PART III continued
(1) An employee who presents a complaint of unfair dismissal alleging that the dismissal is unfair by virtue of section 152 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) In a case where the employee relies on section 152(1)(a) or (b) the tribunal shall not entertain an application for interim relief unless before the end of that period there is also so presented a certificate in writing signed by an authorised official of the independent trade union of which the employee was or proposed to become a member stating—
(a) that on the date of the dismissal the employee was or proposed to become a member of the union, and
(b) that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.
(4) An “authorised official” means an official of the trade union authorised by it to act for the purposes of this section.
(5) A document purporting to be an authorisation of an official by a trade union to act for the purposes of this section and to be signed on behalf of the union shall be taken to be such an authorisation unless the contrary is proved; and a document purporting to be a certificate signed by such an official shall be taken to be signed by him unless the contrary is proved.
(6) For the purposes of subsection (3) the date of dismissal shall be taken to be—
(a) where the employee’s contract of employment was terminated by notice (whether given by his employer or by him), the date on which the employer’s notice was given, and
(b) in any other case, the effective date of termination.
(1) An industrial tribunal shall determine an application for interim relief as soon as practicable after receiving the application and, where appropriate, the requisite certificate.
(2) The tribunal shall give to the employer, not later than seven days before the hearing, a copy of the application and of any certificate, together with notice of the date, time and place of the hearing.
(3) If a request under section 160 (awards against third parties) is made three days or more before the date of the hearing, the tribunal shall also give to the person to whom the request relates, as soon as reasonably practicable, a copy of the application and of any certificate, together with notice of the date, time and place of the hearing.
(4) 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.
(1) If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions 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 shall 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, and 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.
(1) An order under section 163 for the continuation of a contract of employment is an order that the contract of employment continue in force—
(a) for the purposes of pay or any benefit derived from the employment, seniority, pension rights and other similar matters, and
(b) for the purpose of determining for any purpose the period for which the employee has been continuously employed,
from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.
(2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.
(3) Subject as follows, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—
(a) in the case of payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and
(b) in the case of a payment for any past period, within such time as may be specified in the order.
(4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.
(5) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period or part of any such period shall go towards discharging the employer’s liability in respect of that period under subsection (2); and conversely any payment under that subsection in respect of a period shall go towards discharging any liability of the employer under, or in respect of the breach of, the contract of employment in respect of that period.
(6) If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.
(7) For the purposes of this section the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed.
(1) At any time between the making of an order under section 163 and the determination or settlement of the complaint, the employer or the employee may apply to an industrial tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.
(2) Sections 161 to 163 apply in relation to such an application as in relation to an original application for interim relief, except that—
(a) no certificate need be presented to the tribunal under section 161(3), and
(b) in the case of an application by the employer, section 162(2) (service of copy of application and notice of hearing) has effect with the substitution of a reference to the employee for the reference to the employer.
(1) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under section 163(4) or (5)(a), the tribunal shall—
(a) make an order for the continuation of the employee’s contract of employment, and
(b) order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard—
(i) to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and
(ii) to any loss suffered by the employee in consequence of the non-compliance.
(2) Section 164 applies to an order under subsection (1)(a) as in relation to an order under section 163.
(3) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment, the following provisions apply.
(4) If the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the tribunal shall determine the amount owed by the employer on the date of the determination.
If on that date the tribunal also determines the employee’s complaint that he has been unfairly dismissed, it shall specify that amount separately from any other sum awarded to the employee.
(5) In any other case, the tribunal shall order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance.
(1) Part V of the Employment Protection (Consolidation) Act 1978 (unfair dismissal) has effect subject to the provisions of sections 152 to 166 above.
(2) Those sections shall be construed as one with that Part; and in those sections—
“complaint of unfair dismissal” means a complaint under section 67 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978;
“award of compensation for unfair dismissal” means an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) of that Act; and
“order for reinstatement or re-engagement” means an order for reinstatement or re-engagement under section 69 of that Act.
(3) Nothing in those sections shall be construed as conferring a right to complain of unfair dismissal from employment of a description to which that Part does not otherwise apply.
(1) An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out any duties of his, as such an official, concerned with—
(a) negotiations with the employer related to or connected with matters falling within section 178(2) (collective bargaining) in relation to which the trade union is recognised by the employer, or
(b) the performance on behalf of employees of the employer of functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union.
(2) He shall also permit such an employee to take time off during his working hours for the purpose of undergoing training in aspects of industrial relations—
(a) relevant to the carrying out of such duties as are mentioned in subsection (1), and
(b) approved by the Trades Union Congress or by the independent trade union of which he is an official.
(3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.
(4) 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.
(1) An employer who permits an employee to take time off under section 168 shall pay him for the time taken off pursuant to the permission.
(2) Where the employee’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he shall be paid as if he had worked at that work for the whole of that time.
(3) Where the employee’s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he shall be paid an amount calculated by reference to the average hourly earnings for that work.
The average hourly earnings shall be those of the employee concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.
(4) A right to be paid an amount under this section does not affect any right of an employee in relation to remuneration under his contract of employment, but—
(a) any contractual remuneration paid to an employee in respect of a period of time off to which this section applies shall go towards discharging any liability of the employer under this section in respect of that period, and
(b) any payment under this section in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.
(5) An employee may present a complaint to an industrial tribunal that his employer has failed to pay him in accordance with this section.
(1) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of taking part in—
(a) any activities of the union, and
(b) any activities in relation to which the employee is acting as a representative of the union.
(2) The right conferred by subsection (1) does not extend to activities which themselves consist of industrial action, whether or not in contemplation or furtherance of a trade dispute.
(3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.
(4) 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.
An industrial tribunal shall not consider a complaint under section 168, 169 or 170 unless it is presented to the tribunal—
(a) within three months of the date when the failure occurred, or
(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable.
(1) Where the tribunal finds a complaint under section 168 or 170 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee.
(2) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.
(3) Where on a complaint under section 169 the tribunal finds that the employer has failed to pay the employee in accordance with that section, it shall order him to pay the amount which it finds to be due.
(1) For the purposes of sections 168 and 170 the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work.
(2) The remedy of an employee for infringement of the rights conferred on him by section 168, 169 or 170 is by way of complaint to an industrial tribunal in accordance with this Part, and not otherwise.
(1) A person who is, or is seeking to be, in employment with respect to which it is the practice, in accordance with a union membership agreement, for the employee to belong to a specified trade union, or one of a number of specified trade unions, has the right—
(a) not to have an application for membership of a specified trade union unreasonably refused, and
(b) not to be unreasonably expelled from a specified union.
(2) A “union membership agreement” means an agreement or arrangement relating to employees of an identifiable class which—
(a) is made by or on behalf of, or otherwise exists between one or more independent trade unions and one or more employers or employers' associations, and
(b) has the effect in practice of requiring the employees of the class to which it relates (whether or not there is a condition to that effect in their contract of employment) to be or become members of the union or one of the unions which is or are parties to the agreement or arrangement or of another specified independent trade union.
Employees shall be treated as belonging to the same class if they have been identified as such by the parties to the agreement, and they may be so identified by reference to any characteristics or circumstances whatever.
(3) A trade union shall be treated as “specified” for the purposes of, or in relation to, a union membership agreement if it is specified in the agreement or is accepted by the parties to the agreement as being the equivalent of a union so specified.
(4) For the purposes of this section—
(a) an application for membership of a trade union which is neither granted nor rejected before the end of the period within which it might reasonably have been expected to be granted if it was to be granted, shall be treated as having been refused on the last day of that period, and
(b) a person who under the rules of a trade union ceases to be a member of the union on the happening of an event specified in the rules shall be treated as having been expelled from the union.
(5) A person who claims that an application by him for membership of a trade union has been unreasonably refused, or that he has been unreasonably expelled from a trade union, in contravention of this section, may present a complaint to an industrial tribunal.
(6) The question whether the trade union acted reasonably or unreasonably shall be determined in accordance with equity and the substantial merits of the case.
In particular, a union shall not be regarded as having acted reasonably only because it has acted in accordance with the requirements of its rules or unreasonably only because it has acted in contravention of them.
An industrial tribunal shall not entertain a complaint under section 174 unless it is presented to the tribunal—
(a) before the end of the period of six months beginning with the date of the refusal or expulsion, 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 the tribunal considers reasonable.
(1) Where the industrial tribunal finds a complaint under section 174 is well-founded, it shall make a declaration to that effect.
(2) A person whose complaint has been declared to be well-founded may make an application for an award of compensation to be paid to him by the union.
The application shall be made to an industrial tribunal if when it is made the applicant has been admitted or re-admitted to membership of the union, and otherwise to the Employment Appeal Tribunal.
(3) The application shall not be entertained if made—
(a) before the end of the period of four weeks beginning with the date of the declaration, or
(b) after the end of the period of six months beginning with that date.
(4) The amount of compensation awarded by an industrial tribunal shall be such as it considers appropriate to compensate the applicant for the loss sustained by him in consequence of the refusal or expulsion complained of.
The amount of the compensation shall not exceed the aggregate of—
(a) an amount equal to thirty times the limit for the time being imposed by paragraph 8(1)(b) of Schedule 14 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (maximum amount of a week’s pay for basic award in unfair dismissal cases), and
(b) an amount equal to the limit for the time being imposed by section 75 of that Act (maximum compensatory award in such cases).
(5) The amount of compensation awarded by the Employment Appeal Tribunal shall be such as it considers just and equitable in all the circumstances.
The amount of the compensation shall not exceed the aggregate of—
(a) the aggregate amount mentioned in subsection (4), and
(b) an amount equal to fifty-two times the limit for the time being imposed by paragraph 8(1)(a) of Schedule 14 to the Employment Protection (Consolidation) Act 1978 (maximum amount of a week’s pay for additional award of compensation in unfair dismissal cases),
and shall not be less than the amount for the time being specified in section 156(1) (minimum basic award).
(6) In determining the amount of compensation to be awarded, the industrial tribunal or Employment Appeal 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.
(7) Where the industrial tribunal or Employment Appeal Tribunal finds that the refusal or expulsion complained of was to any extent caused or contributed to by action of the applicant, it shall reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding.
(8) In determining the amount of compensation to be awarded, any reduction or increase under subsection (4) or (5) shall be made before—
(a) any reduction by virtue of subsection (6) or (7), or
(b) any reduction on account of sums already paid by the union by way of compensation in respect of the subject matter of the application;
and accordingly, where the case so required the reductions mentioned in paragraphs (a) and (b) shall be made to the maximum or, as the case may be, minimum award under subsection (4) or (5).
(1) References in section 174 to a trade union include a branch or section of a trade union.
(2) The remedy of a person for infringement of the rights conferred by section 174 is by way of a complaint to an industrial tribunal in accordance with this Part, and not otherwise.
(3) Those rights are in addition to, and not in substitution for, any right existing apart from that section.