Employment Protection (Consolidation) Act 1978

Part IE+W+S Particulars of Terms of Employment

Written particulars of terms of employmentE+W+S

1 Written particulars of terms of employment. E+W+S

(1)Not later than thirteen weeks after [F1the beginning of an employee’s employment] with an employer, the employer shall give to the employee a written statement in accordance with the following provisions of this section.

(2)An employer shall in a statement under this section—

(a)identify the parties;

(b)specify the date when the employment began;

[F2(c)specify 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).]

(3)A statement under this section shall contain the following particulars of the terms of employment as at a specified date not more than one week before the statement is given, that is to say—

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

(b)the intervals at which remuneration is paid (that is, whether weekly or monthly or by some other period),

(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—

(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,

(iii)pensions and pension schemes,

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

(f)the title of the job which the employee is employed to do:

Provided that paragraph (d)(iii) shall not apply to the employees of any body or authority if the employees’ pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under an Act of Parliament and the body or authority are required by any such provision to give to new employees information concerning their pension rights, or concerning the determination of questions affecting their pension rights.

(4)Subject to subsection (5) [F3and section 2A(1)], every statement given to an employee under this section shall include a note—

(a)specifying any disciplinary rules applicable to the employee, or referring to a document which is reasonably accessible to the employee and which specifies such rules;

(b)specifying, by description or otherwise—

(i)a person to whom the employee can apply if he is dissatisfied with any disciplinary decision relating to 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;

(c)where there are further steps consequent upon any such application, explaining those steps or referring to a document which is reasonably accessible to the employee and which explains them; and

(d)stating whether a contracting-out certificate is in force for the employment in respect of which the statement is given.

(5)The provisions of paragraphs (a) to (c) of subsection (4) shall not apply to rules, disciplinary decisions, grievances or procedures relating to health or safety at work.

(6)The definition of week given by section 153(1) does not apply for the purposes of this section.

2 Supplementary provisions relating to statements under s. 1.E+W+S

(1)If there are no particulars to be entered under any of the heads of paragraph (d) of subsection (3) of section 1, or under any of the other provisions of section 1(2) and (3), that fact shall be stated.

(2)If the contract is for a fixed term, the statement given under section 1 shall state the date when the contract expires.

(3)A statement given under section 1 may, for all or any of the particulars to be given by the statement, refer the employee to some document which the employee has reasonable opportunities of reading in the course of his employment or which is made reasonably accessible to him in some other way.

[F4(4)No statement need be given under section 1 where—

(a)the employee’s employment began not more than six months after the end of earlier employment with the same employer,

(b)a statement under that section, and any information subsequently required under section 4, was duly given to the employee in respect of his earlier employment, and

(c)the terms of his present employment are the same as those of his earlier employment and any other matters falling within section 1(4) of which particulars were to be given by that statement are also unchanged,

but without prejudice to the operation of subsection (1) of section 4 if there is subsequently a change in his terms of employment or in any of those matters.]

[F52A Particulars of disciplinary procedures not required where less than 20 employees.E+W+S

(1)The note which, by virtue of subsection (4) of section 1, is required to be included in a statement given to an employee under that section need not comply with the following provisions of that subsection, namely—

(a)paragraph (a),

(b)in paragraph (b), sub-paragraph (i) and the words following sub-paragraph (ii) so far as relating to sub-paragraph (i), and

(c)paragraph (c),

if on the date when the employee’s employment began the relevant number of employees was less than twenty.

(2)In subsection (1) “the relevant number of employees”, in relation to an employee, means the number of employees employed by his employer added to the number of employees employed by any associated employer.]

3 F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

4 Changes in terms of employment.E+W+S

(1)If after the date to which a statement given under section 1 relates there is a change in the terms of employment to be included, or referred to, in that statement the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and, if he does not leave a copy of the statement with the employee, shall preserve the statement and ensure that the employee has reasonable opportunities of reading it in the course of his employment, or that it is made reasonably accessible to him in some other way.

(2)A statement given under subsection (1) may, for all or any of the particulars to be given by the statement, refer the employee to some document which the employee has reasonable opportunities of reading in the course of his employment, or which is made reasonably accessible to him in some other way.

(3)If, in referring in the statement given under section 1 or under subsection (1) of this section to any such document, the employer indicates to the employee that future changes in the terms of which the particulars are given in the document will be entered up in the document (or recorded by some other means for the information of persons referring to the document), the employer need not under subsection (1) inform the employee of any such change if it is duly entered up or recorded not later than one month after the change is made.

(4)Where, after an employer has given to an employee a written statement in accordance with section 1—

(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 such circumstances that,. . . F7the continuity of the employee’s period of employment is not broken,

and (in either case) the change does not involve any change in the terms (other than the names of the parties) included or referred to in the statement, then, the person who, immediately after the change, is the employer shall not be required to give to the employee a statement in accordance with section 1, but, subject to subsection (5), the change shall be treated as a change falling within subsection (1) of this section.

(5)A written statement under this section which informs an employee of such a change in his terms of employment as is referred to in subsection (4)(b) shall specify the date on which the employee’s [F8period of continuous employment] began.

[F9(6)Any reference in subsection (1), (3) or (4) to the terms of employment which were to be, or were, included or referred to in a statement given under section 1 shall be construed as including a reference to any other matters falling within section 1(2)(c) and (4) of which particulars were to be given by that statement.]

5 Exclusion of certain contracts in writing.E+W+S

[F10(1)]Sections 1 and 4 shall not apply to an employee if and so long as the following conditions are fulfilled in relation to him, that is to say—

(a)the employee’s contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsections (3) of section 1, and under each head of paragraph (d) of that subsection;

(b)there has been given to the employee a copy of the contract (with any variations made from time to time), or he has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way; and

(c)such a note as is mentioned in section 1(4) has been given to the employee or he has reasonable opportunities of reading such a note in the course of his employment or such a note is made reasonably accessible to him in some other way:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F11

[F12(2)If on the date when the employee’s employment began the relevant number of employees was less than twenty, any reference in subsection (1)(c) to such a note as is there mentioned shall be construed as including a reference to such a note as is mentioned in section 1(4) as it has effect with the omission of the provisions specified in section 2A(1)(a) to (c).

(3)In subsection (2) “the relevant number of employees” has the meaning given by section 2A(2).]

[F135A Employees becoming or ceasing to be excluded from ss. 1 to 4.E+W+S

(1)Sections 1 to 4 shall apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided for by section 5, 141, 144, 145 or 146(4) to (7), or under section 149, as if his employment with his employer terminated or began at that time.

(2)Subsection (1) of section 1 shall apply to an employee who ceases to come within the exception provided by section 5 with the substitution for the words “thirteen weeks” of the words “one month”.

(3)The fact that section 1 is directed to apply to an employee as if his employment began on his ceasing to come within one of the exceptions referred to in subsection (1) shall not affect the obligation under subsection (2)(b) of that section to specify the date on which his employment actually began.]

6 Power of Secretary of State to require further particulars.E+W+S

The Secretary of State may by order provide that section 1 shall have effect as if such further particulars as may be specified in the order were included in the particulars to be included in a statement under that section, and, for that purpose, the order may include such provisions amending section 1(1), (2) and (3) as appear to the Secretary of State to be expedient.

F147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Itemised pay statementsE+W+S

8 Right to itemised pay statement.E+W+S

Every employee shall have 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 an itemised pay statement, in writing, containing the following particulars, that is to say,—

(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 it contains instead an aggregate amount of fixed deductions, including that deduction, and the employer has given to the employee, at or before the time at which that pay statement is given, a standing statement of fixed deductions, in writing, which contains the following particulars of each deduction comprised in that aggregate amount, that is to say,—

(a)the amount of the deduction;

(b)the intervals at which the deduction is to be made; and

(c)the purpose for which it is made,

and which, in accordance with subsection (4), is effective at the date on which the pay statement is given.

(2)A standing statement of fixed deductions may be amended, whether by addition of a new deduction or by a change in the particulars or cancellation of an existing deduction, by notice in writing, containing particulars of the amendment, given by the employer to the employee.

(3)An employer who has given to an employee a standing statement of fixed deductions shall, within the period of twelve months beginning with the date on which the first standing statement was given and at intervals of not more than twelve months thereafter, re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (2).

(4)A standing statement of fixed deductions shall become effective, for the purposes of subsection (1), on the date on which it is given to the employee and shall cease to have effect on the expiration of the period of twelve months beginning with that date, or, where it is re-issued in accordance with subsection (3), the expiration of the period of twelve months beginning with the date on which it was last re-issued.

10 Power to amend ss. 8 and 9.E+W+S

The Secretary of State may by order—

(a)vary the provisions of section 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 section 9(3) and (4) 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 of rights under Part IE+W+S

11 References to industrial tribunals.E+W+S

(1)Where an employer does not give an employee a statement as required by section 1 or 4(1) or 8, the employee may require a reference to be made to an industrial 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 relevant section.

(2)Where—

(a)a statement purporting to be a statement under section 1 or 4(1), or

(b)a pay statement, or a standing statement of fixed deductions, purporting to comply with section 8 or 9(1),

has been given to an employee, and 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 that question to be referred to and determined by an industrial tribunal.

(3)Where a statement under section 1 or 4(1) given by an employer to an employee contains such an indication as is mentioned in section 4(3), and

(a)any particulars purporting to be particulars of a change to which that indication relates are entered up or recorded in accordance with that indication, and

(b)a question arises as to the particulars which ought to have been so entered up or recorded,

either the employer or the employee may require that question to be referred to and determined by an industrial tribunal.

(4)In this section, a question as to the particulars which ought to have been included—

(a)in a pay statement, or in a standing statement of fixed deductions, does not include a question solely as to the accuracy of an amount stated in any such particulars;

(b)in a note under section 1(4), does not include any question whether the employment is, has been or will be contracted-out employment for the purposes of Part III of the M1Social Security Pensions Act 1975.

(5)Where, on a reference under subsection (1), an industrial tribunal determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4(1) 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.

(6)On determining a reference under subsection (2)(a), an industrial tribunal may either confirm the particulars as included or referred to in the statement given by the employer, or may amend those particulars, or may 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.

(7)On determining a reference under subsection (3), an industrial tribunal may either confirm the particulars to which the reference relates, or may amend those particulars or may substitute other particulars for them, as the tribunal may determine to be appropriate; and particulars of the change to which the reference relates shall be deemed to have been entered up or recorded in accordance with the decision of the tribunal.

(8)Where on a reference under this section an industrial tribunal finds that an employer has failed to give an employee any pay statement in accordance with section 8 or 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(1)—

(a)the tribunal shall make a declaration to that effect; and

(b)where 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.

• In this subsection “unnotified deduction” means a deduction made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of that deduction required by section 8 or 9(1).

(9)An industrial tribunal shall not entertain 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 before the end of the period of three months beginning with the date on which the employment ceased.

Part IIU.K. Rights Arising in Course of Employment

Guarantee paymentsU.K.

12 Right to guarantee payment. E+W+S

(1)Where an employee throughout a day during any part of which he would normally be required to work in accordance with his contract of employment 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,

he shall, subject to the following provisions of this Act, be entitled to be paid by his employer a payment, referred to in this Act as a guarantee payment, in respect of that day, and in this section and sections 13 and 16—

(i)such a day is referred to as a “workless day”, and

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

(2)In this section and sections 13 to 17, “day” means the period of twenty-four hours from midnight to midnight, and where a period of employment begun on any day extends over midnight into the following day, or would normally so extend, then—

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

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

[F1513 General exclusions from right under s. 12.E+W+S

(1)An employee shall not be 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)An employee who is employed—

(a)under a contract for a fixed term of three months or less, or

(b)under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

shall not be entitled to a guarantee payment unless he has been continuously employed for a period of more than three months ending with the day before that in respect of which the guarantee payment is claimed.]

[F16(3)]An employee shall not be entitled to a guarantee payment in respect of a workless day if the failure to provide him with work occurs in consequence of a [F17strike, lock-out or other industrial action] involving any employee of his employer or of an associated employer.

[F16(4)]An employee shall not be 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 work which the employee is under his contract employed to perform, and the employee has unreasonably refused that offer; or

(b)he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

14 Calculation of guarantee payment.E+W+S

(1)Subject to the limits set by section 15, the amount of a guarantee payment payable to an employee in respect of any day shall be the sum produced by multiplying the number of normal working hours on that day by the guaranteed hourly rate, and, accordingly, no guarantee payment shall be payable to an employee in whose case there are no normal working hours on the day in question.

(2)Subject to subsection (3), the guaranteed hourly rate in relation to an employee shall be the amount of one week’s pay divided by—

(a)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; or

(b)where the number of such normal working hours differs from week to week or over a longer period, the average number of such 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

(c)in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, a number which fairly represents the number of normal working hours in a week having regard to such of the following considerations as are appropriate in the circumstances, that is to say,—

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

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

(3)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, subsection (2) shall have effect as if for the reference to the day in respect of which the guarantee payment is payable there was substituted a reference to the last day on which the original contract was in force.

15 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 [F18£12.65].

(2)An employee shall not be entitled to guarantee payments in respect of more than the specified number of days in [F19any period of three months].

(3)The specified number of days for the purposes of subsection (2) shall be, subject to subsection (4),—

(a)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; or

(b)where that number of days varies from week to week or over a longer period, 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

(c)in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, 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 following considerations as are appropriate in the circumstances, that is to say,—

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

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

(4)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, subsection (3) shall 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.

(5)The Secretary of State may vary any of the limits referred to in this section, and may in particular vary the [F20length of the period] referred to in subsection (2), after a review under section 148, by order made in accordance with that section.

16 Supplementary provisions relating to guarantee payments.E+W+S

(1)Subject to subsection (2), a right to a guarantee payment shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as “contractual remuneration”).

(2)Any contractual remuneration paid to an employee in respect of a workless day shall go 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 shall go 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.

(4)The Secretary of State may by order provide that in relation to any description of employees the provisions of sections 12(2), 14 and 15(3) (as originally enacted or as varied under section 15(5)) and of subsections (1) to (3), and, so far as they apply for the purposes of those provisions, the provisions of Schedule 14 shall have effect subject to such modifications and adaptations as may be prescribed by the order.

17 Complaint to industrial tribunal.E+W+S

(1)An employee may present a complaint to an industrial 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 industrial tribunal shall not entertain a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day or 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 within the period of three months.

(3)Where an industrial tribunal finds a complaint under subsection (1) well-founded, the tribunal shall order the employer to pay the complainant the amount of guarantee payment which it finds is due to him.

18 Exemption orders.E+W+S

(1)If at any time there is in force a collective agreement, or a wages order, whereby employees to whom the agreement or order relates have a right to guaranteed remuneration and on the application of all the parties to the agreement or, as the case may be, of the council or Board making the order, the appropriate Minister, having regard to the provisions of the agreement or order, is satisfied that section 12 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), a wages order means an order made under any of the following provisions, that is to say—

[F21(a)section 14 of the M2Wages Act 1986;]

(b)section 3 of the M3Agricultural Wages Act 1948;

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

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

(a)as respects a collective agreement or such an order as is referred to in subsection (2)(a) or (c), the Secretary of State;

(b)as respects such an order as is referred to in subsection (2)(b), the Minister of Agriculture, Fisheries and Food.

(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 that 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 industrial 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;

and where an order under this section is in force in respect of such an agreement as is described in paragraph (b) an industrial tribunal shall have jurisdiction over such a complaint as if it were a complaint falling within section 17.

(5)Without prejudice to section 154(4), an order under this section may be varied or revoked by a subsequent order thereunder, whether in pursuance of an application made by all or any of the parties to the agreement in question, or, as the case may be, by the council or Board which made the order in question, or without any such application.

Suspension from work on medical groundsE+W+S

19 Right to remuneration on suspension on medical grounds.E+W+S

(1)An employee who is suspended from work by his employer on medical grounds in consequence of—

(a)any requirement imposed by or under any provision of any enactment or of any instrument made under any enactment, or

(b)any recommendation in any provision of a code of practice issued or approved under section 16 of the M5Health and Safety at Work etc. Act 1974,

which is a provision for the time being specified in Schedule 1 shall, subject to the following provisions of this Act, be entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks.

(2)For the purposes of this section and sections 20 to 22 and 61, an employee shall be regarded as suspended from work only if, and so long as, he continues to be employed by his employer, but is not provided with work or does not perform the work he normally performed before the suspension.

(3)The Secretary of State may by order add provisions to or remove provisions from the list of specified provisions in Schedule 1.

20 General exclusions from right under s. 19.E+W+S

[F22(1)An employee shall not be entitled to remuneration under section 19 unless he has been continuously employed for a period of not less than one month ending with the day before that on which the suspension begins.

(2)An employee who is employed—

(a)under a contract for a fixed term of three months or less, or

(b)under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

shall not be entitled to remuneration under section 19 unless he has been continuously employed for a period of more than three months ending with the day before that on which the suspension begins.]

[F23(3)]An employee shall not be entitled to remuneration under section 19 in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

[F23(4)]An employee shall not be entitled to remuneration under section 19 in respect of any period during which—

(a)his employer has offered to provide him with suitable alternative work, whether or not work which the employee is under his contract, or was under the contract in force before the suspension, employed to perform, and the employee has unreasonably refused to perform that work; or

(b)he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

21 Calculation of remuneration.E+W+S

(1)The amount of remuneration payable by an employer to an employee under section 19 shall be a week’s pay in respect of each week of the period of suspension referred to in subsection (1) of that section, and if in any week remuneration is payable in respect only of part of that week the amount of a week’s pay shall be reduced proportionately.

(2)Subject to subsection (3), a right to remuneration under section 19 shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as “contractual remuneration”).

(3)Any contractual remuneration paid by an employer to an employee in respect of any period shall go towards discharging the employer’s liability under section 19 in respect of that period, and conversely any payment of remuneration in discharge of an employer’s liability under section 19 in respect of any period shall go towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

22 Complaint to industrial tribunal.E+W+S

(1)An employee may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of remuneration to which the employee is entitled under section 19.

(2)An industrial tribunal shall not entertain a complaint relating to remuneration under section 19 in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day, or 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 within the period of three months.

(3)Where an industrial tribunal finds a complaint under subsection (1) well-founded the tribunal shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

Trade union membership and activitiesE+W+S

23 Trade union membership and activities. E+W+S

(1)F30every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of—

(a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or

(b)preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or

(c)compelling him to be or become a member of [F31any trade union or of a particular trade union or of one of a number of particular trade unions]

[F32(1A)Every employee shall also have the right not to have action (short of dismissal) taken against him for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(1B)For the purposes of this section any deduction made by an employer from the remuneration payable to an employee of his in respect of that employee’s employment shall, if the deduction is attributable to the employee’s failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as if it were action (short of dismissal) taken against the employee for the purpose of enforcing a requirement of a kind mentioned in subsection (1A).]

(2)In this section “appropriate time”, in relation to an employee taking part in any activities of a trade union, means time which either—

(a)is outside his working hours, or

(b)is a time within his working hours at which, in accordance with arrangements agreed with, or consent given by his employer, it is permissible for him to take part in those activities;

and in this subsection “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(2A)(2B)

F33(3)—(6)

[F34F35(7)In this section references to being, becoming or ceasing to remain a member of a trade union shall include references to being, becoming or ceasing to remain a member of a particular branch or section of that union and to being, becoming or ceasing to remain a member of one of a number of particular branches or sections of that union, and references to taking part in the activities of a trade union shall be similarly construed.]

24 Complaint to industrial tribunal. E+W+S

(1)An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of section 23.

(2)An industrial tribunal shall not entertain a complaint under subsection (1) unless it is presented to the tribunal before the end of the period of three months beginning with the date on which there occurred the action complained of, or where that action is part of a series of similar actions, the last of those actions, or 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 within the period of three months.

(3)Where the tribunal finds the complaint well-founded it shall make a declaration to that effect and may make an award of compensation, calculated in accordance with section 26, to be paid by the employer to the employee in respect of the action complained of.

25 Supplementary provisions relating to complaints under s. 24.E+W+S

(1)On a complaint under section 24 it shall be for the employer to show—

(a)the purpose for which action was taken against the complainant; and F36

(b)

F36(2)In determining on a complaint under section 24, any question as to whether action was taken by the complainant’s employer or the purpose for which it was taken, no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to take the action complained of, and that question shall be determined as if no such pressure had been exercised.

26 Assessment of compensation on a complaint under s. 24.E+W+S

(1)The amount of the compensation awarded by a tribunal on a complaint under section 24 shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant’s right under section 23 by the employer’s action complained of and to any loss sustained by the complainant which is attributable to that action.

(2)The said loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the action complained of, and

(b)loss of any benefit which he might reasonably be expected to have had but for that action.

(3)In ascertaining the said 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 of Scotland, as the case may be.

(4)In determining the amount of compensation to be awarded under subsection (1), no account shall be taken of any pressure as is referred to in section 25(2), and that question shall be determined as if no such pressure had been exercised.

(5)Where the tribunal finds that the action complained of was to any extent caused or contributed to by any 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.

[F3726A Awards against third parties.E+W+S

(1)Where—

(a)a complaint is presented to an industrial tribunal under section 24 on the ground that action has been taken against the complainant by his employer for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and

(b)either the employer or the complainant claims in proceedings before the tribunal that the employer was induced to take the action by pressure which a trade union or other person exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so,

the employer or the complainant may request the tribunal to direct that the person who he claims exercised the pressure be joined, or in Scotland sisted, as a party to the proceedings.

(2)A request under subsection (1) shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration under section 24(3).

(3)Where a person has been joined, or in Scotland sisted, as a party to proceedings before an industrial tribunal by virtue of subsection (1), and the tribunal—

(a)makes an award of compensation, but

(b)finds that the claim mentioned in subsection (1) is well-founded,

the award may be made against that person instead of against the employer, or partly against that person and partly against the enployer, as the tribunal may consider just and equitable in the circumstances.]

Time off workU.K.

27 Time off for carrying out trade union duties.E+W+S

(1)An employer shall permit an employee of his who is an official of an independent trade union recognised by him to take time off, subject to and in accordance with subsection (2), during the employee’s working hours for the purpose of enabling him—

[F38(a)to carry out—

(i)any duties of his, as such an official, which are concerned with negotiations with the employer that are related to or connected with any matters which fall within section 29(1) of the Trade Union and Labour Relations Act 1974 and in relation to which the trade union is recognised by the employer, or

(ii)any other duties of his, as such an official, which are concerned with the performance, on behalf of employees of the employer, of any functions that are related to or connected with any matters falling within that provision and that the employer has agreed may be so performed by the trade union; or]

(b)to undergo training in aspects of industrial relations which is—

(i)relevant to the carrying out of [F39any such duties as are mentioned in paragraph (a)]; and

(ii)approved by the Trades Union Congress or by the independent trade union of which he is an official.

(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 to any relevant provisions of a Code of Practice issued by the Advisory, Conciliation and Arbitration Service under section 6 of the M6Employment Protection Act 1975.

(3)An employer who permits an employee to take time off under this section for any purpose shall, subject to the following provisions of this section, pay him for the time taken off for that purpose in accordance with the permission—

(a)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, as if he had worked at that work for the whole of that time;

(b)where the employee’s remuneration for that work varies with the amount of work done, an amount calculated by reference to the average hourly earnings for that work.

(4)The average hourly earnings referred to in subsection (3)(b) shall be the average hourly earnings of the employee concerned or, 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)Subject to subsection (6), a right to be paid any amount under subsection (3) shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as “contractual remuneration”).

(6)Any contractual remuneration paid to an employee in respect of a period of time off to which subsection (1) applies shall go towards discharging any liability of the employer under subsection (3) in respect of that period, and conversely any payment of any amount under subsection (3) in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

(7)An employee who is an official of an independent trade union recognised by his employer may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section or to pay him the whole or part of any amount so required to be paid.

28 Time off for trade union activities.E+W+S

(1)An employer shall permit an employee of his who is a member of an appropriate trade union to take time off, subject to and in accordance with subsection (3), during the employee’s working hours for the purpose of taking part in any trade union activity to which this section applies.

(2)In this section “appropriate trade union”, in relation to an employee of any description, means an independent trade union which is recognised by his employer in respect of that description of employee, and the trade union activities to which this section applies are—

(a)any activities of an appropriate trade union of which the employee is a member; and

(b)any activities, whether or not falling within paragraph (a), in relation to which the employee is acting as a representative of such a union,

excluding activities which themselves consist of industrial action whether or not in contemplation or furtherance of a trade dispute.

(3)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 to any relevant provisions of a Code of Practice issued by the Advisory, Conciliation and Arbitration Service under section 6 of the M7Employment Protection Act 1975.

(4)An employee who is a member of an independent trade union recognised by his employer may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section.

29 Time off for public duties.E+W+S

(1)An employer shall permit an employee of his who is—

(a)a justice of the peace;

(b)a member of a local authority;

[F40(bb)a member of the Broads Authority;]

(c)a member of any statutory tribunal;

[F41(cc)a member of, in England and Wales, a board of visitors appointed under section 6(2) of the M8Prison Act 1952 or, in Scotland, a visiting committee appointed under section 19(3) of the Prisons (Scotland) Act M91989 or constituted by virtue of rules made under section 39, as read with section 8(1), of that Act;]

(d)a member of [F42a National Health Service Trust or], in England and Wales, a Regional Health Authority [F43an Area Health Authority or a District] Health Authority [F44or a Family Practitioner Committee] or, in Scotland, a Health Board;

(e)a member of, in England and Wales, the managing or governing body of an educational establishment maintained by a local education authority, or, in Scotland, a school or college council or the governing body of a central institution or a college of education; F45

[F46(ee)a member of the governing body of a grant-maintained school;]

[F47X1(ef)a member of the governing body of a higher education corporation; or]

[F48X2(ef)a member of a school board or of the board of management of a self-governing school;]

(f)a member of, in England and Wales, [F49the National Rivers Authority or, in Scotland, a] river purification board,

to take time off, subject to and in accordance with subsection (4), during the employee’s working hours for the purposes of performing any of the duties of his office or, as the case may be, his duties as such a member.

(2)In subsection (1)—

(a)“local authority” in relation to England and Wales includes the Common Council of the City of London but otherwise has the same meaning as in the M10Local Government Act 1972, and in relation to Scotland has the same meaning as in the M11Local Government (Scotland) Act 1973;

(b)“Regional Health Authority” F50 “Area Health Authority” [F51and District Health Authority][F52and “Family Practitioner Committee”] have the same meaning as in the M12National Health Service Act 1977, and “Health Board” has the same meaning as in [F53the M13National Health Service (Scotland) Act 1978];

(c)“local education authority” means the authority designated by section 192(1) of the M14Local Government Act 1972, “school or college council” means a body appointed under section 125(1) of the M15Local Government (Scotland) Act 1973, [F54and “central institution” and “college of education”][F54“board of management”, “central institution”, “college of education” and “self-governing school”] have the meanings assigned to them by [F55section 135(1) of the M16Education (Scotland) Act 1980][F56and “school board” has the meaning assigned by section 1(1) of the School Boards (Scotland) Act 1988]; and

(d)“river purification board” means a board established under section 135 of the Local Government (Scotland) Act 1973.

(3)For the purposes of subsection (1) the duties of a member of a body referred to in paragraphs (b) to (f) of that subsection are:—

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

(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.

(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 the following:—

(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 27 and 28;

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

(5)The Secretary of State may by order—

(a)modify the provisions of subsection (1) by adding any office or body to, or removing any office or body from, that subsection or by altering the description of any office or body in that subsection; and

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

(6)An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section.

30 Provisions as to industrial tribunals.E+W+S

(1)An industrial tribunal shall not consider—

(a)a complaint under section 27, 28 or 29 that an employer has failed to permit an employee to take time off; or

(b)a complaint under section 27 that an employer has failed to pay an employee the whole or part of any amount required to be paid under that section;

unless it is presented within three months of the date when the failure occurred or 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 within the period of three months.

(2)Where an industrial tribunal finds any complaint mentioned in subsection (1)(a) well-founded, the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.

(3)Where on a complaint under section 27 an industrial tribunal finds that the employer has failed to pay the employee the whole or part of the amount required to be paid under that section, the tribunal shall order the employer to pay the employee the amount which it finds due to him.

31 Time off to look for work or make arrangements for training.E+W+S

(1)An employee who is given notice of dismissal by reason of redundancy shall, subject to the following provisions of this section, be entitled before the expiration of his notice to be allowed by his employer reasonable time off during the employee’s working hours in order to look for new employment or make arrangements for training for future employment.

(2)An employee shall not be entitled to time off under this section unless, on whichever is the later of the following dates, that is to say,—

(a)the date on which the notice is due to expire; or

(b)the date on which it would expire were it the notice required to be given by section 49(1),

he will have been or, as the case may be, would have been continuously employed for a period of two years or more.

(3)An employee who is allowed time off during his working hours under subsection (1) shall, subject to the following provisions of this section, be entitled to be paid remuneration by his employer for the period of absence at the appropriate hourly rate.

(4)The appropriate hourly rate in relation to an employee shall be the amount of one week’s pay divided by—

(a)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 notice was given; or

(b)where the number of such normal working hours differs from week to week or over a longer period, the average number of such 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 notice was given.

(5)If an employer unreasonably refuses to allow an employee time off from work under this section, the employee shall, subject to subsection (9), be entitled to be paid an amount equal to the remuneration to which he would have been entitled under subsection (3) if he had been allowed the time off.

(6)An employee may present a complaint to an industrial tribunal on the ground that his employer has unreasonably refused to allow him time off under this section or has failed to pay the whole or any part of any amount to which the employee is entitled under subsection (3) or (5).

(7)An industrial tribunal shall not entertain a complaint under subsection (6) unless it is presented to the tribunal within the period of three months beginning with the day on which it is alleged that the time off should have been allowed, or 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 within the period of three months.

(8)If on a complaint under subsection (6) the tribunal finds the grounds of the complaint well-founded it shall make a declaration to that effect and shall order the employer to pay to the employee the amount which it finds due to him.

(9)The amount—

(a)of an employer’s liability to pay remuneration under subsection (3); or

(b)which may be ordered by a tribunal to be paid by an employer under subsection (8),

or, where both paragraphs (a) and (b) are applicable, the aggregate amount of the liabilities referred to in those paragraphs, shall not exceed, in respect of the notice period of any employee, two-fifths of week’s pay of that employee.

(10)Subject to subsection (11), a right to any amount under subsection (3) or (5) shall not affect any right of an employee in relation to remuneration under the contract of employment (in this section referred to as “contractual remuneration”).

(11)Any contractual remuneration paid to an employee in respect of a period when he takes time off for the purposes referred to in subsection (1) shall go towards discharging any liability of the employer to pay remuneration under subsection (3) in respect of that period, and conversely any payment of remuneration under subsection (3) in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

[F5731A Time off for ante-natal care.E+W+S

(1)An employee who is pregnant and who has, on the advice of a registered medical practitioner, registered midwife or registered health visitor, made an appointment to attend at any place for the purpose of receiving ante-natal care shall, subject to the following provisions of this section, have the right not to be unreasonably refused time off during her working hours to enable her to keep the appointment.

(2)Subject to subsection (3), an employer shall not be required by virtue of this section to permit an employee to take time off to keep an appointment unless, if he requests her to do so, she produces for his inspection—

(a)a certificate from a registered medical practitioner, registered midwife or registered health visitor 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) shall 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)An employee who is permitted to take time off during her working hours in accordance with subsection (1) shall be entitled to be paid remuneration by her employer for the period of absence at the appropriate hourly rate.

(5)The appropriate hourly rate in relation to an employee shall be the amount of one week’s pay divided by—

(a)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 time off is taken; or

(b)where the number of such normal working hours differs from week to week or over a longer period, the average number of such 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

(c)in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, a number which fairly represents the number of normal working hours in a week having regard to such of the following considerations as are appropriate in the circumstances, that is to say,—

(i)the average number of normal working hours in a week which the employee could expect in accordance with the terms of her contract;

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

(6)An employee may present a complaint to an industrial tribunal that her employer has unreasonably refused her time off as required by this section or that he has failed to pay her the whole or part of any amount to which she is entitled under subsection (4).

(7)An industrial tribunal shall not entertain a complaint under subsection (6) unless it is presented within the period of three months beginning with the day of the appointment concerned, or 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 within the period of three months.

(8)Where on a complaint under subsection (6) the tribunal finds the complaint well-founded it shall make a declaration to that effect; and—

(a)if the complaint is that the employer has unreasonably refused the employee time off, the tribunal shall order the employer to pay to the employee an amount equal to the remuneration to which she would have been entitled under subsection (4) if the time off had not been refused; and

(b)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 subsection (4), the tribunal shall order the employer to pay to the employee the amount which it finds due to her.

(9)Subject to subsection (10), a right to any amount under subsection (4) shall not affect any right of an employee in relation to remuneration under her contract of employment (in this section referred to as “contractual remuneration”).

(10)Any contractual remuneration paid to an employee in respect of a period of time off under this section shall go towards discharging any liability of the employer to pay remuneration under subsection (4) in respect of that period, and conversely any payment of remuneration under subsection (4) in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

(11)Until the coming into operation of section 10 of the M17Nurses, Midwives and Health Visitors Act 1979, this section shall have effect as if for any reference to a registered midwife or registered health visitor there substituted a reference to a certified midwife.]

[F5932 Provisions supplementary to ss. 27 to 31A.E+W+S

(1)For the purposes of sections 27 to 31A the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, he is required to be at work.

(2)For the purposes of sections 27 and 28 a trade union shall be taken to be recognised by an employer if it is recognised by him, to any extent, for the purpose of collective bargaining, that is to say, negotiations related to or connected with one or more of the matters specified in section 29(1) of the Trade Union and Labour Relations Act 1974.]

[F60Part IIIE+W+S Maternity]

General provisionsE+W+S

33 Rights of employee in connection with pregnancy and confinement. E+W+S

(1)An employee who is absent from work wholly or partly because of pregnancy or confinement shall, subject to the following provisions of this Act,—

(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F76

(b)be entitled to return to work.

(2)Schedule 2 shall have effect for the purpose of supplementing the following provisions of this Act in relation to an employee’s right to return to work.

(3)An employee shall be entitled to the [F77right ]referred to in subsection (1) whether or not a contract of employment subsists during the period of her absence but, subject to subsection (4), she shall not be so entitled unless—

(a)she continues to be employed by her employer (whether or not she is at work) until immediately before the beginning of the eleventh week before the expected week of confinement;

(b)she has at the beginning of that eleventh week been continuously employed for a period of not less than two years;. . .

(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F78

[F79(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F80

(iii)of the expected week of confinement or, if the confinement has occurred, the date of confinement.]

[F81(3A)Where not earlier than forty-nine days after the beginning of the expected week of confinement (or the date of confinement) notified under subsection (3)(d) an employee is requested in accordance with subsection (3B) by her employer or a successor of his to give him written confirmation that she intends to return to work, she shall not be entitled to the right to return unless she gives that confirmation within fourteen days of receiving the request or, if that is not reasonably practicable, as soon as reasonably practicable.

(3B)A request under subsection (3A) shall be made in writing and shall be accompanied by a written statement of the effect of that subsection.]

(4)An employee who has been dismissed by her employer for a reason falling within section 60(1)(a) or (b) and has not been re-engaged in accordance with that section, shall be entitled to the [F82right] referred to in subsection (1) of this section notwithstanding that she has thereby ceased to be employed before the beginning of the eleventh week before the expected week of confinement if, but for that dismissal, she would at the beginning of that eleventh week have been continuously employed for a period of not less than two years, but she shall not be entitled to the right. . . F83unless she informs her employer (in writing if he so requests), before or as soon as reasonably practicable after the dismissal takes effect, that she intends to return to work with him.

• In this subsection “dismiss” and “dismissal” have the same meaning as they have for the purposes of Part V.

(5)An employee shall not be entitled tothe [F84right ]referred to in subsection (1) unless, if requested to do so by her employer, she produces for his inspection a certificate from a registered medical practitioner or a [F85registered midwife] stating the expected week of her confinement.

(6)The Secretary of State may by order vary the periods of two years referred to in subsections (3) and (4), or those periods as varied from time to time under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by resolution of each House of Parliament.

34—44. F86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

45Right to return to work. E+W+S

(1)The right to return to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is, subject to the following provisions of this Act, a right to return to work with her original employer, or, where appropriate, his successor, at any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls, in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent.

(2)In subsection (1) terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent means, as regards seniority, pension rights and other similar rights, that the period or periods of employment prior to the employee’s absence shall be regarded as continuous with her employment following that absence [F87but subject to the requirements of paragraph 5 of Schedule 5 to the Social Security Act 1989 (credit for the period of absence in certain cases)].

(3)If an employee is entitled to return to work in accordance with subsection (1), but it is not practicable by reason of redundancy for the employer to permit her so to return to work she shall be entitled, where there is a suitable available vacancy, to be offered alternative employment with her employer (or his successor), or an associated employer, under a new contract of employment complying with subsection (4).

(4)The new contract of employment must be such that—

(a)the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

(a)the provisions of the new contract as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she had returned to work in accordance with subsection (1).

46Enforcement of rights under s. 45. E+W+S

he remedies of an employee for infringement of either of the rights mentioned in section 45 are those conferred by or by virtue of the provisions of sections 47, 56 and 86 and Schedule 2.

47Exercise of right to return to work. E+W+S

(1)An employee shall exercise her right to return to work by [F88giving written notice to] the employer (who may be her original employer or a successor of that employer) at least [F89twenty-one ]days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as the notified day of return).

(2)An employer may postpone an employee’s return to work until a date not more than four weeks after the notified day of return if he notifies her before that day that for specified reasons he is postponing her return until that date, and accordingly she will be entitled to return to work with him on that date.

(3)Subject to subsection (4), an employee may—

(a)postpone her return to work until a date not exceeding four weeks from the notified day of return, notwithstanding that that date falls after the end of the period of twenty-nine weeks mentioned in section 45(1); and

(b)where no day of return has been notified to the employer, extend the time during which she may exercise her right to return in accordance with subsection (1), so that she returns to work not later than four weeks from the expiration of the said period of twenty-nine weeks;

if before the notified day of return or, as the case may be, the expiration of the period of twenty-nine weeks she gives the employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return or the expiration of that period, as the case may be.

(4)Where an employee has once exercised a right of postponement or extension under subsection (3)(a) or (b), she shall not again be entitled to exercise a right of postponement or extension under that subsection in connection with the same return to work.

(5)If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable thereafter.

(6)If no day of return has been notified and there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the expiration of the period of twenty-nine weeks referred to in section 45(1), or which appears likely to have that effect and in consequence the employee does not notify a day of return, the employee may exercise her right to return in accordance with subsection (1) so that she returns to work at any time before the end of the period of [F90twenty-eight days ]from the end of the interruption notwithstanding that she returns to work outside the said period of twenty-nine weeks.

(7)Where the employee has either—

(a)exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return; or

(b)refrained from notifying the day of return in the circumstances described in subsection (6),

the other of those subsections shall apply as if for the reference to the expiration of the period of twenty-nine weeks there were substituted a reference to the expiration of the further period of four weeks or, as the case may be, of the period of F91twenty-eight days from the end of the interruption of work.

(8)Where—

(a)n employee’s return is postponed under subsection (2) or (3)(a), or

(b)the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (5),

then, subject to subsection (4), references in those subsections and in sections 56 and 86 and Schedule 2 to the notified day of return shall be construed as references to the day to which the return is postponed or, as the case may be, that later day.

48Contractual right to return to work.E+W+S

(1)An employee who has a right both under this Act and under a contract of employment, or otherwise, to return to work, may not exercise the two rights separately but may in returning to work take advantage of whichever right is, in any particular respect, the more favourable.

(2)The provisions of sections 45, 46, 47, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return conferred solely by this Part.

Part IVU.K. Termination of Employment

49 Rights of employer and employee to a minimum period of notice. E+W+S

(1)The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for [F92one month] or more—

(a)shall be not less than one week’s notice if his period of continuous employment is less than two years;

(b)shall be not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years; and

(c)shall be not less than twelve weeks’ notice if his period of continuous employment is twelve years or more.

(2)The notice required to be given by an employee who has been continuously employed for [F92one month] or more to terminate his contract of employment shall be not less than one week.

(3)Any provision for shorter notice in any contract of employment with a person who has been continuously employed for [F92one month] or more shall have effect subject to the foregoing subsections, but this section shall not be taken to prevent either party from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice.

(4)Any contract of employment of a person who has been continuously employed for [F93three months] or more which is a contract for a term certain of [F93one month] or less shall have effect as if it were for an indefinite period and, accordingly, subsections (1) and (2) shall apply to the contract.

[F94(4A)Subsections (1) and (2) do not apply to a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months unless the employee has been continuously employed for a period of more than three months.]

(5)It is hereby declared that this section does not affect any right of either party to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the passing of this Act.

(6)The definition of week given by section 153(1) does not apply for the purposes of this section.

50 Rights of employee in period of notice. E+W+S

(1)If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for [F95one month] or more, the provisions of Schedule 3 shall have effect as respects the liability of the employer for the period of notice required by section 49(1).

(2)If an employee who has been continuously employed for [F95one month] or more gives notice to terminate his contract of employment, the provisions of Schedule 3 shall have effect as respects the liability of the employer for the period of notice required by section 49(2).

(3)This section shall not apply in relation to a notice given by the employer or the employee if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by section 49(1).

51 Measure of damages in proceedings against employers. E+W+S

If an employer fails to give the notice required by section 49, the rights conferred by section 50 (with Schedule 3) shall be taken into account in assessing his liability for breach of the contract.

52 Statutory contracts.E+W+S

Sections 49 and 50 shall apply in relation to a contract all or any of the terms of which are terms which take effect by virtue of any provision contained in or having effect under an Act of Parliament, whether public or local, as they apply in relation to any other contract; and the reference in this section to an Act of Parliament includes, subject to any express provision to the contrary, an Act passed after this Act.

53 Written statement of reasons for dismissal. E+W+S

(1)An employee shall be entitled—

(a)if he is given by his employer notice of termination of his contract of employment;

(b)if his contract of employment is terminated by his employer without notice; or

(c)if, where he is employed under a contract for a fixed term, that term expires without being renewed under the same contract,

to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal.

(2)An employee shall not be entitled to a written statement under subsection (1) unless on the effective date of termination he has been, or will have been, continuously employed for a period of [F96[F97not less than two years] ending with that date].

(3)A written statement provided under this section shall be admissible in evidence in any proceedings.

(4)A complaint may be presented to an industrial tribunal by an employee against his employer on the ground that the employer unreasonably refused to provide a written statement under subsection (1) or that the particulars of reasons given in purported compliance with that subsection are inadequate or untrue, and if the tribunal finds the complaint well-founded—

(a)it may make a declaration as to what it finds the employer’s reasons were for dismissing the employee; and

(b)it shall make an award that the employer pay to the employee a sum equal to the amount of two weeks’ pay.

(5)An industrial tribunal shall not entertain a complaint under this section relating to the reasons for a dismissal unless it is presented to the tribunal at such a time that the tribunal would, in accordance with section 67(2) or (4), entertain a complaint of unfair dismissal in respect of that dismissal presented at the same time.

Part VU.K. Unfair Dismissal

Right not to be unfairly dismissedE+W+S

54 Right of employee not to be unfairly dismissed.E+W+S

(1)In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer.

(2)This section applies to every employment except in so far as its application is excluded by or under any provision of this Part or by section 141 to 149.

Meaning of unfair dismissalE+W+S

55 Meaning of “dismissal”.E+W+S

(1)In this Part, except as respects a case to which section 56 applies, “dismissal” and “dismiss” shall be construed in accordance with the following provisions of this section.

(2)Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if,—

(a)the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or

(b)where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or

(c)the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct.

(3)Where an employer gives notice to an employee to terminate his contract of employment and, at a time within the period of that notice, the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire, the employee shall for the purposes of this Part be taken to be dismissed by his employer, and the reasons for this dismissal shall be taken to be the reasons for which the employer’s notice is given.

(4)In this Part “the effective date of termination”—

(a)in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires;

(b)in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect; and

(c)in relation to an employee who is employed under a contract for a fixed term, where that term expires without being renewed under the same contract, means the date on which that term expires.

[F98(5)Where the contract of employment is terminated by the employer and the notice required by section 49 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (4)) then, for the purposes of sections 53(2), 64(1)(a), 64A and 73(3) and paragraph 8(3) of Schedule 14, the later date shall be treated as the effective date of termination in relation to the dismissal.

(6)Where the contract of employment is terminated by the employee and—

(a)the material date does not fall during a period of notice given by the employer to terminate that contract; and

(b)had the contract been terminated not by the employee but by notice given on the material date by the employer, that notice would have been required by section 49 to expire on a date later than the effective date of termination (as defined by subsection (4)),

then, for the purposes of sections 64(1)(a), 64A and 73(3) and paragraph 8(3) of Schedule 14, the later date shall be treated as the effective date of termination in relation to the dismissal.

(7)“Material date” means—

(a)in subsection (5), the date when notice of termination was given by the employer or (where no notice was given) the date when the contract of employment was terminated by the employer; and

(b)in subsection (6), the date when notice of termination was given by the employee or (where no notice was given) the date when the contract of employment was terminated by the employee.]

56 Failure to permit woman to return to work after confinement treated as dismissal.E+W+S

Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 but is not permitted to return to work, then [F99subject to section 56A] she shall be treated for the purposes of this Part as if she had been employed until the notified day of return, and, if she would not otherwise be so treated, as having been continuously employed until that day, and as if she had been dismissed with effect from that day for the reason for which she was not permitted to return.

[F10056A Exclusion of s. 56 in certain cases.E+W+S

(1)Section 56 shall not apply in relation to an employee if—

(a)immediately before her absence began the number of employees employed by her employer, added to the number employed by any associated employer of his, did not exceed five, and

(b)it is not reasonably practicable for the employer (who may be the same employer or a successor of his) to permit her to return to work in accordance with section 45(1), or for him or an associated employer to offer her employment under a contract of employment satisfying the conditions specified in subsection (3).

(2)Section 56 shall not apply in relation to an employee if—

(a)it is not reasonably practicable for a reason other than redundancy for the employer (who may be the same employer or a successor of his) to permit her to return to work in accordance with section 45(1), and

(b)he or an associated employer offers her employment under a contract of employment satisfying the conditions specified in subsection (3), and

(c)she accepts or unreasonably refuses that offer.

(3)the conditions referred to in subsections (1) and (2) are—

(a)that the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

(b)that the provisions of the contract as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she had returned to work in accordance with section 45(1).

(4)Where on complaint of unfair dismissal any question arises as to whether the operation of section 56 is excluded by subsection (1) or (2), it shall be for the employer to show that the provisions of that subsection were satisfied in relation to the complainant.]

57 General provisions relating to fairness of dismissal.E+W+S

(1)In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show—

(a)what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b)that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(2)In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which—

(a)related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, or

(b)related to the conduct of the employee, or

(c)was that the employee was redundant, or

(d)was that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3)Where the employer has fulfilled the requirements of subsection (1), then, subject to sections 58 to 62, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [F101in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case].

(4)In this section, in relation to an employee,—

(a)“capability” means capability assessed by reference to skill, aptitude, health or any other physical or mental quality;

(b)“qualifications” means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held.

[F10458 Dismissal relating to trade union membership. E+W+S

(1)F105the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

(a)was, or proposed to become, a member of an independent trade union, or

(b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or

(c)was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member.

(2)In subsection (1) “an appropriate time”, in relation to an employee taking part in the activities of a trade union, means a time which either—

(a)is outside his working hours, or

(b)is a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in those activities;

and in this subsection “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3)—(12)

F106(13)Where the reason, or one of the reasons, for the dismissal of an employee was—

(a)his refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments; or

(b)his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment;

that reason shall be treated as falling within [F107subsection (1)(c).]

[F108(14)In this section references to being, becoming or ceasing to remain a member of a trade union shall include references to being, becoming or ceasing to remain a member of a particular branch or section of that union and to being, becoming or ceasing to remain a member of one of a number of particular branches or sections of that union, and references to taking part in the activities of a trade union shall be similarly construed.]]

F10958A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

59 Dismissal on ground of redundancy.E+W+S

Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and either—

(a)that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was [F110one of those specified in section 58(1)]; or

(b)that he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his case,

then, for the purposes of this Part, the dismissal shall be regarded as unfair.

60 Dismissal on ground of pregnancy.E+W+S

(1)An employee shall be treated for the purposes of this Part as unfairly dismissed if the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy, except one of the following reasons—

(a)that at the effective date of termination she is or will have become, because of her pregnancy, incapable of adequately doing the work which she is employed to do;

(b)that, because of her pregnancy, she cannot or will not be able to continue after that date to do that work without contravention (either by her or her employer) of a duty or restriction imposed by or under any enactment.

(2)An employee shall be treated for the purposes of this Part as unfairly dismissed if her employer dismisses her for a reason mentioned in subsection (1)(a) or (b), but neither he nor any successor of his, where there is a suitable available vacancy, makes her an offer before or on the effective date of termination to engage her under a new contract of employment complying with subsection (3).

(3)The new contract of employment must—

(a)take effect immediately on the ending of employment under the previous contract, or, where that employment ends on a Friday, Saturday or Sunday, on or before the next Monday after that Friday, Saturday or Sunday;

(b)be such that the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

(c)be such that the provision of the new contract as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than the corresponding provisions of the previous contract.

(4)On a complaint of unfair dismissal on the ground of failure to offer to engage an employee as mentioned in subsection (2), it shall be for the employer to show that he or a successor made an offer to engage her in compliance with subsections (2) and (3) or, as the case may be, that there was no suitable available vacancy for her.

(5)Section 55(3) shall not apply in a case where an employer gives notice to an employee to terminate her contract of employment for a reason mentioned in subsection (1)(a) or (b).

61 Dismissal of replacement.E+W+S

(1)Where an employer—

(a)on engaging an employee informs the employee in writing that his employment will be terminated on the return to work of another employee who is, or will be, absent wholly or partly because of pregnancy or confinement; and

(b)dismisses the first-mentioned employee in order to make it possible to give work to the other employee;

then, for the purposes of section 57(1)(b), but without prejudice to the application of section 57(3), the dismissal shall be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(2)Where an employer—

(a)on engaging an employee informs the employee in writing that his employment will be terminated on the end of a suspension such as is referred to in section 19 of another employee; and

(b)dismisses the first-mentioned employee in order to make it possible to allow the other employee to resume his original work;

then, for the purposes of section 57(1)(b), but without prejudice to the application of section 57(3), the dismissal shall be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

62 Dismissal in connection with a lock-out, strike or other industrial action.E+W+S

(1)The provisions of this section shall have effect in relation to an employee [F115(the “complainant”)] who claims that he has been unfairly dismissed by his employer where at the date of dismissal—

(a)the employer was conducting or instituting a lock-out, or

(b)the [F116complainant] was taking part in a strike or other industrial action.

(2)In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

(a)that one or more relevant employees of the same employer have not been dismissed, or

[F117(b)that any such employee has, before the expiry of the period of three months beginning with that employee’s date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement.]

(3)Where it is shown that the condition referred to in paragraph (b) of subsection (2) is fulfilled, the provisions of sections 57 to 60 shall have effect as if in those sections for any reference to the reason or principal reason for which the [F116complainant] was dismissed there were substituted a reference to the reason or principal reason for which he has not been offered re-engagement.

(4)In this section—

(a)“date of dismissal” means—

(i)where the employee’s contract of employment was terminated by notice, the date on which the employer’s notice was given, and

(ii)in any other case, the effective date of termination;

(b)“relevant employees” means—

(i)in relation to a lock-out, employees who were directly interested in the F118[F119dispute] in contemplation or furtherance of which the lock-out occurred, and

[F120(ii)in relation to a strike or other industrial action, those employees at the establishment who were taking part in the action at the complainant’s date of dismissal;

“establishment”, in sub-paragraph (ii), meaning that establishment of the employer at or from which the complainant works; and]

(c)any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

[F121(5)The provisions of this section do not apply to an employee who by virtue of section 62A below has no right to complain of unfair dismissal; but nothing in that section affects the question who are relevant employees in relation to an employee to whom the provisions of this section do apply.]

[F12262A Dismissal of those taking part in unofficial industrial action. E+W+S

(1)An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(2)A strike or other industrial action is unofficial in relation to an employee unless—

(a)he is a member of a trade union and the action is authorised or endorsed by that union, or

(b)he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(3)The provisions of subsections (3) to (7) of section 15 of the Employment Act 1982 apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

(4)The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal.

(5)In this section the “time of dismissal” means—

(a)where the employee’s contract of employment is terminated by notice, when the notice is given,

(b)where the employee’s contract of employment is terminated without notice, when the termination takes effect, and

(c)where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires;

and a “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971.

(6)For the purposes of this section membership of a trade union for purposes unconnected with the employment in question shall be disregarded; but an employee who was a member of a trade union when he began to take part in industrial action shall continue to be treated as a member for the purpose of determining whether that action is unofficial in relation to him or another notwithstanding that he may in fact have ceased to be a member.]

63 Pressure on employer to dismiss unfairly.E+W+S

In determining, for the purposes of this Part any question as to the reason, or principal reason, for which an employee was dismissed or any question whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirements of section 57(1)(b) or whether the employer acted reasonably in treating it as a sufficient reason for dismissing him,—

(a)no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee, and

(b)any such question shall be determined as if no such pressure had been exercised.

Exclusion of section 54U.K.

64 Qualifying period and upper age limit.E+W+S

(1)Subject to subsection (3), section 54 does not apply to the dismissal of an employee from any employment if the employee—

(a)was not continuously employed for a period of not less than [F123two years] ending with the effective date of termination, or

[F124(b)attained the following age on or before the effective date of termination, that is to say—

(i)if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age; and

(ii)in any other case, the age of sixty-five.]

(2)If an employee is dismissed by reason of any such requirement or recommendation as is referred to in section 19(1), subsection (1)(a) shall have effect in relation to that dismissal as if for the words [F125two years] there were substituted the words [F126one month].

(3)Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal was [F127one of those specified in section 58(1)].

[F12864A Extended qualifying period where no more than twenty employees. E+W+S

(1)Subject to subsection (2), section 54 does not apply to the dismissal of an employee from any employment if—

(a)the period (ending with the effective date of termination) during which the employee was continuously employed did not exceed two years; and

(b)at no time during that period did the number of employees employed by the employer for the time being of the dismissed employee, added to the number employed by any associated employer, exceed twenty

(2)Subsection (1) shall not apply to the dismissal of an employee by reason of any such requirement or recommendation as is referred to in section 19(1), or if it is shown that the reason (or, if more than one, the principal reason) for the dismissal was [F129one of those specified in section 58(1)].].

65 Exclusion in respect of dismissal procedures agreement.E+W+S

(1)An application may be made jointly to the Secretary of State by all the parties to a dismissal procedures agreement to make an order designating that agreement for the purposes of this section.

(2)On any such application the Secretary of State may make such an order if he is satisfied—

(a)that every trade union which is a party to the dismissal procedures agreement is an independent trade union;

(b)that the agreement provides for procedures to be followed in cases where an employee claims that he has been, or is in the course of being, unfairly dismissed;

(c)that those procedures are available without discrimination to all employees falling within any description to which the agreement applies;

(d)that the remedies provided by the agreement in respect of unfair dismissal are on the whole as beneficial as (but not necessarily identical with) those provided in respect of unfair dismissal by this Part;

(e)that the procedures provided by the agreement include a right to arbitration or adjudication by an independent referee, or by a tribunal or other independent body, in cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached; and

(f)that the provisions of the agreement are such that it can be determined with reasonable certainty whether a particular employee is one to whom the agreement applies or not.

(3)Where a dismissal procedures agreement is designated by an order under this section which is for the time being in force, the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under section 54; and accordingly that section shall not apply to the dismissal of an employee from any employment if it is employment to which, and he is an employee to whom, those provisions of the agreement apply.

(4)Subsection (3) shall not apply to the right not to be unfairly dismissed for any reason mentioned in subsection (1) or (2) of section 60.

66 Revocation of exclusion order under s. 65.E+W+S

(1)

F130(2)If [F131at any time when an order under section 65 is in force, in respect of a dismissal procedures agreement the Secretary of State is satisfied, whether on an application by any of the parties to the agreement or otherwise,] either—

(a)that it is the desire of all the parties to the dismissal procedures agreement that the order should be revoked, or

(b)that the agreement has ceased to fulfil all the conditions specified in section 65(2),

the Secretary of State shall revoke the order by a further order made under this section.

(3)Any order made under this section may contain such transitional provisions as appear to the Secretary of State to be appropriate in the circumstances, and, in particular, may direct—

(a)that, notwithstanding section 65(3), an employee shall not be excluded from his rights under section 54 where the effective date of termination falls within a transitional period which is specified in the order and is a period ending with the date on which the order under this section takes effect and shall have an extended time for presenting a complaint under section 67 in respect of a dismissal where the effective date of termination falls within that period, and

(b)that in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, where the effective date of terminations falls within that transitional period, an industrial tribunal shall have regard to such considerations (in addition to those specified in this Part and paragraph 2 of Schedule 9) as may be specified in the order.

Remedies for unfair dismissalE+W+S

67 Complaint to industrial tribunal.E+W+S

(1)A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.

(2)Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or 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 the period of three months.

[F132(3)Subsection (2) shall apply in relation to a complaint to which section 62(3) applies as if—

(a)for the references to three months there were substituted, in each case, a reference to six months; and

(b)as if for the reference to the effective date of termination there were submitted a reference to the complainant’s date of dismissal (within the meaning of section 62(4)).]

(4)An industrial tribunal shall consider a complaint under this section if, where the dismissal is with notice, the complaint is presented after the notice is given notwithstanding that it is presented before the effective date of termination and in relation to such a complaint the provisions of this Act, so far as they relate to unfair dismissal, shall have effect—

(a)as if references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires;

(b)as if references to reinstatement included references to the withdrawal of the notice by the employer;

(c)as if references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice; and

(d)as if references to an employee ceasing to be employed included references to an employee having been given notice of dismissal.

68 Remedies for unfair dismissal.E+W+S

(1)Where on a complaint under section 67 an industrial tribunal finds that the grounds of the complaint are well-founded, it shall explain to the complainant what orders for reinstatement or re-engagement may be made under section 69 and in what circumstances they may be made, and shall ask him whether he wishes the tribunal to make such an order, and if he does express such a wish the tribunal may make an order under section 69.

(2)If on a complaint under section 67 the tribunal finds that the grounds of the complaint are well-founded and no order is made under section 69, the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with [F133sections 72 to 76], to be paid by the employer to the employee.

69 Order for reinstatement or re-engagement.E+W+S

(1)An order under this section may be an order for reinstatement (in accordance with subsections (2) and (3)) or an order for re-engagement (in accordance with subsection (4)), as the industrial tribunal may decide, and in the latter case may be on such terms as the tribunal may decide.

(2)An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed, and on making such an order the tribunal shall specify—

(a)any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal, including arrears of pay, for the period between the date of termination of employment and the date of reinstatement;

(b)any rights and privileges, including seniority and pension rights, which must be restored to the employee; and

(c)the date by which the order must be complied with.

(3)Without prejudice to the generality of subsection (2), if the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.

(4)An order for re-engagement is an order that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment, and on making such an order the tribunal shall specify the terms on which re-engagement is to take place including—

(a)the identity of the employer;

(b)the nature of the employment;

(c)the remuneration for the employment;

(d)any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal, including arrears of pay, for the period between the date of termination of employment and the date of re-engagement;

(e)any rights and privileges, including seniority and pension rights, which must be restored to the employee; and

(f)the date by which the order must be complied with.

(5)In exercising its discretion under this section the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account the following considerations, that is to say—

(a)whether the complainant wishes to be reinstated;

(b)whether it is practicable for the employer to comply with an order for reinstatement;

(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

(6)If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and if so on what terms; and in so doing the tribunal shall take into account the following considerations, that is to say—

(a)any wish expressed by the complainant as to the nature of the order to be made;

(b)whether it is practicable for the employer or, as the case may be, a successor or associated employer to comply with an order for re-engagement;

(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and if so on what terms;

and except in a case where the tribunal takes into account contributory fault under paragraph (c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.

70 Supplementary provisions relating to s. 69.E+W+S

(1)Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (5)(b) or (6)(b) of section 69, whether it is practicable to comply with an order for reinstatement or re-engagement unless the employer shows—

(a)that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement; or

(b)that he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and that when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.

(2)In calculating for the purpose of subsection (2)(a) or (4)(d) of section 69 any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement or re-engagement by way of—

(a)wages in lieu of notice or ex gratia payments paid by the employer;

(b)remuneration paid in respect of employment with another employer;

and such other benefits as the tribunal thinks appropriate in the circumstances.

71 Enforcement of s. 69 order and compensation.E+W+S

(1)If an order under section 69 is made and the complainant is reinstated or, as the case may be, re-engaged but the terms of the order are not fully complied with, then, subject to section 75, an industrial tribunal shall make an award of compensation, to be paid by the employer to the employee, of such amount as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order.

(2)Subject to subsection (1), if an order under section 69 is made but the complainant is not reinstated or, as the case may be, re-engaged in accordance with the order—

(a)the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with [F134sections 72 to 76], to be paid by the employer to the employee; and

(b)[F135except in a case in which the dismissal is to be regarded as unfair by virtue of section 58 or 59(a) or in which] the employer satisfies the tribunal that it was not practicable to comply with the order, the tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount—

(i)where the dismissal is of a description referred to in subsection (3), not less than twenty-six nor more than fifty-two weeks’ pay, or

(ii)in any other case, not less than thirteen nor more than twenty-six weeks’ pay.

(3)The descriptions of dismissal in respect of which an employer may incur a higher additional award in accordance with subsection (2)(b)(i) are the following, that is to say,—

(a)

F136(b)a dismissal which is an act of discrimination within the meaning of the M20Sex Discrimination Act 1975 which is unlawful by virtue of that Act;

(c)a dismissal which is an act of discrimination within the meaning of the M21Race Relations Act 1976 which is unlawful by virtue of that Act.

(4)Where in any case an employer has engaged a permanent replacement for a dismissed employee the tribunal shall not take that fact into account in determining, for the purposes of subsection (2)(b) whether it was practicable to comply with the order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement.

(5)Where in any case an industrial tribunal makes an award of compensation for unfair dismissal, calculated in accordance with [F137sections 72 to 76], and the tribunal finds that the complainant has unreasonably prevented an order under section 69 from being complied with, it shall, without prejudice to the generality of section 74(4), take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Amount of compensationE+W+S

[F13872 Compensation for unfair dismissal.E+W+S

Where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) the award shall consist of—

(a)a basic award (calculated in accordance with section 73), and

(b)a compensatory award (calculated in accordance with section 74), and

(c)where the dismissal is to be regarded as unfair by virtue of section 58 or 59(a), a special award (calculated in accordance with section 75A);

but paragraph (c) shall not apply unless the complainant requested the tribunal to make an order under section 69, and shall not in any event apply in a case within section 73(2).]

[F13972A Reduction of compensation: matters to be disregarded.E+W+S

(1)This section applies in any case where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) and the dismissal is to be regarded as unfair by virtue of section 58 or 59(a).

(2)In such a case the tribunal, in considering whether it would be just and equitable to reduce, or further reduce, the amount of any part of the award, shall disregard any conduct or action of the complainant in so far as it constitutes—

(a)a breach, or proposed breach, of any requirement falling within subsection (3);

(b)a refusal, or proposed refusal, to comply with a requirement of a kind mentioned in section 58(13)(a); or

(c)an objection, or proposed objection, (however expressed) to the operation of a provision of a kind mentioned in section 58(13)(b).

(3)A requirement falls within this subsection if it is imposed on the complainant in question by or under any arrangement or contract of employment or other agreement and requires him—

(a)to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions;

(b)to cease to be, or refrain from becoming, a member of any trade union or of a particular trade union or of one of a number of particular trade unions; or

(c)not to take part in the activities of any trade union or of a particular trade union or of one of a number of particular trade unions.]

73 Calculation of basic award.E+W+S

(1)The amount of the basic award shall be the amount calculated in accordance with subsections (3) to (6), subject to—

(a)subsection (2) of this section (which provides for an award of two weeks’ pay in certain redundancy cases);

(b)

[F140F141(ba)subsection (7A) (which provides for the amount of the award to be reduced where the employee has unreasonably refused an offer of reinstatement);

(bb)subsection (7B) (which provides for the amount of the award to be reduced because of the employee’s conduct);]

(c)

F142(d)subsection (9) (which provides for the amount of the award to be reduced where the employee received a payment in respect of redundancy); and

(e)section 76 (which prohibits compensation being awarded under this Part and under the M22Sex Discrimination Act 1975 or the M23Race Relations Act 1976 in respect of the same matter).

(2)The amount of the basic award shall be two weeks’ pay where the tribunal finds that the reason or principal reason for the dismissal of the employee was that he was redundant and the employee—

(a)by virtue of section 82(5) or (6) is not, or if he were otherwise entitled would not be, entitled to a redundancy payment; or

(b)by virtue of the operation of section 84(1) is not treated as dismissed for the purposes of Part VI.

(3)The amount of the basic award shall be calculated by reference to the period, ending with the effective date of termination, during which the employee has been continuously employed, by starting at the end of that period and reckoning backwards the numbers of years of employment falling within that period, and allowing—

(a)one and a half weeks’ pay for each such year of employment F143in which the employee was not below the age of forty-one;

[F144(b)one week’s pay for each year of employment not falling within paragraph (a) F143in which the employee was not below the age of twenty-two; and

(c)half a week’s pay for each such year of employment not falling within either of paragraphs (a) and (b).]

(4)Where, in reckoning the number of years of employment in accordance with subsection (3), twenty years of employment have been reckoned no account shall be taken of any year of employment earlier than those twenty years.

[F145(4A)Where the dismissal is to be regarded as unfair by virtue of section 58 or 59(a), the amount of the basic award (before any reduction under the following provisions of this section) shall not be less than £2,000.

(4B)The Secretary of State may by order increase or further increase the minimum award provided for by subsection (4A), but no order shall be made under this subsection unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.]

(5)Where in the case of an employee the effective date of termination is after the specified anniversary the amount of the basic award calculated in accordance with subsections (3) and (4) shall be reduced by the appropriate fraction.

(6)In subsection (5) [F146“the specified anniversary” in relation to an employee means the sixty-fourth anniversary of the day of his birth], and “the appropriate fraction” means the fraction of which—

(a)the numerator is the number of whole months reckoned from the specified anniversary in the period beginning with that anniversary and ending with the effective date of termination; and

(b)the denominator is twelve.

(7)

[F147F148(7A)Where the tribunal finds that the complainant has unreasonably refused an offer by the employer which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such an extent as it considers just and equitable having regard to that finding.

(7B)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given), F149, was such that it would be just and equitable to reduce or further reduce that amount of the basic award to any extent, the tribunal shall reduce or further reduce the amount accordingly.]

[F150(7C)Subsection (7B) shall not apply where the reason or principal reason for the dismissal was that the employee was redundant unless the dismissal is to be regarded as unfair by virtue of section 59(a), and in that event shall apply only to so much of the basic award as is payable because of subsection (4A).]

(8)

F151(9)The amount of the basic award shall be reduced or, as the case may be, be further reduced, by the amount of any redundancy payment awarded by the tribunal under Part VI in respect of the same dismissal or of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise.

74 Calculation of compensatory award.E+W+S

(1)Subject to sections 75 and 76, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

(2)The said loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the dismissal, and

(b)subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.

(3)The said loss, in respect of any loss of any entitlement or potential entitlement to, or expectation of, a payment on account of dismissal by reason of redundancy, whether in pursuance of Part VI or otherwise, shall include only the loss referable to the amount, if any, by which the amount of that payment would have exceeded the amount of a basic award (apart from any reduction under [F152section 73(7A) to (9)] in respect of the same dismissal.

(4)In ascertaining the said 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 of Scotland, as the case may be.

(5)In determining, for the purposes of subsection (1), how far any loss sustained by the complainant was attributable to action taken by the employer no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee, and that question shall be determined as if no such pressure had been exercised.

(6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

(7)If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise, exceeds the amount of the basic award which would be payable but for section 73(9) that excess shall go to reduce the amount of the compensatory award.

75 Limit on compensation.E+W+S

(1)The amount of compensation awarded to a person under section 71(1) or of a compensatory award to a person calculated in accordance with section 74 shall not exceed [F153£8,925].

(2)The Secretary of State may by order increase the said limit of £5,200 or that limit as from time to time increased under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

(3)It is hereby declared for the avoidance of doubt that the limit imposed by this section applies to the amount which the industrial tribunal would, apart from this section, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law.

[F15475A Calculation of special award.E+W+S

(1)Subject to the following provisions of this section, the amount of the special award shall be—

(a)one week’s pay multiplied by 104, or

(b)[F155£12,550],

whichever is the greater, but shall not exceed [F156£25,040].

(2)If the award of compensation is made under section 71(2)(a) then, unless the employer satisfies the tribunal that it was not practicable to comply with the preceding order under section 69, the amount of the special award shall be increased to—

(a)one week’s pay multiplied by 156, or

(b)[F157£18,795],

whichever is the greater, but subject to the following provisions of this section.

(3)In a case where the amount of the basic award is reduced under section 73(5), the amount of the special award shall be reduced by the same fraction.

(4)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

(5)Where the tribunal finds that the complainant has unreasonably—

(a)prevented an order under section 69 from being complied with; or

(b)refused an offer by the employer (made otherwise than in compliance with such an order) which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed;

the tribunal shall reduce or further reduce the amount of the special award to such extent as it considers just and equitable having regard to that finding.

(6)Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining, for the purposes of subsection (2), whether it was practicable to comply with an order under section 69 unless the employer shows that it was not practicable for him to arrange for the complainant’s work to be done without engaging a permanent replacement.

(7)The Secretary of State may by order increase any of the sums of £10,000, £20,000 and £15,000 specified in subsections (1) and (2), or any of those sums as from time to time increased under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.]

76 Compensation for act which is both sex or racial discrimination (or both) and unfair dismissal.E+W+S

(1)Where compensation falls to be awarded in respect of any act both under the provisions of this Act relating to unfair dismissal and under one or both of the following Acts, namely the M24Sex Discrimination Act 1975 and the M25Race Relations Act 1976, an industrial tribunal shall not award compensation under any one of those two or, as the case may be, three Acts in respect of any loss or other matter which is or has been taken into account under the other or any other of them by the tribunal or another industrial tribunal in awarding compensation on the same or another complaint in respect of that act.

(2)Without prejudice to section 75 (whether as enacted or as applied by section 65 of the Sex Discrimination Act 1975 or section 56 of the Race Relations Act 1976) in a case to which subsection (1) applies, the aggregate of the following amounts of compensation awarded by an industrial tribunal, that is to say—

(a)any compensation awarded under the said Act of 1975; and

(b)any compensation awarded under the said Act of 1976; and

(c)any compensation awarded under section 71(1) or, as the case may be, which is calculated in accordance with section 74.

shall not exceed the limit for the time being imposed by section 75.

[F15876A Awards against third parties.E+W+S

(1)If in proceedings before an industrial tribunal on a complaint against an employer under section 67 either the employer or the complainant claims—

(a)that the employer was induced to dismiss the complainant by pressure which a trade union or other person exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, and

(b)that the pressure was exercised because the complainant was not a member of any trade union or of a particular trade union or of one of a number of particular trade unions,

the employer or the complainant may request the tribunal to direct that the person who he claims exercised the pressure be joined, or in Scotland sisted, as a party to the proceedings.

(2)A request under subsection (1) shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made an award under section 68(2) or an order under section 69.

(3)Where a person has been joined, or in Scotland sisted, as a party to proceedings before an industrial tribunal by virtue of subsection (1) and the tribunal—

(a)makes an award of compensation under section 68(2) or 71(2)(a) or (b), but

(b)finds that the claim mentioned in subsection (1) is well-founded,

the award may be made against that person instead of against the employer, or partly against that person and partly against the employer, as the tribunal may consider just and equitable in the circumstances.]

F15976B, 76C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Interim reliefE+W+S

77 Interim relief pending determination of complaint of unfair dismissal.E+W+S

[F160(1)An employee who presents a complaint to an industrial tribunal under section 67 alleging that the dismissal is to be regarded as unfair by virtue of section 58 may apply to the tribunal for an order under the following provisions of this section.]

(2)An industrial tribunal shall not entertain an application under this section unless—

(a)it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date); and

(b)[F161in a case in which the employee relies on section 58(1)(a) or (b)] before the end of that period there is also so presented a certificate in writing signed by an authorised official of the independent trade union of which the employee was or had proposed to become a member stating that on the date of the dismissal the employee was or had proposed to become a member of the union and that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.

(3)An industrial tribunal shall determine an application under this section as soon as practicable after receiving the application and [F162(where appropriate)] the relevant certificate, but shall [F163give at the appropriate time—

(a)to the employer; and

(b)in the case of a section 76A request made at least three days before the date of the hearing, to the person to whom the request relates;

a copy of the application and certificate (if any) together with notice of the date, time and place of the hearing.

(3A)In subsection (3)—

• “appropriate time” means—

  (a)

  in relation to paragraph (a), not later than seven days before the date of the hearing;

  (b)

  in relation to paragraph (b), as soon as reasonably practicable; and

  • “section 76A request” means a request made under section 76A(1) for the tribunal to direct a person to be joined or sisted as a party to the proceedings]

(4)An industrial tribunal shall not exercise any power it has of postponing the hearing in the case of an application under this section except where the tribunal is satisfied that special circumstances exist which justify it in doing so.

(5)If on hearing an application under this section it appears to an industrial tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the complainant [F164is by virtue of section 58 to be regarded as having been unfairly dismissed], the tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on an application under this section and in what circumstances it may exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—

(a)to reinstate the employee, that is to say, to treat the employee in all respects as if he had not been dismissed; or

(b)if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

(6)In subsection (5) “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.

(7)If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.

(8)If the employer states that he is willing to re-engage the employee in another job and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions, and—

(a)if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect; and

(b)if the employee is unwilling to accept the job on those terms and conditions, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, but otherwise the tribunal shall make no order under this section.

(9)If, on the hearing of an application under this section, the employer fails to attend before the tribunal or he states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (5), the tribunal shall make an order for the continuation of the employee’s contract of employment.

(10)In this section—

• F165“authorised official”, in relation to a trade union, means an official of the union authorised by the union to act for the purposes of this section;

and any reference to the date of dismissal is a reference—

(a)where the employee’s contract of employment was terminated by notice (whether given by his employer or by him), to the date on which the employer’s notice was given; and

(b)in any other case, to the effective date of termination.

(11)A document purporting to be an authorisation of an official by a trade union to act for the purposes of this section and to be signed on behalf of the union shall be taken to be such an authorisation unless the contrary is proved, and a document purporting to be a certificate signed by such an official shall be taken to be signed by him unless the contrary is proved.