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Employment Protection (Consolidation) Act 1978

Type Public General Act

Publication 1978-07-31

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

PART I — Particulars of Terms of Employment

Written particulars of terms of employment

1

(1) Not later than thirteen weeks after the beginning of an employee's period of employment with an employer, the employer shall give to the employee a written statement in accordance with the following provisions of this section.

(2) An employer shall in a statement under this section—

(a) identify the parties;

(b) specify the date when the employment began;

(c) state whether any employment with a previous employer counts as part of the employee's continuous period of employment, and, if so, specify the date when the continuous period of employment began.

(3) A statement under this section shall contain the following particulars of the terms of employment as at a specified date not more than one week before the statement is given, that is to say—

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

(b) the intervals at which remuneration is paid (that is, whether weekly or monthly or by some other period),

(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—

(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,

(iii) pensions and pension schemes,

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

(f) the title of the job which the employee is employed to do:

Provided that paragraph (d)(iii) shall not apply to the employees of any body or authority if the employees' pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under an Act of Parliament and the body or authority are required by any such provision to give to new employees information concerning their pension rights, or concerning the determination of questions affecting their pension rights.

(4) Subject to subsection (5), every statement given to an employee under this section shall include a note—

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

(b) specifying, by description or otherwise—

(i) a person to whom the employee can apply if he is 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;

(c) where there are further steps consequent upon any such application, explaining those steps or referring to a document which is reasonably accessible to the employee and which explains them ; and

(d) stating whether a contracting-out certificate is in force for the employment in respect of which the statement is given.

(5) The provisions of paragraphs (a) to (c) of subsection (4) shall not apply to rules, disciplinary decisions, grievances or procedures relating to health or safety at work.

(6) The definition of week given by section 153(1) does not apply for the purposes of this section.

Supplementary provisions relating to statements under s. 1

2

(1) If there are no particulars to be entered under any of the heads of paragraph (d) of subsection (3) of section 1, or under any of the other provisions of section 1(2) and (3), that fact shall be stated.

(2) If the contract is for a fixed term, the statement given under section 1 shall state the date when the contract expires.

(3) A statement given under section 1 may, for all or any of the particulars to be given by the statement, refer the employee to some document which the employee has reasonable opportunities of reading in the course of his employment or which is made reasonably accessible to him in some other way.

(4) If not more than six months after the termination of an employee's period of employment, a further period of employment is begun with the same employer, and the terms of employment are the same, no statement need be given under section 1 in respect of the second period of employment, but without prejudice to the operation of subsection (1) of section 4 if there is a change in the terms of employment.

Certain hours of employment to be disregarded,

3

(1) Subject to the following provisions of this section, no account shall be taken under section 1 of employment during any period when the hours of employment are normally less than sixteen hours weekly.

(2) If the employee's relations with his employer cease to be governed by a contract which normally involves work for sixteen hours or more weekly and become governed by a contract which normally involves employment for eight hours or more, but less than sixteen hours, weekly, the employee shall nevertheless for a period of twenty-six weeks (computed in accordance with subsection (3)) be treated for the purposes of subsection (1) as if his contract normally involved employment for sixteen hours or more weekly.

(3) In computing the said period of twenty-six weeks no account shall be taken of any week—

(a) during which the employee is in fact employed for sixteen hours or more;

(b) during which the employee takes part in a strike (as defined in paragraph 24 of Schedule 13) or is absent from work because of a lock-out (as so defined) by his employer; or

(c) during which there is no contract of employment but which, by virtue of paragraph 9(1) of Schedule 13, counts in computing a period of continuous employment.

(4) An employee whose relations with his employer are governed by a contract of employment which normally involves employment for eight hours or more, but less than sixteen hours, weekly shall nevertheless, if he has been continuously employed for a period of five years or more, be treated for the purposes of subsection (1) as if his contract normally involved employment for sixteen hours or more weekly.

Changes in terms of employment

4

(1) If after the date to which a statement given under section 1 relates there is a change in the terms of employment to be included, or referred to, in that statement the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and, if he does not leave a copy of the statement with the employee, shall preserve the statement and ensure that the employee has reasonable opportunities of reading it in the course of his employment, or that it is made reasonably accessible to him in some other way.

(2) A statement given under subsection (1) may, for all or any of the particulars to be given by the statement, refer the employee to some document which the employee has reasonable opportunities of reading in the course of his employment, or which is made reasonably accessible to him in some other way.

(3) If, in referring in the statement given under section 1 or under subsection (1) of this section to any such document, the employer indicates to the employee that future changes in the terms of which the particulars are given in the document will be entered up in the document (or recorded by some other means for the information of persons referring to the document), the employer need not under subsection (1) inform the employee of any such change if it is duly entered up or recorded not later than one month after the change is made.

(4) Where, after an employer has given to an employee a written statement in accordance with section 1—

(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 such circumstances that, in accordance with section 139(7) or paragraph 17 or paragraph 18 of Schedule 13, the continuity of the employee's period of employment is not broken,

and (in either case) the change does not involve any change in the terms (other than the names of the parties) included or referred to in the statement, then, the person who, immediately after the change, is the employer shall not be required to give to the employee a statement in accordance with section 1, but, subject to subsection (5), the change shall be treated as a change falling within subsection (1) of this section.

(5) A written statement under this section which informs an employee of such a change in his terms of employment as is referred to in subsection (4)(b) shall specify the date, on which the employee's continuous period of employment began.

Exclusion of certain contracts in writing

5

Sections 1 and 4 shall not apply to an employee if and so long as the following conditions are fulfilled in relation to him, that is to say—

(a) the employee's contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (3) of section 1, and under each head of paragraph (d) of that subsection;

(b) there has been given to the employee a copy of the contract (with any variations made from time to time), or he has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way; and

(c) such a note as is mentioned in section 1(4) has been given to the employee or he has reasonable opportunities of reading such a note in the course of his employment or such a note is made reasonably accessible to him in some other way:

Power of Secretary of State to require further particulars

6

The Secretary of State may by order provide that section 1 shall have effect as if such further particulars as may be specified in the order were included in the particulars to be included in a statement under that section, and, for that purpose, the order may include such provisions amending section 1(1), (2) and (3) as appear to the Secretary of State to be expedient.

Power to vary number of weekly hours of employment necessary to qualify for rights

7

(1) The Secretary of State may by order provide that this Part and Schedule 13 shall have effect as if—

(a) for each of the references to sixteen hours in section 3 and in paragraphs 3 to 7 of Schedule 13 there were substituted a reference to such other number of hours less than sixteen as may be specified in the order; and

(b) as if for each of the references to eight hours in section 3 and in paragraphs 6 and 7 of Schedule 13 there were substituted a reference to such other number of hours less than eight as may be specified in the order.

(2) An order under subsection (1) shall not be made unless a draft of the order has been laid before Parliament and approved by resolution of each House.

Itemised pay statements

Right to itemised pay statement

8

Every employee shall have 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 an itemised pay statement, in writing, containing the following particulars, that is to say.—

(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 ;

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

Standing statement of fixed deductions

9

(1) A pay statement given in accordance with section 8 need not contain separate particulars of a fixed deduction if it contains instead an aggregate amount of fixed deductions, including that deduction, and the employer has given to the employee, at or before the time at which that pay statement is given, a standing statement of fixed deductions, in writing,

which contains the following particulars of each deduction comprised in that aggregate amount, that is to say.—

(a) the amount of the deduction ;

(b) the intervals at which the deduction is to be made ; and

and which, in accordance with subsection (4), is effective at the date on which the pay statement is given.

(2) A standing statement of fixed deductions may be amended, whether by addition of a new deduction or by a change in the particulars or cancellation of an existing deduction, by notice in writing, containing particulars of the amendment, given by the employer to the employee.

(3) An employer who has given to an employee a standing statement of fixed deductions shall, within the period of twelve months beginning with the date on which the first standing statement was given and at intervals of not more than twelve months thereafter, re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (2).

(4) A standing statement of fixed deductions shall become effective, for the purposes of subsection (1), on the date on which it is given to the employee and shall cease to have effect on the expiration of the period of twelve months beginning with that date, or, where it is re-issued in accordance with subsection (3), the expiration of the period of twelve months beginning with the date on which it was last re-issued.

Power to amend ss. 8 and 9

10

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 section 9(3) and (4) 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 of rights under Part I

References to industrial tribunals

11

(1) Where an employer does not give an employee a statement as required by section 1 or 4(1) or 8, 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 relevant section.

(2) Where

(a) a statement purporting to be a statement under section 1 or 4(1), or

(b) a pay statement, or a standing statement of fixed deductions, purporting to comply with section 8 or 9(1),

has been given to an employee, and 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 that question to be referred to and determined by an industrial tribunal.

(3) Where a statement under section 1 or 4(1) given by an employer to an employee contains such an indication as is mentioned in section 4(3), and

(a) any particulars purporting to be particulars of a change to which that indication relates are entered up or recorded in accordance with that indication, and

(b) a question arises as to the particulars which ought to have been so entered up or recorded,

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

(4) In this section, a question as to the particulars which ought to have been included—

(a) in a pay statement, or in a standing statement of fixed deductions, does not include a question solely as to the accuracy of an amount stated in any such particulars;

(b) in a note under section 1(4), does not include any question whether the employment is, has been or will be contracted-out employment for the purposes of Part III of me Social Security Pensions Act 1975.

(5) Where, on a reference under subsection (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(1) 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.

(6) On determining a reference under subsection (2)(a), an industrial tribunal may either confirm the particulars as included or referred to in the statement given by the employer, or may amend those particulars, or may 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.

(7) On determining a reference under subsection (3), an industrial tribunal may either confirm the particulars to which the reference relates, or may amend those particulars or may substitute other particulars for them, as the tribunal may determine to be appropriate; and particulars of the change to which the reference relates shall be deemed to have been entered up or recorded in accordance with the decision of the tribunal.

(8) Where on a reference under this section an industrial tribunal finds that an employer has failed to give an employee any pay statement in accordance with section 8 or 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(1)—

(a) the tribunal shall make a declaration to that effect; and

(b) where 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.

In this subsection " unnotified deduction " means a deduction made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of that deduction required by section 8 or 9(1).

(9) An industrial tribunal shall not entertain 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 before the end of the period of three months beginning with the date on which the employment ceased.

PART II — Rights Arising in Course of Employment

Guarantee payments

Right to guarantee payment

12

(1) Where an employee throughout a day during any part of which he would normally be required to work in accordance with his contract of employment 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,

he shall, subject to the following provisions of this Act, be entitled to be paid by his employer a payment, referred to In this Act as a guarantee payment, in respect of that day, and in this section and sections 13 and 16—

(i) such a day is referred to as a " workless day ", and

(ii) " workless period " has a corresponding meaning.

(2) In this section and sections 13 to 17, "day" means the period of twenty-four hours from midnight to midnight, and where a period of employment begun on any day extends over midnight into the following day, or would normally so extend, then—

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

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

General exclusions from right under s. 12

13

(1) An employee shall not be entitled to a guarantee payment in respect of a workless day if the failure to provide him with work occurs in consequence of a trade dispute involving any employee of his employer or of an associated employer.

(2) An employee shall not be 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 work which the employee is under his contract employed to perform, and the employee has unreasonably refused that offer; or

(b) he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

Calculation of guarantee payment

14

(1) Subject to the limits set by section 15, the amount of a guarantee payment payable to an employee in respect of any day shall be the sum produced by multiplying the number of normal working hours on that day by the guaranteed hourly rate, and, accordingly, no guarantee payment shall be payable to an employee in whose case there are no normal working hours on the day in question.

(2) Subject to subsection (3), the guaranteed hourly rate in relation to an employee shall be the amount of one week's pay divided by-

(a) 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 ; or

(b) where the number of such normal working hours differs from week to week or over a longer period, the average number of such 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

(c) in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, a number which fairly represents the number of normal working hours in a week having regard to such of the following considerations as are appropriate in the circumstances, that is to say.—

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

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

(3) 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, subsection (2) shall have effect as if for the reference to the day in respect of which the guarantee payment is payable there was substituted a reference to the last day on which the original contract was in force.

Limits on amount of and entitlement to guarantee payment

15

(1) The amount of a guarantee payment payable to an employee in respect of any day shall not exceed £6.60.

(2) An employee shall not be entitled to guarantee payments in respect of more than the specified number of days in any one of the relevant periods, that is to say, the periods of three months commencing on 1st February, 1st May, 1st August and 1st November in each year.

(3) The specified number of days for the purposes of subsection (2) shall be, subject to subsection (4).—

(a) 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 ; or

(b) where that number of days varies from week to week or over a longer period, 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

(c) in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, 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 following considerations as are appropriate in the circumstances, that is to say.—

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

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

(4) 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, subsection (3) shall 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.

(5) The Secretary of State may vary any of the limits referred to in this section, and may in particular vary the relevant periods referred to in subsection (2), after a review under section 148, by order made in accordance with that section.

Supplementary provisions relating to guarantee payments

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(1) Subject to subsection (2), a right to a guarantee payment shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as " contractual remuneration ").

(2) Any contractual remuneration paid to an employee in respect of a workless day shall go 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 shall go 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.

(4) The Secretary of State may by order provide that in relation to any description of employees the provisions of sections 12(2), 14 and 15(3) (as originally enacted or as varied under section 15(5)) and of subsections (1) to (3), and, so far as they apply for the purposes of those provisions, the provisions of Schedule 14 shall have effect subject to such modifications and adaptations as may be prescribed by the order.

Complaint to industrial tribunal

17

(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 entertain a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day or 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 the 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 complainant the amount of guarantee payment which it finds is due to him.

Exemption orders

18

(1) If at any time there is in force a collective agreement,

or a wages order, whereby employees to whom the agreement or order relates have a right to guaranteed remuneration and on the application of all the parties to the agreement or, as the case may be, of the council or Board making the order, the appropriate Minister, having regard to the provisions of the agreement or order, is satisfied that section 12 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), a wages order means an order made under any of the following provisions, that is to say—

(a) section 11 of the Wages Councils Act 1959;

(b) section 3 of the Agricultural Wages Act 1948;

(3) In subsection (1), "the appropriate Minister" means—

(a) as respects a collective agreement or such an order as is referred to in subsection (2)(a) or (c), the Secretary of State;

(b) as respects such an order as is referred to in subsection (2)(b), 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 that 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 ;

and where an order under this section is in force in respect of such an agreement as is described in paragraph (b) an industrial tribunal shall have jurisdiction over such a complaint as if it were a complaint falling within section 17.

(5) Without prejudice to section 154(4), an order under this section may be varied or revoked by a subsequent order thereunder, whether in pursuance of an application made by all or any of the parties to the agreement in question, or, as the case may be, by the council or Board which made the order in question, or without any such application.

Suspension from work on medical grounds

Right to remuneration on suspension on medical grounds

19

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

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

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

which is a provision for the time being specified in Schedule 1 shall, subject to the following provisions of this Act, be 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 section and sections 20 to 22 and 61, an employee shall be regarded as suspended from work only if, and so long as, he continues to be employed by his employer, but is not provided with work or does not perform the work he normally performed before the suspension.

(3) The Secretary of State may by order add provisions to or remove provisions from the list of specified provisions in Schedule 1.

General exclusions from right under s. 19

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(1) An employee shall not be entitled to remuneration under section 19 in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

(2) An employee shall not be entitled to remuneration under section 19 in respect of any period during which—

(a) his employer has offered to provide him with suitable alternative work, whether or not work which die 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.

Calculation of remuneration

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(1) The amount of remuneration payable by an employer to an employee under section 19 shall be a week's pay in respect of each week of the period of suspension referred to in subsection (1) of that section, and if in any week remuneration is payable in respect only of part of that week the amount of a week's pay shall be reduced proportionately.

(2) Subject to subsection (3), a right to remuneration under section 19 shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as " contractual remuneration ").

(3) Any contractual remuneration paid by an employer to an employee in respect of any period shall go towards discharging the employer's liability under section 19 in respect of that period, and conversely any payment of remuneration in discharge of an employer's liability under section 19 in respect of any period shall go towards discharging any obligation f the employer to pay contractual remuneration in respect of that period.

Complaint to industrial tribunal

22

(1) An employee may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of remuneration to which the employee is entitled under section 19.

(2) An industrial tribunal shall not entertain a complaint relating to remuneration under section 19 in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for die complaint to be presented within the 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 complainant the amount of remuneration which it finds is due to him.

Trade union membership and activities

23

(1) Subject to the following provisions of this section, every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of—

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or

(b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or

(2) In this section " appropriate time", in relation to an employee taking part in any activities of a trade union, means time which either—

(a) is outside his working hours, or

(b) is a time within his working hours at which, in accordance with arrangements agreed with, or consent given by his employer, it is permissible for him to take part in those activities;

and in this subsection "working hours", in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3) The provisions of subsection (4) shall have effect in relation to an employee—

(a) of the same class as employees for whom it is the practice in accordance with a union membership agreement to belong to a specified independent trade union or to one of a number of specified independent trade unions; or

(b) not of the same class as described in paragraph (a) but of the same grade or category as such employees as are referred to in that paragraph.

(4) In relation to such an employee the right conferred by subsection (1)(b) in relation to the activities of an independent trade union shall extend to activities on the employer's premises only if that union is a specified union.

(5) For the purposes of this section a trade union—

(a) shall be taken to be specified for the purposes of, or in relation to, a union membership agreement if it is specified in the agreement or is accepted by the parties to the agreement as being the equivalent of a union so specified; and

(b) shall also be treated as so specified if—

(i) the Advisory, Conciliation and Arbitration Service has made a recommendation for recognition of that union covering the employee in question which is operative within the meaning of section 15 of the Employment Protection Act 1975 ; or

(ii) the union has referred a recognition issue covering that employee to die Advisory, Conciliation and Arbitration Service under section 11 of the said Act of 1975 and the Service has not declined to proceed on the reference under section 12 of that Act, the union has not withdrawn the reference, or from the reference, and the issue has not been settled or reported on under that section.

(6) An employee who genuinely objects on grounds of religious belief to being a member of any trade union whatsoever shall have the right not to have action (short of dismissal) taken against him by his employer for the purpose of compelling him to belong to a trade union.

(7) In this section, unless the context otherwise requires, references to a trade union include references to a branch or section of a trade union.

Complaint to industrial tribunal

24

(1) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of section 23.

(2) An industrial tribunal shall not entertain a complaint under subsection (1) unless it is presented to the tribunal before the end of the period of three months beginning with the date on which there occurred the action complained of, or where that action is part of a series of similar actions, the last of those actions, or 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 the period of three months.

(3) Where the tribunal finds the complaint well-founded it shall make a declaration to that effect and may make an award of compensation, calculated in accordance with section 26, to be paid by the employer to the employee in respect of the action complained of.

Supplementary provisions relating to complaints under s.24

25

(1) On a complaint under section 24 it shall be for the employer to show—

(a) the purpose for which action was taken against the complainant; and

(b) that the purpose was not such a purpose as is referred to in section 23(1)(a) to (c) or (6).

(2) In determining on a complaint under section 24, any question as to whether action was taken by the complainant's employer or the purpose for which it was taken, 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 take the action complained of, and that question shall be determined as if no such pressure had been exercised.

Assessment of compensation on a complaint under s. 24

26

(1) The amount of the compensation awarded by a tribunal on a complaint under section 24 shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant's right under section 23 by the employer's action complained of and to any loss sustained by the complainant which is attributable to that action.

(2) The said loss shall be taken to include—

(a) any expenses reasonably incurred by the complainant in consequence of the action complained of, and

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

(3) In ascertaining the said 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 of Scotland, as the case may be.

(4) In determining the amount of compensation to be awarded under subsection (1), no account shall be taken of any pressure as is referred to in section 25(2), and that question shall be determined as if no such pressure had been exercised.

(5) Where the tribunal finds that the action complained of was to any extent caused or contributed to by any 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.

Time off work

Time off for carrying out trade union duties

27

(1) An employer shall permit an employee of his who is an official of an independent trade union recognised by him to take time off, subject to and in accordance with subsection (2), during the employee's working hours for the purpose of enabling him—

(a) to carry out those duties of his as such an official which are concerned with industrial relations between his employer and any associated employer, and their employees; or

(b) to undergo training in aspects of industrial relations which is—

(i) relevant to the carrying out of those duties; and

(ii) approved by the Trades Union Congress or by the independent trade union of which he is an official.

(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 to any relevant provisions of a Code of Practice issued by the Advisory, Conciliation and Arbitration Service under section 6 of the Employment Protection Act 1975.

(3) An employer who permits an employee to take time off under this section for any purpose shall, subject to the following provisions of this section, pay him for the time taken off for that purpose in accordance with the permission—

(a) 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, as if he had worked at that work for the whole of that time;

(b) where the employee's remuneration for that work varies with the amount of work done, an amount calculated by reference to the average hourly earnings for that work.

(4) The average hourly earnings referred to in subsection (3)(b) shall be the average hourly earnings of the employee concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.

(5) Subject to subsection (6), a right to be paid any amount under subsection (3) shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as " contractual remuneration ").

(6) Any contractual remuneration paid to an employee in respect of a period of time off to which subsection (1) applies shall go towards discharging any liability of the employer under subsection (3) in respect of that period, and conversely any payment of any amount under subsection (3) in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

(7) An employee who is an official of an independent trade union recognised by his employer may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section or to pay him the whole or part of any amount so required to be paid.

Time off for trade union activities

28

(1) An employer shall permit an employee of his who is a member of an appropriate trade union to take time off, subject to and in accordance with subsection (3), during the employee's working hours for the purpose of taking part in any trade union activity to which this section applies.

(2) In this section " appropriate trade union ", in relation to an employee of any description, means an independent trade union which is recognised by his employer in respect of that description of employee, and the trade union activities to which this section applies are—

(a) any activities of an appropriate trade union of which the employee is a member; and

(b) any activities, whether or not falling within paragraph (a), in relation to which the employee is acting as a representative of such a union,

excluding activities which themselves consist of industrial action whether or not in contemplation or furtherance of a trade dispute.

(3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by the Advisory, Conciliation and Arbitration Service under section 6 of the Employment Protection Act 1975.

(4) An employee who is a member of an independent trade union recognised by his employer may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section.

Time off for public duties

29

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

(a) a justice of the peace;

(b) a member of a local authority;

(d) a member of, in England and Wales, a Regional Health Authority or Area Health Authority or, in Scotland, a Health Board;

(e) a member of, in England and Wales, the managing or governing body of an educational establishment maintained by a local education authority, or, in Scotland, a school or college council or the governing body of a central institution or a college of education ; or

(f) a member of, in England and Wales, a water authority or, in Scotland, river purification board,

to take time off, subject to and in accordance with subsection (4), during the employee's working hours for the purposes of performing any of the duties of his office or, as the case may be, his duties as such a member.

(2) In subsection (1)—

(a) "local authority" in relation to England and Wales includes the Common Council of the City of London but otherwise has the same meaning as in the Local Government Act 1972, and in relation to Scotland has the same meaning as in the Local Government (Scotland) Act 1973 ;

(b) "Regional Health Authority" and "Area Health Authority " have the same meaning as in the National Health Service Act 1977, and "Health Board" has the same meaning as in the National Health Service (Scotland) Act 1972;

(c) " local education authority " means the authority designated by section 192(1) of the Local Government Act 1972, " school or college council" means a body appointed under section 125(1) of the Local Government (Scotland) Act 1973, and "central institution" and " college of education " have the meanings assigned to them by section 145(10) and (14) respectively of the Education (Scotland) Act 1962 ; and

(d) " river purification board " means a board established under section 135 of the Local Government (Scotland) Act 1973.

(3) For the purposes of subsection (1) the duties of a member of a body referred to in paragraphs (b) to (f) of that subsection are: —

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

(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 the following: —

(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 27 and 28;

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

(5) The Secretary of State may by order—

(a) modify the provisions of subsection (1) by adding any office or body to, or removing any office or body from, that subsection or by altering the description of any office or body in that subsection ; and

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

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

Provisions as to industrial tribunals

30

(1) An industrial tribunal shall not consider—

(a) a complaint under section 27, 28 or 29 that an employer has failed to permit an employee to take time off; or

(b) a complaint under section 27 that an employer has failed to pay an employee the whole or part of any amount required to be paid under that section;

unless it is presented within three months of the date when the failure occurred or 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 the period of three months.

(2) Where an industrial tribunal finds any complaint mentioned in subsection (1)(a) well-founded, the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.

(3) Where on a complaint under section 27 an industrial tribunal finds that the employer has failed to pay the employee the whole or part of the amount required to be paid under that section, the tribunal shall order the employer to pay the employee the amount which it finds due to him.

Time off to look for work or make arrangements for training

31

(1) An employee who is given notice of dismissal by reason of redundancy shall, subject to the following provisions of this section, be entitled before the expiration of his notice to be allowed by his employer reasonable time off during the employee's working hours in order to look for new employment or make arrangements for training for future employment.

(2) An employee shall not be entitled to time off under this section unless, on whichever is the later of the following dates, that is to say.—

(a) the date on which the notice is due to expire; or

(b) the date on which it would expire were it the notice required to be given by section 49(1),

he will have been or, as the case may be, would have been continuously employed for a period of two years or more.

(3) An employee who is allowed time off during his working hours under subsection (1) shall, subject to the following provisions of this section, be entitled to be paid remuneration by his employer for the period of absence at the appropriate hourly rate.

(4) The appropriate hourly rate in relation to an employee shall be the amount of one week's pay divided by—

(a) 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 notice was given; or

(b) where the number of such normal working hours differs from week to week or over a longer period, the average number of such 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 notice was given.

(5) If an employer unreasonably refuses to allow an employee time off from work under this section, the employee shall, subject to subsection (9), be entitled to be paid an amount equal to the remuneration to which he would have been entitled under subsection (3) if he had been allowed the time off.

(6) An employee may present a complaint to an industrial tribunal on the ground that his employer has unreasonably refused to allow him time off under this section or has failed to pay the whole or any part of any amount to which the employee is entitled under subsection (3) or (5).

(7) An industrial tribunal shall not entertain a complaint under subsection (6) unless it is presented to the tribunal within the period of three months beginning with the day on which it is alleged that the time off should have been allowed, or 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 the period of three months.

(8) If on a complaint under subsection (6) the tribunal finds the grounds of the complaint well-founded it shall make a declaration to that effect and shall order the employer to pay to the employee the amount which it finds due to him.

(9) The amount—

(a) of an employer's liability to pay remuneration under subsection (3); or

(b) which may be ordered by a tribunal to be paid by an employer under subsection (8),

or, where both paragraphs (a) and (b) are applicable, the aggregate amount of the liabilities referred to in those paragraphs, shall not exceed, in respect of the notice period of any employee, two-fifths of week's pay of that employee.

(10) Subject to subsection (11), a right to any amount under subsection (3) or (5) shall not affect any right of an employee in relation to remuneration under the contract of employment (in this section referred to as " contractual remuneration ").

(11) Any contractual remuneration paid to an employee in respect of a period when he takes time off for the purposes referred to in subsection (1) shall go towards discharging any liability of the employer to pay remuneration under subsection (3) in respect of that period, and conversely any payment of remuneration under subsection (3) in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Provisions supplementary to ss. 27 to 31

32

(1) For the purposes of sections 27 to 31—

(a) a trade union shall be treated as recognised not only if it is recognised for the purposes of collective bargaining, but also if the Advisory, Conciliation and Arbitration Service has made a recommendation for recognition which is operative within the meaning of section 15 of the Employment Protection Act 1975 ; and

(b) the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, he is required to be at work.

(2) In subsection (1)—

" collective bargaining " means negotiations related to or connected with one or more of the matters specified in section 29(1) of the Trade Union and Labour Relations Act 1974;

" recognised " means recognised by an employer, or two or more associated employers, to any extent for the purposes of collective bargaining.

PART III — Maternity

General provisions

Rights of employee in connection with pregnancy and confinement

33

(1) An employee who is absent from work wholly or partly because of pregnancy or confinement shall, subject to the following provisions of this Act.—

(a) be entitled to be paid by her employer a sum to be known as maternity pay ; and

(b) be entitled to return to work.

(2) Schedule 2 shall have effect for the purpose of supplementing the following provisions of this Act in relation to an employee's right to return to work.

(3) An employee shall be entitled to the rights referred to in subsection (1) whether or not a contract of employment subsists during the period of her absence but, subject to subsection (4), she shall not be so entitled unless—

(a) she continues to be employed by her employer (whether or not she is at work) until immediately before the beginning of the eleventh week before the expected week of confinement;

(b) she has at the beginning of that eleventh week been continuously employed for a period of not less than two years; and

(c) she informs her employer (in writing if he so requests) at least twenty-one days before her absence begins or, if that is not reasonably practicable, as soon as reasonably practicable.—

(i) that she will be (or is) absent from work wholly or partly because of pregnancy or confinement, and

(ii) in the case of the right to return, that she intends to return to work with her employer.

(4) An employee who has been dismissed by her employer for a reason falling within section 60(1)(a) or (b) and has not been re-engaged in accordance with that section, shall be entitled to the rights referred to in subsection (1) of this section notwithstanding that she has thereby ceased to be employed before the beginning of the eleventh week before the expected week of confinement if, but for that dismissal, she would at the beginning of that eleventh week have been continuously employed for a period of not less than two years, but she shall not be entitled to the right to return unless she informs her employer (in writing if he so requests), before or as soon as reasonably practicable after the dismissal takes effect, that she intends to return to work with him.

In this subsection "dismiss " and " dismissal" have the same meaning as they have for the purposes of Part V.

(5) An employee shall not be entitled to either of the rights referred to in subsection (1) unless, if requested to do so by her employer, she produces for his inspection a certificate from a registered medical practitioner or a certified midwife stating the expected week of her confinement.

(6) The Secretary of State may by order vary the periods of two years referred to in subsections (3) and (4), or those periods as varied from time to time under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by resolution of each House of Parliament.

Maternity pay

34

(1) Maternity pay shall be paid in respect of a period not exceeding, or periods not exceeding in the aggregate, six weeks during which the employee is absent from work wholly or partly because of pregnancy or confinement (in this section and sections 35 and 36 referred to as the payment period or payment periods).

(2) An employee shall not be entitled to maternity pay for any absence before the beginning of the eleventh week before the expected week of confinement, and her payment period or payment periods shall be the first six weeks of absence starting on or falling after the beginning of that eleventh week.

(3) The Secretary of State may by order vary the periods of six weeks referred to in subsections (1) and (2), or those periods as varied from time to time under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by resolution of each House of Parliament.

(4) Where an employee gives her employer the information required by section 33(3)(c) or produces any certificate requested under section 33(5) after the beginning of the payment period or the first of the payments periods, she shall not be entitled to maternity pay for any part of that period until she gives him that information or certificate, but on giving him the information or, as the case may be, producing the certificate, she shall be entitled to be paid in respect of that part of the period or periods which fell before the giving of the information or the production of the certificate.

Calculation of maternity pay

35

(1) The amount of maternity pay to which an employee is entitled as respects any week shall be nine-tenths of a week's pay reduced by the amount of maternity allowance payable for the week under Part I of Schedule 4 to the Social Security Act 1975, whether or not the employee in question is entitled to the whole or any part of that allowance.

(2) Maternity pay shall accrue due to an employee from day to day and in calculating the amount of maternity pay payable for any day—

(a) there shall be disregarded Sunday or such other day in each week as may be prescribed in relation to that employee under section 22(10) of the Social Security Act 1975 for the purpose of calculating the daily rate of maternity allowance under that Act; and

(b) the amount payable for any other day shall be taken as one-sixth of the amount of the maternity pay for the week in which the day falls.

(3) Subject to subsection (4), a right to maternity pay shall not affect any right of an employee in relation to remuneration under any contract of employment (in this section referred to as " contractual remuneration ").

(4) Any contractual remuneration paid to an employee in respect of a day within a payment period shall go towards discharging any liability of the employer to pay maternity pay in respect of that day, and conversely any maternity pay paid in respect of a day shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that day.

Complaint to industrial tribunal

36

(1) A complaint may be presented to an industrial tribunal by an employee against her employer that he has failed to pay her the whole or any part of the maternity pay to which she is entitled.

(2) An industrial tribunal shall not entertain a complaint under subsection (1) unless it is presented to the tribunal before the end of the period of three months beginning with the last day of the payment period or, as the case may be, the last of the payment periods, or 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 the 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 complainant the amount of maternity pay which it finds is due to her.

Maternity Pay Fund

37

(1) The secretary of state shall continue to have the control and management of the maternity pay fund established under section 39 of the Employment Protection Act 1975 and payments shall be made out of that fund in accordance with the following provisions of this Part and section 156(1)

(2) The secretary of state shall prepare accounts of the Maternity pay fund in such form as the Treasury may direct and shall send them to the comptroller and Auditor General not later than the end of the month of November following the end of the financial year to which the accounts relate; and the Comptroller and Auditor General shall examine and certify every such account and shall lay copies thereof, together with his report thereon, before Parliament.

(3) Any money in the Maternity Pay Fund may from time to time be paid over to the National Debt Commissioners and invested by them, in accordance with such directions as may be given by the Treasury, in any such manner as may be specified by an order of the Treasury for the time being in force under section 22(1) of the National Savings Bank Act 1971.

Advances out of National Loans Fund

38

(1) Subject to the provisions of subsections (2) to (4), the Treasury may from time to time advance out of the National Loans Fund to the Secretary of State for the purposes of the Maternity Pay Fund such sums as the Secretary of State may request ; and any sums advanced to the Secretary of State under this section shall be paid into the Maternity Pay Fund.

(2) The aggregate amount outstanding by way of principal in respect of sums advanced to the Secretary of State under subsection (1) shall not at any time exceed £4 million, or such larger sum, not exceeding £10 million, as the Secretary of State may by order made with the consent of the Treasury determine.

(3) No order under subsection (2) shall be made unless a draft of the order has been laid before Parliament and approved by resolution of each House of Parliament.

(4) Any sums advanced to the Secretary of State under Subsection (1) shall be re-paid by the Secretary of State out of the Maternity Pay Fund into the National Loans Fund in such manner and at such times, and with interest thereon at such rate, as the Treasury may direct.

Maternity pay rebate

39

(1) Subject to any regulations made under this section, the Secretary of State shall pay out of the Maternity Pay Fund to every employer who makes a claim under this section and who, being liable to pay, has paid maternity pay to an employee, an amount equal to the full amount of maternity pay so paid (in this section and sections 42 and 43 referred to as a " maternity pay rebate ").

(2) The Secretary of State may if he thinks fit, and if he is satisfied that it would be just and equitable to do so having regard to all the relevant circumstances, pay such a rebate to an employer who makes a claim under this section and who has paid maternity pay to an employee in circumstances in which, by reason of the time limit provided for in section 36(2) a complaint by the employee has been dismissed, or would not bo entertained, by an industrial tribunal.

(3) For the purposes of subsections (1) and 2) a payment of contractual remuneration by an employer shall be treated as a Payment of maternity pay to the extent that, by virtue of section 35(4) —

(a) it extinguishes the employer's liability to pay maternity pay; or

(b) in a case falling within subsection (2), it would extinguish that liability if a complaint by the employee were not time-barred as described in that subsection.

(4) The Secretary of State shall make provision by regulations as to the making of claims for maternity pay rebates under this section and such regulations may in particular-

(a) require a claim to be made within such time limit as may be prescribed ; and

(b) require a claim to be supported by such evidence as may be prescribed.

Payments to employees out of Maternity Pay Fund

40

(1) Where an employee claims that her employer is liable to pay her maternity pay and—

(a) that she has taken all reasonable steps (other than proceedings to enforce a tribunal award) to recover payment from the employer ; or

(b) that her employer is insolvent (as defined in section 127 for the purposes of sections 122 to 126);

and that the whole or part of the maternity pay remains unpaid, the employee may apply to the Secretary of State under this section.

(2) If the Secretary of State is satisfied that the claim is well-founded the Secretary of State shall pay the employee out of the Maternity Pay Fund the amount of the maternity pay which appears to the Secretary of State to be unpaid.

(3) A payment made by the Secretary of State to an employee under this section shall, for the purpose of discharging any liability of the employer to the employee, be treated as if it had been made by the employer.

Unreasonable default by employer

41

(1) Where the Secretary of State makes a payment to an employee in respect of unpaid maternity pay in a case falling within section 40(1)(a) and it appears to the Secretary of State that the employer's default in payment was without reasonable excuse, the Secretary of State may recover from the employer such amount as the Secretary of State considers appropriate, not exceeding the amount of maternity pay which the employer failed to pay.

(2) Where a sum is recovered by the Secretary of State by virtue of this section that sum shall be paid into the Maternity Pay Fund.

Supplementary provisions relating to employer's insolvency

42

(1) Where the Secretary of State makes a payment to an employee under section 122 (which provides for payments out of the Redundancy Fund in respect of certain debts where an employer is insolvent) and that payment, in whole or in part, represents arrears of pay, then, in ascertaining for the purpose of section 40 the amount of any unpaid maternity pay, section 35(4) shall apply as if the arrears of pay in question had been duly paid by the employer to the employee in accordance with the contract of employment.

(2) Where the Secretary of State makes a payment to an employee out of the Redundancy Fund under section 122 which, if it had been made by the employer to the employee, would have attracted a maternity pay rebate from the Maternity Pay Fund in accordance with section 39, then, the Secretary of State shall make a payment out of the Maternity Pay Fund into the Redundancy Fund of an amount corresponding to the amount of rebate which would have been so payable.

Complaints and appeals to industrial tribunal

43

(1) A person who has—

(a) made a claim for a maternity pay rebate under section 39, in a case to which subsection (1) of that section applies; or

(b) applied for a payment under section 40,

may, subject to subsection (5), present a complaint to an industrial tribunal that—

(i) the Secretary of State has failed to make any such payment; or

(ii) any such payment made by the Secretary of State is less than the amount which should have been paid.

(2) Where an industrial tribunal finds that the Secretary of State ought to make any such payment or further payment, it shall make a declaration to that effect and shall also declare the amount of any such payment which it finds the Secretary of State ought to make.

(3) An employer who has made a claim for a maternity pay rebate under section 39, in a case to which subsection (2) of that section applies, may, subject to subsection (5), appeal to an industrial tribunal on the ground that—

(a) the Secretary of State has refused to pay a maternity pay rebate; or

(b) any rebate paid by the Secretary of State is less than the amount which should have been paid,

and if on any such appeal the tribunal is satisfied that it is just and equitable having regard to all the relevant circumstances that a maternity pay rebate should be paid or, as the case may be, finds that a further payment by way of rebate should be made, the tribunal shall determine accordingly, and the Secretary of State shall comply with the determination.

(4) Where the Secretary of State determines that an amount is recoverable from an employer under section 41, the employer may, subject to subsection (5), appeal to an industrial tribunal; and if on any such appeal the tribunal is satisfied that no amount should be recovered from the employer, or that a lesser or greater amount should be recovered (but in any case not exceeding the amount of maternity pay which the employer failed to pay) the tribunal shall determine accordingly and the amount, if any, so determined shall be the amount recoverable from the employer by the Secretary of State.

(5) An industrial tribunal shall not entertain a complaint or appeal under this section unless it is presented to the tribunal within the period of three months beginning with the date on which the relevant decision of the Secretary of State was communicated to the complainant or appellant or 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 or appeal to be presented within the period of three months.

Provisions as to information

44

(1) Where an application is made to the Secretary of State by an employee under section 40, the Secretary of State may require—

(a) the employer to provide him with such information as the Secretary of State may reasonably require for the purpose of determining whether the employee's application is well-founded; and

(b) any person having the custody or control of any relevant records or other documents to produce for examination on behalf of the Secretary of State any such document in that person's custody or under his control which is of such a description as the Secretary of State may require.

(2) Any such requirement shall be made by a notice in writing given to the person on whom the requirement is imposed and may be varied or revoked by a subsequent notice so given.

(3) If a person refuses or wilfully neglects to furnish any information or produce any document which he has been required to furnish or produce by a notice under this section he shall be liable on summary conviction to a fine not exceeding £100.

(4) If any person in making a claim under section 39 or an application under section 40 or in purporting to comply with a requirement of a notice under this section knowingly or recklessly makes any false statement he shall be liable on summary conviction to a fine not exceeding £400.

Right to return to work

45

(1) The right to return to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is, subject to the following provisions of this Act, a right to return to work with her original employer, or, where appropriate, his successor, at any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls, in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent.

(2) In subsection (1) " terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent" means, as regards seniority, pension rights and other similar rights, that the period or periods of employment prior to the employee's absence shall be regarded as continuous with her employment following that absence.

(3) If an employee is entitled to return to work in accordance with subsection (1), but it is not practicable by reason of redundancy for the employer to permit her so to return to work she shall be entitled, where there is a suitable available vacancy, to be offered alternative employment with her employer (or his successor), or an associated employer, under a new contract of employment complying with subsection (4).

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

(a) 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) the provisions of the new 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 in accordance with subsection (1).

Enforcement of rights under s. 45

46

The remedies of an employee for infringement of either of the rights mentioned in section 45 are those conferred by or by virtue of the provisions of sections 47, 56 and 86 and Schedule 2.

Exercise of right to return to work

47

(1) An employee shall exercise her right to return to work by notifying the employer (who may be her original employer or a successor of that employer) at least seven days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as 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) Subject to subsection (4). an employee may—

(a) postpone her return to work until a date not exceeding four weeks from the notified day of return, notwithstanding that that date falls after the end of the period of twenty-nine weeks mentioned in section 45(1); 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 later than four weeks from the expiration of the said period of twenty-nine weeks;

if before the notified day of return or, as the case may be, the expiration of the period of twenty-nine weeks she gives the employer 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 the expiration of that period, as the case may be.

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

(5) 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 thereafter.

(6) If no day of return has been notified and 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 expiration of the period of twenty-nine weeks referred to in section 45(1), or which appears likely to have that effect, and 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 fourteen days from the end of the interruption notwithstanding that she returns to work outside the said period of twenty-nine weeks.

(7) Where the employee has either—

(a) exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return; or

(b) refrained from notifying the day of return in the circumstances described in subsection (6),

the other of those subsections shall apply as if for the reference to the expiration of the period of twenty-nine weeks there were substituted a reference to the expiration of the further period of four weeks or, as the case may be, of the period of fourteen days from the end of the interruption of work.

(8) Where—

(a) an employee's return is postponed under subsection (2) or (3)(c), or

(b) the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (5),

then, subject to subsection (4), references in those subsections and in sections 56 and 86 and Schedule 2 to the notified day of return shall be construed as references to the day to which the return is postponed or, as the case may be, that later day.

Contractual right to return to work

48

(1) An employee who has a right both under this Act and under a contract of employment, or otherwise, to return to work, 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) The provisions of sections 45, 46, 47, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall 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 to return conferred solely by this Part.

PART IV — Termination of Employment

Rights of employer and employee to a minimum period of notice

49

(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 four weeks or more—

(a) shall be not less than one week's notice if his period of continuous employment is less than two years;

(b) shall be 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

(2) The notice required to be given by an employee who has been continuously employed for four weeks or more to terminate his contract of employment shall be 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 four weeks or more shall have effect subject to the foregoing subsections, but this section shall not be taken to 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 twelve weeks or more which is a contract for a term certain of four weeks or less shall have effect as if it were for an indefinite period and, accordingly, subsections (1) and (2) shall apply to the contract.

(5) It is hereby declared that this section does not affect any right of either party to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the passing of this Act.

(6) The definition of week given by section 153(1) does not apply for the purposes of this section.

Rights of employee in period of notice

50

(1) If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for four weeks or more, the provisions of Schedule 3 shall have effect as respects the liability of the employer for the period of notice required by section 49(1).

(2) If an employee who has been continuously employed for four weeks or more gives notice to terminate his contract of employment, the provisions of Schedule 3 shall have effect as respects the liability of the employer for the period of notice required by section 49(2).

(3) This section shall 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 49(1).

Measure of damages in proceedings against employers

51

If an employer fails to give the notice required by section 49, the rights conferred by section 50 (with Schedule 3) shall be taken into account in assessing his liability for breach of the contract.

Statutory contracts

52

Sections 49 and 50 shall 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 of Parliament, whether public or local, as they apply in relation to any other contract; and the reference in this section to an Act of Parliament includes, subject to any express provision to the contrary, an Act passed after this Act.

Written statement of reasons for dismissal

53

(1) An employee shall be entitled—

(a) if he is given by his employer notice of termination of his contract of employment;

(b) if his contract of employment is terminated by his employer without notice; or

(c) if, where he is employed under a contract for a fixed term, that term expires without being renewed under the same contract,

to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal.

(2) An employee shall not be entitled to a written statement under subsection (1) unless on the effective date of termination he has been, or will have been, continuously employed for a period of twenty-six weeks ending with the last complete week before that date.

(3) A written statement provided under this section shall be admissible in evidence in any proceedings.

(4) A complaint may be presented to an industrial tribunal by an employee against his employer on the ground that the employer unreasonably refused to provide a written statement under subsection (1) or that the particulars of reasons given in purported compliance with that subsection are inadequate or untrue, and if the tribunal finds the complaint well-founded—

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

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

(5) An industrial tribunal shall not entertain 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 67(2) or (4), entertain a complaint of unfair dismissal in respect of that dismissal presented at the same time.

PART V — Unfair Dismissal

Right not to be unfairly dismissed

Right of employee not to be unfairly dismissed

54

(1) In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer.

(2) This section applies to every employment except in so far as its application is excluded by or under any provision of this Part or by section 141 to 149.

Meaning of unfair dismissal

Meaning of " dismissal"

55

(1) In this Part, except as respects a case to which section 56 applies, " dismissal" and " dismiss " shall be construed in accordance with the following provisions of this section.

(2) Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if.—

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

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

(c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct.

(3) Where an employer gives notice to an employee to terminate his contract of employment and, 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, the employee shall for the purposes of this Part be taken to be dismissed by his employer, and the reasons for the dismissal shall be taken to be the reasons for which the employer's notice is given.

(4) 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 that 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, where that term expires without being renewed under the same contract, means the date on which that term expires.

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