Employment Act 2008 (c. 24), ss. 7(1)(b), 22(1)(a); S.I. 2008/3232, art. 2 (with Sch. paras. 1, 5)

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 [F21 employment 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 [F21 employment 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

F21 Words 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

Supplementary E+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 M2 Social Security Contributions and Benefits Act 1992,

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

[F22 (ca) [F23 statutory paternity pay] under Part 12ZA of that Act,

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

[F24 (cc) statutory shared parental pay under Part 12ZC of that 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 M3 Trade 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,

[F25 (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

F22 S. 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

F23 Words in s. 27(1)(ca) substituted (5.4.2015) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 30(a); S.I. 2014/1640, art. 7(m) (with art. 16)

F24 S. 27(1)(cc) inserted (1.12.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 30(b); S.I. 2014/1640, art. 5(2)(k)

F25 S. 27(1)(fa) inserted (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), Reg. 25, Sch. 2 para. 10

Marginal Citations

M2 1992 c. 4.

M3 1992 c. 52.

[F26 PART 2A U.K. Zero hours workers

Textual Amendments

F26 Pt. 2A (ss. 27A, 27B) inserted (26.5.2015) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 153(2), 164(1) (with s. 153(2)); S.I. 2015/1329, reg. 2(g)

27A Exclusivity terms unenforceable in zero hours contracts U.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.

27B Power to make further provision in relation to zero hours workers U.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.]

Part III E+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) F27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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

F27 S. 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 [F28 £26.00].

(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.

[F29 (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

F28 Word in s. 31(1) substituted (6.4.2016) by The Employment Rights (Increase of Limits) Order 2016 (S.I. 2016/288), arts. 1(1), 3, Sch. (with art. 4)

F29 S. 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)

C16 S. 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 [F30 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F30 employment 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 [F30 employment 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.

[F31 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F32 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).]

(3) Where an [F30 employment 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

F30 Words 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

F31 S. 34(2A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 33

F32 Words in s. 34(2A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 18; S.I. 2014/253, art. 3(g)

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—

F33 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) section 3 of the M4 Agricultural 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, F34 ...

F34 (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 [F35 employment 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 [F35 employment 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

F33 S. 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)

F34 S. 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)

F35 Words 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

M4 1949 c. 30.

Part IV E+W+S Sunday working for shop and betting workers

Protected shop workers and betting workers E+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) [F36 Subject 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.

[F37 (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

E2 S. 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

F36 Words in s. 36(7) inserted (6.4.2004) by Sunday Working (Scotland) Act 2003 (c. 18), s. 1(2)(a); S.I. 2004/958, art. 2

F37 S. 36(8) added (6.4.2004) by Sunday Working (Scotland) Act 2003 (c. 18), s. 1(2)(b); S.I. 2004/958, art. 2

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.

F38 (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, F39 . . .

F38 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E3 S. 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

F38 S. 37(4)(5)(b) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 6(a)(c), Sch. 9(2); S.I. 1999/2830, art. 2(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

F39 Word “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 work E+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

E4 S. 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.

[F40 (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

E5 S. 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

F40 S. 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)

C17 S. 41(3) modified (E.W.) (1.5.2012) by Sunday Trading (London Olympic Games and Paralympic Games) Act 2012 (c. 12), s. 3(3)

C18 S. 41(3) modified (E.W.) (1.5.2012) by Sunday Trading (London Olympic Games and Paralympic Games) Act 2012 (c. 12), ss. 2(1), 3(1)

[F41 41A Notice of objection by shop workers to working additional hours on Sunday E+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

F41 Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

41B Explanatory statement: persons who become shop workers E+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

F41 Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

41C Explanatory statement: shop workers at commencement date E+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

F41 Ss. 41A-41D inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 3

41D Failure to give explanatory statement under section 41B or 41C E+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

F41 Ss. 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 [F42 : betting workers]. E+W+S

(1) Where a person becomes a F43 ... 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 F44 ... betting worker, and

(b) the F45 ... betting worker, on giving the employer an opting-out notice, becomes F46 ... an opted-out betting worker,

section 41(3) has effect in relation to the F47 ... 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 F48 ... betting worker has given him an opting-out notice.

F49 (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 Work E+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 [F50 employment 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 [F51 form] set out in [F52 subsection (5)].

Extent Information

E6 S. 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

F42 Words 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)

F43 Words 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)

F44 Words 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)

F45 Words 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)

F46 Words 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)

F47 Words 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)

F48 Words 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)

F49 S. 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)

F50 Words 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

F51 Word 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)

F52 Words 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)

C19 S. 42(2) modified (E.W.) (1.5.2012) by Sunday Trading (London Olympic Games and Paralympic Games) Act 2012 (c. 12), ss. 2(2), 3(1)

43 Contractual requirements relating to Sunday work [F53 : 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.

F54 (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, F55 . . .

F54 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extent Information

E7 S. 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

F53 Words 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

F54 S. 43(4)(5)(b) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 7(a)(c), 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)

F55 Word “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)

[F56 43ZA Contractual requirements relating to working additional hours on Sundays: objection notices E+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

F56 S. 43ZA - S. 43ZB inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 6

43ZB Interpretation E+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

F56 S. 43ZA - S. 43ZB inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 6

[F57 Part IVA E+W+S Protected disclosures

Textual Amendments

F57 Pt. 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, [F58 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

F58 Words 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 F59 ...—

(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

F59 Words 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 [F60 (including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)] by a Minister of the Crown [F60 or a member of the Scottish Executive], or

(ii) a body any of whose members are so appointed, and

(b) the disclosure is made F61 ... to a Minister of the Crown [F60 or a member of the Scottish Executive ] .

Textual Amendments

F60 Words in s. 43E inserted (27.7.2000) by S.I. 2000/2040, art. 2, Sch. Pt. I para. 19(2)(3) (with art. 3)

F61 Words 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 F62 ... 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

F62 Words 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))

[F63 43FA Prescribed persons: duty to report on disclosures of information E+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

F63 S. 43FA inserted (1.1.2016) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 148(2), 164(1); S.I. 2015/2029, reg. 2(a)

43G Disclosure in other cases. E+W+S

(1) A qualifying disclosure is made in accordance with this section if—

F64 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) [F65 the 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

F64 S. 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))

F65 Words 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—

F66 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) [F67 the 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

F66 S. 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))

F67 Words 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)”,

[F68 ( ba ) works or worked as a person performing services under a contract entered into by him with [F69 the National Health Service Commissioning Board] [F70 under [F71 section 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 [F72 section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,] the National Health Service (Wales) Act 2006],]

[F73 ( bb ) works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J [F74 or 17Q] of the National Health Service (Scotland) Act 1978,]

(c) [F75 works or worked as a person providing services] in accordance with arrangements made—

(i) by [F76 [F77 the National Health Service Commissioning Board] [F78 under section 126 of the National Health Service Act 2006,] or][F79 Local Health Board] under [F80 section 71 or 80 of the National Health Service (Wales) Act 2006], or

( ii ) by a Health Board under section [F81 2C, 17AA, 17C,] F82 . . . 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

[F83 (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,

[F84 (aa) in relation to a worker falling within paragraph (ba) of that subsection, [F85 the National Health Service Commissioning Board, or the] Local Health Board referred to in that paragraph,]

[F86 (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, the authority or board referred to in that paragraph, and

(c) in relation to a worker falling within paragraph [F87 (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.

[F88 (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)).

F88 ( 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

F68 S. 43K(1)(ba) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 199(1)(4), Sch. 11 para. 65(2); S.I. 2004/288, art. 5(2)(x) (with transitional provision in art. 7(11)) (as amended by S.I. 2004/866, S.I. 2004/1009 and S.I. 2005/2925); S.I. 2004/480, art. 4(2)(bb) (as amended by S.I. 2004/1019 and S.I. 2006/345)

F69 Words in s. 43K(1)(ba) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 73(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F70 Words in s. 43K(1)(ba) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(a) (with Sch. 3 Pt. 1)

F71 Words 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))

F72 Words 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))

F73 S. 43K(1)(bb) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(a)(i)

F74 Words 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))

F75 Words 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))

F76 Words in s. 43K(1)(c)(i) inserted (1.10.2002) by National Health Service Reform and Health Care Professions Act 2002 (c. 17), s. 2(5), Sch. 2 Pt. 2 para. 63; S.I. 2002/2478, arts. 2(1), 3(1)

F77 Words in s. 43K(1)(c)(i) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 73(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F78 Words in s. 43K(1)(c)(i) inserted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(b)(i) (with Sch. 3 Pt. 1)

F79 Words 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)}

F80 Words in s. 43K(1)(c)(i) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(b)(ii) (with Sch. 3 Pt. 1)

F81 Words 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))

F82 Word in s. 43K(1)(c)(ii) repealed (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(a)(iii)

F83 S. 43K(1)(cb) inserted (6.4.2015) by The Protected Disclosures (Extension of Meaning of Worker) Order 2015 (S.I. 2015/491), arts. 1, 2(2)

F84 S. 43K(2)(aa) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 199(1)(4), Sch. 11 para. 65(3); S.I. 2004/288, art. 5(2)(x) (as amended by S.I. 2004/866, S.I. 2004/1009 and S.I. 2005/2925); S.I. 2004/480, art. 4(2)(bb) (as amended by S.I. 2004/1019 and S.I. 2006/345)

F85 Words in s. 43K(2)(aa) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 73(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F86 S. 43K(2)(ab) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(b)

F87 Words in s. 43K(2)(c) inserted (6.4.2015) by The Protected Disclosures (Extension of Meaning of Worker) Order 2015 (S.I. 2015/491), arts. 1, 2(3)

F88 S. 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)

C20 S. 43K(1)(ba) modified (E.) (1.4.2004) by The General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004 (S.I. 2004/865), art. 109(2)(f)

C21 S. 43K(1)(ba) modified (W.) (1.4.2004) by The General Medical Services Transitional and Consequential Provisions (Wales) (No. 2) Order 2004 (S.I. 2004/1016), art. 85(2)(f)

C22 S. 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)

C23 S. 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))

[F89 43KA Application of this Part and related provisions to police E+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;

[F90 (b) in relation to a member of a police force seconded to the [F91 National 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

F89 S. 43KA inserted (1.4.2004) by Police Reform Act 2002 (c. 30), ss. 37(1), 108(2)-(5); S.I. 2004/913, art. 2(b)

F90 S. 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))

F91 Words 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 V E+W+S Protection from suffering detriment in employment

Rights not to suffer detriment E+W+S

[F92 43M Jury service 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 on the ground that the employee—

(a) has been summoned under the Juries Act 1974, [F93 Part 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

F92 S. 43M inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 40(1), 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F93 Words in s. 43M(1)(a) substituted (25.7.2013) by Coroners and Justice Act 2009 (c. 25), s. 182(4)(e), Sch. 21 para. 36(2) (with s. 180); S.I. 2013/1869, art. 2(o)(xv)

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,

[F94 (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,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee 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) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4) F95 . . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F96 Part X]).

Textual Amendments

F94 S. 44(1)(ba) inserted (1.10.1996) by S.I. 1996/1513, reg. 8

F95 Words in s. 44(4) repealed (25.10.1999) by 1999 c. 26, ss. 18(2)(a), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2)

F96 Words 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

E8 S. 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

[F97 45ZA Sunday working for shop workers: additional hours E+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

F97 S. 45ZA inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 7

45 Sunday working for shop and betting workers. E+W

(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.

[F97 45ZA Sunday working for shop workers: additional hours E+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

F97 S. 45ZA inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 7

[F98 45A 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 F99 . . ..

[F100 (5) A reference in this section to the Working Time Regulations 1998 includes a reference to

[F101 (a)] the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F102 (b) the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.]

[F103 (c) the Cross-border Railway Services (Working Time) Regulations 2008]

[F104 (d) the Merchant Shipping (Hours of Work) Regulations 2002.]]]

Textual Amendments

F98 S. 45A inserted (1.10.1998) by S.I. 1998/1833, reg. 31(1)

F99 Words in s. 45A repealed (25.10.1999) by 1999 c. 26, ss. 18(3), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2(2))

F100 S. 45A(5) inserted (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 20, Sch. 2 para. 3(2)

F101 S. 45A(5): words renumbered as s. 45A(5)(a) inserted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), reg. 22, Sch. 2 para. 2(2)(a)

F102 S. 45A(5)(b) inserted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), reg. 22, Sch. 2 para. 2(2)(b)

F103 S. 45A(5)(c) inserted (27.7.2008) by The Cross-border Railway Services (Working Time) Regulations 2008 (S.I. 2008/1660), reg. 19, Sch. 3 para. 2(2)

F104 S. 45A(5)(d) inserted (17.3.2014) by The Merchant Shipping (Maritime Labour Convention) (Hours of Work) (Amendment) Regulations 2014 (S.I. 2014/308), reg. 1(2), Sch. para. 2(2)

Marginal Citations

M5 S.I. 1998/1833

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) F105 . . .this section does not apply where the detriment in question amounts to dismissal (within the meaning of [F106 Part X]).

[F107 (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 M6 Pension Schemes Act 1993) established under a trust.

Textual Amendments

F105 Words in s. 46(2) repealed (25.10.1999) by 1999 c. 26, ss. 18(2)(a), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2)

F106 Words 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))

F107 S. 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)

C24 S. 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

I4 S. 46 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

M6 1993 c. 48.

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 M7 purposes of Chapter II of Part IV of the M8 Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F108 regulations 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.

[F109 (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 [F110 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ] . ]

(2) F111 . . . This section does not apply where the detriment in question amounts to a dismissal (within the meaning of [F112 Part X]).

Textual Amendments

F108 Words 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)

F109 S. 47(1A) inserted (28.7.1999) by S.I. 1999/1925, reg. 12

F110 Words 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)

F111 Words in s. 47(2) repealed (25.10.1999) by 1999 c. 26, ss. 18(2)(a), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2)

F112 Words 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

M7 S.I. 1981/1794.

M8 1992 c. 52.

[F113 47A 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) F114 . . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F115 Part X ] ). ]

Textual Amendments

F113 S. 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

F114 Words in s. 47A(2) repealed (25.10.1999) by 1999 c. 26, ss. 18(2)(a), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2)

F115 Words 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)

[F116 47B 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.

[F117 (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) F118 . . . 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 [F119 Part 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

F116 S. 47B inserted (2.7.1999) by 1998 c. 23, s. 2; S.I. 1999/1547, art. 2

F117 S. 47B(1A)-(1E) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 19(1), 103(3) (with s. 24(6)); S.I. 2013/1455, art. 2(a) (with art. 4(2))

F118 Words in s. 47B(2) repealed (25.10.1999) by 1999 c. 26, ss. 18(2)(a), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2(2))

F119 Words 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)

[F120 47C 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,

[F121 (aa) time off under section 57ZE,]

[F122 (ab) time off under section 57ZJ or 57ZL,]

(b) ordinary, compulsory or additional maternity leave,

[F123 (ba) ordinary or additional adoption leave,]

[F124 (bb) shared parental leave,]

(c) parental leave,

[F125 (ca) F126 ... paternity 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.

[F127 (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

F120 S. 47C inserted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 8; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

F121 S. 47C(2)(aa) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 127(2)(a), 139(6); S.I. 2014/1640, art. 3(1)(i)

F122 S. 47C(2)(ab) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 128(2)(a), 139(6); S.I. 2014/1640, art. 3(1)(j)

F123 S. 47C(2)(ba) inserted (8.12.2002) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 26(2); S.I. 2002/2866, art. 2(2), Sch. 1 Pt. 2

F124 S. 47C(2)(bb) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 31(a); S.I. 2014/1640, art. 3(2)(g)

F125 S. 47C(2)(ca) substituted (3.3.2010) by Work and Families Act 2006 (c. 18), ss. 11, 19, Sch. 1 para. 30; S.I. 2010/495, art. 3(c)

F126 Words in s. 47C(2)(ca) repealed (5.4.2015) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 31(b); S.I. 2014/1640, art. 7(n) (with art. 16)

F127 S. 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)

[F128 47D Tax credits 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) 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

F128 S. 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

[F129 47E Flexible working 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 the employee—

(a) made (or proposed to make) an application under section 80F,

F130 ( 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

F129 S. 47E inserted (6.4.2003) by virtue of Employment Act 2002 (c. 22), s. 47(3); S.I. 2002/2866, arts. 2(3), 3, Sch. 1 Pt. 3 (with Sch. 3 para. 7)

F130 S. 47E(1)(b) repealed (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 132(5)(a), 139(6); S.I. 2014/1640, art. 3(1)(l) (with art. 10)

[F131 47F Study and 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 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

F131 S. 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)

[F132 47G Employee shareholder status E+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

F132 S. 47G inserted (1.9.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 31(2), 35(1); S.I. 2013/1766, art. 2

Enforcement E+W+S

48 Complaints to [F133 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F133 employment tribunal] that he has been subjected to a detriment in contravention of section [F134 43M,] 44, 45, [F135 46, 47, 47A,][F136 47C(1)] [F137 , 47E [F138 , 47F or 47G]].

[F139 (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.]

[F140 (1ZA) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 45A.]

[F141 (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.]

[F142 (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.]

[F143 (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 [F144 a complaint under subsection (1), (1ZA), (1A) or (1B)] it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[F145 (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 [F133 employment 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[F146 , 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.

[F147 (4A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F148 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (3)(a).]

[F149 (5) In this section and section 49 any reference to the employer [F150 includes—]

[F150 (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)).

[F151 (b) in the case of proceedings against a worker or agent under section 47B(1A), the worker or agent.]]

[F152 (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

F133 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

F134 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 )

F135 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

F136 Word in s. 48(1) substituted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(2)(a), 139(6); S.I. 2014/1640, art. 4(b)

F137 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 )

F138 Words in s. 48(1) substituted (1.9.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 31(3), 35(1); S.I. 2013/1766, art. 2

F139 S. 48(1YA) inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 8

F140 S. 48(1ZA) inserted (1.10.1998) by S.I. 1998/1833 , reg. 31(2)

F141 S. 48(1A) inserted (2.7.1999) by 1998 c. 23 , s. 3 ; S.I. 1999/1547 , art. 2

F142 S. 48(1AA) inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(2)(b), 139(6); S.I. 2014/1640, art. 4(b)

F143 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

F144 Words in s. 48(2) substituted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(2)(c), 139(6); S.I. 2014/1640, art. 4(b)

F145 S. 48(2A) inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(2)(d), 139(6); S.I. 2014/1640, art. 4(b)

F146 Words in s. 48(4) inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(2)(e), 139(6); S.I. 2014/1640, art. 4(b)

F147 S. 48(4A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross- Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133) , regs. 2 , 34

F148 Words in s. 48(4A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 19; S.I. 2014/253, art. 3(g)

F149 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

F150 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) )

F151 S. 48(5)(b) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24) , ss. 19(2)(b) , 103(3) (with s. 24(6) ); S.I. 2013/1455 , art. 2(a) (with art. 4(2) )

F152 S. 48(6) inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(2)(f), 139(6); S.I. 2014/1640, art. 4(b)

Modifications etc. (not altering text)

C25 S. 48 applied (4.9.2000) by 1999 c. 26 , s. 12(2) (with ss. 14 , 15 ); S.I. 2000/2242 , art. 2

C26 S. 48 applied (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031) , regs. 1(1) , 47 , Sch. 6 para. 13(3) (with regs. 44-46 , Sch. 7 )

C27 S. 48 applied (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155) , reg. 18(2)

C28 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)

C29 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)

C30 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 )

C31 S. 48(2)-(4) applied (6.4.2006) by The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (S.I. 2006/349) , regs. 1(2)(3) , 17 , Sch. para. 8(2)

C32 S. 48(2)-(4) applied (18.8.2006) by The European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059) , regs. 1(2) , 34(2)

C33 S. 48(2)-(4) applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30) , ss. 56(2) , 149(1) (with s. 56(3)-(6) )

C34 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 )

C35 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 [F153 employment tribunal] finds a complaint [F154 under section 48(1), (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.

[F155 (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) [F156 Subject to [F157 subsections (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.

[F158 (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. ]

[F159 (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. ]

[F160 (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%.]

[F161 (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

F153 Words 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

F154 Words in s. 49(1) substituted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(3)(a), 139(6); S.I. 2014/1640, art. 4(b)

F155 S. 49(1A) inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(3)(b), 139(6); S.I. 2014/1640, art. 4(b)

F156 Words in s. 49(2) inserted (2.7.1999) by 1998 c. 23, s. 4(2); S.I. 1999/1547, art. 2

F157 Words in s. 49(2) substituted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(a)

F158 S. 49(5A) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(b)

F159 S. 49(6) inserted (2.7.1999) by 1998 c. 23, s. 4(3); S.I. 1999/1547, art. 2

F160 S. 49(6A) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(4), 103(2) (with s. 24(6))

F161 S. 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)

C36 S. 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)

C37 S. 49 applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6))

C38 S. 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

C39 S. 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)

C40 S. 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)

C41 S. 49(1)-(5) applied (6.4.2006) by The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (S.I. 2006/349), regs. 1(2)(3), 17, Sch. para. 8(2)

C42 S. 49(1)-(5) applied (18.8.2006) by The European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), regs. 1(2), 34(3)

C43 S. 49(1)-(5) applied (15.12.2007) by The Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), reg. 51(2)

C44 S. 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)

[F162 Application to police of rights relating to health and safety E+W+S

Textual Amendments

F162 S. 49A and crossheading inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2

F163 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.

[F164 (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

F163 S. 49A inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2

F164 S. 49A(2) substituted (7.4.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 158(2)(a)(3), 178

[F165 PART 5A U.K. Protection for applicants for employment etc in the health service

Textual Amendments

F165 Pt. 5A (s. 49B) inserted (26.5.2015) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 149(2), 164(1); S.I. 2015/1329, reg. 2(e)

49B Regulations prohibiting discrimination because of protected disclosure E+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) the National Health Service Commissioning Board;

(b) a clinical commissioning group;

(c) a Special Health Authority;

(d) an NHS trust;

(e) an NHS foundation trust;

(f) the Care Quality Commission;

(g) Health Education England;

(h) the Health Research Authority;

(i) the Health and Social Care Information Centre;

(j) the National Institute for Health and Care Excellence;

(k) Monitor;

(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.]

Part VI E+W+S Time off work

Public duties E+W+S

50 Right to time off for public duties. E+W+S

(1) An employer shall permit an employee of his who is a justice of the peace to take time off during the employee’s working hours for the purpose of performing any of the duties of his office.

(2) An employer shall permit an employee of his who is a member of—

(a) a local authority,

(b) a statutory tribunal,

F166 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ca) F167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) [F168 an independent monitoring board for a prison] [F169 or a prison visiting committee],

(e) a relevant health body,

(f) a relevant education body, F170 . . .

(g) the Environment Agency or the Scottish Environment Protection Agency, [F171 or]

[F172 (h) Scottish Water F173 . . . , ]

to take time off during the employee’s working hours for the purposes specified in subsection (3).

(3) The purposes referred to in subsection (2) are—

(a) attendance at a meeting of the body or any of its committees or sub-committees, and

(b) the doing of any other thing approved by the body, or anything of a class so approved, for the purpose of the discharge of the functions of the body or of any of its committees or sub-committees.[F174 and

(c) in the case of a local authority which are operating executive arrangements—

(i) attendance at a meeting of the executive of that local authority or committee of that executive; and

(ii) the doing of any other thing, by an individual member of that executive, for the purposes of the discharge of any function which is to any extent the responsibility of that executive.]

(4) The amount of time off which an employee is to be permitted to take under this section, and the occasions on which and any conditions subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard, in particular, to—

(a) how much time off is required for the performance of the duties of the office or as a member of the body in question, and how much time off is required for the performance of the particular duty,

(b) how much time off the employee has already been permitted under this section or sections 168 and 170 of the M9 Trade Union and Labour Relations (Consolidation) Act 1992 (time off for trade union duties and activities), and

(c) the circumstances of the employer’s business and the effect of the employee’s absence on the running of that business.

(5) In subsection (2)(a) “a local authority” means—

(a) a local authority within the meaning of the M10 Local Government Act 1972,

(b) a council constituted under section 2 of the M11 Local Government etc. (Scotland) Act 1994,

(c) the Common Council of the City of London,

(d) a National Park authority, or

(e) the Broads Authority.

(6) F175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In subsection (2)(d)—

(a) [F176 “independent monitoring board” means a board] appointed under section 6(2) of the M12 Prison Act 1952, and

(b) [F177 “a prison visiting committee” means a visiting committee appointed under section 19(3) of the M13 Prisons (Scotland) Act 1989 or constituted by virtue of rules made under section 39 (as read with section 8(1)) of that Act.]

(8) In subsection (2)(e) “a relevant health body” means—

[F178 (za) the National Health Service Commissioning Board,

(zb) a clinical commissioning group established under section 14D of the National Health Service Act 2006,” and]

(a) a National Health Service trust established under [F179 section 25 of the National Health Service Act 2006, section 18 of the National Health Service (Wales) Act 2006] or the M14 National Health Service (Scotland) Act 1978,

[F180 (ab) an NHS foundation trust, ]

[F181 (ac) the National Institute for Health and Care Excellence,]

[F182 (ad) the Health and Social Care Information Centre,]

(b) F183 ... [F184 a][F185 Local Health Board established under section 11 of the National Health Service (Wales) Act 2006]F186 ... [F187 , a Special Health Authority established under [F188 section 28 of the National Health Service Act 2006 or section 22 of the National Health Service (Wales) Act 2006] F189 ...] or

(c) a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978.

(9) In subsection (2)(f) “a relevant education body” means—

(a) a managing or governing body of an educational establishment maintained by a [F190 local authority (as defined in section 579(1) of the Education Act 1996)],

[F191 (b) a further education corporation, sixth form college corporation or higher education corporation,]

(c) a school council appointed under section 125(1) of the M15 Local Government (Scotland) Act 1973,

[F192 (d) a parent council within the meaning of section 5(2) of the Scottish Schools (Parental Involvement) Act 2006 M16 , ]

[F193 (e) a board of management of a self-governing school within the meaning of section 135(1) of the M17 Education (Scotland) Act 1980, ]

(f) a board of management of a college of further education within the meaning of section 36(1) of the M18 Further and Higher Education (Scotland) Act 1992,

(g) a governing body of a central institution within the meaning of section 135(1) of the Education (Scotland) Act 1980, F194 . . .

(h) a governing body of a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992.

[F195 (i) F196 ... or

(j) the General Teaching Council for Wales.]

[F197 (9A) In subsection (3)(c) of this section “executive” and “executive arrangements” have the same meaning as in Part II of the Local Government Act 2000.]

[F198 (9B) In subsection (9)(b) “ further education corporation ”, “ sixth form college corporation ” and “ higher education corporation ” have the same meanings as in the Further and Higher Education Act 1992. ]

(10) The Secretary of State may by order—

(a) modify the provisions of subsections (1) and (2) and (5) to (9) by adding any office or body, removing any office or body or altering the description of any office or body, or

(b) modify the provisions of subsection (3).

(11) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

Textual Amendments

F166 S. 50(2)(c) omitted (22.11.2012) by virtue of Police Reform and Social Responsibility Act 2011 (c. 13), s. 157(1), Sch. 16 para. 219; S.I. 2012/2892, art. 2(i)

F167 S. 50(2)(ca) repealed (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 174, 178, Sch. 4 para. 86, Sch. 17; S.I. 2006/378, art. 4(1), Sch. (subject to art. 4(2)-(7))

F168 Words in s. 50(2)(d) substituted (1.11.2007) by Offender Management Act 2007 (c. 21), ss. 39, 41(1), Sch. 3 para. 8(a); S.I. 2007/3001, art. 2(1)(p)(r)

F169 Words in s. 50(2)(d) repealed (S.) (31.8.2015) by The Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2015 (S.S.I. 2015/39), art. 1, Sch. para. 5(a)

F170 Word at end of s. 50(2)(f) omitted (14.8.2000) by virtue of S.I. 2000/1737, art. 2(a)

F171 S. 50(2)(h) and the word "or" immediately preceding it added (14.8.2000) by S.I. 2000/1737, art. 2(b)(c)

F172 S. 50(2)(h) substituted (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 2, Sch. para. 18

F173 Words in s. 50(2)(h) omitted (28.10.2011) by virtue of The Public Services Reform (Scotland) Act 2010 (Consequential Modifications of Enactments) Order 2011 (S.I. 2011/2581), art. 2, Sch. 3 para. 2

F174 S. 50(3)(c) and preceding word inserted (E.) (11.7.2001) and (W.) (1.4.2002) by S.I. 2001/2237, art. 30(a) and S.I. 2002/808, art. 29(a)

F175 S. 50(6) repealed (1.4.2007) by Police and Justice Act 2006 (c. 48), ss. 52, 53, Sch. 15 Pt. 1(B); S.I. 2007/709, art. 3(s)(i)

F176 Words in s. 50(7)(a) substituted (1.11.2007) by Offender Management Act 2007 (c. 21), ss. 39, 41(1), Sch. 3 para. 8(b); S.I. 2007/3001, art. 2(1)(p)(r)

F177 S. 50(7)(b) repealed (S.) (31.8.2015) by The Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2015 (S.S.I. 2015/39), art. 1, Sch. para. 5(b)

F178 S. 50(8)(za)(zb) inserted (1.10.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 74(a); S.I. 2012/1831, art. 2(2)

F179 Words in s. 50(8)(a) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 179(a) (with Sch. 3 Pt. 1)

F180 S. 50(8)(ab) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199(1)(4), Sch. 4 para. 100; S.I. 2004/759, art. 2 (as amended by S.I. 2006/836 and S.I. 2007/1102)

F181 S. 50(8)(ac) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 17 para. 6(2); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F182 S. 50(8)(ad) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 19 para. 6(2); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F183 Words in s. 50(8)(b) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 74(b)(i); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F184 Words in s. 50(8)(b) originally substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 179(b)(i) (with Sch. 3 Pt. 1)

F185 Words in s. 50(8)(b) substituted (1.4.2007) by virtue of The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 27(3)

F186 Words in s. 50(8)(b) omitted (1.3.2007) by virtue of National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 179(b)(ii) (with Sch. 3 Pt. 1)

F187 Words in s. 50(8)(b) substituted (8.2.2000) by S.I. 2000/90, art. 3, Sch. 1 para. 30(2) (with s. 2(5)

F188 Words in s. 50(8)(b) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 179(b)(iii) (with Sch. 3 Pt. 1)

F189 Words in s. 50(8)(b) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 74(b)(ii); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F190 Words in s. 50(9)(a) substituted (5.5.2010) by The Local Education Authorities and Children's Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 41(2)

F191 S. 50(9)(b) substituted (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a), Sch. 1 para. 96(a)

F192 S. 50(9)(d) substituted (1.8.2007) by The Time Off for Public Duties (Parent Councils) Order 2007 (S.I. 2007/1837), art. 2

F193 S. 50(9)(e) repealed (S.) (31.12.2004) by 2000 asp 6, ss. 60(2), 61, Sch. 3; S.S.I. 2004/528, art. 2(b)

F194 Word in s. 50(9) after para. (g) omitted (5.10.2000) by virtue of S.I. 2000/2463, art. 2(2)

F195 S. 50(9)(i)(j) inserted (5.10.2000) by S.I. 2000/2463, 2(3)

F196 S. 50(9)(i) omitted (1.4.2012) by virtue of Education Act 2011 (c. 21), s. 82(3), Sch. 2 para. 24; S.I. 2012/924, art. 2

F197 S. 50(9A) inserted (E.) (11.7.2001) and (W.) (1.4.2002) by S.I. 2001/2237, art. 30(b) and S.I. 2002/808, art. 29(b)

F198 S. 50(9B) inserted (1.4.2010) by The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), art. 1(2)(a), Sch. 1 para. 96(b)

Modifications etc. (not altering text)

C45 S. 50(3) applied (1.4.1998) by S.I. 1998/633, art. J12(2)

C46 S. 50(4) excluded (1.4.1998) by S.I. 1998/633, art. J12(1)

Marginal Citations

M9 1992 c. 52.

M10 1972 c. 70.

M11 1994 c. 39.

M12 1952 c. 52.

M13 1989 c. 45.

M14 1978 c. 29.

M15 1973 c. 65.

M16 2006 asp 8.

M17 1980 c. 44.

M18 1992 c. 37.

51 Complaints to [F199 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F199 employment tribunal] that his employer has failed to permit him to take time off as required by section 50.

(2) An [F199 employment tribunal] shall not consider a complaint under this section that an employer has failed to permit an employee to take time off unless it is presented—

(a) before the end of the period of three months beginning with the date on which the failure occurred, 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.

[F200 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F201 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).]

(3) Where an [F199 employment tribunal] finds a complaint under this section 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 employee.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a) the employer’s default in failing to permit time off to be taken by the employee, and

(b) any loss sustained by the employee which is attributable to the matters to which the complaint relates.

Textual Amendments

F199 Words in s. 51(1)-(3) and sidenote to s. 51 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

F200 S. 51(2A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 35

F201 Words in s. 51(2A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 20; S.I. 2014/253, art. 3(g)

Looking for work and making arrangements for training E+W+S

52 Right to time off to look for work or arrange training. E+W+S

(1) An employee who is given notice of dismissal by reason of redundancy is entitled to be permitted by his employer to take reasonable time off during the employee’s working hours before the end of his notice in order to—

(a) look for new employment, or

(b) make arrangements for training for future employment.

(2) An employee is not entitled to take time off under this section unless, on whichever is the later of—

(a) the date on which the notice is due to expire, and

(b) the date on which it would expire were it the notice required to be given by section 86(1),

he will have been (or would have been) continuously employed for a period of two years or more.

(3) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

53 Right to remuneration for time off under section 52. E+W+S

(1) An employee who is permitted to take time off under section 52 is entitled to be paid remuneration by his employer for the period of absence at the appropriate hourly rate.

(2) The appropriate 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 when the notice of dismissal was given.

(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 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 on which the notice was given.

(4) If an employer unreasonably refuses to permit an employee to take time off from work as required by section 52, the employee is entitled to be paid an amount equal to the remuneration to which he would have been entitled under subsection (1) if he had been permitted to take the time off.

(5) The amount of an employer’s liability to pay remuneration under subsection (1) shall not exceed, in respect of the notice period of any employee, forty per cent. of a week’s pay of that employee.

(6) A right to any amount under subsection (1) or (4) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(7) Any contractual remuneration paid to an employee in respect of a period of time off under section 52 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

54 Complaints to [F202 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F202 employment tribunal] that his employer—

(a) has unreasonably refused to permit him to take time off as required by section 52, or

(b) has failed to pay the whole or any part of any amount to which the employee is entitled under section 53(1) or (4).

(2) An [F202 employment 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 on which it is alleged that the time off should have been permitted, 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.

[F203 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F204 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).]

(3) Where an [F202 employment tribunal] finds a complaint under this section well-founded, the tribunal shall—

(a) make a declaration to that effect, and

(b) order the employer to pay to the employee the amount which it finds due to him.

(4) The amount which may be ordered by a tribunal to be paid by an employer under subsection (3) (or, where the employer is liable to pay remuneration under section 53, the aggregate of that amount and the amount of that liability) shall not exceed, in respect of the notice period of any employee, forty per cent. of a week’s pay of that employee.

Textual Amendments

F202 Words in s. 54(1)-(3) and sidenote to s. 54 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

F203 S. 54(2A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 36

F204 Words in s. 54(2A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 21; S.I. 2014/253, art. 3(g)

Ante-natal care E+W+S

55 Right to time off for ante-natal care. E+W+S

(1) An employee who—

(a) is pregnant, and

(b) has, on the advice of a registered medical practitioner, registered midwife or [F205 registered nurse] , made an appointment to attend at any place for the purpose of receiving ante-natal care,

is entitled to be permitted by her employer to take time off during the employee’s working hours in order to enable her to keep the appointment.

(2) An employee is not entitled to take time off under this section to keep an appointment unless, if her employer requests her to do so, she produces for his inspection—

(a) a certificate from a registered medical practitioner, registered midwife or [F205 registered nurse] stating that the employee is pregnant, and

(b) an appointment card or some other document showing that the appointment has been made.

(3) Subsection (2) does not apply where the employee’s appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).

(4) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with her contract of employment, the employee is required to be at work.

[F206 (5) References in this section to a registered nurse are to such a nurse—

(a) who is also registered in the Specialist Community Public Health Nurses' Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001, and

(b) whose entry in that Part of the register is annotated to show that he holds a qualification in health visiting.]

Textual Amendments

F205 Words in s. 55(1)(b)(2)(a) substituted by The Nursing and Midwifery Order 2001 (S.I. 2002/253), art. 54, Sch. 5 para. 13 (with art. 3(18)) (the amendment coming into force in accordance with art. 1(2)(3) of the amending S.I.)

F206 S. 55(5) added (1.8.2004) by The Health Act 1999 (Consequential Amendments) (Nursing and Midwifery) Order 2004 (S.I. 2004/1771), arts. 1(1), 3, Sch. para. 3

56 Right to remuneration for time off under section 55. E+W+S

(1) An employee who is permitted to take time off under section 55 is entitled to be paid remuneration by her employer for the period of absence at the appropriate hourly rate.

(2) The appropriate 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 when the time off is taken.

(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 on which the time off is taken, 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 her contract, and

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

(5) A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under her contract of employment (“contractual remuneration”).

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 55 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

57 Complaints to [F207 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F207 employment tribunal] that her employer—

(a) has unreasonably refused to permit her to take time off as required by section 55, or

(b) has failed to pay the whole or any part of any amount to which the employee is entitled under section 56.

(2) An [F207 employment 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 appointment concerned, 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.

[F208 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F209 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2)(a)].]

(3) Where an [F207 employment tribunal] finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4) If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee [F210 an amount that is twice the amount of] the remuneration to which she would have been entitled under section 56 if the employer had not refused.

(5) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which she is entitled under section 56, the tribunal shall also order the employer to pay to the employee the amount which it finds due to her.

Textual Amendments

F207 Words in s. 57(1)-(3) and sidenote to s. 57 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

F208 S. 57(2A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 37

F209 Words in s. 57(2A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 22; S.I. 2014/253, art. 3(g)

F210 Words in s. 57(4) substituted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 130(1), 139(6); S.I. 2014/1640, art. 4(c) (with art. 11)

[F211 Ante-natal care: agency workers U.K.

Textual Amendments

F211 Ss. 57ZA-57ZD and heading inserted (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), Reg. 25, Sch. 2 para. 93

57ZA Right to time off for ante-natal care (agency workers) E+W+S

  (1) An agency worker who—

(a) is pregnant, and

(b) has, on the advice of a registered medical practitioner, registered midwife or registered nurse, made an appointment to attend at any place for the purpose of receiving ante-natal care,

is entitled to be permitted, by the temporary work agency and the hirer, to take time off during the agency worker's working hours in order to enable her to keep the appointment.   (2) An agency worker is not entitled to be permitted by either of those persons to take time off under this section to keep an appointment unless, if that person requests her to do so, she produces for that person's inspection—

(a) a certificate from a registered medical practitioner, registered midwife or registered nurse stating that the agency worker is pregnant, and

(b) an appointment card or some other document showing that the appointment has been made.

  (3) Subsection (2) does not apply where the agency worker's appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).   (4) For the purposes of this section the working hours of an agency worker shall be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work.   (5) In this section references to a registered nurse have the same meaning as in section 55.

57ZB Right to remuneration for time off under section 57ZA E+W+S

  (1)  An agency worker who is permitted to take time off under section 57ZA is entitled to be paid remuneration by the temporary work agency for the period of absence at the appropriate hourly rate.

  (2)  The appropriate hourly rate, in relation to an agency worker, is the amount of one week's pay divided by the number of normal working hours in a week for that agency worker in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer that are in force on the day when the time off is taken.

  (3)  But where the number of normal working hours during the assignment differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the agency worker's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken.

  (4)  A right to any amount under subsection (1) does not affect any right of an agency worker in relation to remuneration under her contract with the temporary work agency (“contractual remuneration”).

  (5) Any contractual remuneration paid to an agency worker in respect of a period of time off under section 57ZA goes towards discharging any liability of the temporary work agency to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the temporary work agency to pay contractual remuneration in respect of that period.

57ZC Complaint to employment tribunal: agency workers E+W+S

  (1)  An agency worker may present a complaint to an employment tribunal that the temporary work agency—

(a) has unreasonably refused to permit her to take time off as required by section 57ZA, or

(b) has failed to pay the whole or any part of any amount to which she is entitled under section 57ZB.

  (2)  An agency worker may present a complaint to an employment tribunal that the hirer has unreasonably refused to permit her to take time off as required by section 57ZA.

  (3)  An employment tribunal shall not consider a complaint under subsection (1) or (2) unless it is presented—

(a) before the end of the period of three months beginning with the date of the appointment concerned, 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.

[F212 (3A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (3)(a).]

  (4)  Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

  (5)  If the complaint is that the temporary work agency or hirer has unreasonably refused to permit the agency worker to take time off, the tribunal shall also order payment to the agency worker of [F213 an amount that is twice the amount of] the remuneration to which she would have been entitled under section 57ZB if she had not been refused the time off.

  (6)  Where the tribunal orders payment under subsection (5), the amount payable by each party shall be such as may be found by the tribunal to be just and equitable having regard to the extent of each respondent's responsibility for the infringement to which the complaint relates.

(7) If the complaint is that the temporary work agency has failed to pay the agency worker the whole or part of any amount to which she is entitled under section 57ZB, the tribunal shall also order the temporary work agency to pay to the agency worker the amount which it finds due to her.

Textual Amendments

F212 S. 57ZC(3A) inserted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 23; S.I. 2014/253, art. 3(g)

F213 Words in s. 57ZC(5) substituted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 130(2), 139(6); S.I. 2014/1640, art. 4(c) (with art. 11)

57ZD Agency workers: supplementary E+W+S

  (1)  Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law sections 57ZA to 57ZC do not apply where the agency worker—

(a) has not completed the qualifying period, or

(b) is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations 2010 pursuant to regulation 8(a) or (b) of those Regulations.

  (2)  Nothing in those sections imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer.

  (3)  Those sections do not apply where sections 55 to 57 apply.

  (4)  In this section and sections 57ZA to 57ZC the following have the same meaning as in the Agency Workers Regulations 2010—

• “agency worker”;

• “assignment”;

• “hirer”;

• “qualifying period”;

• “temporary work agency”.]

[F214 Accompanying to ante-natal appointments E+W+S

Textual Amendments

F214 Ss. 57ZE-57ZI and cross-headings inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 127(1), 139(6); S.I. 2014/1640, art. 4(a)

57ZE Right to time off to accompany to ante-natal appointment E+W+S

(1) An employee who has a qualifying relationship with a pregnant woman or her expected child is entitled to be permitted by his or her employer to take time off during the employee's working hours in order that he or she may accompany the woman when she attends by appointment at any place for the purpose of receiving ante-natal care.

(2) In relation to any particular pregnancy, an employee is not entitled to take time off for the purpose specified in subsection (1) on more than two occasions.

(3) On each of those occasions, the maximum time off during working hours to which the employee is entitled is six and a half hours.

(4) An employee is not entitled to take time off for the purpose specified in subsection (1) unless the appointment is made on the advice of a registered medical practitioner, registered midwife or registered nurse.

(5) Where the employer requests the employee to give the employer a declaration signed by the employee, the employee is not entitled to take time off for the purpose specified in subsection (1) unless the employee gives that declaration (which may be given in electronic form).

(6) The employee must state in the declaration—

(a) that the employee has a qualifying relationship with a pregnant woman or her expected child,

(b) that the employee's purpose in taking time off is the purpose specified in subsection (1),

(c) that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse, and

(d) the date and time of the appointment.

(7) A person has a qualifying relationship with a pregnant woman or her expected child if—

(a) the person is the husband or civil partner of the pregnant woman,

(b) the person, being of a different sex or the same sex, lives with the woman in an enduring family relationship but is not a relative of the woman,

(c) the person is the father of the expected child,

(d) the person is a parent of the expected child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, or

(e) the person is a potential applicant for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the expected child.

(8) For the purposes of subsection (7) a relative of a person is the person's parent, grandparent, sister, brother, aunt or uncle.

(9) The references to relationships in subsection (8)—

(a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption, and

(b) include the relationship of a child with the child's adoptive, or former adoptive, parents,

but do not include any other adoptive relationships.

(10) For the purposes of subsection (7)(e) a person (“A”) is a potential applicant for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of an expected child only if—

(a) A intends to apply, jointly with another person (“B”), for such an order in respect of the expected child within the time allowed by section 54(3),

(b) the expected child is being carried by the pregnant woman as a result of such procedure as is described in section 54(1)(a),

(c) the requirement in section 54(1)(b) is satisfied by reference to A or B,

(d) A and B would satisfy section 54(2) if they made an application under section 54 at the time that A seeks to exercise the right under this section, and

(e) A expects that A and B will satisfy the conditions in section 54(2), (4), (5) and (8) as regards the intended application.

(11) The references in this section to a registered nurse are references to a registered nurse—

(a) who is also registered in the Specialist Community Public Health Nurses Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001 ( S.I. 2002/253), and

(b) whose entry in that Part of the register is annotated to show that the nurse holds a qualification in health visiting.

(12) For the purposes of this section the working hours of an employee are to be taken to be any time when, in accordance with the employee's contract of employment, the employee is required to be at work.

57ZF Complaint to employment tribunal E+W+S

(1) An employee may present a complaint to an employment tribunal that his or her employer has unreasonably refused to let him or her take time off as required by section 57ZE.

(2) An employment tribunal may not consider a complaint under this section unless it is presented—

(a) before the end of the period of three months beginning with the day of the appointment in question, 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.

(3) Sections 207A(3) and 207B apply for the purposes of subsection (2)(a).

(4) Where an employment tribunal finds a complaint under subsection (1) well-founded, it—

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

(b) must order the employer to pay to the employee an amount determined in accordance with subsection (5).

(5) The amount payable to the employee is—

where—

a

A is the appropriate hourly rate for the employee, and

b

B is the number of working hours for which the employee would have been entitled under section 57ZE to be absent if the time off had not been refused.

(6) The appropriate 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 when the time off would have been taken.

(7) 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 on which the time off would have been taken, 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 (8) as are appropriate in the circumstances.

(8) The considerations referred to in subsection (7)(b) are—

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

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

Accompanying to ante-natal appointments: agency workers E+W+S

57ZG Right to time off to accompany to ante-natal appointment: agency workers E+W+S

(1) An agency worker who has a qualifying relationship with a pregnant woman or her expected child is entitled to be permitted, by the temporary work agency and the hirer, to take time off during the agency worker's working hours in order that he or she may accompany the woman when she attends by appointment at any place for the purpose of receiving ante-natal care.

(2) In relation to any particular pregnancy, an agency worker is not entitled to take time off for the purpose specified in subsection (1) on more than two occasions.

(3) On each of those occasions, the maximum time off during working hours to which the agency worker is entitled is six and a half hours.

(4) An agency worker is not entitled to take time off for the purpose specified in subsection (1) unless the appointment is made on the advice of a registered medical practitioner, registered midwife or registered nurse.

(5) Where the temporary work agency or the hirer requests the agency worker to give that person a declaration signed by the agency worker, the agency worker is not entitled to take time off for the purpose specified in subsection (1) unless the agency worker gives that declaration (which may be given in electronic form).

(6) The agency worker must state in the declaration—

(a) that the agency worker has a qualifying relationship with a pregnant woman or her expected child,

(b) that the agency worker's purpose in taking time off is the purpose specified in subsection (1),

(c) that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse, and

(d) the date and time of the appointment.

(7) A person has a qualifying relationship with a pregnant woman or her expected child if—

(a) the person is the husband or civil partner of the pregnant woman,

(b) the person, being of a different sex or the same sex, lives with the woman in an enduring family relationship but is not a relative of the woman,

(c) the person is the father of the expected child,

(d) the person is a parent of the expected child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, or

(e) the person is a potential applicant for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the expected child.

(8) For the purposes of subsection (7) a relative of a person is the person's parent, grandparent, sister, brother, aunt or uncle.

(9) The references to relationships in subsection (8)—

(a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption, and

(b) include the relationship of a child with the child's adoptive, or former adoptive, parents,

but do not include any other adoptive relationships.

(10) For the purposes of subsection (7)(e) a person (“A”) is a potential applicant for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of an expected child only if—

(a) A intends to apply, jointly with another person (“B”), for such an order in respect of the expected child within the time allowed by section 54(3),

(b) the expected child is being carried by the pregnant woman as a result of such procedure as is described in section 54(1)(a),

(c) the requirement in section 54(1)(b) is satisfied by reference to A or B,

(d) A and B would satisfy section 54(2) if they made an application under section 54 at the time that A seeks to exercise the right under this section, and

(e) A expects that A and B will satisfy the conditions in section 54(2), (4), (5) and (8) as regards the intended application.

(11) The references in this section to a registered nurse are references to a registered nurse—

(a) who is also registered in the Specialist Community Public Health Nurses Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001 ( S.I. 2002/253), and

(b) whose entry in that Part of the register is annotated to show that the nurse holds a qualification in health visiting.

(12) For the purposes of this section the working hours of an agency worker are to be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work.

57ZH Complaint to employment tribunal: agency workers E+W+S

(1) An agency worker may present a complaint to an employment tribunal that the temporary work agency has unreasonably refused to let him or her take time off as required by section 57ZG.

(2) An agency worker may present a complaint to an employment tribunal that the hirer has unreasonably refused to let him or her take time off as required by section 57ZG.

(3) An employment tribunal may not consider a complaint under subsection (1) or (2) unless it is presented—

(a) before the end of the period of three months beginning with the day of the appointment in question, 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) Sections 207A(3) and 207B apply for the purposes of subsection (3)(a).

(5) Where an employment tribunal finds a complaint under subsection (1) or (2) well-founded, it—

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

(b) must order the payment to the agency worker of an amount determined in accordance with subsection (7).

(6) Where the tribunal orders that payment under subsection (5) be made by the temporary work agency and the hirer, the proportion of that amount payable by each respondent is to be such as may be found by the tribunal to be just and equitable having regard to the extent of each respondent's responsibility for the infringement to which the complaint relates.

(7) The amount payable to the agency worker is—

where—

a

A is the appropriate hourly rate for the agency worker, and

b

B is the number of working hours for which the agency worker would have been entitled under section 57ZG to be absent if the time off had not been refused.

(8) The appropriate hourly rate, in relation to an agency worker, is the amount of one week's pay divided by the number of normal working hours in a week for that agency worker in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer that are in force on the day when the time off would have been taken.

(9) But where the number of normal working hours during the assignment differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the agency worker's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off would have been taken.

57ZI Agency workers: supplementary E+W+S

(1) Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law, sections 57ZG and 57ZH do not apply where the agency worker—

(a) has not completed the qualifying period, or

(b) pursuant to regulation 8(a) or (b) of the Agency Workers Regulations 2010 ( S.I. 2010/93), is no longer entitled to the rights conferred by regulation 5 of those Regulations.

(2) Nothing in sections 57ZG and 57ZH imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration, of the assignment, whichever is the longer.

(3) Sections 57ZG and 57ZH do not apply where sections 57ZE and 57ZF apply.

(4) In this section and sections 57ZG and 57ZH the following have the same meaning as in the Agency Workers Regulations 2010—

• “agency worker”;

• “assignment”;

• “hirer”;

• “qualifying period”;

• “temporary work agency”.]

[F215 Adoption appointments E+W+S

Textual Amendments

F215 Ss. 57ZJ-57ZS and cross-headings inserted (5.4.2015) by Children and Families Act 2014 (c. 6), ss. 128(1), 139(6); S.I. 2014/1640, art. 6(d)

57ZJ Right to paid time off to attend adoption appointments E+W+S

(1) An employee who has been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with the employee alone is entitled to be permitted by his or her employer to take time off during the employee's working hours in order that he or she may attend by appointment at any place for the purpose of having contact with the child or for any other purpose connected with the adoption.

(2) An employee who—

(a) has been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with the employee and another person jointly, and

(b) has elected to exercise the right to take time off under this section in connection with the adoption,

is entitled to be permitted by his or her employer to take time off during the employee's working hours in order that he or she may attend by appointment at any place for the purpose of having contact with the child or for any other purpose connected with the adoption.

(3) An employee may not make an election for the purposes of subsection (2)(b) if—

(a) the employee has made an election for the purposes of section 57ZL(1)(b) in connection with the adoption, or

(b) the other person with whom the child is to be, or is expected to be, placed for adoption has made an election for the purposes of subsection (2)(b) or section 57ZN(2)(b) in connection with the adoption.

(4) An employee is not entitled to take time off under this section on or after the date of the child's placement for adoption with the employee.

(5) In relation to any particular adoption, an employee is not entitled to take time off under this section on more than five occasions.

(6) On each of those occasions, the maximum time off during working hours to which the employee is entitled is six and a half hours.

(7) An employee is not entitled to take time off under this section unless the appointment has been arranged by or at the request of the adoption agency which made the notification described in subsection (1) or (2)(a).

(8) An employee is not entitled to take time off under subsection (1) unless, if the employer requests it, the employee gives the employer a document showing the date and time of the appointment in question and that it has been arranged as described in subsection (7).

(9) An employee is not entitled to take time off under subsection (2) unless, if the employer requests it, the employee gives the employer—

(a) a declaration signed by the employee stating that the employee has made an election for the purposes of subsection (2)(b) in connection with the adoption, and

(b) a document showing the date and time of the appointment in question and that it has been arranged as described in subsection (7).

(10) A document or declaration requested under subsection (8) or (9) may be given in electronic form.

(11) In cases where more than one child is to be, or is expected to be, placed for adoption with an employee as part of the same arrangement, this section has effect as if—

(a) the purposes specified in subsections (1) and (2) were the purpose of having contact with any one or more of the children and any other purpose connected with any of the adoptions that are part of the arrangement;

(b) the references in subsections (2)(b) and (9)(a) to the adoption were references to all of the adoptions that are part of the arrangement;

(c) the references in subsection (3) to the adoption were references to any of the adoptions that are part of the arrangement;

(d) the reference in subsection (4) to the date of the child's placement for adoption were a reference to the date of placement of the first child to be placed as part of the arrangement;

(e) the reference in subsection (5) to a particular adoption were a reference to the adoptions that are part of a particular arrangement.

(12) For the purposes of this section the working hours of an employee are to be taken to be any time when, in accordance with the employee's contract of employment, the employee is required to be at work.

(13) In this section “ adoption agency ” means an adoption agency within the meaning of section 2 of the Adoption and Children Act 2002 or as defined in section 119(1)(a) of the Adoption and Children (Scotland) Act 2007.

57ZK Right to remuneration for time off under section 57ZJ E+W+S

(1) An employee who is permitted to take time off under section 57ZJ is entitled to be paid remuneration by his or her employer for the number of working hours for which the employee is entitled to be absent at the appropriate hourly rate.

(2) The appropriate 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 when the time off is taken.

(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 on which the time off is taken, 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 the employee's contract, and

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

(5) A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under the employee's contract of employment (“contractual remuneration”).

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 57ZJ goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period.

(7) Any payment of remuneration under subsection (1) in respect of a period of time off under section 57ZJ goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

57ZL Right to unpaid time off to attend adoption appointments E+W+S

(1) An employee who—

(a) has been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with the employee and another person jointly, and

(b) has elected to exercise the right to take time off under this section in connection with the adoption,

is entitled to be permitted by his or her employer to take time off during the employee's working hours in order that he or she may attend by appointment at any place for the purpose of having contact with the child or for any other purpose connected with the adoption.

(2) An employee may not make an election for the purposes of subsection (1)(b) if—

(a) the employee has made an election for the purposes of section 57ZJ(2)(b) in connection with the adoption, or

(b) the other person with whom the child is to be, or is expected to be, placed for adoption has made an election for the purposes of subsection (1)(b) or section 57ZP(1)(b) in connection with the adoption.

(3) An employee is not entitled to take time off under this section on or after the date of the child's placement for adoption with the employee.

(4) In relation to any particular adoption, an employee is not entitled to take time off under this section on more than two occasions.

(5) On each of those occasions, the maximum time off during working hours to which the employee is entitled is six and a half hours.

(6) An employee is not entitled to take time off under this section unless the appointment has been arranged by or at the request of the adoption agency which made the notification described in subsection (1)(a).

(7) An employee is not entitled to take time off under this section unless, if the employer requests it, the employee gives the employer—

(a) a declaration signed by the employee stating that the employee has made an election for the purposes of subsection (1)(b) in connection with the adoption, and

(b) a document showing the date and time of the appointment in question and that it has been arranged as described in subsection (6).

(8) A declaration or document requested under subsection (7) may be given in electronic form.

(9) In cases where more than one child is to be, or is expected to be, placed for adoption with an employee and another person jointly as part of the same arrangement, this section has effect as if—

(a) the purposes specified in subsection (1) were the purpose of having contact with any one or more of the children and any other purpose connected with any of the adoptions that are part of the arrangement;

(b) the references in subsections (1)(b) and (7)(a) to the adoption were references to all of the adoptions that are part of the arrangement;

(c) the references in subsection (2) to the adoption were references to any of the adoptions that are part of the arrangement;

(d) the reference in subsection (3) to the date of the child's placement for adoption were a reference to the date of placement of the first child to be placed as part of the arrangement;

(e) the reference in subsection (4) to a particular adoption were a reference to the adoptions that are part of a particular arrangement.

(10) For the purposes of this section the working hours of an employee are to be taken to be any time when, in accordance with the employee's contract of employment, the employee is required to be at work.

(11) In this section “ adoption agency ” means an adoption agency within the meaning of section 2 of the Adoption and Children Act 2002 or as defined in section 119(1)(a) of the Adoption and Children (Scotland) Act 2007.

57ZM Complaint to employment tribunal E+W+S

(1) An employee may present a complaint to an employment tribunal that his or her employer—

(a) has unreasonably refused to let him or her take time off as required by section 57ZJ or 57ZL, or

(b) has failed to pay the whole or any part of any amount to which the employee is entitled under section 57ZK.

(2) An employment tribunal may not consider a complaint under this section unless it is presented—

(a) before the end of the period of three months beginning with the day of the appointment in question, 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.

(3) Sections 207A(3) and 207B apply for the purposes of subsection (2)(a).

(4) Where an employment tribunal finds a complaint under subsection (1) well-founded, it must make a declaration to that effect.

(5) If the complaint is that the employer has unreasonably refused to let the employee take time off as required by section 57ZJ, the tribunal must also order the employer to pay to the employee an amount that is twice the amount of the remuneration to which the employee would have been entitled under section 57ZK if the employer had not refused.

(6) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which the employee is entitled under section 57ZK, the tribunal must also order the employer to pay to the employee the amount which it finds due to the employee.

(7) If the complaint is that the employer has unreasonably refused to let the employee take time off as required by section 57ZL, the tribunal must also order the employer to pay to the employee an amount determined in accordance with subsection (8).

(8) The amount payable to the employee is—

where—

a

A is the appropriate hourly rate for the employee determined in accordance with section 57ZK(2) to (4), and

b

B is the number of working hours for which the employee would have been entitled under section 57ZL to be absent if the time off had not been refused.

Adoption appointments: agency workers E+W+S

57ZN Right to paid time off to attend adoption appointments: agency workers E+W+S

(1) An agency worker who has been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with the agency worker alone is entitled to be permitted by the temporary work agency and the hirer to take time off during the agency worker's working hours in order that he or she may attend by appointment at any place for the purpose of having contact with the child or for any other purpose connected with the adoption.

(2) An agency worker who—

(a) has been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with the agency worker and another person jointly, and

(b) has elected to exercise the right to take time off under this section in connection with the adoption,

is entitled to be permitted by the temporary work agency and the hirer to take time off during the agency worker's working hours in order that he or she may attend by appointment at any place for the purpose of having contact with the child or for any other purpose connected with the adoption.

(3) An agency worker may not make an election for the purposes of subsection (2)(b) if—

(a) the agency worker has made an election for the purposes of section 57ZP(1)(b) in connection with the adoption, or

(b) the other person with whom the child is to be, or is expected to be, placed for adoption has made an election for the purposes of subsection (2)(b) or section 57ZJ(2)(b) in connection with the adoption.

(4) An agency worker is not entitled to take time off under this section on or after the date of the child's placement for adoption with the agency worker.

(5) In relation to any particular adoption, an agency worker is not entitled to take time off under this section on more than five occasions.

(6) On each of those occasions, the maximum time off during working hours to which the agency worker is entitled is six and a half hours.

(7) An agency worker is not entitled to take time off under this section unless the appointment has been arranged by or at the request of the adoption agency which made the notification described in subsection (1) or (2)(a).

(8) An agency worker is not entitled to take time off under subsection (1) unless, if the temporary work agency or the hirer requests it, the agency worker gives that person a document showing the date and time of the appointment in question and that it has been arranged as described in subsection (7).

(9) An agency worker is not entitled to take time off under subsection (2) unless, if the temporary work agency or the hirer requests it, the agency worker gives that person—

(a) a declaration signed by the agency worker stating that the agency worker has made an election for the purposes of subsection (2)(b) in connection with the adoption, and

(b) a document showing the date and time of the appointment in question and that it has been arranged as described in subsection (7).

(10) A document or declaration requested under subsection (8) or (9) may be given in electronic form.

(11) In cases where more than one child is to be, or is expected to be, placed for adoption with an agency worker as part of the same arrangement, this section has effect as if—

(a) the purposes specified in subsections (1) and (2) were the purpose of having contact with any one or more of the children and any other purpose connected with any of the adoptions that are part of the arrangement;

(b) the references in subsections (2)(b) and (9)(a) to the adoption were references to all of the adoptions that are part of the arrangement;

(c) the references in subsection (3) to the adoption were references to any of the adoptions that are part of the arrangement;

(d) the reference in subsection (4) to the date of the child's placement for adoption were a reference to the date of placement of the first child to be placed as part of the arrangement;

(e) the reference in subsection (5) to a particular adoption were a reference to the adoptions that are part of a particular arrangement.

(12) For the purposes of this section the working hours of an agency worker are to be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work.

(13) In this section “ adoption agency ” means an adoption agency within the meaning of section 2 of the Adoption and Children Act 2002 or as defined in section 119(1)(a) of the Adoption and Children (Scotland) Act 2007.

57ZO Right to remuneration for time off under section 57ZN E+W+S

(1) An agency worker who is permitted to take time off under section 57ZN is entitled to be paid remuneration by the temporary work agency for the number of working hours for which the agency worker is entitled to be absent at the appropriate hourly rate.

(2) The appropriate hourly rate, in relation to an agency worker, is the amount of one week's pay divided by the number of normal working hours in a week for that agency worker in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer that are in force on the day when the time off is taken.

(3) But where the number of normal working hours during the assignment differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the agency worker's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken.

(4) A right to any amount under subsection (1) does not affect any right of an agency worker in relation to remuneration under the agency worker's contract with the temporary work agency (“contractual remuneration”).

(5) Any contractual remuneration paid to an agency worker in respect of a period of time off under section 57ZN goes towards discharging any liability of the temporary work agency to pay remuneration under subsection (1) in respect of that period.

(6) Any payment of remuneration under subsection (1) in respect of a period of time off under section 57ZN goes towards discharging any liability of the temporary work agency to pay contractual remuneration in respect of that period.

57ZP Right to unpaid time off to attend adoption meetings: agency workers E+W+S

(1) An agency worker who—

(a) has been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with the agency worker and another person jointly, and

(b) has elected to exercise the right to take time off under this section in connection with the adoption,

is entitled to be permitted by the temporary work agency and the hirer to take time off during the agency worker's working hours in order that he or she may attend by appointment at any place for the purpose of having contact with the child or for any other purpose connected with the adoption.

(2) An agency worker may not make an election for the purposes of subsection (1)(b) if—

(a) the agency worker has made an election for the purposes of section 57ZN(2)(b) in connection with the adoption, or

(b) the other person with whom the child is to be, or is expected to be, placed for adoption has made an election for the purposes of subsection (1)(b) or section 57ZL(1)(b) in connection with the adoption.

(3) An agency worker is not entitled to take time off under this section on or after the date of the child's placement for adoption with the agency worker.

(4) In relation to any particular adoption, an agency worker is not entitled to take time off under this section on more than two occasions.

(5) On each of those occasions, the maximum time off during working hours to which the agency worker is entitled is six and a half hours.

(6) An agency worker is not entitled to take time off under this section unless the appointment has been arranged by or at the request of the adoption agency which made the notification described in subsection (1)(a).

(7) An agency worker is not entitled to take time off under this section unless, if the temporary work agency or the hirer requests it, the agency worker gives that person—

(a) a declaration signed by the agency worker stating that the agency worker has made an election for the purposes of subsection (1)(b) in connection with the adoption, and

(b) a document showing the date and time of the appointment in question and that it has been arranged as described in subsection (6).

(8) A declaration or document requested under subsection (7) may be given in electronic form.

(9) In cases where more than one child is to be, or is expected to be, placed for adoption with an agency worker and another person jointly as part of the same arrangement, this section has effect as if—

(a) the purposes specified in subsection (1) were the purpose of having contact with any one or more of the children and any other purpose connected with any of the adoptions that are part of the arrangement;

(b) the references in subsections (1)(b) and (7)(a) to the adoption were references to all of the adoptions that are part of the arrangement;

(c) the references in subsection (2) to the adoption were references to any of the adoptions that are part of the arrangement;

(d) the reference in subsection (3) to the date of the child's placement for adoption were a reference to the date of placement of the first child to be placed as part of the arrangement;

(e) the reference in subsection (4) to a particular adoption were a reference to the adoptions that are part of a particular arrangement.

(10) For the purposes of this section the working hours of an agency worker are to be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work.

(11) In this section “ adoption agency ” means an adoption agency within the meaning of section 2 of the Adoption and Children Act 2002 or as defined by section 119(1)(a) of the Adoption and Children (Scotland) Act 2007.

57ZQ Complaint to employment tribunal: agency workers E+W+S

(1) An agency worker may present a complaint to an employment tribunal that the temporary work agency—

(a) has unreasonably refused to let him or her take time off as required by section 57ZN or 57ZP, or

(b) has failed to pay the whole or any part of any amount to which the agency worker is entitled under section 57ZO.

(2) An agency worker may present a complaint to an employment tribunal that the hirer has unreasonably refused to let him or her take time off as required by section 57ZN or 57ZP.

(3) An employment tribunal may not consider a complaint under subsection (1) or (2) unless it is presented—

(a) before the end of the period of three months beginning with the day of the appointment in question, 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) Sections 207A(3) and 207B apply for the purposes of subsection (3)(a).

(5) Where an employment tribunal finds a complaint under subsection (1) or (2) well-founded, it must make a declaration to that effect.

(6) If the complaint is that the temporary work agency or hirer has unreasonably refused to let the agency worker take time off as required by section 57ZN, the tribunal must also order payment to the agency worker of an amount that is twice the amount of the remuneration to which the agency worker would have been entitled under section 57ZO if the agency worker had not been refused the time off.

(7) If the complaint is that the temporary work agency has failed to pay the agency worker the whole or part of any amount to which the agency worker is entitled under section 57ZO, the tribunal must also order the temporary work agency to pay to the agency worker the amount which it finds due to the agency worker.

(8) If the complaint is that the temporary work agency or hirer has unreasonably refused to let the agency worker take time off as required by section 57ZP, the tribunal must also order payment to the agency worker of an amount determined in accordance with subsection (9).

(9) The amount payable to the agency worker under subsection (8) is—

where—

a

A is the appropriate hourly rate for the agency worker determined in accordance with section 57ZO(2) and (3), and

b

B is the number of working hours for which the agency worker would have been entitled under section 57ZP to be absent if the time off had not been refused.

(10) Where the tribunal orders that payment under subsection (6) or (8) be made by the temporary work agency and the hirer, the proportion of that amount payable by each respondent is to be such as may be found by the tribunal to be just and equitable having regard to the extent of each respondent's responsibility for the infringement to which the complaint relates.

57ZR Agency workers: supplementary E+W+S

(1) Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law, sections 57ZN to 57ZQ do not apply where the agency worker—

(a) has not completed the qualifying period, or

(b) pursuant to regulation 8(a) or (b) of the Agency Workers Regulations 2010 ( S.I. 2010/93), is no longer entitled to the rights conferred by regulation 5 of those Regulations.

(2) Nothing in sections 57ZN to 57ZQ imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration, of the assignment, whichever is the longer.

(3) Sections 57ZN to 57ZQ do not apply where sections 57ZJ to 57ZM apply.

(4) In this section and sections 57ZN to 57ZQ the following have the same meaning as in the Agency Workers Regulations 2010—

• “agency worker”;

• “assignment”;

• “hirer”;

• “qualifying period”;

• “temporary work agency”.

57ZS Placement of looked after children with prospective adopters E+W+S

(1) Subsection (2) applies where a local authority in England notifies a person—

(a) who is a local authority foster parent, and

(b) who has been approved as a prospective adopter,

that a child is to be, or is expected to be, placed with that person under section 22C of the Children Act 1989.

(2) Where this subsection applies, sections 57ZJ, 57ZL, 57ZN and 57ZP have effect as if—

(a) references to adoption or placement for adoption were references to placement of a child under section 22C of the Children Act 1989 with a local authority foster parent who has been approved as a prospective adopter;

(b) references to placing for adoption were references to placing a child under section 22C of that Act with a local authority foster parent who has been approved as a prospective adopter;

(c) references to an adoption agency were references to a local authority in England.

[F216 (2A) Subsection (2B) applies where a local authority in Wales notifies a person—

(a) who is a local authority foster parent, and

(b) who has been approved as prospective adopter,

that a child is to be, or is expected to be, placed with that person under section 81 of the Social Services and Well-being (Wales) Act 2014.

(2B) Where this subsection applies, sections 57ZJ, 57ZL, 57ZN and 57ZP have effect as if—

(a) references to adoption or placement for adoption were references to placement of a child under section 81 of the Social Services and Well-being (Wales) Act 2014 with a local authority foster parent who has been approved as a prospective adopter;

(b) references to placing for adoption were references to placing a child under section 81 of that Act with a local authority foster parent who has been approved as a prospective adopter;

(c) references to an adoption agency were references to a local authority in Wales.]

(3) Where a child is placed under section 22C of the Children Act 1989[F217 or section 81 of the Social Services and Well-being (Wales) Act 2014] with a local authority foster parent who has been approved as a prospective adopter, notification of that person by an adoption agency during that placement that the child is to be, or is expected to be, placed with that person for adoption is not to give rise to a right to time off under section 57ZJ, 57ZL, 57ZN or 57ZP for that person or another person.]

Textual Amendments

F216 S. 57ZS(2A)(2B) inserted (E.W.) (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 144(a)

F217 Words in s. 57ZS(3) inserted (E.W.) (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 144(b)

[F218 Dependants E+W+S

Textual Amendments

F218 Ss. 57A, 57B and heading inserted (15.12.1999) by 1999 c. 26, s. 8, Sch. 4 Pt. II; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II

F219 57A Time off for dependants. E+W+S

(1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary—

(a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,

(b) to make arrangements for the provision of care for a dependant who is ill or injured,

(c) in consequence of the death of a dependant,

(d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or

(e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

(2) Subsection (1) does not apply unless the employee—

(a) tells his employer the reason for his absence as soon as reasonably practicable, and

(b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.

(3) Subject to subsections (4) and (5), for the purposes of this section “ dependant ” means, in relation to an employee—

(a) a spouse [F220 or civil partner] ,

(b) a child,

(c) a parent,

(d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.

(4) For the purposes of subsection (1)(a) or (b) “ dependant ” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee—

(a) for assistance on an occasion when the person falls ill or is injured or assaulted, or

(b) to make arrangements for the provision of care in the event of illness or injury.

(5) For the purposes of subsection (1)(d) “ dependant ” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee to make arrangements for the provision of care.

(6) A reference in this section to illness or injury includes a reference to mental illness or injury.

Textual Amendments

F219 Ss. 57A, 57B and heading inserted (15.12.1999) by 1999 c. 26, s. 8, Sch. 4 Pt. II; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II

F220 Words in s. 57A(3)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, Sch. 27 para. 151; S.I. 2005/3175, art. 2(2) (Subject to art. 2(3)-(5))

F221 57B Complaint to employment tribunal. E+W+S

(1) An employee may present a complaint to an employment tribunal that his employer has unreasonably refused to permit him to take time off as required by section 57A.

(2) An employment 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 when the refusal occurred, 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.

[F222 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F223 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).]

(3) Where an employment tribunal finds a complaint under subsection (1) well-founded, it—

(a) shall make a declaration to that effect, and

(b) may make an award of compensation to be paid by the employer to the employee.

(4) The amount of compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a) the employer’s default in refusing to permit time off to be taken by the employee, and

(b) any loss sustained by the employee which is attributable to the matters complained of.]

Textual Amendments

F221 Ss. 57A, 57B and heading inserted (15.12.1999) by 1999 c. 26, s. 8, Sch. 4 Pt. II; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II

F222 S. 57B(2A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 38

F223 Words in s. 57B(2A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 24; S.I. 2014/253, art. 3(g)

Occupational pension scheme trustees E+W+S

58 Right to time off for pension scheme trustees. E+W+S

(1) The employer in relation to a relevant occupational pension scheme shall permit an employee of his who is a trustee of the scheme to take time off during the employee’s working hours for the purpose of—

(a) performing any of his duties as such a trustee, or

(b) undergoing training relevant to the performance of those duties.

(2) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard, in particular, to—

(a) how much time off is required for the performance of the duties of a trustee of the scheme and the undergoing of relevant training, and how much time off is required for performing the particular duty or for undergoing the particular training, and

(b) the circumstances of the employer’s business and the effect of the employee’s absence on the running of that business.

[F224 (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—

(a) “ relevant occupational pension scheme ” means an occupational pension scheme (as defined in section 1 of the M19 Pension Schemes Act 1993) established under a trust, and

(b) references to the employer, in relation to such a scheme, are to an employer of persons in the description or category of employment to which the scheme relates [F225 , and

F225 ( c ) references to training are to training on the employer’s premises or elsewhere.]

(4) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

Textual Amendments

F224 S. 58(2A) inserted (11.11.1999 for specified purposes and otherwise 25.4.2000) by 1999 c. 30, ss. 18, 89(1)(5)(a), Sch. 2 para. 19(3); S.I. 2000/1047, art. 2(2), Sch. Pt. II

F225 S. 58(3)(c) and preceding word “and” inserted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 12 (with s. 42(8)); S.I. 1999/987, art. 2

Modifications etc. (not altering text)

C47 S. 58 applied (11.11.1999 for specified purposes and otherwise 8.10.2001) by 1999 c. 30, s. 6(2), (with s. 8(6)); S.I. 2000/1047, art. 2(2), Sch. Pt. V

Commencement Information

I5 S. 58 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

M19 1993 c. 48.

59 Right to payment for time off under section 58. E+W+S

(1) An employer who permits an employee to take time off under section 58 shall pay him for the time taken off pursuant to the permission.

(2) Where the employee’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he must be paid as if he had worked at that work for the whole of that time.

(3) Where the employee’s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he must be paid an amount calculated by reference to the average hourly earnings for that work.

(4) The average hourly earnings mentioned in subsection (3) are—

(a) those of the employee concerned, or

(b) if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.

(5) A right to be paid an amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 58 goes towards discharging any liability of the employer under subsection (1) in respect of that period; and, conversely, any payment under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Commencement Information

I6 S. 59 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

60 Complaints to [F226 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F226 employment tribunal] that his employer—

(a) has failed to permit him to take time off as required by section 58, or

(b) has failed to pay him in accordance with section 59.

(2) An [F226 employment 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 when the failure occurred, 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.

[F227 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F228 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).]

(3) Where an [F226 employment tribunal] finds a complaint under subsection (1)(a) 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 employee.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a) the employer’s default in failing to permit time off to be taken by the employee, and

(b) any loss sustained by the employee which is attributable to the matters complained of.

(5) Where on a complaint under subsection (1)(b) an [F226 employment tribunal] finds that an employer has failed to pay an employee in accordance with section 59, it shall order the employer to pay the amount which it finds to be due.

Textual Amendments

F226 Words in s. 60(1)-(3)(5) and sidenote to s. 60 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

F227 S. 60(2A) inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 39

F228 Words in s. 60(2A) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 25; S.I. 2014/253, art. 3(g)

Commencement Information

I7 S. 60 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Employee representatives E+W+S

61 Right to time off for employee representatives. E+W+S

(1) An employee who is—

(a) an employee representative for the M20 purposes of Chapter II of Part IV of the M21 Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F229 regulations 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,

is entitled to be permitted by his employer to take reasonable time off during the employee’s working hours in order to perform his functions as such an employee representative or candidate [F230 or in order to undergo training to perform such functions].

(2) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

Textual Amendments

F229 Words in s. 61(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(b)

F230 Words in s. 61(1) inserted (28.7.1999) by S.I. 1999/1925, reg. 15

Marginal Citations

M20 S.I. 1981/1794.

M21 1992 c. 52.

62 Right to remuneration for time off under section 61. E+W+S

(1) An employee who is permitted to take time off under section 61 is entitled to be paid remuneration by his employer for the time taken off at the appropriate hourly rate.

(2) The appropriate 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 when the time off is taken.

(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 on which the time off is taken, 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) A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 61 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

63 Complaints to [F231 employment tribunals]. E+W+S

(1) An employee may present a complaint to an [F231 employment tribunal] that his employer—

(a) has unreasonably refused to permit him to take time off as required by section 61, or

(b) has failed to pay the whole or any part of any amount to which the employee is entitled under section 62.

(2) An [F231 employment 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 day on which the time off was taken or on which it is alleged the time off should have been permitted, 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.

[F232 (2A) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F233 and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] for the purposes of subsection (2)(a).]

(3) Where an [F231 employment tribunal] finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4) If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which he would have been entitled under section 62 if the employer had not refused.

(5) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which he is entitled under section 62, the tribunal shall also order the employer to pay to the employee the amount which it finds due to him.

Textual Amendments

F231 Words in s. 63(1)-(3) and sidenote to s. 63 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</