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Employment Act 2002 (c. 22)

(The document as of February, 2008)

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(3) Where an employer fraudulently or negligently makes incorrect payments of statutory paternity pay, he shall be liable to a penalty not exceeding £300.

(4) Where an employer fraudulently or negligently makes incorrect payments of statutory adoption pay, he shall be liable to a penalty not exceeding £3,000.

(5) Where an employer fraudulently or negligently--

(a) produces any incorrect document or record, provides any incorrect information or makes any incorrect return, of a kind mentioned in regulations under section 8Г€, or

(b) receives incorrect payments in pursuance of regulations under section 7,

he shall be liable to a penalty not exceeding £3,000 or, if the offence relates only to statutory paternity pay, £300.

(6) Schedule 1 (penalties: procedure and appeals) has effect in relation to penalties under this section.

13 Supply of information held by the Board

(1) This section applies to information which is held for the purposes of functions relating to statutory paternity pay or statutory adoption pay--

(a) by the Board, or

(b) by a person providing services to the Board, in connection with the provision of those services.

(2) Information to which this section applies may be supplied--

(a) to the Secretary of State or the Department, or

(b) to a person providing services to the Secretary of State or the Department,

for use for the purposes of functions relating to social security, child support or war pensions.

14 Supply of information held by the Secretary of State

(1) This section applies to information which is held for the purposes of functions relating to statutory paternity pay or statutory adoption pay--

(a) by the Secretary of State or the Department, or

(b) by a person providing services to the Secretary of State or the Department, in connection with the provision of those services.

(2) Information to which this section applies may be supplied--

(a) to the Board, or

(b) to a person providing services to the Board,

for use for the purposes of functions relating to statutory paternity pay or statutory adoption pay.

15 Use of information by the Board

(1) Information which is held--

(a) by the Board, or

(b) by a person providing services to the Board, in connection with the provision of those services,

for the purposes of any functions specified in any paragraph of subsection (2) below may be used for the purposes of, or for any purposes connected with, the exercise of any functions specified in any other paragraph of that subsection, and may be supplied to any person providing services to the Board for those purposes.

(2) The functions referred to in subsection (1) above are--

(a) the functions of the Board in relation to statutory paternity pay;

(b) their functions in relation to statutory adoption pay; and

(c) their functions in relation to tax, contributions, statutory sick pay, statutory maternity pay or tax credits, or functions under Part 3 of the Pension Schemes Act 1993 (c. 48) (certification of pension scheme, etc.) or Part 3 of the Pension Schemes (Northern Ireland) Act 1993 (c. 49) (corresponding provisions for Northern Ireland).

(3) In subsection (2)(c) above, "contributions" means contributions under Part 1 of the Social Security Contributions and Benefits Act 1992 (c. 4) or Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7).

16 Interpretation

In sections 5 to 15--

  • "the Board" means the Commissioners of Inland Revenue;

  • "the Department" means the Department for Social Development or the Department for Employment and Learning;

  • "employer" and "employee" have the same meanings as in Parts 12ZA and 12ZB of the Social Security Contributions and Benefits Act 1992.



Chapter 2 Maternity

17 Rights during and after maternity leave

(1) Chapter 1 of Part 8 of the Employment Rights Act 1996 (c. 18) (maternity leave) is amended as follows.

(2) In section 71 (ordinary maternity leave), in subsection (4) (rights during and after leave)--

(a) in paragraph (a), after "entitled" there is inserted ", for such purposes and to such extent as may be prescribed,",

(b) in paragraph (b), after "bound" there is inserted ", for such purposes and to such extent as may be prescribed", and

(c) for paragraph (c) there is substituted--

" (c) is entitled to return from leave to a job of a prescribed kind. "

(3) In that section, for subsection (7) there is substituted--

" (7) The Secretary of State may make regulations making provision, in relation to the right to return under subsection (4)(c) above, about--

(a) seniority, pension rights and similar rights;

(b) terms and conditions of employment on return. "

(4) In section 73 (additional maternity leave), after subsection (5) there is inserted--

" (5A) In subsection (4)(c), the reference to return from leave includes, where appropriate, a reference to a continuous period of absence attributable partly to additional maternity leave and partly to ordinary maternity leave. "

(5) In section 74 (redundancy and dismissal), in subsection (4) (power to make provision about the right to return from, and for dismissal at the end of, an additional maternity leave period)--

(a) after "section" (where it first appears) there is inserted "71 or",

(b) in paragraph (a), after "section" there is inserted "71(4)(c) or", and

(c) in paragraph (b), after "an" there is inserted "ordinary or".

18 Maternity pay period

In section 165(1) of the Social Security Contributions and Benefits Act 1992 (c. 4) (the period for which statutory maternity pay, and, by virtue of section 35(2) of that Act, maternity allowance, is payable), for "18 weeks" there is substituted "26 weeks".

19 Rate of statutory maternity pay

For section 166 of the Social Security Contributions and Benefits Act 1992 there is substituted--

" 166 Rate of statutory maternity pay

(1) Statutory maternity pay shall be payable to a woman--

(a) at the earnings-related rate, in respect of the first 6 weeks in respect of which it is payable; and

(b) at whichever is the lower of the earnings-related rate and such weekly rate as may be prescribed, in respect of the remaining portion of the maternity pay period.

(2) The earnings-related rate is a weekly rate equivalent to 90 per cent of a woman's normal weekly earnings for the period of 8 weeks immediately preceding the 14th week before the expected week of confinement.

(3) The weekly rate prescribed under subsection (1)(b) above must not be less than the weekly rate of statutory sick pay for the time being specified in section 157(1) above or, if two or more such rates are for the time being so specified, the higher or highest of those rates. "

20 Entitlement to statutory maternity pay

In section 164 of the Social Security Contributions and Benefits Act 1992 (statutory maternity pay -- entitlement and liability to pay)--

(a) in subsection (2)(a), the words ", wholly or partly because of pregnancy or confinement" are omitted;

(b) for subsection (4) there is substituted--

" (4) A woman shall be entitled to payments of statutory maternity pay only if--

(a) she gives the person who will be liable to pay it notice of the date from which she expects his liability to pay her statutory maternity pay to begin; and

(b) the notice is given at least 28 days before that date or, if that is not reasonably practicable, as soon as is reasonably practicable. " ;

(c) in paragraph (e) of subsection (9), for sub-paragraphs (i) to (iii) there is substituted "in such cases as may be prescribed"; and

(d) after that paragraph there is inserted--

" (ea) provide that subsection (4) above shall not have effect, or shall have effect subject to prescribed modifications, in such cases as may be prescribed; " .

21 Funding of employers' liabilities: statutory maternity pay

(1) For section 167 of the Social Security Contributions and Benefits Act 1992 (c. 4) there is substituted--

" 167 Funding of employers' liabilities in respect of statutory maternity pay

(1) Regulations shall make provision for the payment by employers of statutory maternity pay to be funded by the Commissioners of Inland Revenue to such extent as may be prescribed.

(2) Regulations under subsection (1) shall--

(a) make provision for a person who has made a payment of statutory maternity pay to be entitled, except in prescribed circumstances, to recover an amount equal to the sum of--

(i) the aggregate of such of those payments as qualify for small employers' relief; and

(ii) an amount equal to 92 per cent of the aggregate of such of those payments as do not so qualify; and

(b) include provision for a person who has made a payment of statutory maternity pay qualifying for small employers' relief to be entitled, except in prescribed circumstances, to recover an additional amount, determined in such manner as may be prescribed--

(i) by reference to secondary Class 1 contributions paid in respect of statutory maternity pay;

(ii) by reference to secondary Class 1 contributions paid in respect of statutory sick pay; or

(iii) by reference to the aggregate of secondary Class 1 contributions paid in respect of statutory maternity pay and secondary Class 1 contributions paid in respect of statutory sick pay.

(3) For the purposes of this section a payment of statutory maternity pay which a person is liable to make to a woman qualifies for small employers' relief if, in relation to that woman's maternity pay period, the person liable to make the payment is a small employer.

(4) For the purposes of this section "small employer", in relation to a woman's maternity pay period, shall have the meaning assigned to it by regulations, and, without prejudice to the generality of the foregoing, any such regulations--

(a) may define that expression by reference to the amount of a person's contributions payments for any prescribed period; and

(b) if they do so, may in that connection make provision for the amount of those payments for that prescribed period--

(i) to be determined without regard to any deductions that may be made from them under this section or under any other enactment or instrument; and

(ii) in prescribed circumstances, to be adjusted, estimated or otherwise attributed to him by reference to their amount in any other prescribed period.

(5) Regulations under subsection (1) may, in particular, make provision--

(a) for funding in advance as well as in arrear;

(b) for funding, or the recovery of amounts due under provision made by virtue of subsection (2)(b), by means of deductions from such amounts for which employers are accountable to the Commissioners of Inland Revenue as may be prescribed, or otherwise;

(c) for the recovery by the Commissioners of Inland Revenue of any sums overpaid to employers under the regulations.

(6) Where in accordance with any provision of regulations under subsection (1) an amount has been deducted from an employer's contributions payments, the amount so deducted shall (except in such cases as may be prescribed) be treated for the purposes of any provision made by or under any enactment in relation to primary or secondary Class 1 contributions--

(a) as having been paid (on such date as may be determined in accordance with the regulations), and

(b) as having been received by the Commissioners of Inland Revenue,

towards discharging the employer's liability in respect of such contributions.

(7) Regulations under this section must be made with the concurrence of the Commissioners of Inland Revenue.

(8) In this section "contributions payments", in relation to an employer, means any payments which the employer is required, by or under any enactment, to make in discharge of any liability in respect of primary or secondary Class 1 contributions. "

(2) For section 163 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7) there is substituted--

" 163 Funding of employers' liabilities in respect of statutory maternity pay

(1) Regulations shall make provision for the payment by employers of statutory maternity pay to be funded by the Commissioners of Inland Revenue to such extent as may be prescribed.

(2) Regulations under subsection (1) shall--

(a) make provision for a person who has made a payment of statutory maternity pay to be entitled, except in prescribed circumstances, to recover an amount equal to the sum of--

(i) the aggregate of such of those payments as qualify for small employers' relief; and

(ii) an amount equal to 92 per cent of the aggregate of such of those payments as do not so qualify; and

(b) include provision for a person who has made a payment of statutory maternity pay qualifying for small employers' relief to be entitled, except in prescribed circumstances, to recover an additional amount, determined in such manner as may be prescribed--

(i) by reference to secondary Class 1 contributions paid in respect of statutory maternity pay;

(ii) by reference to secondary Class 1 contributions paid in respect of statutory sick pay; or

(iii) by reference to the aggregate of secondary Class 1 contributions paid in respect of statutory maternity pay and secondary Class 1 contributions paid in respect of statutory sick pay.

(3) For the purposes of this section a payment of statutory maternity pay which a person is liable to make to a woman qualifies for small employers' relief if, in relation to that woman's maternity pay period, the person liable to make the payment is a small employer.

(4) For the purposes of this section "small employer", in relation to a woman's maternity pay period, shall have the meaning assigned to it by regulations, and, without prejudice to the generality of the foregoing, any such regulations--

(a) may define that expression by reference to the amount of a person's contributions payments for any prescribed period; and

(b) if they do so, may in that connection make provision for the amount of those payments for that prescribed period--

(i) to be determined without regard to any deductions that may be made from them under this section or under any other enactment or instrument; and

(ii) in prescribed circumstances, to be adjusted, estimated or otherwise attributed to him by reference to their amount in any other prescribed period.

(5) Regulations under subsection (1) may, in particular, make provision--

(a) for funding in advance as well as in arrear;

(b) for funding, or the recovery of amounts due under provision made by virtue of subsection (2)(b), by means of deductions from such amounts for which employers are accountable to the Commissioners of Inland Revenue as may be prescribed, or otherwise;

(c) for the recovery by the Commissioners of Inland Revenue of any sums overpaid to employers under the regulations.

(6) Where in accordance with any provision of regulations under subsection (1) an amount has been deducted from an employer's contributions payments, the amount so deducted shall (except in such cases as may be prescribed) be treated for the purposes of any provision made by or under any enactment in relation to primary or secondary Class 1 contributions--

(a) as having been paid (on such date as may be determined in accordance with the regulations), and

(b) as having been received by the Commissioners of Inland Revenue,

towards discharging the employer's liability in respect of such contributions.

(7) Regulations under any provision of this section shall be made by the Secretary of State.

(8) Regulations under this section must be made with the concurrence of the Commissioners of Inland Revenue.

(9) In this section "contributions payments", in relation to an employer, means any payments which the employer is required, by or under any enactment, to make in discharge of any liability in respect of primary or secondary Class 1 contributions. "



Part 2 Tribunal reform

Costs and expenses

22 Employment tribunals

(1) In section 13 of the Employment Tribunals Act 1996 (c. 17) (costs and expenses), for subsection (1) there is substituted--

" (1) Employment tribunal procedure regulations may include provision--

(a) for the award of costs or expenses;

(b) for the award of any allowances payable under section 5(2)(c) or (3).

(1A) Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person's ability to pay when considering the making of an award against him under such regulations.

(1B) Employment tribunal procedure regulations may include provision for authorising an employment tribunal--

(a) to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative's conduct of the proceedings;

(b) to order a representative of a party to proceedings before it to meet all or part of the costs or expenses incurred by a party by reason of the representative's conduct of the proceedings;

(c) to order a representative of a party to proceedings before it to meet all or part of any allowances payable by the Secretary of State under section 5(2)(c) or (3) by reason of the representative's conduct of the proceedings.

(1C) Employment tribunal procedure regulations may also include provision for taxing or otherwise settling the costs or expenses referred to in subsection (1)(a) or (1B)(b) (and, in particular in England and Wales, for enabling the amount of such costs to be assessed by way of detailed assessment in a county court). "

(2) After that section there is inserted--

" 13A Payments in respect of preparation time

(1) Employment tribunal procedure regulations may include provision for authorising an employment tribunal to order a party to proceedings before it to make a payment to any other party in respect of time spent in preparing that other party's case.

(2) Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person's ability to pay when considering the making of an order against him under such regulations.

(3) If employment tribunal procedure regulations include--

(a) provision of the kind mentioned in subsection (1), and

(b) provision of the kind mentioned in section 13(1)(a),

they shall also include provision to prevent an employment tribunal exercising its powers under both kinds of provision in favour of the same person in the same proceedings. "

23 Employment Appeal Tribunal

For section 34 of the Employment Tribunals Act 1996 (c. 17) (costs and expenses) there is substituted--

" 34 Costs and expenses

(1) Appeal Tribunal procedure rules may include provision for the award of costs or expenses.

(2) Rules under subsection (1) may include provision authorising the Appeal Tribunal to have regard to a person's ability to pay when considering the making of an award against him under such rules.

(3) Appeal Tribunal procedure rules may include provision for authorising the Appeal Tribunal--

(a) to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative's conduct of the proceedings;

(b) to order a representative of a party to proceedings before it to meet all or part of the costs or expenses incurred by a party by reason of the representative's conduct of the proceedings.

(4) Appeal Tribunal procedure rules may also include provision for taxing or otherwise settling the costs or expenses referred to in subsection (1) or (3)(b) (and, in particular in England and Wales, for enabling the amount of such costs to be assessed by way of detailed assessment in the High Court). "



Miscellaneous

24 Conciliation

(1) In section 7 of the Employment Tribunals Act 1996 (employment tribunal procedure regulations), in subsection (3)(f) (power to prescribe the procedure to be followed in proceedings before an employment tribunal), before sub-paragraph (ii) there is inserted--

" (ia) for postponing fixing a time and place for a hearing, or postponing a time fixed for a hearing, for such period as may be determined in accordance with the regulations for the purpose of giving an opportunity for the proceedings to be settled by way of conciliation and withdrawn, and " .

(2) In section 18 of that Act (conciliation), after subsection (2) there is inserted--

" (2A) Where employment tribunal procedure regulations include provision postponing the fixing of a time and place for a hearing for the purpose of giving an opportunity for the proceedings to be settled by way of conciliation and withdrawn, subsection (2) shall have effect from the end of the postponement to confer a power on the conciliation officer, instead of imposing a duty. "

(3) In section 19 of that Act (conciliation procedure), paragraph (c) (which requires employment tribunal procedure regulations, in relation to conciliation cases, to include provision postponing the hearing to give an opportunity for conciliation) shall cease to have effect.

(4) In that section, the existing provision (as amended by subsection (3)) becomes subsection (1) and at the end there is inserted--

" (2) If employment tribunal procedure regulations include provision postponing the fixing of a time and place for a hearing for the purpose of giving an opportunity for the proceedings to be settled by way of conciliation and withdrawn, they shall also include provision for the parties to proceedings to which the provision for postponement applies to be notified that the services of a conciliation officer may no longer be available to them after the end of the postponement. "

25 Power to delegate prescription of forms etc.

In section 7 of the Employment Tribunals Act 1996 (c. 17) (employment tribunal procedure regulations), after subsection (3) there is inserted--

" (3ZA) Employment tribunal procedure regulations may--

(a) authorise the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of instituting, or entering an appearance to, proceedings before employment tribunals,

(b) authorise the Secretary of State to prescribe requirements in relation to documents to be supplied with any such form, and

(c) make provision about the publication of anything prescribed under authority conferred by virtue of this subsection. "

26 Determination without a hearing

In section 7 of the Employment Tribunals Act 1996 (employment tribunal procedure regulations) for subsection (3A) there is substituted--

" (3A) Employment tribunal procedure regulations may authorise the determination of proceedings without any hearing in such circumstances as the regulations may prescribe. "

27 Practice directions

After section 7 of the Employment Tribunals Act 1996 (c. 17) there is inserted--

" 7A Practice directions

(1) Employment tribunal procedure regulations may include provision--

(a) enabling the President to make directions about the procedure of employment tribunals, including directions about the exercise by tribunals of powers under such regulations,

(b) for securing compliance with such directions, and

(c) about the publication of such directions.

(2) Employment tribunal procedure regulations may, instead of providing for any matter, refer to provision made or to be made about that matter by directions made by the President.

(3) In this section, references to the President are to a person appointed in accordance with regulations under section 1(1) as--

(a) President of the Employment Tribunals (England and Wales), or

(b) President of the Employment Tribunals (Scotland). "

28 Pre-hearing reviews

(1) Section 9 of the Employment Tribunals Act 1996 (pre-hearing reviews) is amended as follows.

(2) In subsection (1) (power to make provision for pre-hearing reviews), for paragraph (a) there is substituted--

" (a) for authorising an employment tribunal to carry out a review of any proceedings before it at any time before a hearing held for the purpose of determining them (a "pre-hearing review"), " .

(3) After subsection (2) there is inserted--

" (2A) Regulations under subsection (1)(b), so far as relating to striking out, may not provide for striking out on a ground which does not apply outside a pre-hearing review. "



Part 3 Dispute resolution etc.

Statutory procedures

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29 Statutory dispute resolution procedures

(1) Schedule 2 (which sets out the statutory dispute resolution procedures) shall have effect.

(2) The Secretary of State may by order--

(a) amend Schedule 2;

(b) make provision for the Schedule to apply, with or without modifications, as if--

(i) any individual of a description specified in the order who would not otherwise be an employee for the purposes of the Schedule were an employee for those purposes; and

(ii) a person of a description specified in the order were, in the case of any such individual, the individual's employer for those purposes.

(3) Before making an order under this section, the Secretary of State must consult the Advisory, Conciliation and Arbitration Service.

30 Contracts of employment

(1) Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure.

(2) Subsection (1) shall have effect notwithstanding any agreement to the contrary, but does not affect so much of an agreement to follow a particular procedure as requires the employer or employee to comply with a requirement which is additional to, and not inconsistent with, the requirements of the statutory procedure.

(3) The Secretary of State may for the purpose of this section by regulations make provision about the application of the statutory procedures.

(4) In this section, "contract of employment" has the same meaning as in the Employment Rights Act 1996 (c. 18).

31 Non-completion of statutory procedure: adjustment of awards

(1) This section applies to proceedings before an employment tribunal relating to a claim under any of the jurisdictions listed in Schedule 3 by an employee.

(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that--

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee--

(i) to comply with a requirement of the procedure, or

(ii) to exercise a right of appeal under it,

it must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.

(3) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that--

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

(4) The duty under subsection (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

(5) Where an award falls to be adjusted under this section and under section 38, the adjustment under this section shall be made before the adjustment under that section.

(6) The Secretary of State may for the purposes of this section by regulations--

(a) make provision about the application of the statutory procedures;

(b) make provision about when a statutory procedure is to be taken to be completed;

(c) make provision about what constitutes compliance with a requirement of a statutory procedure;

(d) make provision about circumstances in which a person is to be treated as not subject to, or as having complied with, such a requirement;

(e) make provision for a statutory procedure to have effect in such circumstances as may be specified by the regulations with such modifications as may be so specified;

(f) make provision about when an employee is required to exercise a right of appeal under a statutory procedure.

(7) The Secretary of State may by order--

(a) amend Schedule 3 for the purpose of--

(i) adding a jurisdiction to the list in that Schedule, or

(ii) removing a jurisdiction from that list;

(b) make provision, in relation to a jurisdiction listed in Schedule 3, for this section not to apply to proceedings relating to claims of a description specified in the order;

(c) make provision for this section to apply, with or without modifications, as if--

(i) any individual of a description specified in the order who would not otherwise be an employee for the purposes of this section were an employee for those purposes, and

(ii) a person of a description specified in the order were, in the case of any such individual, the individual's employer for those purposes.

32 Complaints about grievances

(1) This section applies to the jurisdictions listed in Schedule 4.

(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if--

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and

(b) the requirement has not been complied with.

(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if--

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and

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