Legalize / United Kingdom / Public General Act

Employment Tribunals Act 1996

Type Public General Act

Publication 1996-05-22

Last updated 2024-10-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

[^key-12293576a83adf0d018c153471de6931]: Words in s. 13A(3)(b) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 12(6)(b); S.I. 2024/568, reg. 2(b)(ii)

[^key-62d75e525507f728b111eec150a7a2b3]: Words in s. 13A(2B)(a) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 12(5); S.I. 2024/568, reg. 2(b)(ii)

[^key-5dbce498ef061a71af0efb18ed5a6099]: Words in s. 13A(4)(b) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 12(7)(b); S.I. 2024/568, reg. 2(b)(ii)

[^key-ebd2b6194d31eacaf7585a02cf1b5146]: Words in s. 15(1) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 14(a); S.I. 2024/568, reg. 2(b)(iii)

[^key-d424fcff70f772d0df69c61a8b1d6592]: Words in s. 15(3)(a) inserted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 14(b); S.I. 2024/568, reg. 2(b)(iii)

[^key-d9ec87a9bb6efb5a7230a030b8180c84]: Words in s. 15(3)(b) inserted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 14(b); S.I. 2024/568, reg. 2(b)(iii)

[^key-673b403a299fc38ccd4dd10f59635ac5]: Words in s. 18A(10) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 15(2); S.I. 2024/568, reg. 2(b)(iii)

[^key-ebbd47c9a5aaa49a13472ce0b230c251]: Words in s. 18A(11) omitted (25.4.2024) by virtue of Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 15(3); S.I. 2024/568, reg. 2(b)(iii)

[^key-be2d4fcea4a3ef73ed81a8779247a5b4]: Words in s. 18A(12) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 15(4)(a); S.I. 2024/568, reg. 2(b)(iii)

[^key-1b13dbc201c6ce518de37949eaad37ec]: Words in s. 18A(12)(a) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 15(4)(b); S.I. 2024/568, reg. 2(b)(iii)

[^key-1ef860287dae3f6103dfb9a21f51ae56]: Words in s. 19(1) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 16; S.I. 2024/568, reg. 2(b)(iii)

[^key-6fdb6a0b6d11f981ce46e3624cc16e36]: Words in s. 19A(9) substituted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 17; S.I. 2024/568, reg. 2(b)(iii)

[^key-75526f788ecaf6f6b46fb807ca161e52]: Words in s. 42(1) omitted (25.4.2024) by virtue of Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 26(a); S.I. 2024/568, reg. 2(b)(vi)

[^key-1b6594a110aa7918814bb37a8b7228b8]: Words in s. 42(1) inserted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 26(b); S.I. 2024/568, reg. 2(b)(vi)

[^key-7ca585566e6be5b45f8c9c00dc4de115]: Word in s. 42(1) omitted (25.4.2024) by virtue of Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 26(c); S.I. 2024/568, reg. 2(b)(vi)

[^key-8182a25226baf89fc2fb5cc0064d1f4e]: Words in s. 42(1) inserted (25.4.2024) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 26(d); S.I. 2024/568, reg. 2(b)(vi)

[^key-8b9c4dde481bc2b57e2f71a2bafad48e]: Words in s. 18(1)(b) inserted (31.7.2023 for specified purposes, 1.10.2024 in so far as not already in force) by Employment (Allocation of Tips) Act 2023 (c. 13), ss. 12(3)(b), 14(2); S.I. 2023/876, reg. 3(c); S.I. 2024/829, reg. 3(l)

Payments in respect of preparation time

Temporary membership.

Consequential amendments.

Restriction of publicity in cases involving national security.

Costs and expenses.

Conciliation before institution of proceedings: other ACAS duties

Notes:

Members of employment tribunals: removal from office

Judicial assistance

Practice and procedure: general

Preliminary hearings.

Enforcement.

Power to provide for recoupment of benefits.

Oaths

Pre-hearing reviews and preliminary matters.

Conciliation before institution of proceedings: other ACAS duties

Recoupment: further provisions.

Conciliation procedure.

Jurisdiction of Appeal Tribunal.

Requirement to contact ACAS before instituting proceedings

Temporary additional judicial membership.

Consequential amendments.

Mediation

Financial penalties

12A

(1) Where an employment tribunal determining a claim involving an employer and a worker—

(a) concludes that the employer has breached any of the worker's rights to which the claim relates, and

(b) is of the opinion that the breach has one or more aggravating features,

the tribunal may order the employer to pay a penalty to the Secretary of State (whether or not it also makes a financial award against the employer on the claim).

(2) The tribunal shall have regard to an employer's ability to pay—

(a) in deciding whether to order the employer to pay a penalty under this section;

(b) (subject to subsections (3) to (7)) in deciding the amount of a penalty.

(3) The amount of a penalty under this section shall be—

(a) at least £100;

(b) no more than £20,000.

This subsection does not apply where subsection (5) or (7) applies.

(4) Subsection (5) applies where an employment tribunal—

(a) makes a financial award against an employer on a claim, and

(b) also orders the employer to pay a penalty under this section in respect of the claim.

(5) In such a case, the amount of the penalty under this section shall be 50% of the amount of the award, except that—

(a) if the amount of the financial award is less than £200, the amount of the penalty shall be £100;

(b) if the amount of the financial award is more than £40,000, the amount of the penalty shall be £20,000.

(6) Subsection (7) applies, instead of subsection (5), where an employment tribunal—

(a) considers together two or more claims involving different workers but the same employer, and

(b) orders the employer to pay a penalty under this section in respect of any of those claims.

(7) In such a case—

(a) the amount of the penalties in total shall be at least £100;

(b) the amount of a penalty in respect of a particular claim shall be—

(i) no more than £20,000, and

(ii) where the tribunal makes a financial award against the employer on the claim, no more than 50% of the amount of the award.

But where the tribunal makes a financial award on any of the claims and the amount awarded is less than £200 in total, the amount of the penalties in total shall be £100 (and paragraphs (a) and (b) shall not apply).

(8) Two or more claims in respect of the same act and the same worker shall be treated as a single claim for the purposes of this section.

(9) Subsection (5) or (7) does not require or permit an order under subsection (1) (or a failure to make such an order) to be reconsidered or reviewed where the tribunal subsequently awards compensation under—

(a) section 140(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (failure to comply with tribunal's recommendation),

(b) section 117 of the Employment Rights Act 1996 (failure to reinstate etc.),

(d) any other provision empowering the tribunal to award compensation, or further compensation, for a failure to comply (or to comply fully) with an order or recommendation of the tribunal.

(10) An employer's liability to pay a penalty under this section is discharged if 50% of the amount of the penalty is paid no later than 21 days after the day on which notice of the decision to impose the penalty is sent to the employer.

(11) In this section—

“claim”—means anything that is referred to in the relevant legislation as a claim, a complaint or a reference, other than a reference made by virtue of section 122(2) or 128(2) of the Equality Act 2010 (reference by court of question about a non-discrimination or equality rule etc), andalso includes an application, under regulations made under section 45 of the Employment Act 2002, for a declaration that a person is a permanent employee;

“employer” has the same meaning as in Part 4A of the Employment Rights Act 1996, and also—in relation to an individual seeking to be employed by a person as a worker, includes that person;in relation to a right conferred by section 47A or 63A of the Employment Rights Act 1996 (right to time off for young person for study or training), includes the principal within the meaning of section 63A(3) of that Act;in relation to a right conferred by the Agency Workers Regulations 2010 (S.I. 2010/93), includes the hirer within the meaning of those Regulations and (where the worker is not actually employed by the temporary work agency) the temporary work agency within that meaning;

“financial award” means an award of a sum of money, but does not including anything payable by virtue of section 13;

“worker” has the same meaning as in Part 4A of the Employment Rights Act 1996, and also includes an individual seeking to be employed by a person as a worker.

(12) The Secretary of State may by order—

(a) amend subsection (3), (5) or (7) by substituting a different amount;

(b) amend subsection (5), (7) or (10) by substituting a different percentage;

(12A) Any provision that could be made by an order under subsection (12) may instead—

(a) in the case of provision that could be made under paragraph (a) or (b) of that subsection, be included in regulations under section 37N;

(b) in the case of provision that could be made under paragraph (c) of that subsection, be included in regulations under section 37Q.

(13) The Secretary of State shall pay sums received under this section into the Consolidated Fund.

Pre-hearing reviews and preliminary matters.

Enforcement.

18A

(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

This is subject to subsection (7).

(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.

(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.

(4) If—

(a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or

(b) the prescribed period expires without a settlement having been reached,

the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.

(5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period.

(6) In subsections (3) to (5) “settlement” means a settlement that avoids proceedings being instituted.

(7) A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases.

The cases that may be prescribed include (in particular)—

cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter;

cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are;

cases where section 18B applies because ACAS has been contacted by a person against whom relevant proceedings are being instituted.

(8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).

(9) Where a conciliation officer acts under this section in a case where the prospective claimant has ceased to be employed by the employer and the proposed proceedings are proceedings under section 111 of the Employment Rights Act 1996, the conciliation officer may in particular—

(a) seek to promote the reinstatement or re-engagement of the prospective claimant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or

(b) where the prospective claimant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the prospective claimant.

(10) In subsections (1) to (7) “prescribed” means prescribed in regulations made by the Secretary of State.

(11) The Secretary of State may by ... regulations make such further provision as appears to the Secretary of State to be necessary or expedient with respect to the conciliation process provided for by subsections (1) to (8).

(12) The regulations may (in particular) make provision—

(a) authorising the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by the regulations to be used for the purpose of providing information to ACAS under subsection (1) or issuing a certificate under subsection (4);

(b) requiring ACAS to give a person any necessary assistance to comply with the requirement in subsection (1);

(d) treating the requirement in subsection (1) as complied with, for the purposes of any provision extending the time limit for instituting relevant proceedings, by a person who is relieved of that requirement by virtue of subsection (7)(a).

Enforcement.

18B

(1) This section applies where—

(a) a person contacts ACAS requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings against that person, and

(b) ACAS has not received information from the prospective claimant under section 18A(1).

(2) This section also applies where—

(a) a person contacts ACAS requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings by that person, and

(b) the requirement in section 18A(1) would apply to that person but for section 18A(7).

(3) Where this section applies a conciliation officer shall endeavour to promote a settlement between the persons who would be parties to the proceedings.

(4) If at any time—

(a) the conciliation officer concludes that a settlement is not possible, or

(b) a conciliation officer comes under the duty in section 18A(3) to promote a settlement between the persons who would be parties to the proceedings,

the duty in subsection (3) ceases to apply at that time.

(5) In subsections (3) and (4) “settlement” means a settlement that avoids proceedings being instituted.

(6) Subsection (9) of section 18A applies for the purposes of this section as it applies for the purposes of that section.

Restriction of publicity in disability cases.

Conciliation before institution of proceedings: other ACAS duties

Transitionals, savings and transitory provisions.

Conciliation after institution of proceedings

Notes:

Conciliation procedure.

Composition of Appeal Tribunal.

Notes:

Recoupment: further provisions.

Requirement to contact ACAS before instituting proceedings

The Appeal Tribunal.

Interpretation.

Restriction of publicity in cases involving sexual misconduct.

Notes:

Costs etc, interest and enforcement

18C

(1) Where an application instituting relevant proceedings has been presented to an employment tribunal, and a copy of it has been sent to a conciliation officer, the conciliation officer shall endeavour to promote a settlement—

(a) if requested to do so by the person by whom and the person against whom the proceedings are brought, or

(b) if, in the absence of any such request, the conciliation officer considers that the officer could act under this section with a reasonable prospect of success.

(2) Where a person who has presented a complaint to an employment tribunal under section 111 of the Employment Rights Act 1996 has ceased to be employed by the employer against whom the complaint was made, the conciliation officer may in particular—

(a) seek to promote the reinstatement or re-engagement of the complainant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or

(b) where the complainant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, and the parties desire the conciliation officer to act, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the complainant.

(3) In subsection (1) “settlement” means a settlement that brings proceedings to an end without their being determined by an employment tribunal.

Temporary membership.

Conduct of hearings.

Consequential amendments.

Notes:

Conduct of hearings.

Temporary additional judicial membership.

Restriction of publicity in cases involving sexual misconduct.

Interpretation.

Notes:

The Appeal Tribunal.

Composition of Appeal Tribunal.

Conduct of hearings.

PART 2A — Financial penalties for failure to pay sums ordered to be paid or settlement sums

37A

(1) This section has effect for the purposes of this Part.

(2) “Financial award”—

(a) means a sum of money (or, if more than one, the sums of money) ordered by an employment tribunal on a claim involving an employer and a worker, or on a relevant appeal, to be paid by the employer to the worker, and

(b) includes—

(i) any sum (a “costs sum”) required to be paid in accordance with an order in respect of costs or expenses which relate to proceedings on, or preparation time relating to, the claim or a relevant appeal, and

(ii) in a case to which section 16 applies, a sum ordered to be paid to the Secretary of State under that section.

(3) Subsection (2)(b)(i) applies irrespective of when the order was made or the amount of the costs sum was determined.

(4) “Settlement sum” means a sum payable by an employer to a worker under the terms of a settlement in respect of which a certificate has been issued under section 19A(1).

(5) “Relevant sum” means—

(a) a financial award, or

(b) a settlement sum.

(6) “Relevant appeal”, in relation to a financial award, means an appeal against—

(a) the decision on the claim to which it relates,

(b) a decision to make, or not to make, an order in respect of a financial award (including any costs sum) on the claim,

(d) any decision made on an appeal within paragraphs (a) to (c) or this paragraph.

(7) Sections 37B to 37D apply for the purposes of calculating the unpaid amount on any day of a relevant sum.

37B

(1) In the case of a financial award, the unpaid amount on any day means the amount outstanding immediately before that day in respect of—

(a) the initial amount of the financial award (see subsection (2)), and

(b) interest payable in respect of the financial award by virtue of section 14.

(2) The initial amount of a financial award is—

(a) in a case to which section 16 applies, the monetary award within the meaning of that section (see section 17(3)), together with any costs sum, and

(b) in any other case, the sum or sums of money ordered to be paid (including any costs sum).

(3) An amount in respect of a financial award is not to be regarded as outstanding—

(a) when the worker could make an application for an order for a costs sum in relation to—

(i) proceedings on the claim to which the financial award relates,

(ii) proceedings on a relevant appeal,

(b) when the worker has made such an application but the application has not been withdrawn or finally determined,

(i) the decision on the claim to which it relates,

(ii) a decision to make, or not to make, a financial award (including any costs sum) on the claim,

(iii) the amount of any such award, or

(iv) any decision made on an appeal within sub-paragraphs (i) to (iii) or this sub-paragraph,

but has not done so, or

(d) when the employer or worker has made such an appeal but the appeal has not been withdrawn or finally determined.

37C

(1) In the case of a settlement sum, the unpaid amount on any day means the amount outstanding immediately before that day in respect of—

(a) the settlement sum, and

(b) interest (if any) calculated in accordance with the settlement (within the meaning of section 19A).

(2) Subject to section 37D(2) and (3), an amount in respect of a settlement sum is not to be regarded as outstanding if the settlement sum is not recoverable under section 19A(3).

37D

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

(a) a relevant sum is to be paid by instalments,

(b) any instalment is not paid on or before the day on which it is due to be paid, and

(c) a warning notice (see section 37E) is given in consequence of the failure to pay that instalment (“the unpaid instalment”).

(2) For the purposes of calculating the unpaid amount for—

(a) that warning notice, and

(b) any penalty notice given in respect of that warning notice,

any remaining instalments (whether or not yet due) are to be treated as having been due on the same day as the unpaid instalment.

(3) Accordingly, the amount outstanding in respect of the financial award or settlement sum is to be taken to be—

(a) the aggregate of—

(i) the unpaid instalment, and

(ii) any remaining instalments,

including, in the case of a settlement sum, any amount which is not recoverable under section 19A(3) by reason only of not being due,

(b) interest on those amounts calculated in accordance with section 37B(1)(b) or 37C(1)(b) (and subsection (2)).

(4) Subsections (2) and (3) are not to be taken to affect the time at which any remaining instalment is due to be paid by the employer.

(5) The provisions of this Part apply where a financial award consists of two or more sums (whether or not any of them is a costs sum) which are required to be paid at different times as if—

(a) it were a relevant sum to be paid by instalments, and

(b) those sums were the instalments.

(6) Where a payment by an employer is made, or purported to be made, in respect of a relevant sum, an enforcement officer may determine whether, and to what extent, the payment is to be treated as being—

(a) in respect of that relevant sum or instead in respect of some other amount owed by the employer;

(b) in respect of the initial amount or interest on it, in the case of a payment treated as being in respect of the relevant sum.

37E

(1) This section applies where an enforcement officer considers that an employer who is required to pay a relevant sum has failed—

(a) in the case of a relevant sum which is to be paid by instalments, to pay an instalment on or before the day on which it is due to be paid, or

(b) in any other case, to pay the relevant sum in full on or before the day on which it is due to be paid.

(2) The officer may give the employer a notice (a “warning notice”) stating the officer's intention to impose a financial penalty in respect of the relevant sum unless before a date specified in the warning notice (“the specified date”) the employer has paid in full the amount so specified (“the specified amount”).

This is subject to subsection (3).

(3) Where a penalty notice has previously been given in respect of the relevant sum, the officer may not give a warning notice until—

(a) 3 months have elapsed since the end of the relevant period (within the meaning of section 37H) relating to the last penalty notice given in respect of the relevant sum, and

(b) if the relevant sum is to be paid by instalments, the last instalment has become due for payment.

(4) The specified date must be after the end of the period of 28 days beginning with the day on which the warning notice is given.

(5) The specified amount must be the unpaid amount of the relevant sum on the day on which the warning notice is given.

(6) A warning notice must identify the relevant sum and state—

(a) how the specified amount has been calculated;

(b) the grounds on which it is proposed to impose a penalty;

(c) the amount of the financial penalty that would be imposed if no payment were made in respect of the relevant sum before the specified date;

(d) that the employer may before the specified date make representations about the proposal to impose a penalty, including representations—

(i) about payments which the employer makes in respect of the relevant sum after the warning notice is given;

(ii) about the employer's ability to pay both a financial penalty and the relevant sum;

(e) how any such representations may be made.

(7) The statement under subsection (6)(e) must include provision for allowing representations to be made by post (whether or not it also allows them to be made in any other way).

(8) If the employer pays the specified amount before the specified date, the relevant sum is to be treated for the purposes of this Part as having been paid in full.

(9) Subsection (8) is not to be taken to affect the liability of the employer to pay any increase in the unpaid amount between the date of the warning notice and the date of payment.

37F

(1) This section applies where an enforcement officer—

(a) has given a warning notice to an employer, and

(b) is satisfied that the employer has failed to pay the specified amount in full before the specified date.

(2) The officer may give the employer a notice (a “penalty notice”) requiring the employer to pay a financial penalty to the Secretary of State.

(3) A penalty notice must identify the relevant sum and state—

(a) the grounds on which the penalty notice is given;

(b) the unpaid amount of the relevant sum on the specified date and how it has been calculated;

(d) how the penalty must be paid;

(e) the period within which the penalty must be paid;

(f) how the employer may pay a reduced penalty instead of the financial penalty;

(g) the amount of the reduced penalty (see subsection (8));

(h) how the employer may appeal against the penalty notice;

(i) the consequences of non-payment.

(4) Subject to subsections (5) and (6), the amount of the financial penalty is 50% of the unpaid amount of the relevant sum on the specified date.

(5) If the unpaid amount on the specified date is less than £200, the amount of the penalty is £100.

(6) If the unpaid amount on the specified date is more than £10,000, the amount of the financial penalty is £5,000.

(7) The period specified under subsection (3)(e) must be a period of not less than 28 days beginning with the day on which the penalty notice is given.

(8) The amount of the reduced penalty is 50% of the amount of the financial penalty.

(9) Subsection (10) applies if, within the period of 14 days beginning with the day on which the penalty notice is given, the employer—

(a) pays the unpaid amount of the relevant sum on the specified date (as stated in the notice under subsection (3)(b)), and

(b) pays the reduced penalty to the Secretary of State.

(10) The employer is to be treated—

(a) for the purposes of this Part, as having paid the relevant sum in full, and

(b) by paying the reduced penalty, as having paid the whole of the financial penalty.

(11) Subsection (10)(a) is not to be taken to affect the liability of the employer to pay any increase in the unpaid amount of the relevant sum between the specified date and the date of payment.

37G

(1) An employer to whom a penalty notice is given may, before the end of the period specified under section 37F(3)(e) (period within which penalty must be paid), appeal against—

(a) the penalty notice; or

(b) the amount of the financial penalty.

(2) An appeal under subsection (1) lies to an employment tribunal.

(3) An appeal under subsection (1) may be made on one or more of the following grounds—

(a) that the grounds stated in the penalty notice under section 37F(3)(a) were incorrect;

(b) that it was unreasonable for the enforcement officer to have given the notice;

(4) On an appeal under subsection (1), an employment tribunal may—

(a) allow the appeal and cancel the penalty notice;

(b) in the case of an appeal made on the ground that the calculation of an amount stated in the penalty notice was incorrect, allow the appeal and substitute the correct amount for the amount stated in the penalty notice;

(5) Where an employer has made an appeal under subsection (1), the penalty notice is not enforceable until the appeal has been withdrawn or finally determined.

37H

(1) This section applies if all or part of a financial penalty which an employer is required by a penalty notice to pay is unpaid at the end of the relevant period.

(2) The relevant period is—

(a) if no appeal is made under section 37G(1) relating to the penalty notice, the period specified in the penalty notice under section 37F(3)(e);

(b) if such an appeal is made, the period ending when the appeal is withdrawn or finally determined.

(3) The outstanding amount of the financial penalty for the time being carries interest—

(a) at the rate that, on the last day of the relevant period, was specified in section 17 of the Judgments Act 1838,

(b) from the end of the relevant period until the time when the amount of interest calculated under this subsection equals the amount of the financial penalty,

(and does not also carry interest as a judgment debt under that section).

(4) The outstanding amount of a penalty and any interest is recoverable—

(a) in England and Wales, if the county court so orders, under section 85 of the County Courts Act 1984 or otherwise as if the sum were payable under an order of the county court;

(b) in Scotland, by diligence as if the penalty notice were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(5) Any amount received by the Secretary of State under this Part is to be paid into the Consolidated Fund.

37I

(1) Where—

(a) a warning notice has been given (and not already withdrawn),

(b) it appears to an enforcement officer that—

(i) the notice incorrectly omits any statement or is incorrect in any particular, or

(ii) the warning notice was given in contravention of section 37E(3), and

(c) if a penalty notice has been given in relation to the warning notice, any appeal made under section 37G(1) has not been determined,

the officer may withdraw the warning notice by giving notice of withdrawal to the employer.

(2) Where a warning notice is withdrawn, no penalty notice may be given in relation to it.

(3) Where a warning notice is withdrawn after a penalty notice has been given in relation to it—

(a) the penalty notice ceases to have effect;

(b) any sum paid by or recovered from the employer by way of financial penalty payable under the penalty notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum was paid or recovered;

(4) In subsection (3)(b), the appropriate rate means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838.

(5) A notice of withdrawal under this section must indicate the effect of the withdrawal (but a failure to do so does not make the notice of withdrawal ineffective).

(6) Withdrawal of a warning notice relating to a relevant sum does not preclude a further warning notice being given in relation to that sum (subject to section 37E(3)).

37J

(1) Where—

(a) a penalty notice has been given (and not already withdrawn or cancelled), and

(b) it appears to an enforcement officer that—

(i) the notice incorrectly omits any statement required by section 37F(3), or

(ii) any statement so required is incorrect in any particular,

the officer may withdraw it by giving notice of the withdrawal to the employer.

(2) Where a penalty notice is withdrawn and no replacement penalty notice is given in accordance with section 37K—

(a) any sum paid by or recovered from the employer by way of financial penalty payable under the notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum was paid or recovered;

(b) any appeal under section 37G(1) relating to the penalty notice must be dismissed.

(3) In a case where subsection (2) applies, the notice of withdrawal must indicate the effect of that subsection (but a failure to do so does not make the withdrawal ineffective).

(4) In subsection (2)(a), “the appropriate rate” means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838.

37K

(1) Where an enforcement officer—

(a) withdraws a penalty notice (“the original penalty notice”) under section 37J, and

(b) is satisfied that the employer failed to pay the specified amount in full before the specified date in accordance with the warning notice in relation to which the original penalty notice was given,

the officer may at the same time give another penalty notice in relation to the warning notice (“the replacement penalty notice”).

(2) The replacement penalty notice must—

(a) indicate the differences between it and the original penalty notice that the enforcement officer reasonably considers material, and

(b) indicate the effect of section 37L.

(3) Failure to comply with subsection (2) does not make the replacement penalty notice ineffective.

(4) Where a replacement penalty notice is withdrawn under section 37J, no further replacement penalty notice may be given under subsection (1) pursuant to the withdrawal.

(5) Nothing in this section affects any power that arises apart from this section to give a penalty notice.

37L

(1) This section applies where a penalty notice is withdrawn under section 37J and a replacement penalty notice is given in accordance with section 37K.

(2) If an appeal relating to the original penalty notice has been made under section 37G(1) and has not been withdrawn or finally determined before the time when that notice is withdrawn—

(a) the appeal (“the earlier appeal”) is to have effect after that time as if it were against the replacement penalty notice, and

(b) the employer may exercise the right under section 37G to appeal against the replacement penalty notice only after withdrawing the earlier appeal.

(3) If a sum was paid by or recovered from the employer by way of financial penalty under the original penalty notice—

(a) an amount equal to that sum (or, if more than one, the total of those sums) is to be treated as having been paid in respect of the replacement penalty notice, and

(b) any amount by which that sum (or total) exceeds the amount of the financial penalty payable under the replacement penalty notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum (or, if more than one, the first of them) was paid or recovered.

(4) In subsection (3)(b) “the appropriate rate” means the rate that, on the date mentioned in that provision, was specified in section 17 of the Judgments Act 1838.

37M

The Secretary of State may appoint or authorise persons to act as enforcement officers for the purposes of this Part.

37N

(1) The Secretary of State may by regulations—

(a) amend subsection (5) or (6) of section 37F by substituting a different amount;

(b) amend subsection (4) or (8) of that section by substituting a different percentage;

(2) Any provision that could be made by regulations under this section may instead be included in an order under section 12A(12).

37O

(1) The Secretary of State may by regulations make provision for this Part to apply with modifications in cases where—

(a) two or more financial awards were made against an employer on claims relating to different workers that were considered together by an employment tribunal, or

(b) settlement sums are payable by an employer under two or more settlements in cases dealt with together by a conciliation officer.

(2) Regulations under subsection (1) may in particular provide for any provision of this Part to apply as if any such financial awards or settlement sums, taken together, were a single relevant sum.

(3) The Secretary of State may by regulations make provision for this Part to apply with modifications in cases where a financial award has been made against an employer but is not regarded as outstanding by virtue only of the fact that an application for an order for a costs sum has not been finally determined (or any appeal within section 37B(3)(c) so far as relating to the application could still be made or has not been withdrawn or finally determined).

(4) Regulations under subsection (3) may in particular provide—

(a) for any provision of this Part to apply, or to apply if the enforcement officer so determines, as if the application had not been, and could not be, made;

(b) for any costs sum the amount of which is subsequently determined, or the order for which is subsequently made, to be treated for the purposes of this Part as a separate relevant sum.

37P

(1) For the purposes of section 7 of the Interpretation Act 1978 in its application to this Part, the proper address of an employer is—

(a) if the employer has notified an enforcement officer of an address at which the employer is willing to accept notices, that address;

(b) otherwise—

(i) in the case of a body corporate, the address of the body's registered or principal office;

(ii) in the case of a partnership or an unincorporated body or association, the principal office of the partnership, body or association;

(iii) in any other case, the last known address of the person in question.

(2) In the case of—

(a) a body corporate registered outside the United Kingdom,

(b) a partnership carrying on business outside the United Kingdom, or

the references in subsection (1) to its principal office include references to its principal office within the United Kingdom (if any).

37Q

(1) In this Part, the following terms have the following meanings—

“claim”—means anything that is referred to in the relevant legislation as a claim, a complaint or a reference, other than a reference made by virtue of section 122(2) or 128(2) of the Equality Act 2010 (reference by court of question about a non-discrimination or equality rule etc), andalso includes an application, under regulations made under section 45 of the Employment Act 2002, for a declaration that a person is a permanent employee;

“costs sum” has the meaning given by section 37A;

“employer” has the same meaning as in section 12A;

“enforcement officer” means a person appointed or authorised to act under section 37M;

“financial award” has the meaning given by section 37A;

“penalty notice” has the meaning given by section 37F;

“relevant appeal” has the meaning given by section 37A;

“relevant sum” has the meaning given by section 37A;

“settlement sum” has the meaning given by section 37A;

“specified amount” and “specified date”, in relation to a warning notice or a penalty notice given in relation to it, have the meanings given by section 37E(2);

“unpaid amount”—in relation to a financial award, has the meaning given by section 37B;in relation to a settlement sum, has the meaning given by section 37C;subject, in each case, to section 37D;

“warning notice” has the meaning given by section 37E(2);

“worker” has the same meaning as in section 12A.

(2) References in this Part to an employer, in relation to a warning notice or penalty notice, are to the person to whom the notice is given (whether or not the person is an employer at the time in question).

(3) For the purposes of this Part a relevant sum is to be regarded as having been paid in full when the amount unpaid in respect of that sum on the date of payment has been paid.

(4) For the purposes of this Part, a penalty notice is given in relation to a warning notice if it is given as the result of a failure by the employer to pay the specified amount before the specified date.

(5) The Secretary of State may by regulations amend this section so as to alter the meaning of “claim”.

(6) Any provision that could be made by regulations under subsection (5) may instead be included in an order under section 12A(12).

Interpretation.

Notes:

37ZA

(1) If the Appeal Tribunal is satisfied that—

(a) the conditions in subsection (4) or (5) are fulfilled in relation to the Appeal Tribunal's decision or order in any proceedings, and

(b) as regards that decision or order, a sufficient case for an appeal to the Supreme Court has been made out to justify an application under section 37ZB,

the Appeal Tribunal may grant a certificate to that effect.

(2) The Appeal Tribunal may grant a certificate under this section only on an application made by a party to the proceedings.

(3) The Appeal Tribunal may not grant a certificate under this section in the case of proceedings in Scotland.

(4) The conditions in this subsection are that a point of law of general public importance is involved in the decision or order of the Appeal Tribunal and that point of law is—

(a) a point of law that—

(i) relates wholly or mainly to the construction of an enactment or statutory instrument, and

(ii) has been fully argued in the proceedings and fully considered in the judgment of the Appeal Tribunal in the proceedings, or

(b) a point of law—

(i) in respect of which the Appeal Tribunal is bound by a decision of the Court of Appeal or the Supreme Court in previous proceedings, and

(ii) that was fully considered in the judgments given by the Court of Appeal or, as the case may be, the Supreme Court in those previous proceedings.

(5) The conditions in this subsection are that a point of law of general public importance is involved in the decision or order of the Appeal Tribunal and that—

(a) the proceedings entail a decision relating to a matter of national importance or consideration of such a matter,

(b) the result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that, in the opinion of the Appeal Tribunal, a hearing by the Supreme Court is justified, or

(c) the Appeal Tribunal is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.

(6) No appeal lies against the grant or refusal of a certificate under subsection (1).

37ZB

(1) If the Appeal Tribunal grants a certificate under section 37ZA in relation to any proceedings, a party to those proceedings may apply to the Supreme Court for permission to appeal directly to the Supreme Court.

(2) An application under subsection (1) must be made—

(a) within one month from the date on which the certificate is granted, or

(b) within such time as the Supreme Court may allow in a particular case.

(3) If on such an application it appears to the Supreme Court to be expedient to do so, the Supreme Court may grant permission for such an appeal.

(4) If permission is granted under this section—

(a) no appeal from the decision or order to which the certificate relates lies to the Court of Appeal, but

(b) an appeal lies from that decision or order to the Supreme Court.

(5) An application under subsection (1) is to be determined without a hearing.

(6) Subject to subsection (4), no appeal lies to the Court of Appeal from a decision or order of the Appeal Tribunal in respect of which a certificate is granted under section 37ZA until—

(a) the time within which an application can be made under subsection (1) has expired, and

(b) where such an application is made, that application has been determined in accordance with this section.

37ZC

(1) No certificate may be granted under section 37ZA in respect of a decision or order of the Appeal Tribunal in any proceedings where, by virtue of any enactment (other than sections 37ZA and 37ZB), no appeal would lie from that decision or order of the Appeal Tribunal to the Court of Appeal, with or without the leave or permission of the Appeal Tribunal or the Court of Appeal.

(2) No certificate may be granted under section 37ZA in respect of a decision or order of the Appeal Tribunal in any proceedings where, by virtue of any enactment, no appeal would lie from a decision of the Court of Appeal on that decision or order of the Appeal Tribunal to the Supreme Court, with or without the leave or permission of the Court of Appeal or the Supreme Court.

(3) Where no appeal would lie to the Court of Appeal from the decision or order of the Appeal Tribunal except with the leave or permission of the Appeal Tribunal or the Court of Appeal, no certificate may be granted under section 37ZA in respect of a decision or order of the Appeal Tribunal unless it appears to the Appeal Tribunal that it would be a proper case for granting leave or permission to appeal to the Court of Appeal.

(4) No certificate may be granted under section 37ZA where the decision or order of the Appeal Tribunal is made in the exercise of its jurisdiction to punish for contempt.

Procedure Rules

37QA

(1) There are to be rules made by the Tribunal Procedure Committee called “Employment Tribunal Procedure Rules”.

(2) Those are the rules referred to as “Procedure Rules” in this Act.

(3) Schedule A1 makes further provision about Procedure Rules.

(4) The power of the Tribunal Procedure Committee to make Procedure Rules for the purposes set out in sections 7 and 30(1) is not limited by any other provision (including future provision) about what Procedure Rules may or must contain.

Power to amend legislation in connection with Procedure Rules

37QB

(1) The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable—

(a) in order to facilitate the making of Procedure Rules, or

(b) in consequence of—

(i) section 37QA,

(ii) Schedule A1, or

(iii) Procedure Rules.

(2) In subsection (1) “enactment” means any enactment whenever passed or made, including an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978.

Schedule A1

Part 1 — Objectives

1

(1) The Tribunal Procedure Committee must exercise its power to make Procedure Rules with a view to securing—

(a) that justice is done in proceedings before the tribunal,

(b) that the tribunal system is accessible and fair,

(d) that Procedure Rules are both simple and simply expressed, and

(e) that Procedure Rules, where appropriate, confer responsibility on members of the tribunal for ensuring that proceedings before the tribunal are handled quickly and efficiently.

(2) In sub-paragraph (1)(b), “the tribunal system” means the system for deciding matters within the jurisdiction of the tribunal.

Part 2 — Content of Procedure Rules

Delegation of functions to staff

2

(1) Procedure Rules may provide for functions of the tribunal to be exercised by staff appointed under section 2(1) of the Courts Act 2003 (court staff) or section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (tribunal staff).

(2) In making provision of the kind mentioned in sub-paragraph (1) in relation to a function, Procedure Rules may (in particular)—

(a) provide for the function to be exercisable by a member of staff only if the member of staff is, or is of a description, specified in exercise of a discretion conferred by Procedure Rules;

(b) provide for the function to be exercisable by a member of staff only if the member of staff is approved, or is of a description approved, for the purpose by a person specified in Procedure Rules.

(3) A person may exercise functions by virtue of this paragraph only if authorised to do so by the Senior President of Tribunals.

(4) An authorisation under this paragraph—

(a) may be subject to conditions, and

(b) may be varied or revoked by the Senior President of Tribunals at any time.

(5) The Senior President of Tribunals may delegate to one or more of the following the Senior President of Tribunals’ functions under the preceding provisions of this paragraph—

(a) a judicial office holder;

(b) a person appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(6) A person to whom functions of the Senior President of Tribunals are delegated under sub-paragraph (5)(b) is not subject to the direction of any person other than—

(a) the Senior President of Tribunals, or

(b) a judicial office holder nominated by the Senior President of Tribunals,

when exercising the functions.

(7) Subsections (3) to (5) of section 8 of the Tribunals, Courts and Enforcement Act 2007 apply to a delegation under sub-paragraph (5) as they apply to a delegation under subsection (1) of that section.

(8) In this paragraph, “judicial office holder” means—

(a) a judicial office holder within the meaning given by section 109(4) of the Constitutional Reform Act 2005, or

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

Time limits

3

Procedure Rules may make provision for time limits as respects initiating, or taking any step in, proceedings before the tribunal.

Determining where to start proceedings

4

Procedure Rules may include provision for determining whether proceedings before the tribunal are to be brought in England and Wales or in Scotland.

Repeat applications

5

Procedure Rules may make provision restricting the making of fresh applications where a previous application in relation to the same matter has been made.

Tribunal acting of its own initiative

6

Procedure Rules may make provision about the circumstances in which the tribunal may exercise its powers of its own initiative.

Hearings

7

Procedure Rules may—

(a) make provision for dealing with matters without a hearing;

(b) make provision as respects allowing or requiring a hearing to be in private or as respects allowing or requiring a hearing to be in public.

Proceedings without notice

8

Procedure Rules may make provision for proceedings to take place, in circumstances described in Procedure Rules, at the request of one party even though the other, or another, party has had no notice.

Representation

9

Procedure Rules may make provision conferring additional rights of audience before the tribunal.

Intervention by Secretary of State

10

Procedure Rules may make provision—

(a) for the Secretary of State to be treated (either generally or in circumstances prescribed by the Rules) as a party to any proceedings, and

(b) for the Secretary of State to be entitled to appear and to be heard accordingly.

Evidence, witnesses and attendance

11

(1) Procedure Rules may make provision about evidence (including evidence on oath and administration of oaths).

(2) Procedure Rules may modify any rules of evidence provided for elsewhere, so far as they would apply to proceedings before the tribunal.

(3) Procedure Rules may make provision, where an employment tribunal has required a person—

(a) to attend at any place for the purpose of giving evidence,

(b) otherwise to be available to give evidence,

(d) to give evidence as a witness,

(e) to produce a document, or

(f) to facilitate the inspection of a document or any other thing (including any premises),

for the Appeal Tribunal to deal with non-compliance with the requirement as though the requirement had been imposed by the Appeal Tribunal.

(4) Procedure Rules may make provision for the payment of expenses and allowances to persons giving evidence, producing documents, attending proceedings or required to attend proceedings.

Use of information

12

(1) Procedure Rules may make provision for the disclosure or non-disclosure of information received during the course of proceedings before the tribunal.

(2) Procedure Rules may make provision for imposing reporting restrictions in circumstances described in Procedure Rules.

Set-off

13

Procedure Rules may make provision for a party to proceedings to deduct, from amounts payable by the party, amounts payable to the party.

Reconsideration or review of decisions

14

Procedure Rules may confer power on the tribunal to reconsider or review its decisions, and revoke or vary its orders and awards, in such circumstances as may be determined in accordance with Procedure Rules.

Correction of errors and setting aside of decisions on procedural grounds

15

(1) Procedure Rules may make provision for the correction of accidental errors in a decision or record of a decision.

(2) Procedure Rules may make provision for the setting aside of a decision in proceedings before the tribunal—

(a) where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative,

(b) where a document relating to the proceedings was not sent to the tribunal at an appropriate time,

(c) where a party to the proceedings, or a party’s representative, was not present at a hearing related to the proceedings, or

(d) where there has been any other procedural irregularity in the proceedings.

(3) Sub-paragraphs (1) and (2) do not affect, and are not affected by, any power to correct errors or set aside decisions that is exercisable apart from rules made by virtue of those sub-paragraphs.

Registration and proof of decisions

16

Procedure Rules may make provision for the registration and proof of decisions, orders and awards of the tribunal.

Ancillary powers

17

Procedure Rules may confer on the tribunal such ancillary powers as are necessary for the proper discharge of its functions.

Rules may refer to practice directions

18

Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions under section 7A or 29A.

Presumptions

19

Procedure Rules may make provision in the form of presumptions (including, in particular, presumptions as to service or notification).

Differential provision

20

Procedure Rules may make different provision for different purposes or different areas.

Part 3 — Supplementary provision

Procedure for making Procedure Rules

21

(1) Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 (which makes provision about how Tribunal Procedure Rules are to be made) applies to the making of Procedure Rules under this Act as it applies to the making of Tribunal Procedure Rules under section 22 of that Act, with the following modifications.

(2) In paragraph 28(1)(a) of that Schedule, the reference to the Chamber Presidents is to be read as a reference to the President of the Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland).

(3) In paragraph 28A(1) of that Schedule—

(a) the reference to the First-tier Tribunal or Upper Tribunal is to be read as a reference to an employment tribunal or the Employment Appeal Tribunal, and

(b) the reference to paragraph 3 of that Schedule is to be read as a reference to paragraph 2 of this Schedule.

Interpretation

22

In this Schedule, “the tribunal” means—

(a) an employment tribunal, in relation to Procedure Rules in respect of employment tribunals;

(b) the Appeal Tribunal, in relation to Procedure Rules in respect of the Appeal Tribunal.

Notes:

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