Part I Employment particulars

Right to statements of employment particulars

1 Statement of initial employment particulars

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

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

(3) The statement shall contain particulars of—

(a) the names of the employer and employee,

(b) the date when the employment began, and

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

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

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

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

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

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

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

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

(iii) pensions and pension schemes,

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

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

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

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

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

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

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

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

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

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

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

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

(b) any such provision requires the body or authority to give to a new employee information concerning the employee’s pension rights or the determination of questions affecting those rights.

2 Statement of initial particulars: supplementary

(1) If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (4) of that section, or under any of the other paragraphs of subsection (3) or (4) of that section, that fact shall be stated.

(2) A statement under section 1 may refer the employee for particulars of any of the matters specified in subsection (4)(d)(ii) and (iii) of that section to the provisions of some other document which is reasonably accessible to the employee.

(3) A statement under section 1 may refer the employee for particulars of either of the matters specified in subsection (4)(e) of that section to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

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

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

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

3 Note about disciplinary procedures and pensions

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

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

(b) specifying (by description or otherwise)—

(i) a person to whom the employee can apply if 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, and

(c) where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document explaining them which is reasonably accessible to the employee.

(2) Subsection (1) does not apply to rules, disciplinary decisions, 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.

(5) The note shall also state whether there is in force a contracting-out certificate (issued in accordance with Chapter I of Part III of the [1993 c. 48.] Pension Schemes Act 1993) stating that the employment is contracted-out employment (for the purposes of that Part of that Act).

4 Statement of changes

(1) If, after the material date, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall give to the employee a written statement containing particulars of the change.

(2) For the purposes of subsection (1)—

(a) in relation to a matter particulars of which are included or referred to in a statement given under section 1 otherwise than in instalments, the material date is the date to which the statement relates,

(b) in relation to a matter particulars of which—

(i) are included or referred to in an instalment of a statement given under section 1, or

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

the material date is the date to which the instalment relates, and

(c) in relation to any other matter, the material date is the date by which a statement under section 1 is required to be given.

(3) A statement under subsection (1) shall be given at the earliest opportunity and, in any event, not later than—

(a) one month after the change in question, or

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

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

(5) A statement under subsection (1) may refer the employee for a change in either of the matters specified in section 1(4)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

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

(a) the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

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

and subsection (7) applies in relation to the change, the person who is the employer immediately after the change is not required to give to the employee a statement under section 1; but the change shall be treated as a change falling within subsection (1) of this section.

(7) This subsection applies in relation to a change if it does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by sections 1 to 3 to be included or referred to in the statement under section 1.

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

5 Exclusion from rights to statements

(1) Sections 1 to 4 apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided by sections 196 and 199, and under section 209, as if his employment with his employer terminated or began at that time.

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

6 Reasonably accessible document or collective agreement

In sections 2 to 4 references to a document or collective agreement which is reasonably accessible to an employee are references to a document or collective agreement which—

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

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

7 Power to require particulars of further matters

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.

Right to itemised pay statement

8 Itemised pay statement

(1) An employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.

(2) The statement shall contain particulars of—

(a) the gross amount of the wages or salary,

(b) the amounts of any variable, and (subject to section 9) any fixed, deductions from that gross amount and the purposes for which they are made,

(c) the net amount of wages or salary payable, and

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

9 Standing statement of fixed deductions

(1) A pay statement given in accordance with section 8 need not contain separate particulars of a fixed deduction if—

(a) it contains instead an aggregate amount of fixed deductions, including that deduction, and

(b) the employer has given to the employee, at or before the time at which the pay statement is given, a standing statement of fixed deductions which satisfies subsection (2).

(2) A standing statement of fixed deductions satisfies this subsection if—

(a) it is in writing,

(b) it contains, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

(i) the amount of the deduction,

(ii) the intervals at which the deduction is to be made, and

(iii) the purpose for which it is made, and

(c) it is (in accordance with subsection (5)) effective at the date on which the pay statement is given.

(3) A standing statement of fixed deductions may be amended, whether by—

(a) addition of a new deduction,

(b) a change in the particulars, or

(c) cancellation of an existing deduction,

by notice in writing, containing particulars of the amendment, given by the employer to the employee.

(4) An employer who has given to an employee a standing statement of fixed deductions shall—

(a) within the period of twelve months beginning with the date on which the first standing statement was given, and

(b) at intervals of not more than twelve months afterwards,

re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (3).

(5) For the purposes of subsection (2)(c) a standing statement of fixed deductions—

(a) becomes effective on the date on which it is given to the employee, and

(b) ceases to be effective at the end of the period of twelve months beginning with that date or, where it is re-issued in accordance with subsection (4), with the end of the period of twelve months beginning with the date of the last re-issue.

10 Power to amend provisions about pay and standing statements

The Secretary of State may by order—

(a) vary the provisions of sections 8 and 9 as to the particulars which must be included in a pay statement or a standing statement of fixed deductions by adding items to, or removing items from, the particulars listed in those sections or by amending any such particulars, and

(b) vary the provisions of subsections (4) and (5) of section 9 so as to shorten or extend the periods of twelve months referred to in those subsections, or those periods as varied from time to time under this section.

Enforcement

11 References to industrial tribunals

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

(2) Where—

(a) a statement purporting to be a statement under section 1 or 4, or a pay statement or a standing statement of fixed deductions purporting to comply with section 8 or 9, has been given to an employee, and

(b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,

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

(3) For the purposes of this section—

(a) a question as to the particulars which ought to have been included in the 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 Part III of the [1993 c. 48.] Pension Schemes Act 1993), and

(b) a question as to the particulars which ought to have been included in a pay statement or standing statement of fixed deductions does not include a question solely as to the accuracy of an amount stated in any such particulars.

(4) An industrial tribunal shall not consider a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made—

(a) before the end of the period of three months beginning with the date on which the employment ceased, or

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

12 Determination of references

(1) Where, on a reference under section 11(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, the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.

(2) On determining a reference under section 11(2) relating to a statement purporting to be a statement under section 1 or 4, an industrial tribunal may—

(a) confirm the particulars as included or referred to in the statement given by the employer,

(b) amend those particulars, or

(c) substitute other particulars for them,

as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the tribunal.

(3) Where on a reference under section 11 an industrial tribunal finds—

(a) that an employer has failed to give an employee any pay statement in accordance with section 8, or

(b) that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that section or section 9,

the tribunal shall make a declaration to that effect.

(4) Where on a reference in the case of which subsection (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.

(5) For the purposes of subsection (4) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by section 8 or 9.

Part II Protection of wages

Deductions by employer

13 Right not to suffer unauthorised deductions

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

14 Excepted deductions

(1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

(a) an overpayment of wages, or

(b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2) Section 13 does not apply to a deduction from a worker’s wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3) Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

(4) Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

(a) in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b) otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

(5) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker’s having taken part in that strike or other action.

(6) Section 13 does not apply to a deduction from a worker’s wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Payments to employer

15 Right not to have to make payments to employer

(1) An employer shall not receive a payment from a worker employed by him unless—

(a) the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the payment.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(4) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(5) Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker’s employer.

16 Excepted payments

(1) Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the reimbursement of the employer in respect of—

(a) an overpayment of wages, or

(b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2) Section 15 does not apply to a payment received from a worker by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3) Section 15 does not apply to a payment received from a worker by his employer where the worker has taken part in a strike or other industrial action and the payment has been required by the employer on account of the worker’s having taken part in that strike or other action.

(4) Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Cash shortages and stock deficiencies in retail employment

17 Introductory

(1) In the following provisions of this Part—

• “cash shortage” means a deficit arising in relation to amounts received in connection with retail transactions, and

• “stock deficiency” means a stock deficiency arising in the course of retail transactions.

(2) In the following provisions of this Part “retail employment”, in relation to a worker, means employment involving (whether or not on a regular basis)—

(a) the carrying out by the worker of retail transactions directly with members of the public or with fellow workers or other individuals in their personal capacities, or

(b) the collection by the worker of amounts payable in connection with retail transactions carried out by other persons directly with members of the public or with fellow workers or other individuals in their personal capacities.

(3) References in this section to a “retail transaction” are to the sale or supply of goods or the supply of services (including financial services).

(4) References in the following provisions of this Part to a deduction made from wages of a worker in retail employment, or to a payment received from such a worker by his employer, on account of a cash shortage or stock deficiency include references to a deduction or payment so made or received on account of—

(a) any dishonesty or other conduct on the part of the worker which resulted in any such shortage or deficiency, or

(b) any other event in respect of which he (whether or not together with any other workers) has any contractual liability and which so resulted,

in each case whether or not the amount of the deduction or payment is designed to reflect the exact amount of the shortage or deficiency.

(5) References in the following provisions of this Part to the recovery from a worker of an amount in respect of a cash shortage or stock deficiency accordingly include references to the recovery from him of an amount in respect of any such conduct or event as is mentioned in subsection (4)(a) or (b).

(6) In the following provisions of this Part “pay day”, in relation to a worker, means a day on which wages are payable to the worker.

18 Limits on amount and time of deductions

(1) Where (in accordance with section 13) the employer of a worker in retail employment makes, on account of one or more cash shortages or stock deficiencies, a deduction or deductions from wages payable to the worker on a pay day, the amount or aggregate amount of the deduction or deductions shall not exceed one-tenth of the gross amount of the wages payable to the worker on that day.

(2) Where the employer of a worker in retail employment makes a deduction from the worker’s wages on account of a cash shortage or stock deficiency, the employer shall not be treated as making the deduction in accordance with section 13 unless (in addition to the requirements of that section being satisfied with respect to the deduction)—

(a) the deduction is made, or

(b) in the case of a deduction which is one of a series of deductions relating to the shortage or deficiency, the first deduction in the series was made,

not later than the end of the relevant period.

(3) In subsection (2) “the relevant period” means the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

19 Wages determined by reference to shortages etc

(1) This section applies where—

(a) by virtue of an agreement between a worker in retail employment and his employer, the amount of the worker’s wages or any part of them is or may be determined by reference to the incidence of cash shortages or stock deficiencies, and

(b) the gross amount of the wages payable to the worker on any pay day is, on account of any such shortages or deficiencies, less than the gross amount of the wages that would have been payable to him on that day if there had been no such shortages or deficiencies.

(2) The amount representing the difference between the two amounts referred to in subsection (1)(b) shall be treated for the purposes of this Part as a deduction from the wages payable to the worker on that day made by the employer on account of the cash shortages or stock deficiencies in question.

(3) The second of the amounts referred to in subsection (1)(b) shall be treated for the purposes of this Part (except subsection (1)) as the gross amount of the wages payable to him on that day.

(4) Accordingly—

(a) section 13, and

(b) if the requirements of section 13 and subsection (2) of section 18 are satisfied, subsection (1) of section 18,

have effect in relation to the amount referred to in subsection (2) of this section.

20 Limits on method and timing of payments

(1) Where the employer of a worker in retail employment receives from the worker a payment on account of a cash shortage or stock deficiency, the employer shall not be treated as receiving the payment in accordance with section 15 unless (in addition to the requirements of that section being satisfied with respect to the payment) he has previously—

(a) notified the worker in writing of the worker’s total liability to him in respect of that shortage or deficiency, and

(b) required the worker to make the payment by means of a demand for payment made in accordance with the following provisions of this section.

(2) A demand for payment made by the employer of a worker in retail employment in respect of a cash shortage or stock deficiency—

(a) shall be made in writing, and

(b) shall be made on one of the worker’s pay days.

(3) A demand for payment in respect of a particular cash shortage or stock deficiency, or (in the case of a series of such demands) the first such demand, shall not be made—

(a) earlier than the first pay day of the worker following the date when he is notified of his total liability in respect of the shortage or deficiency in pursuance of subsection (1)(a) or, where he is so notified on a pay day, earlier than that day, or

(b) later than the end of the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

(4) For the purposes of this Part a demand for payment shall be treated as made by the employer on one of a worker’s pay days if it is given to the worker or posted to, or left at, his last known address—

(a) on that pay day, or

(b) in the case of a pay day which is not a working day of the employer’s business, on the first such working day following that pay day.

(5) Legal proceedings by the employer of a worker in retail employment for the recovery from the worker of an amount in respect of a cash shortage or stock deficiency shall not be instituted by the employer after the end of the period referred to in subsection (3)(b) unless the employer has within that period made a demand for payment in respect of that amount in accordance with this section.

21 Limit on amount of payments

(1) Where the employer of a worker in retail employment makes on any pay day one or more demands for payment in accordance with section 20, the amount or aggregate amount required to be paid by the worker in pursuance of the demand or demands shall not exceed—

(a) one-tenth of the gross amount of the wages payable to the worker on that day, or

(b) where one or more deductions falling within section 18(1) are made by the employer from those wages, such amount as represents the balance of that one-tenth after subtracting the amount or aggregate amount of the deduction or deductions.

(2) Once an amount has been required to be paid by means of a demand for payment made in accordance with section 20 on any pay day, that amount shall not be taken into account under subsection (1) as it applies to any subsequent pay day, even though the employer is obliged to make further requests for it to be paid.

(3) Where in any legal proceedings the court finds that the employer of a worker in retail employment is (in accordance with section 15 as it applies apart from section 20(1)) entitled to recover an amount from the worker in respect of a cash shortage or stock deficiency, the court shall, in ordering the payment by the worker to the employer of that amount, make such provision as appears to the court to be necessary to ensure that it is paid by the worker at a rate not exceeding that at which it could be recovered from him by the employer in accordance with this section.

22 Final instalments of wages

(1) In this section “final instalment of wages”, in relation to a worker, means—

(a) the amount of wages payable to the worker which consists of or includes an amount payable by way of contractual remuneration in respect of the last of the periods for which he is employed under his contract prior to its termination for any reason (but excluding any wages referable to any earlier such period), or

(b) where an amount in lieu of notice is paid to the worker later than the amount referred to in paragraph (a), the amount so paid,

in each case whether the amount in question is paid before or after the termination of the worker’s contract.

(2) Section 18(1) does not operate to restrict the amount of any deductions which may (in accordance with section 13(1)) be made by the employer of a worker in retail employment from the worker’s final instalment of wages.

(3) Nothing in section 20 or 21 applies to a payment falling within section 20(1) which is made on or after the day on which any such worker’s final instalment of wages is paid; but (even if the requirements of section 15 would otherwise be satisfied with respect to it) his employer shall not be treated as receiving any such payment in accordance with that section if the payment was first required to be made after the end of the period referred to in section 20(3)(b).

(4) Section 21(3) does not apply to an amount which is to be paid by a worker on or after the day on which his final instalment of wages is paid.

Enforcement

23 Complaints to industrial tribunals

(1) A worker may present a complaint to an industrial tribunal—

(a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)),

(b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)),

(c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

(d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).

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

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3) Where a complaint is brought under this section in respect of—

(a) a series of deductions or payments, or

(b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates,

the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

24 Determination of complaints

Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer—

(a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13,

(b) in the case of a complaint under section 23(1)(b), to repay to the worker the amount of any payment received in contravention of section 15,

(c) in the case of a complaint under section 23(1)(c), to pay to the worker any amount recovered from him in excess of the limit mentioned in that provision, and

(d) in the case of a complaint under section 23(1)(d), to repay to the worker any amount received from him in excess of the limit mentioned in that provision.

25 Determinations: supplementary

(1) Where, in the case of any complaint under section 23(1)(a), a tribunal finds that, although neither of the conditions set out in section 13(1)(a) and (b) was satisfied with respect to the whole amount of the deduction, one of those conditions was satisfied with respect to any lesser amount, the amount of the deduction shall for the purposes of section 24(a) be treated as reduced by the amount with respect to which that condition was satisfied.

(2) Where, in the case of any complaint under section 23(1)(b), a tribunal finds that, although neither of the conditions set out in section 15(1)(a) and (b) was satisfied with respect to the whole amount of the payment, one of those conditions was satisfied with respect to any lesser amount, the amount of the payment shall for the purposes of section 24(b) be treated as reduced by the amount with respect to which that condition was satisfied.

(3) An employer shall not under section 24 be ordered by a tribunal to pay or repay to a worker any amount in respect of a deduction or payment, or in respect of any combination of deductions or payments, in so far as it appears to the tribunal that he has already paid or repaid any such amount to the worker.

(4) Where a tribunal has under section 24 ordered an employer to pay or repay to a worker any amount in respect of a particular deduction or payment falling within section 23(1)(a) to (d), the amount which the employer is entitled to recover (by whatever means) in respect of the matter in relation to which the deduction or payment was originally made or received shall be treated as reduced by that amount.

(5) Where a tribunal has under section 24 ordered an employer to pay or repay to a worker any amount in respect of any combination of deductions or payments falling within section 23(1)(c) or (d), the aggregate amount which the employer is entitled to recover (by whatever means) in respect of the cash shortages or stock deficiencies in relation to which the deductions or payments were originally made or required to be made shall be treated as reduced by that amount.

26 Complaints and other remedies

Section 23 does not affect the jurisdiction of an industrial tribunal to consider a reference under section 11 in relation to any deduction from the wages of a worker; but the aggregate of any amounts ordered by an industrial tribunal to be paid under section 12(4) and under section 24 (whether on the same or different occasions) in respect of a particular deduction shall not exceed the amount of the deduction.

Supplementary

27 Meaning of “wages” etc

(1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including—

(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise,

(b) statutory sick pay under Part XI of the [1992 c. 4.] Social Security Contributions and Benefits Act 1992,

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

(d) a guarantee payment (under section 28 of this Act),

(e) any payment for time off under Part VI of this Act or section 169 of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc.),

(f) remuneration on suspension on medical grounds under section 64 of this Act and remuneration on suspension on maternity grounds under section 68 of this Act,

(g) any sum payable in pursuance of an order for reinstatement or re-engagement under section 113 of this Act,

(h) any sum payable in pursuance of an order for the continuation of a contract of employment under section 130 of this Act or section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992, and

(j) remuneration under a protective award under section 189 of that Act,

but excluding any payments within subsection (2).

(2) Those payments are—

(a) any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker’s wages in respect of any such advance),

(b) any payment in respect of expenses incurred by the worker in carrying out his employment,

(c) any payment by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office,

(d) any payment referable to the worker’s redundancy, and

(e) any payment to the worker otherwise than in his capacity as a worker.

(3) Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part—

(a) be treated as wages of the worker, and

(b) be treated as payable to him as such on the day on which the payment is made.

(4) In this Part “gross amount”, in relation to any wages payable to a worker, means the total amount of those wages before deductions of whatever nature.

(5) For the purposes of this Part any monetary value attaching to any payment or benefit in kind furnished to a worker by his employer shall not be treated as wages of the worker except in the case of any voucher, stamp or similar document which is—

(a) of a fixed value expressed in monetary terms, and

(b) capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).

Part III Guarantee payments

28 Right to guarantee payment

(1) Where throughout a day during any part of which an employee would normally be required to work in accordance with his contract of employment the employee is not provided with work by his employer by reason of—

(a) a diminution in the requirements of the employer’s business for work of the kind which the employee is employed to do, or

(b) any other occurrence affecting the normal working of the employer’s business in relation to work of the kind which the employee is employed to do,

the employee is entitled to be paid by his employer an amount in respect of that day.

(2) In this Act a payment to which an employee is entitled under subsection (1) is referred to as a guarantee payment.

(3) In this Part—

(a) a day falling within subsection (1) is referred to as a “workless day”, and

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

(4) In this Part “day” means the period of twenty-four hours from midnight to midnight.

(5) Where a period of employment begun on any day extends, or would normally extend, over midnight into the following day—

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

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

29 Exclusions from right to guarantee payment

(1) An employee is not entitled to a guarantee payment unless he has been continuously employed for a period of not less than one month ending with the day before that in respect of which the guarantee payment is claimed.

(2) 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,

is not 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.

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

(4) An employee is not entitled to a guarantee payment in respect of a workless day if—

(a) his employer has offered to provide alternative work for that day which is suitable in all the circumstances (whether or not it is work which the employee is under his contract employed to perform), and

(b) the employee has unreasonably refused that offer.

(5) An employee is not entitled to a guarantee payment if he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

30 Calculation of guarantee payment

(1) Subject to section 31, the amount of a guarantee payment payable to an employee in respect of any day is the sum produced by multiplying the number of normal working hours on the day by the guaranteed hourly rate; and, accordingly, no guarantee payment is payable to an employee in whose case there are no normal working hours on the day in question.

(2) The guaranteed hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day in respect of which the guarantee payment is payable.

(3) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a) the average number of normal working hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is payable, or

(b) where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4) The considerations referred to in subsection (3)(b) are—

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

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

(5) If in any case an employee’s contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsections (2) and (3) have effect as if for the references to the day in respect of which the guarantee payment is payable there were substituted references to the last day on which the original contract was in force.

31 Limits on amount of and entitlement to guarantee payment

(1) The amount of a guarantee payment payable to an employee in respect of any day shall not exceed £14.50.

(2) An employee is not entitled to guarantee payments in respect of more than the specified number of days in any period of three months.

(3) The specified number of days for the purposes of subsection (2) is the number of days, not exceeding five, on which the employee normally works in a week under the contract of employment in force on the day in respect of which the guarantee payment is claimed.

(4) But where that number of days varies from week to week or over a longer period, the specified number of days is instead—

(a) the average number of such days, not exceeding five, calculated by dividing by twelve the total number of such days during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is claimed, and rounding up the resulting figure to the next whole number, or

(b) where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of the employee’s normal working days in a week, not exceeding five, having regard to such of the considerations specified in subsection (5) as are appropriate in the circumstances.

(5) The considerations referred to in subsection (4)(b) are—

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

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

(6) If in any case an employee’s contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsections (3) and (4) have effect as if for the references to the day in respect of which the guarantee payment is claimed there were substituted references to the last day on which the original contract was in force.

(7) The Secretary of State may by order made in accordance with section 208 vary any of the limits specified in this section, and (in particular) vary the length of the period specified in subsection (2), after a review under that section.

32 Contractual remuneration

(1) A right to a guarantee payment does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(2) Any contractual remuneration paid to an employee in respect of a workless day goes towards discharging any liability of the employer to pay a guarantee payment in respect of that day; and, conversely, any guarantee payment paid in respect of a day goes towards discharging any liability of the employer to pay contractual remuneration in respect of that day.

(3) For the purposes of subsection (2), contractual remuneration shall be treated as paid in respect of a workless day—

(a) where it is expressed to be calculated or payable by reference to that day or any part of that day, to the extent that it is so expressed, and

(b) in any other case, to the extent that it represents guaranteed remuneration, rather than remuneration for work actually done, and is referable to that day when apportioned rateably between that day and any other workless period falling within the period in respect of which the remuneration is paid.

33 Power to modify provisions about guarantee payments

The Secretary of State may by order provide that in relation to any description of employees the provisions of—

(a) sections 28(4) and (5), 30, 31(3) to (5) (as originally enacted or as varied under section 31(7)) and 32, and

(b) so far as they apply for the purposes of those provisions, Chapter II of Part XIV and section 234,

shall have effect subject to such modifications and adaptations as may be prescribed by the order.

34 Complaints to industrial tribunals

(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 consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal—

(a) before the end of the period of three months beginning with that day, or

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

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

35 Exemption orders

(1) Where—

(a) at any time there is in force a collective agreement, or an agricultural wages order, under which employees to whom the agreement or order relates have a right to guaranteed remuneration, and

(b) on the application of all the parties to the agreement, or of the Board making the order, the appropriate Minister (having regard to the provisions of the agreement or order) is satisfied that section 28 should not apply to those employees,

he may make an order under this section excluding those employees from the operation of that section.

(2) In subsection (1) “agricultural wages order” means an order made under—

(a) section 3 of the [1948 c. 47.] Agricultural Wages Act 1948, or

(b) section 3 of the [1949 c. 30.] Agricultural Wages (Scotland) Act 1949.

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

(a) in relation to a collective agreement or to an order such as is referred to in subsection (2)(b), the Secretary of State, and

(b) in relation to an order such as is referred to in subsection (2)(a), 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 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.

(5) Where an order under this section is in force in respect of an agreement indicating as described in paragraph (b) of subsection (4) an industrial tribunal shall have jurisdiction over a complaint such as is mentioned in that paragraph as if it were a complaint falling within section 34.

(6) An order varying or revoking an earlier order under this section may be made in pursuance of an application by all or any of the parties to the agreement in question, or the Board which made the order in question, or in the absence of such an application.

Part IV Sunday working for shop and betting workers

Protected shop workers and betting workers

36 Protected shop workers and betting workers

(1) Subject to subsection (5), a shop worker or betting worker is to be regarded as “protected” for the purposes of any provision of this Act if (and only if) subsection (2) or (3) applies to him.

(2) This subsection applies to a shop worker or betting worker if—

(a) on the day before the relevant commencement date he was employed as a shop worker or a betting worker but not to work only on Sunday,

(b) he has been continuously employed during the period beginning with that day and ending with the day which, in relation to the provision concerned, is the appropriate date, and

(c) throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker.

(3) This subsection applies to any shop worker or betting worker whose contract of employment is such that under it he—

(a) is not, and may not be, required to work on Sunday, and

(b) could not be so required even if the provisions of this Part were disregarded.

(4) Where on the day before the relevant commencement date an employee’s relations with his employer had ceased to be governed by a contract of employment, he shall be regarded as satisfying subsection (2)(a) if—

(a) that day fell in a week which counts as a period of employment with that employer under section 212(2) or (3) or under regulations under section 219, and

(b) on the last day before the relevant commencement date on which his relations with his employer were governed by a contract of employment, the employee was employed as a shop worker or a betting worker but not to work only on Sunday.

(5) A shop worker is not a protected shop worker, and a betting worker is not a protected betting worker, if—

(a) he has given his employer an opting-in notice on or after the relevant commencement date, and

(b) after giving the notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday.

(6) In this Act “opting-in notice”, in relation to a shop worker or a betting worker, means written notice, signed and dated by the shop worker or betting worker, in which the shop worker or betting worker expressly states that he wishes to work on Sunday or that he does not object to Sunday working.

(7) In this Act “the relevant commencement date” means—

(a) in relation to a shop worker, 26th August 1994, and

(b) in relation to a betting worker, 3rd January 1995.

37 Contractual requirements relating to Sunday work

(1) Any contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date is unenforceable to the extent that it—

(a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday on or after that date, or

(b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday on or after that date.

(2) Subject to subsection (3), any agreement entered into after the relevant commencement date between a protected shop worker, or a protected betting worker, and his employer is unenforceable to the extent that it—

(a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday, or

(b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday.

(3) Where, after giving an opting-in notice, a protected shop worker or a protected betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be protected), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

(4) The reference in subsection (2) to a protected shop worker, or a protected betting worker, includes a reference to an employee who although not a protected shop worker, or protected betting worker, at the time when the agreement is entered into is a protected shop worker, or protected betting worker, on the day on which she returns to work in accordance with section 79, or in pursuance of an offer made in the circumstances described in section 96(3), after a period of absence from work occasioned wholly or partly by pregnancy or childbirth.

(5) For the purposes of section 36(2)(b), the appropriate date—

(a) in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, and

(b) in relation to subsection (4) of this section, is the day on which the employee returns to work.

38 Contracts with guaranteed hours

(1) This section applies where—

(a) under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the employer is, or may be, required to provide him with shop work, or betting work, for a specified number of hours each week,

(b) under the contract the shop worker or betting worker was, or might have been, required to work on Sunday before that date, and

(c) the shop worker has done shop work, or the betting worker betting work, on Sunday in that employment (whether or not before that day) but has, on or after that date, ceased to do so.

(2) So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall not be regarded as requiring the employer to provide him with shop work, or betting work, on weekdays in excess of the hours normally worked by the shop worker or betting worker on weekdays before he ceased to do shop work, or betting work, on Sunday.

(3) For the purposes of section 36(2)(b), the appropriate date in relation to this section is any time in relation to which the contract is to be enforced.

39 Reduction of pay etc

(1) This section applies where—

(a) under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the shop worker or betting worker was, or might have been, required to work on Sunday before the relevant commencement date,

(b) the shop worker has done shop work, or the betting worker has done betting work, on Sunday in that employment (whether or not before that date) but has, on or after that date, ceased to do so, and

(c) it is not apparent from the contract what part of the remuneration payable, or of any other benefit accruing, to the shop worker or betting worker was intended to be attributable to shop work, or betting work, on Sunday.

(2) So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall be regarded as enabling the employer to reduce the amount of remuneration paid, or the extent of the other benefit provided, to the shop worker or betting worker in respect of any period by the relevant proportion.

(3) In subsection (2) “the relevant proportion” means the proportion which the hours of shop work, or betting work, which (apart from this Part) the shop worker, or betting worker, could have been required to do on Sunday in the period (“the contractual Sunday hours”) bears to the aggregate of those hours and the hours of work actually done by the shop worker, or betting worker, in the period.

(4) Where, under the contract of employment, the hours of work actually done on weekdays in any period would be taken into account in determining the contractual Sunday hours, they shall be taken into account in determining the contractual Sunday hours for the purposes of subsection (3).

(5) For the purposes of section 36(2)(b), the appropriate date in relation to this section is the end of the period in respect of which the remuneration is paid or the benefit accrues.

Opting-out of Sunday work

40 Notice of objection to Sunday working

(1) A shop worker or betting worker to whom this section applies may at any time give his employer written notice, signed and dated by the shop worker or betting worker, to the effect that he objects to Sunday working.

(2) In this Act “opting-out notice” means a notice given under subsection (1) by a shop worker or betting worker to whom this section applies.

(3) This section applies to any shop worker or betting worker who under his contract of employment—

(a) is or may be required to work on Sunday (whether or not as a result of previously giving an opting-in notice), but

(b) is not employed to work only on Sunday.

41 Opted-out shop workers and betting workers

(1) Subject to subsection (2), a shop worker or betting worker is to be regarded as “opted-out” for the purposes of any provision of this Act if (and only if)—

(a) he has given his employer an opting-out notice,

(b) he has been continuously employed during the period beginning with the day on which the notice was given and ending with the day which, in relation to the provision concerned, is the appropriate date, and

(c) throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker.

(2) A shop worker is not an opted-out shop worker, and a betting worker is not an opted-out betting worker, if—

(a) after giving the opting-out notice concerned, he has given his employer an opting-in notice, and

(b) after giving the opting-in notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday.

(3) In this Act “notice period”, in relation to an opted-out shop worker or an opted-out betting worker, means, subject to section 42(2), the period of three months beginning with the day on which the opting-out notice concerned was given.

42 Explanatory statement

(1) Where a person becomes a shop worker or betting worker to whom section 40 applies, his employer shall, before the end of the period of two months beginning with the day on which that person becomes such a worker, give him a written statement in the prescribed form.

(2) If—

(a) an employer fails to comply with subsection (1) in relation to any shop worker or betting worker, and

(b) the shop worker or betting worker, on giving the employer an opting-out notice, becomes an opted-out shop worker or an opted-out betting worker,

section 41(3) has effect in relation to the shop worker or betting worker with the substitution for “three months” of “one month”.

(3) An employer shall not be regarded as failing to comply with subsection (1) in any case where, before the end of the period referred to in that subsection, the shop worker or betting worker has given him an opting-out notice.

(4) Subject to subsection (6), the prescribed form in the case of a shop worker is as follows—

“Satutory Rights in Relation to Sunday Shop Work

You have become employed as a shop worker and are or can be required under your contract of employment to do the Sunday work your contract provides for.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to work in or about a shop on any Sunday on which the shop is open once three months have passed from the date on which you gave the notice.

Your notice must—

• be in writing;

• be signed and dated by you;

• say that you object to Sunday working.

For three months after you give the notice, your employer can still require you to do all the Sunday work your contract provides for. After the three month period has ended, you have the right to complain to an industrial tribunal if, because of your refusal to work on Sundays on which the shop is open, your employer—

• dismisses you, or

• does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to work on Sunday or that you do not object to Sunday working and then agreeing with your employer to work on Sundays or on a particular Sunday.”

(5) Subject to subsection (6), the prescribed form in the case of a betting worker is as follows—

“Statutory Rights in Relation to Sunday Betting Work

You have become employed under a contract of employment under which you are or can be required to do Sunday betting work, that is to say, work—

• at a track on a Sunday on which your employer is taking bets at the track, or

• in a licensed betting office on a Sunday on which it is open for business.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to do Sunday betting work once three months have passed from the date on which you gave the notice.

Your notice must—

• be in writing;

• be signed and dated by you;

• say that you object to doing Sunday betting work.

For three months after you give the notice, your employer can still require you to do all the Sunday betting work your contract provides for. After the three month period has ended, you have the right to complain to an industrial tribunal if, because of your refusal to do Sunday betting work, your employer—

• dismisses you, or

• does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to do Sunday betting work or that you do not object to doing Sunday betting work and then agreeing with your employer to do such work on Sundays or on a particular Sunday.”

(6) The Secretary of State may by order amend the prescribed forms set out in subsections (4) and (5).

43 Contractual requirements relating to Sunday work

(1) Where a shop worker or betting worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it—

(a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(2) Subject to subsection (3), any agreement entered into between an opted-out shop worker, or an opted-out betting worker, and his employer is unenforceable to the extent that it—

(a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(3) Where, after giving an opting-in notice, an opted-out shop worker or an opted-out betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

(4) The reference in subsection (2) to an opted-out shop worker, or an opted-out betting worker, includes a reference to an employee who although not an opted-out shop worker, or an opted-out betting worker, at the time when the agreement is entered into—

(a) had given her employer an opting-out notice before that time, and

(b) is an opted-out shop worker, or an opted-out betting worker, on the day on which she returns to work in accordance with section 79, or in pursuance of an offer made in the circumstances described in section 96(3), after a period of absence from work occasioned wholly or partly by pregnancy or childbirth.

(5) For the purposes of section 41(1)(b), the appropriate date—

(a) in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, and

(b) in relation to subsection (4) of this section, is the day on which the employee returns to work.

Part V Protection from suffering detriment in employment

Rights not to suffer detriment

44 Health and safety cases

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

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

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

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

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

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(c) being an employee at a place where—

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

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

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

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

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

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

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

(4) Except where an employee is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where the detriment in question amounts to dismissal (within the meaning of that Part).

45 Sunday working for shop and betting workers

(1) An employee who is—

(a) a protected shop worker or an opted-out shop worker, or

(b) a protected betting worker or an opted-out betting worker,

has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

(2) Subsection (1) does not apply to anything done in relation to an opted-out shop worker or an opted-out betting worker on the ground that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

(3) An employee who is a shop worker or a betting worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee gave (or proposed to give) an opting-out notice to his employer.

(4) Subsections (1) and (3) do not apply where the detriment in question amounts to dismissal (within the meaning of Part X).

(5) For the purposes of this section a shop worker or betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—

(a) a failure to pay remuneration in respect of shop work, or betting work, on a Sunday which he has not done,

(b) a failure to provide him with any other benefit, where that failure results from the application (in relation to a Sunday on which the employee has not done shop work, or betting work) of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or

(c) a failure to provide him with any work, remuneration or other benefit which by virtue of section 38 or 39 the employer is not obliged to provide.

(6) Where an employer offers to pay a sum specified in the offer to any one or more employees—

(a) who are protected shop workers or opted-out shop workers or protected betting workers or opted-out betting workers, or

(b) who under their contracts of employment are not obliged to do shop work, or betting work, on Sunday,

if they agree to do shop work, or betting work, on Sunday or on a particular Sunday subsections (7) and (8) apply.

(7) An employee to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to make the offer to him or to pay him the sum specified in the offer.

(8) An employee who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay him the sum specified in the offer.

(9) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the date of the act or failure to act.

(10) For the purposes of subsection (9)—

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

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

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

46 Trustees of occupational pension schemes

(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

(2) Except where an employee is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where the detriment in question amounts to dismissal (within the meaning of that Part).

(3) In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the [1993 c. 48.] Pension Schemes Act 1993) established under a trust.

47 Employee representatives

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

(a) an employee representative for the [S.I. 1981/1794.] purposes of Chapter II of Part IV of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, or

(b) a candidate in an election in which any person elected will, on being elected, be such an employee representative,

he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

(2) Except where an employee is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where the detriment in question amounts to a dismissal (within the meaning of that Part).

Enforcement

48 Complaints to industrial tribunals

(1) An employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of section 44, 45, 46 or 47.

(2) On such a complaint it is 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) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

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

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

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

and, in the absence of evidence establishing the contrary, an employer 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.

49 Remedies

(1) Where an industrial tribunal finds a complaint under section 48 well-founded, the tribunal—

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

(b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

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

(a) the infringement to which the complaint relates, and

(b) any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3) The loss shall be taken to include—

(a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and

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

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

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

Part VI Time off work

Public duties

50 Right to time off for public duties

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

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

(a) a local authority,

(b) a statutory tribunal,

(c) a police authority,

(d) a board of prison visitors or a prison visiting committee,

(e) a relevant health body,

(f) a relevant education body, or

(g) the Environment Agency or the Scottish Environment Protection Agency,

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

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

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

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

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

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

(b) how much time off the employee has already been permitted under this section or sections 168 and 170 of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (time off for trade union duties and activities), and

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

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

(a) a local authority within the meaning of the [1972 c. 70.] Local Government Act 1972,

(b) a council constituted under section 2 of the [1994 c. 39.] Local Government etc. (Scotland) Act 1994,

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

(d) a National Park authority, or

(e) the Broads Authority.

(6) The reference in subsection (2) to a member of a police authority is to a person appointed as such a member under Schedule 2 to the [1996 c. 16.] Police Act 1996.

(7) In subsection (2)(d)—

(a) “a board of prison visitors” means a board of visitors appointed under section 6(2) of the [1952 c. 52.] Prison Act 1952, and

(b) “a prison visiting committee” means a visiting committee appointed under section 19(3) of the [1989 c. 45.] Prisons (Scotland) Act 1989 or constituted by virtue of rules made under section 39 (as read with section 8(1)) of that Act.

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

(a) a National Health Service trust established under Part I of the [1990 c. 19.] National Health Service and Community Care Act 1990 or the [1978 c. 29.] National Health Service (Scotland) Act 1978,

(b) a Health Authority established under section 8 of the [1977 c. 49.] National Health Service Act 1977 or a Special Health Authority established under section 11 of that Act, or

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

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

(a) a managing or governing body of an educational establishment maintained by a local education authority,

(b) a governing body of a grant-maintained school, further education corporation or higher education corporation,

(c) a school council appointed under section 125(1) of the [1973 c. 65.] Local Government (Scotland) Act 1973,

(d) a school board within the meaning of section 1(1) of the [1988 c. 47.] School Boards (Scotland) Act 1988,

(e) a board of management of a self-governing school within the meaning of section 135(1) of the [1980 c. 44.] Education (Scotland) Act 1980,

(f) a board of management of a college of further education within the meaning of section 36(1) of the [1992 c. 37.] Further and Higher Education (Scotland) Act 1992,

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

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

(10) The Secretary of State may by order—

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

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

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

51 Complaints to industrial tribunals

(1) 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 section 50.

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

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

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

(3) Where an industrial tribunal finds a complaint under this section well-founded, the tribunal—

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

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

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

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

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

Looking for work and making arrangements for training

52 Right to time off to look for work or arrange training

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

(a) look for new employment, or

(b) make arrangements for training for future employment.

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

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

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

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

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

53 Right to remuneration for time off under section 52

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

(2) The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the notice of dismissal was given.

(3) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day on which the notice was given.

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

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

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

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

54 Complaints to industrial tribunals

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

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

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

(2) An 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 on which it is alleged that the time off should have been permitted, or

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

(3) Where an industrial tribunal finds a complaint under this section well-founded, the tribunal shall—

(a) make a declaration to that effect, and

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

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

Ante-natal care

55 Right to time off for ante-natal care

(1) An employee who—

(a) is pregnant, and

(b) 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,

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

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

(a) a certificate from a registered medical practitioner, registered midwife or 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) does not apply where the employee’s appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).

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

56 Right to remuneration for time off under section 55

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

(2) The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off is taken.

(3) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a) the average number of normal working hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken, or

(b) where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4) The considerations referred to in subsection (3)(b) are—

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

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

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

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

57 Complaints to industrial tribunals

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

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

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

(2) An 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 appointment concerned, or

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

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

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

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

Occupational pension scheme trustees

58 Right to time off for pension scheme trustees

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

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

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

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

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

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

(3) In this section—

(a) “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the [1993 c. 48.] Pension Schemes Act 1993) established under a trust, and

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

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

59 Right to payment for time off under section 58

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

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

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

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

(a) those of the employee concerned, or

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

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

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

60 Complaints to industrial tribunals

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

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

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

(2) An 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 when the failure occurred, or

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

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

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

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

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

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

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

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

Employee representatives

61 Right to time off for employee representatives

(1) An employee who is—

(a) an employee representative for the [S.I. 1981/1794.] purposes of Chapter II of Part IV of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, or

(b) a candidate in an election in which any person elected will, on being elected, be such an employee representative,

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

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

62 Right to remuneration for time off under section 61

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

(2) The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off is taken.

(3) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a) the average number of normal working hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken, or

(b) where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4) The considerations referred to in subsection (3)(b) are—

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

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

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

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

63 Complaints to industrial tribunals

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

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

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

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

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

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

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

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

Part VII Suspension from work

Suspension on medical grounds

64 Right to remuneration on suspension on medical grounds

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

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

(b) a recommendation in a provision of a code of practice issued or approved under section 16 of the [1974 c. 37.] Health and Safety at Work etc. Act 1974,

and the provision is for the time being specified in subsection (3).

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

• Regulation 16 of the [S.I. 1980/1248.] Control of Lead at Work Regulations 1980,

• Regulation 16 of the [S.I. 1985/1333.] Ionising Radiations Regulations 1985, and

• Regulation 11 of the [S.I. 1988/1657.] Control of Substances Hazardous to Health Regulations 1988.

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

(5) For the purposes of this Part an employee shall be regarded as suspended from work on medical grounds only if and for so long as he—

(a) continues to be employed by his employer, but

(b) is not provided with work or does not perform the work he normally performed before the suspension.

65 Exclusions from right to remuneration

(1) An employee is not entitled to remuneration under section 64 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,

is not entitled to remuneration under section 64 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.

(3) An employee is not entitled to remuneration under section 64 in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

(4) An employee is not entitled to remuneration under section 64 in respect of any period if—

(a) his employer has offered to provide him with suitable alternative work during the period (whether or not it is 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.

Suspension on maternity grounds

66 Meaning of suspension on maternity grounds

(1) For the purposes of this Part an employee is suspended from work on maternity grounds if, in consequence of any relevant requirement or relevant recommendation, 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) In subsection (1)—

• “relevant requirement” means a requirement imposed by or under a specified provision of an enactment or of an instrument made under an enactment, and

• “relevant recommendation” means a recommendation in a specified provision of a code of practice issued or approved under section 16 of the [1974 c. 37.] Health and Safety at Work etc. Act 1974;

and in this subsection “specified provision” means a provision for the time being specified in an order made by the Secretary of State under this subsection.

(3) For the purposes of this Part an employee shall be regarded as suspended from work on maternity grounds only if and for so long as she—

(a) continues to be employed by her employer, but

(b) is not provided with work or (disregarding alternative work for the purposes of section 67) does not perform the work she normally performed before the suspension.

67 Right to offer of alternative work

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

68 Right to remuneration

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

(2) An employee is not entitled to remuneration under this section in respect of any period if—

(a) her employer has offered to provide her during the period with work which is suitable alternative work for her for the purposes of section 67, and

(b) the employee has unreasonably refused to perform that work.

General

69 Calculation of remuneration

(1) The amount of remuneration payable by an employer to an employee under section 64 or 68 is a week’s pay in respect of each week of the period of suspension; and if in any week remuneration is payable in respect of only part of that week the amount of a week’s pay shall be reduced proportionately.

(2) A right to remuneration under section 64 or 68 does not affect any right of an employee in relation to remuneration under the employee’s contract of employment (“contractual remuneration”).

(3) Any contractual remuneration paid by an employer to an employee in respect of any period goes towards discharging the employer’s liability under section 64 or 68 in respect of that period; and, conversely, any payment of remuneration in discharge of an employer’s liability under section 64 or 68 in respect of any period goes towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

70 Complaints to industrial tribunals

(1) An employee may present a complaint to an industrial tribunal that his or her employer has failed to pay the whole or any part of remuneration to which the employee is entitled under section 64 or 68.

(2) An industrial tribunal shall not consider a complaint under subsection (1) relating to remuneration in respect of any day unless it is presented—

(a) before the end of the period of three months beginning with that day, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within that 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 employee the amount of remuneration which it finds is due to him or her.

(4) An employee may present a complaint to an industrial tribunal that in contravention of section 67 her employer has failed to offer to provide her with work.

(5) An industrial tribunal shall not consider a complaint under subsection (4) unless it is presented—

(a) before the end of the period of three months beginning with the first day of the suspension, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within that period of three months.

(6) Where an industrial tribunal finds a complaint under subsection (4) well-founded, the tribunal may make an award of compensation to be paid by the employer to the employee.

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

(a) the infringement of the employee’s right under section 67 by the failure on the part of the employer to which the complaint relates, and

(b) any loss sustained by the employee which is attributable to that failure.

Part VIII Maternity rights

General right to maternity leave

71 General right to maternity leave

(1) An employee who is absent from work at any time during her maternity leave period is (subject to sections 74 and 75) 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.

72 Commencement of maternity leave period

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

(a) the date which, in accordance with section 74(1) to (3), she notifies to her employer as the date on which she intends her period of absence from work in exercise of the right conferred by section 71 to commence, and

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

(2) Where the employee’s maternity leave period has not commenced by virtue of subsection (1) when childbirth occurs, her maternity leave period commences with the day on which childbirth occurs.

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

73 Duration of maternity leave period

(1) Subject to subsections (2) and (3), an employee’s maternity leave period continues 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 relevant statutory provision prohibits the employee from 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 continues until the end of that later period.

(3) Where the 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) In subsection (2) “relevant statutory provision” means a provision of—

(a) an enactment, or

(b) an instrument made under an enactment,

other than a provision for the time being specified in an order made under section 66(2).

(5) The Secretary of State may by order vary subsections (1) to (4).

74 Requirement to notify commencement of leave

(1) Subject to subsections (4) and (5), an employee does not have the right conferred by section 71 unless she notifies her employer of the date on which she intends her period of absence from work in exercise of the right to commence.

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

(3) Notification under subsection (1) shall be given by an employee—

(a) not less than twenty-one days before the date on which she intends her period of absence from work in exercise of the right conferred by section 71 to commence, or

(b) if that is not reasonably practicable, as soon as is reasonably practicable.

(4) Where an employee’s maternity leave period commences with the first day after the beginning of the sixth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy—

(a) subsection (1) does not require her to notify her employer of the date specified in that subsection, but

(b) (whether or not she has notified him of that date) she does not have the right conferred by section 71 unless she notifies him as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy.

(5) Where an employee’s maternity leave period commences with the day on which childbirth occurs—

(a) subsection (1) does not require her to notify her employer of the date specified in that subsection, but

(b) (whether or not she has notified him of that date) she does not have the right conferred by section 71 unless she notifies him as soon as is reasonably practicable after the birth that she has given birth.

(6) Any notification required by this section shall, if the employer so requests, be given in writing.

75 Requirement to notify pregnancy etc

(1) An employee does not have the right conferred by section 71 unless at least twenty-one days before her maternity leave period commences or, if that is not reasonably practicable, as soon as is reasonably practicable, she informs her employer in writing of—

(a) her pregnancy, and

(b) the expected week of childbirth,

or, if childbirth has occurred, of the date on which it occurred.

(2) An employee does not have the right conferred by section 71 unless, if requested to do so by her employer, she produces for his inspection a certificate from—

(a) a registered medical practitioner, or

(b) a registered midwife,

stating the expected week of childbirth.

76 Requirement to notify return during maternity leave period

(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 attempts to return to work earlier than the end of her maternity leave period without complying with subsection (1), 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 whose return to work has been postponed under subsection (2) has been notified that she is not to return to work before the date to which her return was postponed, the employer is under no contractual obligation to pay her remuneration until the date to which her return was postponed if she returns to work before that date.

77 Redundancy during maternity leave period

(1) This section applies 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.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the ending of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with subsection (3) (and takes effect immediately on the ending of her employment under the previous contract).

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

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

(b) its provisions 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.

78 Contractual rights to maternity leave

(1) An employee who has both the right to maternity leave under section 71 and another 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 72 to 77 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 71.

Right to return to work

79 Right to return to work

(1) An employee who—

(a) has the right conferred by section 71, 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,

also has 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 [1989 c. 24.] Social Security Act 1989 (credit for the period of absence in certain cases)), and

(c) otherwise on terms and conditions not 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 varied by an order under this subsection.

80 Requirement to notify return

(1) An employee does not have the right conferred by section 79 unless she includes with the information required by section 75(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 conferred by section 79, the employee is not entitled to that right unless she gives the requested confirmation—

(a) within fourteen days of receiving the request, or

(b) 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.

81 Redundancy before return

(1) This section applies where an employee has the right conferred by section 79 but it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with subsection (3).

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

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

(b) its provisions 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 the right conferred by section 79.

82 Exercise of right to return

(1) An employee shall exercise the right conferred by section 79 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) An employee to whom subsection (4) applies may—

(a) postpone her return to work until a date not more than four weeks after the notified day of return (even if 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 more than four weeks after the end of that period of twenty-nine weeks.

(4) This subsection applies to an employee if she gives to her employer, before the notified day of return (or the end of the period of twenty-nine weeks), 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 at the end of that period).

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

(6) 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.

(7) Where in the case of an employee who has not already notified a day of return—

(a) 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

(b) 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 after the end of the interruption even though that means that she returns to work outside the period of twenty-nine weeks.

(8) Where an employee has exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return, subsection (7) applies 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 after the end of that period.

(9) Where in the case of an interruption of work an employee has refrained from notifying the day of return in the circumstances described in subsection (7), subsection (3)(b) applies 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 period of twenty-eight days after the end of the interruption of work.

83 Notified day of return

(1) Subject to subsection (2), in this Act “notified day of return” shall be construed in accordance with section 82(1).

(2) Where—

(a) an employee’s return is postponed under subsection (2) or (3)(a) of section 82, or

(b) the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (6) of that section,

then, subject to subsection (5) of that section, references in subsections (2), (3)(a) and (6) of that section and the following provisions of this Act to the notified day of return shall be construed as references to the day to which the return is postponed or that later day.

84 Employee dismissed at or after end of maternity leave period

(1) This section applies where an employee has the right to return to work conferred by section 79 and either—

(a) her maternity leave period ends by reason of dismissal, or

(b) she is dismissed after the end of her maternity leave period, otherwise than in the course of attempting to return to work in accordance with her contract in circumstances in which section 85 applies.

(2) Where this section applies, the right conferred by section 79 is exercisable only on the employee repaying any compensation for unfair dismissal, or redundancy payment, paid in respect of the dismissal if the employer requests repayment.

85 Contractual rights to return

(1) An employee who has both the right to return to work conferred by section 79 and another 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) Sections 79 and 81 to 84, and the provisions of the following Parts of this Act relating to the right conferred by section 79 (other than section 137(2)), 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 conferred by section 79.

Part IX Termination of employment

Minimum period of notice

86 Rights of employer and employee to minimum notice

(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 one month or more—

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

(b) is 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) is 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 one month or more to terminate his contract of employment is 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 one month or more has effect subject to subsections (1) and (2); but this section does not 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 three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, subsections (1) and (2) apply to the contract.

(5) 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.

(6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.

87 Rights of employee in period of notice

(1) If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for one month or more, the provisions of sections 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(1).

(2) If an employee who has been continuously employed for one month or more gives notice to terminate his contract of employment, the provisions of sections 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(2).

(3) In sections 88 to 91 “period of notice” means—

(a) where notice is given by an employer, the period of notice required by section 86(1), and

(b) where notice is given by an employee, the period of notice required by section 86(2).

(4) This section does 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 86(1).

88 Employments with normal working hours

(1) If an employee has normal working hours under the contract of employment in force during the period of notice and during any part of those normal working hours—

(a) the employee is ready and willing to work but no work is provided for him by his employer,

(b) the employee is incapable of work because of sickness or injury,

(c) the employee is absent from work wholly or partly because of pregnancy or childbirth, or

(d) the employee is absent from work in accordance with the terms of his employment relating to holidays,

the employer is liable to pay the employee for the part of normal working hours covered by any of paragraphs (a), (b), (c) and (d) a sum not less than the amount of remuneration for that part of normal working hours calculated at the average hourly rate of remuneration produced by dividing a week’s pay by the number of normal working hours.

(2) Any payments made to the employee by his employer in respect of the relevant part of the period of notice (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, holiday pay or otherwise) go towards meeting the employer’s liability under this section.

(3) Where notice was given by the employee, the employer’s liability under this section does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.

89 Employments without normal working hours

(1) If an employee does not have normal working hours under the contract of employment in force in the period of notice, the employer is liable to pay the employee for each week of the period of notice a sum not less than a week’s pay.

(2) The employer’s liability under this section is conditional on the employee being ready and willing to do work of a reasonable nature and amount to earn a week’s pay.

(3) Subsection (2) does not apply—

(a) in respect of any period during which the employee is incapable of work because of sickness or injury,

(b) in respect of any period during which the employee is absent from work wholly or partly because of pregnancy or childbirth, or

(c) in respect of any period during which the employee is absent from work in accordance with the terms of his employment relating to holidays.

(4) Any payment made to an employee by his employer in respect of a period within subsection (3) (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, holiday pay or otherwise) shall be taken into account for the purposes of this section as if it were remuneration paid by the employer in respect of that period.

(5) Where notice was given by the employee, the employer’s liability under this section does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.

90 Short-term incapacity benefit and industrial injury benefit

(1) This section has effect where the arrangements in force relating to the employment are such that—

(a) payments by way of sick pay are made by the employer to employees to whom the arrangements apply, in cases where any such employees are incapable of work because of sickness or injury, and

(b) in calculating any payment so made to any such employee an amount representing, or treated as representing, short-term incapacity benefit or industrial injury benefit is taken into account, whether by way of deduction or by way of calculating the payment as a supplement to that amount.

(2) If—

(a) during any part of the period of notice the employee is incapable of work because of sickness or injury,

(b) one or more payments by way of sick pay are made to him by the employer in respect of that part of the period of notice, and

(c) in calculating any such payment such an amount as is referred to in paragraph (b) of subsection (1) is taken into account as mentioned in that paragraph,

for the purposes of section 88 or 89 the amount so taken into account shall be treated as having been paid by the employer to the employee by way of sick pay in respect of that part of that period, and shall go towards meeting the liability of the employer under that section accordingly.

91 Supplementary

(1) An employer is not liable under section 88 or 89 to make any payment in respect of a period during which an employee is absent from work with the leave of the employer granted at the request of the employee, including any period of time off taken in accordance with—

(a) Part VI of this Act, or

(b) section 168 or 170 of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (trade union duties and activities).

(2) No payment is due under section 88 or 89 in consequence of a notice to terminate a contract given by an employee if, after the notice is given and on or before the termination of the contract, the employee takes part in a strike of employees of the employer.

(3) If, during the period of notice, the employer breaks the contract of employment, payments received under section 88 or 89 in respect of the part of the period after the breach go towards mitigating the damages recoverable by the employee for loss of earnings in that part of the period of notice.

(4) If, during the period of notice, the employee breaks the contract and the employer rightfully treats the breach as terminating the contract, no payment is due to the employee under section 88 or 89 in respect of the part of the period falling after the termination of the contract.

(5) If an employer fails to give the notice required by section 86, the rights conferred by sections 87 to 90 and this section shall be taken into account in assessing his liability for breach of the contract.

(6) Sections 86 to 90 and this section 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 (whether public or local) as in relation to any other contract; and the reference in this subsection to an Act includes, subject to any express provision to the contrary, an Act passed after this Act.

Written statement of reasons for dismissal

92 Right to written statement of reasons for dismissal

(1) An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee’s dismissal—

(a) if the employee is given by the employer notice of termination of his contract of employment,

(b) if the employee’s contract of employment is terminated by the employer without notice, or

(c) if the employee is employed under a contract for a fixed term and that term expires without being renewed under the same contract.

(2) Subject to subsection (4), an employee is entitled to a written statement under this section only if he makes a request for one; and a statement shall be provided within fourteen days of such a request.

(3) Subject to subsection (4), an employee is not entitled to a written statement under this section unless on the effective date of termination he has been, or will have been, continuously employed for a period of not less than two years ending with that date.

(4) An employee is entitled to a written statement under this section without having to request it and irrespective of whether she has been continuously employed for any period 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.

(5) A written statement under this section is admissible in evidence in any proceedings.

(6) Subject to subsection (7), in this section “the effective date of termination”—

(a) in relation to an employee whose contract of employment is terminated by notice, means the date on which the 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 which expires without being renewed under the same contract, means the date on which the term expires.

(7) Where—

(a) the contract of employment is terminated by the employer, and

(b) the notice required by section 86 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 (6)),

the later date is the effective date of termination.

(8) In subsection (7)(b) “the material date” means—

(a) the date when notice of termination was given by the employer, or

(b) where no notice was given, the date when the contract of employment was terminated by the employer.

93 Complaints to industrial tribunal

(1) A complaint may be presented to an industrial tribunal by an employee on the ground that—

(a) the employer unreasonably failed to provide a written statement under section 92, or

(b) the particulars of reasons given in purported compliance with that section are inadequate or untrue.

(2) Where an industrial tribunal finds a complaint under this section well-founded, the tribunal—

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

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

(3) An industrial tribunal shall not consider 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 111, consider a complaint of unfair dismissal in respect of that dismissal presented at the same time.

Part X Unfair dismissal

Chapter I Right not to be unfairly dismissed

The right

94 The right

(1) An employee has the right not to be unfairly dismissed by his employer.

(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).

Dismissal

95 Circumstances in which an employee is dismissed

(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)—

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

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

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

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if—

(a) the employer gives notice to the employee to terminate his contract of employment, and

(b) 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;

and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

96 Failure to permit return after childbirth treated as dismissal

(1) Where an employee who—

(a) has the right conferred by section 79, and

(b) has exercised it in accordance with section 82,

is not permitted to return to work, she shall (subject to the following provisions of this section) be taken for the purposes of this Part to be dismissed for the reason for which she was not permitted to return with effect from the notified day of return (being deemed to have been continuously employed until that day).

(2) Subsection (1) does not apply in relation to an employee if—

(a) immediately before the 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 under section 79 or for him or an associated employer to offer her employment under a contract of employment satisfying the conditions specified in subsection (4).

(3) Subsection (1) does 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 under section 79,

(b) he or an associated employer offers her employment under a contract of employment satisfying the conditions specified in subsection (4), and

(c) she accepts or unreasonably refuses that offer.

(4) The conditions referred to in subsections (2) and (3) 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 under section 79.

(5) Where on a complaint of unfair dismissal any question arises as to whether the operation of subsection (1) is excluded by the provisions of subsection (2) or (3), it is for the employer to show that the provisions in question were satisfied in relation to the complainant.

(6) Where subsection (1) applies to an employee who was employed as a shop worker, or a betting worker, under her contract of employment on the last day of her maternity leave period, she shall be treated for the purposes of this Act as if she had been employed as a shop worker, or a betting worker, on the day with effect from which she is treated as dismissed.

97 Effective date of termination

(1) Subject to the following provisions of this section, 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 the 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 which expires without being renewed under the same contract, means the date on which the term expires.

(2) Where—

(a) the contract of employment is terminated by the employer, and

(b) the notice required by section 86 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 (1)),

for the purposes of sections 108(1), 119(1) and 227(3) the later date is the effective date of termination.

(3) In subsection (2)(b) “the material date” means—

(a) the date when notice of termination was given by the employer, or

(b) where no notice was given, the date when the contract of employment was terminated by the employer.

(4) Where—

(a) the contract of employment is terminated by the employee,

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

(c) 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 86 to expire on a date later than the effective date of termination (as defined by subsection (1)),

for the purposes of sections 108(1), 119(1) and 227(3) the later date is the effective date of termination.

(5) In subsection (4) “the material date” means—

(a) the date when notice of termination was given by the employee, or

(b) where no notice was given, the date when the contract of employment was terminated by the employee.

(6) Where an employee is taken to be dismissed for the purposes of this Part by virtue of section 96, references in this Part to the effective date of termination are to the notified date of return.

Fairness

98 General

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

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

(b) that it is either 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 the employee held.

(2) A reason falls within this subsection if it—

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

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is 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) In subsection (2)(a)—

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

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

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in 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

(b) shall be determined in accordance with equity and the substantial merits of the case.

(5) Where the employee is taken to be dismissed for the purposes of this Part by virtue of section 96, subsection (4)(a) applies as if for the words “acted reasonably” onwards there were substituted the words “would have been acting reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee if she had not been absent from work, and”.

(6) Subsections (4) and (5) are subject to—

(a) sections 99 to 107 of this Act, and

(b) sections 152, 153 and 238 of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).

99 Pregnancy and childbirth

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) the reason (or, if more than one, the principal reason) for the 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 more than one, the principal reason) for the dismissal is that she has given birth to a child or any other reason connected with her having given birth to a child,

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

(d) the reason (or, if more than one, the principal reason) for the dismissal is a relevant requirement, or a relevant recommendation, as defined by section 66(2), or

(e) her maternity leave period is ended by the dismissal, the reason (or, if more than one, the principal reason) for the dismissal is that she is redundant and section 77 has not been complied with.

(2) For the purposes of subsection (1)(c)—

(a) a woman takes maternity leave if she is absent from work during her maternity leave period, and

(b) 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 71 during that period.

(3) An employee who is dismissed shall also be regarded for the purposes of this Part as unfairly dismissed if—

(a) 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,

(b) her contract of employment was terminated within the period of four weeks beginning immediately after the end of her maternity leave period in circumstances in which she continued to be incapable of work and the certificate remained current, and

(c) the reason (or, if more than one, the principal reason) for the dismissal is that she has given birth to a child or any other reason connected with her having given birth to a child.

(4) Where—

(a) an employee has the right conferred by section 79,

(b) it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right, and

(c) no offer is made of such alternative employment as is referred to in section 81,

the dismissal of the employee which is treated as taking place by virtue of section 96 is to be regarded for the purposes of this Part as unfair.

100 Health and safety cases

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

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

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

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

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

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(c) being an employee at a place where—

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

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

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

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

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

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

(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed 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.

101 Shop workers and betting workers who refuse Sunday work

(1) Where an employee who is—

(a) a protected shop worker or an opted-out shop worker, or

(b) a protected betting worker or an opted-out betting worker,

is dismissed, he shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

(2) Subsection (1) does not apply in relation to an opted-out shop worker or an opted-out betting worker where the reason (or principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

(3) A shop worker or betting worker who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the shop worker or betting worker gave (or proposed to give) an opting-out notice to the employer.

(4) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

102 Trustees of occupational pension schemes

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

(2) In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the [1993 c. 48.] Pension Schemes Act 1993) established under a trust.

103 Employee representatives

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee, being—

(a) an employee representative for the purposes of Chapter II of Part IV of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or Regulations 10 and 11 of the [S.I. 1981/1794.] Transfer of Undertakings (Protection of Employment) Regulations 1981, or

(b) a candidate in an election in which any person elected will, on being elected, be such an employee representative,

performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

104 Assertion of statutory right

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is 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)—

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed;

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 is 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 are relevant statutory rights for the purposes of this section—

(a) any right conferred by this Act 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 86 of this Act, and

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

105 Redundancy

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant,

(b) 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 the employee and who have not been dismissed by the employer, and

(c) it is shown that any of subsections (2) to (7) applies.

(2) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in any of paragraphs (a) to (d) of subsection (1) of section 99 (read with subsection (2) of that section) or subsection (3) of that section (and any requirements of the paragraph, or subsection, not relating to the reason are satisfied).

(3) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 100 (read with subsections (2) and (3) of that section).

(4) This subsection applies if either—

(a) the employee was a protected shop worker or an opted-out shop worker, or a protected betting worker or an opted-out betting worker, and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (1) of section 101 (read with subsection (2) of that section), or

(b) the employee was a shop worker or a betting worker and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (3) of that section.

(5) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 102(1).

(6) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103.

(7) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104 (read with subsections (2) and (3) of that section).

(8) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

(9) In this Part “redundancy case” means a case where paragraphs (a) and (b) of subsection (1) of this section are satisfied.

106 Replacements

(1) Where this section applies to an employee he shall be regarded for the purposes of section 98(1)(b) as having been dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) This section applies to an employee where—

(a) on engaging him the employer informs him in writing that his employment will be terminated on the resumption of work by another employee who is, or will be, absent wholly or partly because of pregnancy or childbirth, and

(b) the employer dismisses him in order to make it possible to give work to the other employee.

(3) This section also applies to an employee where—

(a) on engaging him the employer informs him in writing that his employment will be terminated on the end of a suspension of another employee from work on medical grounds or maternity grounds (within the meaning of Part VII), and

(b) the employer dismisses him in order to make it possible to allow the resumption of work by the other employee.

(4) Subsection (1) does not affect the operation of section 98(4) in a case to which this section applies.

107 Pressure on employer to dismiss unfairly

(1) This section applies where there falls to be determined for the purposes of this Part a question—

(a) as to the reason, or principal reason, for which an employee was dismissed,

(b) whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirement of section 98(1)(b), or

(c) whether an employer acted reasonably in treating the reason or principal reason for which an employee was dismissed as a sufficient reason for dismissing him.

(2) In determining the question 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 the question shall be determined as if no such pressure had been exercised.

Exclusion of right

108 Qualifying period of employment

(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.

(2) If an employee is dismissed by reason of any such requirement or recommendation as is referred to in section 64(2), subsection (1) has effect in relation to that dismissal as if for the words “two years” there were substituted the words “one month”.

(3) Subsection (1) does not apply if—

(a) section 84 or 96(1) applies,

(b) subsection (1) of section 99 (read with subsection (2) of that section) or subsection (3) of that section applies,

(c) subsection (1) of section 100 (read with subsections (2) and (3) of that section) applies,

(d) subsection (1) of section 101 (read with subsection (2) of that section) or subsection (3) of that section applies,

(e) section 102 applies,

(f) section 103 applies,

(g) subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, or

(h) section 105 applies.

109 Upper age limit

(1) Section 94 does not apply to the dismissal of an employee if on or before the effective date of termination he has attained—

(a) in a case where—

(i) in the undertaking in which the employee was employed there was a normal retiring age for an employee holding the position held by the employee, and

(ii) the age was the same whether the employee holding that position was a man or a woman,

that normal retiring age, and

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

(2) Subsection (1) does not apply if—

(a) section 84 or 96(1) applies,

(b) subsection (1) of section 99 (read with subsection (2) of that section) or subsection (3) of that section applies,

(c) subsection (1) of section 100 (read with subsections (2) and (3) of that section) applies,

(d) subsection (1) of section 101 (read with subsection (2) of that section) or subsection (3) of that section applies,

(e) section 102 applies,

(f) section 103 applies,

(g) subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, or

(h) section 105 applies.

110 Dismissal procedures agreements

(1) Where a dismissal procedures agreement is designated by an order under subsection (3) which is for the time being in force—

(a) the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under section 94, and

(b) accordingly, section 94 does 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.

(2) Subsection (1) does not apply if—

(a) section 84 or 96(1) applies,

(b) subsection (1) of section 99 (read with subsection (2) of that section) or subsection (3) of that section applies,

(c) subsection (1) of section 101 (read with subsection (2) of that section) or subsection (3) of that section applies,

(d) subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, or

(e) section 105(1) and (4) applies.

(3) An order designating a dismissal procedures agreement may be made by the Secretary of State, on an application being made to him jointly by all the parties to the agreement, if he is satisfied that—

(a) every trade union which is a party to the agreement is an independent trade union,

(b) 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) those procedures are available without discrimination to all employees falling within any description to which the agreement applies,

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

(4) If at any time when an order under subsection (3) is in force in relation to a dismissal procedures agreement the Secretary of State is satisfied, whether on an application made to him by any of the parties to the agreement or otherwise, either—

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

(b) that the agreement no longer satisfies all the conditions specified in subsection (3),

the Secretary of State shall revoke the order by an order under this subsection.

(5) The transitional provisions which may be made in an order under subsection (4) include, in particular, provisions directing—

(a) that an employee—

(i) shall not be excluded from his right under section 94 where the effective date of termination falls within a transitional period which ends with the date on which the order takes effect and which is specified in the order, and

(ii) shall have an extended time for presenting a complaint under section 111 in respect of a dismissal where the effective date of termination falls within that period, and

(b) that, where the effective date of termination falls within such a transitional period, an industrial tribunal shall, in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, have regard to such considerations as are specified in the order (in addition to those specified in this Part and section 10(4) and (5) of the [1996 c. 17.] Industrial Tribunals Act 1996).

Chapter II Remedies for unfair dismissal

Introductory

111 Complaints to industrial tribunal

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

(2) Subject to subsection (3), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the effective date of termination, or

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

(3) Where a dismissal is with notice, an industrial tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.

(4) In relation to a complaint which is presented as mentioned in subsection (3), the provisions of this Act, so far as they relate to unfair dismissal, have effect as if—

(a) 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) references to reinstatement included references to the withdrawal of the notice by the employer,

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

112 The remedies: orders and compensation

(1) This section applies where, on a complaint under section 111, an industrial tribunal finds that the grounds of the complaint are well-founded.

(2) The tribunal shall—

(a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and

(b) ask him whether he wishes the tribunal to make such an order.

(3) If the complainant expresses such a wish, the tribunal may make an order under section 113.

(4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 127) to be paid by the employer to the employee.

Orders for reinstatement or re-engagement

113 The orders

An order under this section may be—

(a) an order for reinstatement (in accordance with section 114), or

(b) an order for re-engagement (in accordance with section 115),

as the tribunal may decide.

114 Order for reinstatement

(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

(2) On making an order for reinstatement 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) 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) In calculating for the purposes of subsection (2)(a) 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 by way of—

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

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

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

(5) Where a dismissal is treated as taking place by virtue of section 96, references in this section to the date of termination of employment are to the notified date of return.

115 Order for re-engagement

(1) An order for re-engagement is an order, on such terms as the tribunal may decide, 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.

(2) On making an order for re-engagement 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.

(3) In calculating for the purposes of subsection (2)(d) 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 re-engagement by way of—

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

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

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

(4) Where a dismissal is treated as taking place by virtue of section 96, references in this section to the date of termination of employment are to the notified date of return.

116 Choice of order and its terms

(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—

(a) whether the complainant wishes to be reinstated,

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

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

(2) 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.

(3) In so doing the tribunal shall take into account—

(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 a successor or an associated employer) to comply with an order for re-engagement, and

(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.

(4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(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.

(5) 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 (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.

(6) Subsection (5) does not apply where 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—

(i) 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

(ii) 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.

117 Enforcement of order and compensation

(1) An industrial tribunal shall make an award of compensation, to be paid by the employer to the employee, if—

(a) an order under section 113 is made and the complainant is reinstated or re-engaged, but

(b) the terms of the order are not fully complied with.

(2) Subject to section 124, the amount of the compensation shall be such 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.

(3) Subject to subsections (1) and (2), if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make—

(a) an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 127), and

(b) except where this paragraph does not apply, an additional award of compensation of the appropriate amount,

to be paid by the employer to the employee.

(4) Subsection (3)(b) does not apply where—

(a) the employer satisfies the tribunal that it was not practicable to comply with the order, or

(b) the reason (or, if more than one, the principal reason)—

(i) in a redundancy case, for selecting the employee for dismissal, or

(ii) otherwise, for the dismissal,

is one of those specified in section 100(1)(a) and (b), 102(1) or 103.

(5) In subsection (3)(b) “the appropriate amount” means—

(a) where the dismissal is of a description referred to in subsection (6), not less than twenty-six nor more than fifty-two weeks' pay, and

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

(6) The descriptions of dismissal in respect of which an employer may incur a higher additional award in accordance with subsection (5)(a) are—

(a) a dismissal which is an act of discrimination within the meaning of the [1975 c. 65.] Sex Discrimination Act 1975 which is unlawful by virtue of that Act, and

(b) a dismissal which is an act of discrimination within the meaning of the [1976 c. 74.] Race Relations Act 1976 which is unlawful by virtue of that Act.

(7) 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 (4)(a) 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.

(8) Where in any case an industrial tribunal finds that the complainant has unreasonably prevented an order under section 113 from being complied with, in making an award of compensation for unfair dismissal (in accordance with sections 118 to 127) it shall take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Compensation

118 General

(1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of—

(a) a basic award (calculated in accordance with sections 119 to 122 and 126), and

(b) a compensatory award (calculated in accordance with sections 123, 124, 126 and 127).

(2) Where this subsection applies, the award shall also include a special award calculated in accordance with section 125 unless—

(a) the complainant does not request the tribunal to make an order under section 113, or

(b) the case falls within section 121.

(3) Subsection (2) applies where the reason (or, if more than one, the principal reason)—

(a) in a redundancy case, for selecting the employee for dismissal, or

(b) otherwise, for the dismissal,

is one of those specified in section 100(1)(a) and (b), 102(1) or 103.

119 Basic award

(1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by—

(a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed,

(b) reckoning backwards from the end of that period the number of years of employment falling within that period, and

(c) allowing the appropriate amount for each of those years of employment.

(2) In subsection (1)(c) “the appropriate amount” means—

(a) one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,

(b) one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and

(c) half a week’s pay for a year of employment not within paragraph (a) or (b).

(3) Where twenty years of employment have been reckoned under subsection (1), no account shall be taken under that subsection of any year of employment earlier than those twenty years.

(4) Where the effective date of termination is after the sixty-fourth anniversary of the day of the employee’s birth, the amount arrived at under subsections (1) to (3) shall be reduced by the appropriate fraction.

(5) In subsection (4) “the appropriate fraction” means the fraction of which—

(a) the numerator is the number of whole months reckoned from the sixty-fourth anniversary of the day of the employee’s birth in the period beginning with that anniversary and ending with the effective date of termination, and

(b) the denominator is twelve.

(6) Subsections (4) and (5) do not apply to a case within section 96(1).

120 Basic award: minimum in certain cases

(1) The amount of the basic award (before any reduction under section 122) shall not be less than £2,770 where the reason (or, if more than one, the principal reason)—

(a) in a redundancy case, for selecting the employee for dismissal, or

(b) otherwise, for the dismissal,

is one of those specified in section 100(1)(a) and (b), 102(1) or 103.

(2) The Secretary of State may by order increase the sum specified in subsection (1).

121 Basic award of two weeks' pay in certain cases

The amount of the basic award shall be two weeks' pay where the tribunal finds that the reason (or, where there is more than one, the principal reason) for the dismissal of the employee is that he was redundant and the employee—

(a) by virtue of section 138 is not regarded as dismissed for the purposes of Part XI, or

(b) by virtue of section 141 is not, or (if he were otherwise entitled) would not be, entitled to a redundancy payment.

122 Basic award: reductions

(1) 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 extent as it considers just and equitable having regard to that finding.

(2) 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 basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

(3) Subsection (2) does not apply in a redundancy case unless the reason for selecting the employee for dismissal was one of those specified in section 100(1)(a) and (b), 102(1) or 103; and in such a case subsection (2) applies only to so much of the basic award as is payable because of section 120.

(4) The amount of the basic award shall be reduced or further reduced by the amount of—

(a) any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or

(b) 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 XI or otherwise).

123 Compensatory award

(1) Subject to the provisions of this section and sections 124 and 126, 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 loss referred to in subsection (1) 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 loss referred to in subsection (1) shall be taken to include in respect of any loss of—

(a) any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI or otherwise), or

(b) any expectation of such a payment,

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 section 122) in respect of the same dismissal.

(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

(5) 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—

(a) calling, organising, procuring or financing a strike or other industrial action, or

(b) 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 XI or otherwise) exceeds the amount of the basic award which would be payable but for section 122(4), that excess goes to reduce the amount of the compensatory award.

124 Limit of compensatory award etc

(1) The amount of—

(a) any compensation awarded to a person under section 117(1) and (2), or

(b) a compensatory award to a person calculated in accordance with section 123,

shall not exceed £11,300.

(2) The Secretary of State may by order increase the sum specified in subsection (1).

(3) In the case of compensation awarded to a person under section 117(1) and (2), the limit imposed by this section may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 114(2)(a) or section 115(2)(d).

(4) Where—

(a) a compensatory award is an award under paragraph (a) of subsection (3) of section 117, and

(b) an additional award falls to be made under paragraph (b) of that subsection,

the limit imposed by this section on the compensatory award may be exceeded to the extent necessary to enable the aggregate of the compensatory and additional awards fully to reflect the amount specified as payable under section 114(2)(a) or section 115(2)(d).

(5) The limit imposed by this section applies to the amount which the industrial tribunal would, apart from this section, award in respect of the subject matter of the complaint after taking into account—

(a) any payment made by the respondent to the complainant in respect of that matter, and

(b) any reduction in the amount of the award required by any enactment or rule of law.

125 Special award

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

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

(b) £13,775,

whichever is the greater, but shall not exceed £27,500.

(2) Where the award of compensation is made under section 117(3)(a) then, unless the employer satisfies the tribunal that it was not practicable to comply with the order under section 113, the amount of the special award shall be increased to—

(a)