Employment Rights Act 1996

Chapter IIOther miscellaneous matters

Restrictions on disclosure of information

202National security

(1)Where in the opinion of any Minister of the Crown the disclosure of any information would be contrary to the interests of national security—

(a)nothing in any of the provisions to which this section applies requires any person to disclose the information, and

(b)no person shall disclose the information in any proceedings in any court or tribunal relating to any of those provisions.

(2)This section applies to—

(a)Part I, so far as it relates to employment particulars,

(b)in Part V, sections 44 and 47, and sections 48 and 49 so far as relating to those sections,

(c)in Part VI, sections 55 to 57 and 61 to 63,

(d)in Part VII, sections 66 to 68, and sections 69 and 70 so far as relating to those sections,

(e)Part VIII,

(f)in Part IX, sections 92 and 93 where they apply by virtue of section 92(4),

(g)Part X so far as relating to a dismissal which is treated as unfair—

(i)by section 99(1) to (3), 100 or 103, or

(ii)by subsection (1) of section 105 by reason of the application of subsection (2), (3) or (6) of that section, and

(h)this Part and Parts XIV and XV (so far as relating to any of the provisions in paragraphs (a) to (g)).

Contracting out etc. and remedies

203Restrictions on contracting out

(1)Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of this Act, or

(b)to preclude a person from bringing any proceedings under this Act before an industrial tribunal.

(2)Subsection (1)—

(a)does not apply to any provision in a collective agreement excluding rights under section 28 if an order under section 35 is for the time being in force in respect of it,

(b)does not apply to any provision in a dismissal procedures agreement excluding the right under section 94 if that provision is not to have effect unless an order under section 110 is for the time being in force in respect of it,

(c)does not apply to any provision in an agreement if an order under section 157 is for the time being in force in respect of it,

(d)does not apply to any provision of an agreement relating to dismissal from employment such as is mentioned in section 197(1) or (3),

(e)does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of the [1996 c. 17.] Industrial Tribunals Act 1996, and

(f)does not apply to any agreement to refrain from instituting or continuing before an industrial tribunal any proceedings within section 18(1)(d) (proceedings under this Act where conciliation available) of the Industrial Tribunals Act 1996 if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement.

(3)For the purposes of subsection (2)(f) the conditions regulating compromise agreements under this Act are that—

(a)the agreement must be in writing,

(b)the agreement must relate to the particular complaint,

(c)the employee or worker must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an industrial tribunal,

(d)there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e)the agreement must identify the adviser, and

(f)the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

(4)In subsection (3)—

• “independent”, in relation to legal advice received by an employee or worker, means that the advice is given by a lawyer who is not acting in the matter for the employer or an associated employer, and

• “qualified lawyer” means—

  (a)

  as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate, and

  (b)

  as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

204Law governing employment

(1)For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

(2)Subsection (1) is subject to section 196(1)(b).

205Remedy for infringement of certain rights

(1)The remedy of an employee for infringement of any of the rights conferred by section 8, Part III, Parts V to VIII, section 92, Part X and Part XII is, where provision is made for a complaint or the reference of a question to an industrial tribunal, by way of such a complaint or reference and not otherwise.

(2)The remedy of a worker in respect of any contravention of section 13, 15, 18(1) or 21(1) is by way of a complaint under section 23 and not otherwise.

General provisions about death of employer or employee

206Institution or continuance of tribunal proceedings

(1)Where an employer has died, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be defended by a personal representative of the deceased employer.

(2)This section and section 207 apply to—

(a)Part I, so far as it relates to itemised pay statements,

(b)Part III,

(c)Part V,

(d)Part VI, apart from sections 58 to 60,

(e)Parts VII and VIII,

(f)in Part IX, sections 92 and 93, and

(g)Parts X to XII.

(3)Where an employee has died, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be instituted or continued by a personal representative of the deceased employee.

(4)If there is no personal representative of a deceased employee, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be instituted or continued on behalf of the estate of the deceased employee by any appropriate person appointed by the industrial tribunal.

(5)In subsection (4) “appropriate person” means a person who is—

(a)authorised by the employee before his death to act in connection with the proceedings, or

(b)the widow or widower, child, parent or brother or sister of the deceased employee;

and in Part XI and the following provisions of this section and section 207 references to a personal representative include a person appointed under subsection (4).

(6)In a case where proceedings are instituted or continued by virtue of subsection (4), any award made by the industrial tribunal shall be—

(a)made in such terms, and

(b)enforceable in such manner,

as the Secretary of State may by regulations provide.

(7)Any reference in the provisions of this Act to which this section applies to the doing of anything by or in relation to an employer or employee includes a reference to the doing of the thing by or in relation to a personal representative of the deceased employer or employee.

(8)Any reference in the provisions of this Act to which this section applies to a thing required or authorised to be done by or in relation to an employer or employee includes a reference to a thing required or authorised to be done by or in relation to a personal representative of the deceased employer or employee.

(9)Subsections (7) and (8) do not prevent a reference to a successor of an employer including a personal representative of a deceased employer.

207Rights and liabilities accruing after death

(1)Any right arising under any of the provisions of this Act to which this section applies which accrues after the death of an employee devolves as if it had accrued before his death.

(2)Where an industrial tribunal determines under any provision of Part XI that an employer is liable to pay to a personal representative of a deceased employee—

(a)the whole of a redundancy payment to which he would have been entitled but for some provision of Part XI or section 206, or

(b)such part of such a redundancy payment as the tribunal thinks fit,

the reference in subsection (1) to a right includes any right to receive it.

(3)Where—

(a)by virtue of any of the provisions to which this section applies a personal representative is liable to pay any amount, and

(b)the liability has not accrued before the death of the employer,

it shall be treated as a liability of the deceased employer which had accrued immediately before his death.

Modifications of Act

208Review of limits

(1)The Secretary of State shall in each calendar year review—

(a)the limits specified in section 31,

(b)the limit specified in section 186(1), and

(c)the limits imposed by subsection (1) of section 227 for the purposes specified in paragraphs (a) to (c) of that subsection,

and shall determine whether any of those limits should be varied.

(2)In making a review under subsection (1) the Secretary of State shall consider—

(a)the general level of earnings obtaining in Great Britain at the time of the review,

(b)the national economic situation as a whole, and

(c)such other matters as he thinks relevant.

(3)If on a review under subsection (1) the Secretary of State determines that, having regard to the considerations mentioned in subsection (2), any of the limits specified in subsection (1) should be varied, he shall prepare and lay before each House of Parliament the draft of an order giving effect to his decision.

(4)Where a draft of an order under this section is approved by resolution of each House of Parliament the Secretary of State shall make an order in the form of the draft.

(5)If, following the completion of a review under subsection (1), the Secretary of State determines that any of the limits referred to in that subsection should not be varied, he shall lay before each House of Parliament a report containing a statement of his reasons for that determination.

(6)The Secretary of State may at any time, in addition to the annual review provided by in subsection (1), conduct a further review of the limits specified in subsection (1) so as to determine whether any of them should be varied.

(7)Subsections (2) to (4) shall apply to a review under subsection (6) as if it were a review under subsection (1).

209Powers to amend Act

(1)The Secretary of State may by order—

(a)provide that any provision of this Act, other than any to which this paragraph does not apply, which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order,

(b)provide that any provision of this Act, other than any to which this paragraph does not apply, shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed, or

(c)vary, or exclude the operation of, any of the provisions to which this paragraph applies.

(2)Subsection (1)(a) does not apply to—

(a)Parts II and IV,

(b)in Part V, sections 45 and 46, and sections 48 and 49 so far as relating to those sections,

(c)in Part VI, sections 58 to 60,

(d)in Part IX, sections 87(3), 88 to 90, 91(1) to (4) and (6) and 92(6) to (8),

(e)in Part X, sections 95, 97(1) to (5), 98(1) to (4) and (6), 100, 101, 102, 103, 105, 107, 110, 111, 120(2), 124(1), (2) and (5), 125(7) and 134,

(f)in Part XI, sections 143, 144, 160(2) and (3), 166 to 173 and 177 to 180,

(g)in Part XIII, sections 196(1) and 197(1),

(h)Chapter I of Part XIV, or

(j)in Part XV, section 236(3) so far as relating to sections 120(2), 124(2) and 125(7).

(3)Subsection (1)(b) does not apply to—

(a)any of the provisions to which subsection (1)(a) does not apply,

(b)sections 1 to 7, or

(c)the provisions of sections 86 to 91 not specified in subsection (2).

(4)The provision which may be made by virtue of paragraph (b) of subsection (1) in relation to section 94 does not include provision for application subject to exceptions or modifications; but this subsection does not prejudice paragraph (a) of that subsection.

(5)Subsection (1)(c) applies to sections 29(2), 65(2), 86(5), 92(3), 108(1), 109(1), 159, 160(1), 196(2), (3) and (5) and 199(1), (2), (4) and (5).

(6)The Secretary of State may by order amend any of—

(a)sections 84, 85, 97(6), 98(5) and 99(4),

(b)sections 108(3), 109(2) and 110(2) so far as relating to section 84, and

(c)sections 114(5), 115(4), 119(6), 127, 137(2), 145(7), 146(3), 156(2), 157(6), 162(7), 196(4), 199(3), 226(3)(a) and (5)(a) and 227(4)(a),

or modify the application of any of those provisions to any description of case.

(7)The Secretary of State may by order provide that, subject to any such modifications and exceptions as may be prescribed in the order, section 44, and any other provisions of this Act so far as relating to that section, shall apply to such descriptions of persons other than employees as may be so prescribed as to employees (but as if references to their employer were to such person as may be so prescribed).

(8)The provisions of this section are without prejudice to any other power of the Secretary of State to amend, vary or repeal any provision of this Act or to extend or restrict its operation in relation to any person or employment.