Employment Protection (Consolidation) Act 1978

[F1Part IE+W+S Employment Particulars

F2Written particulars of employment]E+W+S

F31 Employer’s duty to give statement of employment particulars.E+W+S

(1)Not later than two months after the beginning of an employee’s employment with an employer, the employer shall give to the employee a written statement which may, subject to subsection (3) of section 2, be given in instalments before the end of that period.

(2)The statement shall contain particulars of—

(a)the names of the employer and employee,

(b)the date when the employment began, and

(c)the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

(3)The statement shall also contain particulars, as at a specified date not more than seven days before the statement or instalment of the statement containing them is given, of—

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

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

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

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

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

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

(iii)pensions and pension schemes,

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

(f)the title of the job which the employee is employed to do or a brief description of the work for which the employee is employed,

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

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

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

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

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

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

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

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

(4)Subsection (3)(d)(iii) shall not apply to the employees of any body or authority if—

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

(b)the body or authority are required by any such provision to give to new employees information concerning their pension rights or the determination of questions affecting their pension rights.

F42 Section 1: supplementary.E+W+S

(1)If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (3) of that section, or under any of the other paragraphs of subsection (2) or (3) of that section, that fact shall be stated.

(2)A statement under section 1—

(a)may refer the employee to the provisions of some other document which—

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

(ii)is made reasonably accessible to him in some other way,

for particulars of any of the matters specified in heads (ii) and (iii) of paragraph (d) of subsection (3) of section 1, and

(b)may refer the employee to the law, or, subject to subsection (3), to the provisions of any collective agreement which directly affects the terms and conditions of the employment, for particulars of either of the matters specified in paragraph (e) of that subsection.

(3)A statement under section 1 may refer the employee to the provisions of a collective agreement under subsection (2)(b) if, and only if, it is an agreement which—

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

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

(4)The particulars required by section 1(2) and the following provisions of subsection (3)—

(a)paragraphs (a) to (c),

(b)head (i) of paragraph (d),

(c)paragraph (f), and

(d)paragraph (h),

shall be included in a single document (in this Part referred to as the “principal statement”).

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

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

[F52A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F63 Statement to include note about disciplinary procedures.E+W+S

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

(a)specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document which—

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

(ii)is made reasonably accessible to him in some other way,

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 on any such application, explaining those steps or referring to the provisions of a document which—

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

(ii)is made reasonably accessible to him in some other way,

and which explains them, and

(d)stating whether a contracting-out certificate is in force for the employment.

(2)Subsection (1)(a) to (c) shall not apply to rules, disciplinary decisions, grievances or procedures relating to health or safety at work.

(3)The note need not comply with the following provisions of subsection (1)—

(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.

(4)In subsection (3) “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.

F74 Employer’s duty to give statement of changes.E+W+S

(1)If, after the date to which a statement given under section 1 relates, or, where no such statement is given, after the end of the period within which a statement under section 1 is required to be given, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall at the earliest opportunity and, in any event, not later than—

(a)one month after the change, or

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

give to the employee a written statement containing particulars of the change.

(2)In a case where the statement under section 1 is given in instalments, subsection (1) applies—

(a)in relation to—

(i)matters particulars of which are required to be (whether they are or not) included in the instalment comprising the principal statement, and

(ii)other matters particulars of which are included or referred to in that instalment;

(b)in relation to matters particulars of which are included or referred to in any other instalment; and

(c)in relation to any change occurring after the end of the two-month period within which a statement under section 1 is required to be given in matters particulars of which were required to be included in the statement given under section 1 but which were not included in any instalment;

as it applies in relation to matters particulars of which are required to be included or referred to in a statement under section 1 not given in instalments.

(3)A statement under subsection (1)—

(a)may refer the employee to the provisions of some other document which—

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

(ii)is made reasonably accessible to him in some other way,

for a change in any of the matters specified in sections 1(3)(d) (ii) and (iii) and 3(1)(a) and (c), and

(b)may refer the employee to the law, or, subject to subsection (4), to the provisions of any collective agreement which directly affects the terms and conditions of the employment, for a change in either of the matters specified in section 1(3)(e).

(4)A statement under subsection (1) may refer the employee to the provisions of a collective agreement under subsection (3)(b) if, and only if, it is an agreement which—

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

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

(5)Where after an employer has given to an employee a statement under section 1—

(a)either—

(i)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

(ii)the identity of the employer is changed in circumstances in which the continuity of the employee’s period of employment is not broken, and

(b)the change does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by sections 1 to 3 to be included in the statement,

the person who immediately after the change is the employer shall not be required to give to the employee a statement under section 1 but the change shall be treated as a change falling within subsection (1) of this section.

(6)A statement under subsection (1) which informs an employee of a change such as is referred to in subsection (5)(a)(ii) shall specify the date on which the employee’s period of continuous employment began.

F85 Exclusion of sections 1 to 4 in case of certain employees.E+W+S

(1)Sections 1 to 4 shall not apply to an employee if—

(a)his employment continues for less than one month, F9. . .

F10(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)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 F11. . . sections 141 and 144, and under section 149, as if his employment with his employer terminated or began at that time.

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

[F125A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F136 Power of Secretary of State to require particulars of further matters.E+W+S

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

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, [F15(that is to say, either because he gives him no statement or because the statement he gives does not comply with those requirements)] 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.

F16(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F17the note required by section 3 to be included in the statement under section 1] does not include any question whether the employment is, has been or will be contracted-out employment for the purposes of [F18Part III of the Pension Schemes Act 1993]

(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.

F19(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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

[F20(a)] before the end of the period of three months beginning with the date on which the employment ceased [F20or—

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

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.

[F2113 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.]

[F22(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 [F23strike, lock-out or other industrial action] involving any employee of his employer or of an associated employer.

[F22(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 [F24£14.10].

(2)An employee shall not be entitled to guarantee payments in respect of more than the specified number of days in [F25any 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 [F26length 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 F27. . .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—

F28(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)section 3 of the M1Agricultural Wages Act 1948;

(c)section 3 of the M2Agricultural 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) F29. . .(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 F30. . . 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 M3Health 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

[F31(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.]

[F32(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.

[F32(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.

[F33 Right not to suffer detriment in health and safety cases]E+W+S

F3422A Right not to suffer detriment in health and safety cases.E+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

(a)having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out, or proposed to carry out, any such activities,

(b)being a representative of workers on matters of health and safety at work, or a member of a safety committee—

(i)in accordance with arrangements established under or by virtue of any enactment, or

(ii)by reason of being acknowledged as such by the employer,

he performed, or proposed to perform, any functions as such a representative or a member of such a committee,

(c)being an employee at a place where—

(i)there was no such representative or safety committee, or

(ii)there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

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

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

(2)For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

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

(4)Except where an employee is dismissed in circumstances in which, by virtue of section 142, section 54 does not apply to the dismissal, this section shall not apply where the detriment in question amounts to dismissal.

F3722B Proceedings for contravention of section 22A.E+W+S

(1)An employee may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment in contravention of section 22A.

(2)On such a complaint it shall be for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3)An industrial tribunal shall not consider a complaint under this section unless it is presented—

(a)before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

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

(4)For the purposes of subsection (3)—

(a)where an act extends over a period, the “date of the act” means the last day of that period, and

(b)a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

F3822C Remedies.E+W+S

(1)Where the industrial tribunal finds that a complaint under section 22B is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid to the complainant in respect of the act or failure to act complained of.

(2)The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss which is attributable to the act or failure which infringed his right.

(3)The loss shall be taken to include—

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

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

(4)In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.

(5)Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

Trade union membership and activitiesE+W+S

F3923. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F4024. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F4125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F4226. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F4326A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Time off workU.K.

F4427. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F4528. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

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;

[F46(bb)a member of the Broads Authority;]

(c)a member of any statutory tribunal;

[F47(cc)a member of, in England and Wales, a board of visitors appointed under section 6(2) of the M4Prison Act 1952 or, in Scotland, a visiting committee appointed under section 19(3) of the Prisons (Scotland) Act M51989 or constituted by virtue of rules made under section 39, as read with section 8(1), of that Act;]

(d)a member of [F48a National Health Service Trust or], in England and Wales, a Regional Health Authority [F49an Area Health Authority or a District] Health Authority [F50or 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 F51. . . council or the governing body of a [F52designated institution or a central institution]; F53

[F54(ee)a member of the governing body of a grant-maintained school;]

[F55(ef)a member of the governing body of a [F56further education corporation or] higher education corporation; or]

[F57(ef)a member of a school board or of the board of management of a self-governing school;]

[F58(eg)a member of the board of management of a college of further education; or]

(f)a member of, in England and Wales, [F59the 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 M6Local Government Act 1972, and in relation to Scotland has the same meaning as in the M7Local Government (Scotland) Act 1973;

(b)“Regional Health Authority" F60 “Area Health Authority" [F61and District Health Authority][F62and “Family Practitioner Committee”] have the same meaning as in the M8National Health Service Act 1977, and “Health Board” has the same meaning as in [F63the M9National Health Service (Scotland) Act 1978];

(c)“local education authority” means the authority designated by section 192(1) of the M10Local Government Act 1972, [F64“school council” means a body appointed under section 125(1) of the Local Government (Scotland) Act 1973, “board of management”, where it appears in paragraph (ef) as inserted by the Self-Governing Schools etc. (Scotland) Act 1989, “central institution” and “self-governing school” have the same meanings as in section 135(1) of the Education (Scotland) Act 1980, “school board” has the same meaning as in section 1(1) of the School Boards (Scotland) Act 1988, “board of management”, where it appears and “college of further education” have the same meanings as in section 36(1) of the Further and Higher Education (Scotland) Act 1992 and “designated institution” has the same meaning as in Part II of that Act of 1992]; 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 [F65sections 168 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (time off for trade union duties and activities)];

(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 [F66a complaint under section 29 that an employer has failed to permit an employee to take time off] 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 [F67such a complaint] 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.

F68(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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.

[F6931A 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 M11Nurses, 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.]

[32F71 Meaning of “working hours".E+W+S

For the purposes of sections 29 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.]

[F72Part IIIE+W+S Maternity]

[F73General right to maternity leave]E+W+S

F7433 General right to maternity leave.E+W+S

(1)An employee who is absent from work at any time during her maternity leave period shall, subject to sections 36 and 37, be entitled to the benefit of the terms and conditions of employment which would have been applicable to her if she had not been absent (and had not been pregnant or given birth to a child).

(2)Subsection (1) does not confer any entitlement to remuneration.

F7534 Commencement of maternity leave period.E+W+S

(1)Subject to subsection (2), an employee’s maternity leave period commences with—

(a)the date which, in accordance with section 36, she notifies to her employer as the date on which she intends her period of absence from work in exercise of her right to maternity leave to commence, or

(b)if earlier, the first day on which she is absent from work wholly or partly because of pregnancy or childbirth after the beginning of the sixth week before the expected week of childbirth.

(2)Where childbirth occurs before the day with which the employee’s maternity leave period would otherwise commence, her maternity leave period shall commence with the day on which childbirth occurs.

(3)The Secretary of State may by order vary either of the provisions of subsections (1) and (2).

(4)No order shall be made under subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

F7635 Duration of maternity leave period.E+W+S

(1)Subject to subsections (2) and (3), an employee’s maternity leave period shall continue for the period of fourteen weeks from its commencement or until the birth of the child, if later.

(2)Subject to subsection (3), where any requirement imposed by or under any provision of any enactment or of any instrument made under any enactment, other than a provision for the time being specified in an order made under section 45(3), prohibits her working for any period after the end of the period mentioned in subsection (1) by reason of her having recently given birth, her maternity leave period shall continue until the expiry of that later period.

(3)Where an employee is dismissed after the commencement of her maternity leave period but before the time when (apart from this subsection) that period would end, the period ends at the time of the dismissal.

(4)The Secretary of State may by order vary any of the provisions of this section.

(5)No order shall be made under subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

F7736 Notice of commencement of leave.E+W+S

(1)An employee shall not have the right conferred by section 33 unless—

(a)she notifies her employer of the date (within the restriction imposed by subsection (2)) (“the notified leave date”) on which she intends her period of absence from work in exercise of her right to maternity leave to commence—

(i)not less than twenty-one days before that date, or

(ii)if that is not reasonably practicable, as soon as is reasonably practicable,

(b)where she is first absent from work wholly or partly because of pregnancy or childbirth before the notified leave date or before she has notified such a date and after the beginning of the sixth week before the expected week of childbirth, she notifies her employer as soon as is reasonably practicable that she is absent for that reason, or

(c)where childbirth occurs before the notified leave date or before she has notified such a date, she notifies her employer that she has given birth as soon as is reasonably practicable after the birth,

and any notice she is required to give under paragraphs (a) to (c) shall, if her employer so requests, be given in writing.

(2)No date may be notified under subsection (1)(a) which occurs before the beginning of the eleventh week before the expected week of childbirth.

(3)Where, in the case of an employee, either paragraph (b) or (c) of subsection (1) has fallen to be satisfied, and has been so satisfied, nothing in paragraph (a) of that subsection shall impose any requirement on the employee.

F7837 Requirement to inform employer of pregnancy etc.E+W+S

(1)An employee shall not have the right conferred by section 33 unless she informs her employer in writing at least twenty-one days before her maternity leave period commences or, if that is not reasonably practicable, as soon as is reasonably practicable—

(a)that she is pregnant, and

(b)of the expected week of childbirth or, if the childbirth has occurred, the date on which it occurred.

(2)An employee shall not have the right conferred by section 33 unless, if requested to do so by her employer, she produces for his inspection a certificate from a registered medical practitioner or a registered midwife stating the expected week of childbirth.

F7937A Requirement to inform employer of return during maternity leave period.E+W+S

(1)An employee who intends to return to work earlier than the end of her maternity leave period shall give to her employer not less than seven days notice of the date on which she intends to return.

(2)If an employee returns to work as mentioned in subsection (1) without notifying her employer of her intention to do so or without giving him the notice required by that subsection her employer shall be entitled to postpone her return to a date such as will secure, subject to subsection (3), that he has seven days notice of her return.

(3)An employer is not entitled under subsection (2) to postpone an employee’s return to work to a date after the end of her maternity leave period.

(4)If an employee who has been notified under subsection (2) that she is not to return to work before the date specified by her employer does return to work before that date the employer shall be under no contractual obligation to pay her remuneration until the date specified by him as the date on which she may return.

F8038 Special provision where redundancy during maternity leave period.E+W+S

(1)Where during an employee’s maternity leave period it is not practicable by reason of redundancy for the employer to continue to employ her under her existing contract of employment, she shall be entitled, where there is a suitable available vacancy, to be offered (before the ending of her employment under that contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with subsection (2) (and takes effect immediately on the ending of her employment under the previous contract).

(2)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

(b)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 continued to be employed under the previous contract.

F8138A Contractual right to maternity leave.E+W+S

(1)An employee who has the right to maternity leave under section 33 and a right to maternity leave under a contract of employment or otherwise may not exercise the two rights separately but may, in taking maternity leave, take advantage of whichever right is, in any particular respect, the more favourable.

(2)The provisions of sections 34 to 38 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 under section 33.

[F82Right to return to work]E+W+S

F8339 Right to return to work.E+W+S

(1)An employee who—

(a)has the right conferred by section 33, and

(b)has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than two years,

shall also have the right to return to work at any time during the period beginning at the end of her maternity leave period and ending twenty-nine weeks after the beginning of the week in which childbirth occurs.

(2)An employee’s right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed—

(a)on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since the commencement of her maternity leave period,

(b)with her seniority, pension rights and similar rights as they would have been if the period or periods of her employment prior to the end of her maternity leave period were continuous with her employment following her return to work (but subject to the requirements of paragraph 5 of Schedule 5 to the M12Social Security Act 1989 (credit for the period of absence in certain cases)), and

(c)otherwise on terms and conditions no less favourable than those which would have been applicable to her had she not been absent from work after the end of her maternity leave period.

(3)The Secretary of State may by order vary the period of two years specified in subsection (1) or that period as so varied.

(4)No order shall be made under subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

F8440 Requirement to give notice of return to employer.E+W+S

(1)An employee shall not have the right to return to work under section 39 unless she includes with the information required by section 37(1) the information that she intends to exercise the right.

(2)Where, not earlier than twenty-one days before the end of her maternity leave period, an employee is requested in accordance with subsection (3) by her employer, or a successor of his, to give him written confirmation that she intends to exercise the right to return to work under section 39, the employee shall not be entitled to that right unless she gives the requested confirmation within fourteen days of receiving the request or, if that is not reasonably practicable, as soon as is reasonably practicable.

(3)A request under subsection (2) shall be—

(a)made in writing, and

(b)accompanied by a written statement of the effect of that subsection.

F8541 Special provision where redundancies occur before return to work.E+W+S

(1)Where an employee has the right to return to work under section 39, but it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right, 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 (2).

(2)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

(b)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 pursuant to her right to return.

F8642 Exercise of right to return to work.E+W+S

(1)An employee shall exercise the right to return to work under section 39 by giving written notice to the employer (who may be her employer before the end of her maternity leave period or a successor of his) at least twenty-one days before the day on which she proposes to return of her proposal to return on that day (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 beginning with the week in which childbirth occurred; 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 end of that period of twenty-nine weeks;

if, before the notified day of return (or the end 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 end of that period).

(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 afterwards.

(6)If—

(a)no day of return has been notified,

(b)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 end of the period of twenty-nine weeks beginning with the week in which childbirth occurred, or which appears likely to have that effect, and

(c)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 twenty-eight days from the end of the interruption notwithstanding that she returns to work outside the 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 end of the period of twenty-nine weeks there were substituted a reference to the end of the further period of four weeks or, as the case may be, of the period of twenty-eight days from the end of the interruption of work.

F8743 Supplementary.E+W+S

(1)Schedule 2 shall have effect for the purpose of supplementing the preceding sections in relation to an employee’s right to return to work under section 39.

(2)Sections 56 and 86 also have effect for that purpose.

(3)Subject to subsection (4), in sections 56 and 86 and Schedule 2 “notified day of return” has the same meaning as in section 42.

(4)Where—

(a)an employee’s return is postponed under subsection (2) or (3)(a) of section 42, or

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

then, subject to subsection (4) of that section, 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 that later day.

[F8844 Contractual rights.E+W+S

(1)An employee who has the right to return to work under section 39 and a right to return to work after absence because of pregnancy or childbirth under a contract of employment or otherwise 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 39, 41 to 43, 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 to work under section 39.]

[F89Suspension from work on maternity grounds]E+W+S

F9045 Suspension from work on maternity grounds.E+W+S

(1)For the purposes of sections 46 and 47 an employee is suspended on maternity grounds where, in consequence of—

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

(b)any recommendation in any relevant provision of a code of practice issued or approved under section 16 of the M13Health and Safety at Work etc. Act 1974,

she is suspended from work by her employer on the ground that she is pregnant, has recently given birth or is breastfeeding a child.

(2)For the purposes of this section, sections 46 and 47 and section 61 an employee shall be regarded as suspended from work only if, and so long as, she continues to be employed by her employer, but is not provided with work or (disregarding alternative work for the purposes of section 46) does not perform the work she normally performed before the suspension.

(3)For the purposes of subsection (1) a provision is a “relevant provision” if it is for the time being specified as a relevant provision in an order made by the Secretary of State under this subsection.

F9146 Right to offer of alternative work.E+W+S

(1)Where an employer has available suitable alternative work for an employee the employee has a right to be offered to be provided with it before being suspended on maternity grounds.

(2)For alternative work to be suitable for an employee for the purposes of this section—

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

(b)the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions.

(3)An employee may present a complaint to an industrial tribunal that her employer has failed to offer to provide her with work in contravention of subsection (1).

(4)An industrial tribunal shall not entertain a complaint under subsection (3) unless it is presented to the tribunal before the end of the period of three months beginning with the first day of the suspension, 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.

(5)Where the tribunal finds the complaint well-founded it may make an award of compensation to be paid by the employer to the employee.

(6)The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant’s right under subsection (1) by the employer’s failure complained of and to any loss sustained by the complainant which is attributable to that failure.

[F9247 Right to remuneration on suspension.E+W+S

(1)An employee who is suspended on maternity grounds shall be entitled to be paid remuneration by her employer while she is so suspended.

(2)An employee shall not be entitled to remuneration under this section in respect of any period during which her employer has offered to provide her with work which is suitable alternative work for the purposes of section 46 and the employee has unreasonably refused to perform that work.

(3)The amount of remuneration payable by an employer to an employee under this section shall be a week’s pay in respect of each week of the period of suspension; 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.

(4)Subject to subsection (5), a right to remuneration under this section shall not affect any right of an employee in relation to remuneration under her contract of employment (in subsection (5) referred to as “contractual remuneration”).

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

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

(7)An industrial tribunal shall not entertain a complaint relating to remuneration under this section 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.

(8)Where an industrial tribunal finds a complaint under subsection (6) well-founded the tribunal shall order the employer to pay the complainant the amount of remuneration which it finds is due to her.]

General provisionsE+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 [F94one 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 [F94one 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 [F94one 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 [F95three months] or more which is a contract for a term certain of [F95one 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.

[F96(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 [F97one 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 [F97one 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 [F98[F99not less than two years] ending with that date].

[F100(2A)An employee shall be entitled (without making any request and irrespective of whether or not she has been continuously employed for any period) to be provided by her employer with a written statement giving particulars of the reasons for her dismissal if she is dismissed—

(a)at any time while she is pregnant, or

(b)after childbirth in circumstances in which her maternity leave period ends by reason of the dismissal.]

(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 F101. . . on the ground that the employer unreasonably [F102failed to provide a written statement under this section] or that the particulars of reasons given in purported compliance with [F102this section] 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.

[F103(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), F104. . . 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), F104. . . 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 [F105has the right to return to work under section 39 and has exercised it in accordance with section 42] but is not permitted to return to work, then [F106subject 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.

[F10756A 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 [F108the end of her maternity leave period (or, if it ends by reason of dismissal, immediately before the dismissal)] 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 [F108section 39] 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 [F108section 39], 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 [F108section 39].

(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, [F109subject to [F110sections 57A to 61], and to sections 152, 153 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 (provisions as to dismissal on ground of trade union membership or activities or in connection with industrial action),], 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 [F111in 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.

[F11257A Dismissal in health and safety cases.E+W+S

(1)The 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)having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, carried out, or proposed to carry out, any such activities,

(b)being a representative of workers on matters of health and safety at work, or a member of a safety committee—

(i)in accordance with arrangements established under or by virtue of any enactment, or

(ii)by reason of being acknowledged as such by the employer,

performed, or proposed to perform, any functions as such a representative or a member of such a committee,

(c)being an employee at a place where—

(i)there was no such representative or safety committee, or

(ii)there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

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

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

(2)For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3)Where the reason (or, if more than one, the principal reason) for the dismissal of an employee was that specified in subsection (1)(e), the dismissal shall not be regarded as having been unfair if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have dismissed him for taking, or proposing to take, them.]

F11458. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F11558A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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

[F116(1)] Where the reason or principal reason for the dismissal of an employee was that [F117the employee] 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 [F117the employee] and who have not been dismissed by the [F118employer, and [F119either]-

(a)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was an inadmissible reason; [F120or]]. . .

F121(b)that [F122the employee] 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 [F123in the case of the employee],

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

[F116(2)For the purposes of this section “inadmissible”, in relation to a reason, means that it is one of those specified in section [F12457A(1) (read with (2) and (3))] 60(a) to (e) [F125or 60A(1) (read with (2) and (3))]]

[F126(3)For the purposes of this Part “a redundancy case” means a case where the reason or principal reason for the dismissal was that the employee was redundant but the equal application of the circumstances to non-dismissed employees is also shown.]

[F12760 Dismissal on ground of pregnancy or childbirth.E+W+S

An employee shall be treated for the purposes of this Part as unfairly dismissed if—

(a)the reason (or, if there is more than one, the principal reason) for her dismissal is that she is pregnant or any other reason connected with her pregnancy,

(b)her maternity leave period is ended by the dismissal and the reason (or, if there is more than one, the principal reason) for her dismissal is that she has given birth to a child or any other reason connected with her having given birth to a child,

(c)the reason (or, if there is more than one, the principal reason) for her dismissal, where her contract of employment was terminated after the end of her maternity leave period, is that she took, or availed herself of the benefits of, maternity leave,

(d)the reason (or, if there is more than one, the principal reason) for her dismissal, where—

(i)before the end of her maternity leave period, she gave to her employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she would be incapable of work after the end of that period, and

(ii)her contract of employment was terminated within the four week period following the end of her maternity leave period in circumstances where she continued to be incapable of work and the certificate relating to her incapacity remained current,

is that she has given birth to a child or any other reason connected with her having given birth to a child,

(e)the reason (or, if there is more than one, the principal reason) for her dismissal is a requirement or recommendation such as is referred to in section 45(1), or

(f)her maternity leave period is ended by the dismissal, and the reason (or, if there is more than one, the principal reason) for her dismissal is that she is redundant and section 38 has not been complied with.

For the purposes of paragraph (c) above a woman “takes maternity leave” if she is absent from work during her maternity leave period and a woman “avails herself of the benefits of maternity leave” if, during her maternity leave period, she avails herself of the benefit of any of the terms and conditions of her employment preserved by section 33 during that period.]

[F12860A Dismissal on grounds of assertion of statutory right.E+W+S

(1)The 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)brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or

(b)alleged that the employer had infringed a right of his which is a relevant statutory right.

(2)It is immaterial for the purposes of subsection (1) whether the employee has the right or not and whether it has been infringed or not, but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3)It shall be sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4)The following statutory rights are relevant for the purposes of this section, namely—

(a)any right conferred by—

(i)this Act, or

[F129(ia)Schedule 5A to the Betting, Gaming and Lotteries Act 1963, or]

(ii)the M14Wages Act 1986, [F130or

F130(iii)Schedule 4 to the Sunday Trading Act 1994]

for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal;

(b)the right conferred by section 49 (minimum notice);

(c)the rights conferred by the following provisions of the M15Trade Union and Labour Relations (Consolidation) Act 1992, namely, sections 68, 86, 146, 168, 169 and 170 (deductions from pay, union activities and time off).]

[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 [F131resumption of work by] another employee who is, or will be, absent wholly or partly because of pregnancy or [F131childbirth]; 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 [F132or 45] of another employee; and

(b)dismisses the first-mentioned employee in order to make it possible to allow the [F133resumption of work by 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.]

F13462. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F13562A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

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)F136. . . 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 [F137two years] ending with the effective date of termination, or

[F138(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 [F139two years] there were substituted the words [F140one month].

(3)F141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F142(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 or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.

(4)For the purposes of subsection (3) “inadmissible”, in relation to a reason, means that it is one of those specified in section [F14357A(1) (read with (2) and (3))] 60(a) to (e) [F144or 60A(1) (read with (2) and (3))].

(5)Subsection (1) shall not apply to a case falling within section 60(f).]

F14564A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

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 [F146right conferred by section 60 or 60A(1)][F147or the right conferred by paragraph 7 or 8 of Schedule 5A to the Betting, Gaming and Lotteries Act 1963][F148or the right conferred by paragraph 7 or 8 of Schedule 4 to the Sunday Trading Act 1994].

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

(1)

F149(2)If [F150at 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.

F151(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F152sections 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 [F153subsection (1A)], 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.

[F154(1A)Subsection (1) is subject to section 75 except that the limit imposed by that section may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 69(2)(a) or (4)(d), as the case may be.]

(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 [F155sections 72 to 76], to be paid by the employer to the employee; and

(b)[F156unless][F157the case is one where this paragraph is excluded or] 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.

[F158(2A)Subsection (2)(b) is excluded where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.

(2B)For the purposes of subsection (2A) a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b).]

(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)

F159(b)a dismissal which is an act of discrimination within the meaning of the M16Sex 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 M17Race 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 [F160sections 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

[F16172 Compensation for unfair dismissal.E+W+S

[F162(1)]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.

[F162(2)Where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason, then, unless—

(a)the complainant does not request the tribunal to make an order under section 69, or

(b)the case falls within section 73(2),

the award shall include a special award calculated in accordance with section 75A.

(3)For the purposes of subsection (2) a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b).]]

F16372A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

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 [F164(6A)], subject to—

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

(b)

[F165F166(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)

F167(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 M18Sex Discrimination Act 1975 or the M19Race 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 F168in which the employee was not below the age of forty-one;

[F169(b)one week’s pay for each year of employment not falling within paragraph (a) F168in 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.

(4A )F170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4B )F170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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) [F171“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.

[F172(6A)Where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason the amount of the basic award (before any reduction under the following provisions of this section) shall not be less than £2,700.

(6B)For the purposes of this section a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b).

(6C)The Secretary of State may by order increase the sum specified in subsection (6A).

(6D)No order shall be made under subsection (6C) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.]

(7)

[F173F174(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), F175, 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.]

[F176(7C)Subsection (7B) does not apply [F177in a redundancy case unless the reason for selecting the employee for dismissal was an inadmissible reason; and, in that event, subsection (7B) shall apply only to so much of the basic award as is payable because of subsection (6A)].]

(8)

F178(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 [F179subsection (8) and section 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 [F180section 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.

[F181(8)Subsection (1) is subject also to section 75 except that, in the case of an award of compensation under section 71(2)(a) where an additional award falls to be made, the limit imposed by section 75 may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 69(2)(a) or (4)(d), as the case may be, if that limit would otherwise reduce the amount of the compensatory award when added to the additional 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 [F182(save where the exception in section 71(1A) or 74(8) applies)] not exceed [F183£11,000].

(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.

[F18475A 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)£13,400,

whichever is the greater, but shall not exceed £26,800.

(2)Where 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)£20,100,

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 specified in subsections (1) and (2).

(8)No order shall be made under subsection (7) 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 M20Sex Discrimination Act 1975 and the M21Race 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.

F185(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18676A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F18776B, 76C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

[F188Interim relief]E+W+S

77F189Interim relief pending determination of complaint of unfair dismissal.E+W+S

(1)An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed by his employer and that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 57A(1)(a) and (b) may apply to the tribunal for interim relief.

(2)The tribunal shall not entertain an application for interim relief unless 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).

(3)The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.

(4)The tribunal shall give to the employer (not later than seven days before the date of the hearing) a copy of the application together with notice of the date, time and place of the hearing.

(5)The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

77AF190Procedure on hearing of application and making of order.E+W+S

(1)If on hearing an employee’s application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal was one of those specified in section 57A(1)(a) and (b) the following provisions shall apply.

(2)The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will 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 him 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.

(3)For this purpose “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 should be regarded as continuous with his employment following the dismissal.

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

(5)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 he is not, 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.

(6)If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee’s contract of employment.