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Employment Act 2002 (c. 22)

(The document as of February, 2008)

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

(b) less than 28 days have passed since the day on which the requirement was complied with.

(4) 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

(b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint.

(5) In such circumstances as the Secretary of State may specify by regulations, an employment tribunal may direct that subsection (4) shall not apply in relation to a particular matter.

(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if--

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c. 17) (employment tribunal procedure regulations).

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

(a) make provision about the application of the procedures set out in Part 2 of Schedule 2;

(b) make provision about what constitutes compliance with paragraph 6 or 9 of that Schedule;

(c) make provision about circumstances in which a person is to be treated as having complied with paragraph 6 or 9 of that Schedule;

(d) make provision for paragraph 6 or 9 of that Schedule to have effect in such circumstances as may be specified by the regulations with such modificiations as may be so specified.

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

(a) amend, repeal or replace any of subsections (2) to (4);

(b) amend Schedule 4;

(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.

(9) Before making an order under subsection (8)(a), the Secretary of State must consult the Advisory, Conciliation and Arbitration Service.

(10) In its application to orders under subsection (8)(a), section 51(1)(b) includes power to amend this section.

33 Consequential adjustment of time limits

(1) The Secretary of State may, in relation to a jurisdiction listed in Schedule 3 or 4, by regulations make provision about the time limit for beginning proceedings in respect of a claim concerning a matter to which a statutory procedure applies.

(2) Regulations under this section may, in particular--

(a) make provision extending, or authorising the extension of, the time for beginning proceedings,

(b) make provision about the exercise of a discretion to extend the time for beginning proceedings, or

(c) make provision treating proceedings begun out of time as begun within time.

34 Procedural fairness in unfair dismissal

(1) Part 10 of the Employment Rights Act 1996 (c. 18) (unfair dismissal) is amended as follows.

(2) After section 98 there is inserted--

" 98A Procedural fairness

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

(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act. "

(3) In section 112 (the remedies: orders and compensation), at the end there is inserted--

" (5) Where--

(a) an employee is regarded as unfairly dismissed by virtue of section 98A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason), and

(b) an order is made in respect of the employee under section 113,

the employment tribunal shall, subject to subsection (6), also make an award of four weeks' pay to be paid by the employer to the employee.

(6) An employment tribunal shall not be required to make an award under subsection (5) if it considers that such an award would result in injustice to the employer. "

(4) In section 117 (under which an award of compensation falls to be made if an employee is reinstated or re-engaged in pursuance of an order under section 113, but the terms of the order are not fully complied with), after subsection (2) there is inserted--

" (2A) There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113. "

(5) In section 123 (compensatory award) at the end there is inserted--

" (8) Where the amount of the compensatory award falls to be calculated for the purposes of an award under section 117(3)(a), there shall be deducted from the compensatory award any award made under section 112(5) at the time of the order under section 113. "

(6) In section 120 (basic award: minimum in certain cases) after subsection (1) there is inserted--

" (1A) Where--

(a) an employee is regarded as unfairly dismissed by virtue of section 98A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

(b) an award of compensation falls to be made under section 112(4), and

(c) the amount of the award under section 118(1)(a), before any reduction under section 122(3A) or (4), is less than the amount of four weeks' pay,

the employment tribunal shall, subject to subsection (1B), increase the award under section 118(1)(a) to the amount of four weeks' pay.

(1B) An employment tribunal shall not be required by subsection (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer. "



Employment particulars

35 Particulars of procedures relating to discipline or dismissal

(1) Section 3 of the Employment Rights Act 1996 (c. 18) (note about disciplinary rules and procedures) is amended as follows.

(2) In subsection (1) (which requires a statement under section 1 of that Act to include a note specifying the disciplinary rules and procedures applying to an employee), after paragraph (a) there is inserted--

" (aa) specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee, " .

(3) In that subsection, in paragraph (b)(i) (which requires the note to specify a person for the employee to apply to if he is dissatisfied with a disciplinary decision) after "him" there is inserted "or any decision to dismiss him".

(4) In subsection (2) (which provides that the note does not need to specify the rules and procedures relating to health and safety at work) after "decisions," there is inserted "decisions to dismiss".

36 Removal of exemption for small employers

In section 3 of the Employment Rights Act 1996 (c. 18) (note about disciplinary rules and procedures), subsections (3) and (4) (exemptions for undertakings with less than 20 employees) shall cease to have effect.

37 Use of alternative documents to give particulars

In Part 1 of the Employment Rights Act 1996 (employment particulars), after section 7 there is inserted--

" 7A Use of alternative documents to give particulars

(1) Subsections (2) and (3) apply where--

(a) an employer gives an employee a document in writing in the form of a contract of employment or letter of engagement,

(b) the document contains information which, were the document in the form of a statement under section 1, would meet the employer's obligation under that section in relation to the matters mentioned in subsections (3) and (4)(a) to (c), (d)(i), (f) and (h) of that section, and

(c) the document is given after the beginning of the employment and before the end of the period for giving a statement under that section.

(2) The employer's duty under section 1 in relation to any matter shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under that section, would meet the employer's obligation under that section in relation to that matter.

(3) The employer's duty under section 3 shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under section 1 and the information included in the form of a note, would meet the employer's obligation under section 3.

(4) For the purposes of this section a document to which subsection (1)(a) applies shall be treated, in relation to information in respect of any of the matters mentioned in section 1(4), as specifying the date on which the document is given to the employee as the date as at which the information applies.

(5) Where subsection (2) applies in relation to any matter, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date in relation to that matter for the purposes of section 4(1).

(6) Where subsection (3) applies, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date for the purposes of section 4(1) in relation to the matters of which particulars are required to be given under section 3.

(7) The reference in section 4(6) to an employer having given a statement under section 1 shall be treated as including his having given a document by virtue of which his duty to give such a statement is treated as met.

7B Giving of alternative documents before start of employment

A document in the form of a contract of employment or letter of engagement given by an employer to an employee before the beginning of the employee's employment with the employer shall, when the employment begins, be treated for the purposes of section 7A as having been given at that time. "

38 Failure to give statement of employment particulars etc.

(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 5.

(2) If in the case of proceedings to which this section applies--

(a) the employment tribunal finds in favour of the employee, but makes no award to him in respect of the claim to which the proceedings relate, and

(b) when the proceedings were begun the employer was in breach of his duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18) (duty to give a written statement of initial employment particulars or of particulars of change),

the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

(3) If in the case of proceedings to which this section applies--

(a) the employment tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and

(b) when the proceedings were begun the employer was in breach of his duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996,

the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

(4) In subsections (2) and (3)--

(a) references to the minimum amount are to an amount equal to two weeks' pay, and

(b) references to the higher amount are to an amount equal to four weeks' pay.

(5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

(6) The amount of a week's pay of an employee shall--

(a) be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c. 18), and

(b) not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week's pay).

(7) For the purposes of Chapter 2 of Part 14 of the Employment Rights Act 1996 as applied by subsection (6), the calculation date shall be taken to be--

(a) if the employee was employed by the employer on the date the proceedings were begun, that date, and

(b) if he was not, the effective date of termination as defined by section 97 of that Act.

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

(a) amend Schedule 5 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 5, 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.



General

39 Unfair dismissal: adjustments under sections 31 and 38

In the Employment Rights Act 1996 (c. 18), after section 124 there is inserted--

" 124A Adjustments under the Employment Act 2002

Where an award of compensation for unfair dismissal falls to be--

(a) reduced or increased under section 31 of the Employment Act 2002 (non-completion of statutory procedures), or

(b) increased under section 38 of that Act (failure to give statement of employment particulars),

the adjustment shall be in the amount awarded under section 118(1)(b) and shall be applied immediately before any reduction under section 123(6) or (7). "

40 Interpretation of Part 3

In this Part--

  • "employer" and "employee" have the same meanings as in the Employment Rights Act 1996 (c. 18);

  • "statutory procedure" means a procedure set out in Schedule 2.



Part 4 Miscellaneous and general

Miscellaneous

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41 Power to confer rights on individuals: amendment

In section 23(5) of the Employment Relations Act 1999 (c. 26) (power to confer rights on individuals), the words "or otherwise" are omitted.

42 Equal pay: questionnaires

In the Equal Pay Act 1970 (c. 41), after section 7A there is inserted--

" 7B Questioning of employer

(1) For the purposes of this section--

(a) a person who considers that she may have a claim under section 1 above is referred to as "the complainant", and

(b) a person against whom the complainant may decide to make, or has made, a complaint under section 2(1) or 7A(3) above is referred to as "the respondent".

(2) With a view to helping a complainant to decide whether to institute proceedings and, if she does so, to formulate and present her case in the most effective manner, the Secretary of State shall by order prescribe--

(a) forms by which the complainant may question the respondent on any matter which is or may be relevant, and

(b) forms by which the respondent may if he so wishes reply to any questions.

(3) Where the complainant questions the respondent (whether in accordance with an order under subsection (2) above or not), the question and any reply by the respondent (whether in accordance with such an order or not) shall, subject to the following provisions of this section, be admissible as evidence in any proceedings under section 2(1) or 7A(3) above.

(4) If in any proceedings under section 2(1) or 7A(3) above it appears to the employment tribunal that the complainant has questioned the respondent (whether in accordance with an order under subsection (2) above or not) and that--

(a) the respondent deliberately and without reasonable excuse omitted to reply within such period as the Secretary of State may by order prescribe, or

(b) the respondent's reply is evasive or equivocal,

it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a term modified or included by virtue of the complainant's equality clause or corresponding term of service.

(5) Where the Secretary of State questions an employer in relation to whom he may decide to make, or has made, a reference under section 2(2) above, the question and any reply by the employer shall, subject to the following provisions of this section, be admissible as evidence in any proceedings under that provision.

(6) If in any proceedings on a reference under section 2(2) above it appears to the employment tribunal that the Secretary of State has questioned the employer to whom the reference relates and that--

(a) the employer deliberately and without reasonable excuse omitted to reply within such period as the Secretary of State may by order prescribe, or

(b) the employer's reply is evasive or equivocal,

it may draw any inference which it considers it just and equitable to draw, including an inference that the employer has contravened a term modified or included by virtue of the equality clause of the woman, or women, as respects whom the reference is made.

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

(a) prescribe the period within which questions must be duly served in order to be admissible under subsection (3) or (5) above, and

(b) prescribe the manner in which a question, and any reply, may be duly served.

(8) This section is without prejudice to any other enactment or rule of law regulating interlocutory and preliminary matters in proceedings before an employment tribunal, and has effect subject to any enactment or rule of law regulating the admissibility of evidence in such proceedings.

(9) Power to make orders under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(10) An order under this section may make different provision for different cases. "

43 Union learning representatives

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is amended as follows.

(2) After section 168 there is inserted--

" 168A Time off for union learning representatives

(1) An employer shall permit an employee of his who is--

(a) a member of an independent trade union recognised by the employer, and

(b) a learning representative of the trade union,

to take time off during his working hours for any of the following purposes.

(2) The purposes are--

(a) carrying on any of the following activities in relation to qualifying members of the trade union--

(i) analysing learning or training needs,

(ii) providing information and advice about learning or training matters,

(iii) arranging learning or training, and

(iv) promoting the value of learning or training,

(b) consulting the employer about carrying on any such activities in relation to such members of the trade union,

(c) preparing for any of the things mentioned in paragraphs (a) and (b).

(3) Subsection (1) only applies if--

(a) the trade union has given the employer notice in writing that the employee is a learning representative of the trade union, and

(b) the training condition is met in relation to him.

(4) The training condition is met if--

(a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact,

(b) the trade union has in the last six months given the employer notice in writing that the employee will be undergoing such training, or

(c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact.

(5) Only one notice under subsection (4)(b) may be given in respect of any one employee.

(6) References in subsection (4) to sufficient training to carry out the activities mentioned in subsection (2) are to training that is sufficient for those purposes having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State.

(7) If an employer is required to permit an employee to take time off under subsection (1), he shall also permit the employee to take time off during his working hours for the following purposes--

(a) undergoing training which is relevant to his functions as a learning representative, and

(b) where the trade union has in the last six months given the employer notice under subsection (4)(b) in relation to the employee, undergoing such training as is mentioned in subsection (4)(a).

(8) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State.

(9) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.

(10) In subsection (2)(a), the reference to qualifying members of the trade union is to members of the trade union--

(a) who are employees of the employer of a description in respect of which the union is recognised by the employer, and

(b) in relation to whom it is the function of the union learning representative to act as such.

(11) For the purposes of this section, a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules. "

(3) In section 169(1) (duty of employer to pay employee for time off under section 168), after "168" there is inserted "or 168A".

(4) In section 170 (duty to permit time off to take part in trade union activities), after subsection (2) there is inserted--

" (2A) The right conferred by subsection (1) does not extend to time off for the purpose of acting as, or having access to services provided by, a learning representative of a trade union.

(2B) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of having access to services provided by a person in his capacity as a learning representative of the trade union.

(2C) Subsection (2B) only applies if the learning representative would be entitled to time off under subsection (1) of section 168A for the purpose of carrying on in relation to the employee activities of the kind mentioned in subsection (2) of that section. "

(5) In that section, at the end there is inserted--

" (5) For the purposes of this section--

(a) a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules, and

(b) a person who is a learning representative of a trade union acts as such if he carries on the activities mentioned in section 168A(2) in that capacity. "

(6) At the end of section 173 (provisions supplementary to section 168 to 170), there is inserted--

" (3) The Secretary of State may by order made by statutory instrument amend section 168A for the purpose of changing the purposes for which an employee may take time off under that section.

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

(7) In sections 199(1) and 203(1) (powers of ACAS and Secretary of State to produce Codes of Practice), at the end there is inserted "or for purposes connected with trade union learning representatives".

(8) For section 200(3) there is substituted--

" (3) A Code containing practical guidance--

(a) on the time off to be permitted to a trade union learning representative in accordance with section 168A (time off for training and carrying out functions as a learning representative),

(b) on the training that is sufficient to enable a trade union learning representative to carry on the activities mentioned in section 168A(2) (activities for which time off is to be permitted), or

(c) on any of the matters referred to in section 199(2),

shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft. "

44 Dismissal procedures agreements

In section 110 of the Employment Rights Act 1996 (c. 18) (dismissal procedures agreements) after subsection (3) there is inserted--

" (3A) The Secretary of State may by order amend subsection (3) so as to add to the conditions specified in that subsection such conditions as he may specify in the order. "

45 Fixed-term work

(1) The Secretary of State shall make regulations--

(a) for the purpose of securing that employees in fixed-term employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than employees in permanent employment, and

(b) for the purpose of preventing abuse arising from the use of successive periods of fixed-term employment.

(2) The regulations may--

(a) specify classes of employee who are to be taken to be, or not to be, in fixed-term employment;

(b) specify classes of employee who are to be taken to be, or not to be, in permanent employment;

(c) specify circumstances in which employees in fixed-term employment are to be taken to be, or not to be, treated less favourably than employees in permanent employment;

(d) specify circumstances in which periods of fixed-term employment are to be taken to be, or not to be, successive;

(e) specify circumstances in which fixed-term employment is to have effect as permanent employment;

(f) make provision which has effect in relation to employees in fixed-term employment generally or provision which has effect only in relation to specified classes of employee in fixed-term employment.

(3) The regulations may--

(a) confer jurisdiction (including exclusive jurisdiction) on employment tribunals;

(b) provide for specified obligations not to apply in specified circumstances;

(c) make provision about notices or information to be given, evidence to be produced and other procedures to be followed;

(d) amend, apply with or without modifications, or make provision similar to any provision of--

(i) the Employment Rights Act 1996 (c. 18) (including, in particular, Parts 5, 10 and 13),

(ii) the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), or

(iii) the Social Security Contributions and Benefits Act 1992 (c. 4);

(e) provide for the provisions of specified agreements to have effect in place of provisions of the regulations to such extent and in such circumstances as may be specified.

(4) Without prejudice to the generality of this section, the regulations may make any provision in relation to employees which appears to the Secretary of State to be necessary or expedient--

(a) for the purpose of implementing Council Directive 99/70/EC on the framework agreement on fixed-term work in its application to terms and conditions of employment;

(b) for the purpose of dealing with any matter arising out of or related to the United Kingdom's obligations under that Directive;

(c) for the purpose of any matter dealt with by the framework agreement or for the purpose of applying the provisions of the framework agreement to any matter relating to fixed term workers.

(5) In its application to this section, section 51(1)(b) includes power to amend an enactment.

(6) In this section--

(a) "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment, and

(b) "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

46 Fixed-term work: Northern Ireland

(1) The Department for Employment and Learning shall make regulations--

(a) for the purpose of securing that employees in fixed-term employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than employees in permanent employment, and

(b) for the purpose of preventing abuse arising from the use of successive periods of fixed-term employment.

(2) The regulations may--

(a) specify classes of employee who are to be taken to be, or not to be, in fixed-term employment;

(b) specify classes of employee who are to be taken to be, or not to be, in permanent employment;

(c) specify circumstances in which employees in fixed-term employment are to be taken to be, or not to be, treated less favourably than employees in permanent employment;

(d) specify circumstances in which periods of fixed-term employment are to be taken to be, or not to be, successive;

(e) specify circumstances in which fixed-term employment is to have effect as permanent employment;

(f) make provision which has effect in relation to employees in fixed-term employment generally or provision which has effect only in relation to specified classes of employee in fixed-term employment.

(3) The regulations may--

(a) confer jurisdiction (including exclusive jurisdiction) on industrial tribunals;

(b) provide for specified obligations not to apply in specified circumstances;

(c) make provision about notices or information to be given, evidence to be produced and other procedures to be followed;

(d) amend, apply with or without modifications, or make provision similar to any provision of--

(i) the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919) (including, in particular, Parts 6, 11 and 15),

(ii) the Trade Union and Labour Relations (Northern Ireland) Order 1995 (S.I. 1995/1980 (N.I. 12)), or

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