Legalize / United Kingdom / Public General Act

Employment Protection Act 1975

Type Public General Act

Publication 1975-11-12

Last updated 2014-04-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part I — Machinery for Promoting the Improvement of Industrial Relations

Advisory, Conciliation and Arbitration Service, etc.

Advisory, Conciliation and Arbitration Service

1

Conciliation

2

Arbitration

3

Advice

4

Inquiry

5

Codes of Practice

6

Certification Officer

7

Certification as independent trade union

8

Custody of documents

9

Central Arbitration Committee

10

Trade union recognition

Reference of recognition issue to Service

11

(1) A recognition issue may be referred by an independent trade union to the Service by written application in such form as the Service may require.

(2) In this Act " recognition ", in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining.

(3) In this section and sections 12 to 14 below, "recognition issue " means an issue arising from a request by a trade union for recognition by an employer, or two or more associated employers, including, where recognition is already accorded to some extent, a request for further recognition.

Inquiry and report on recognition issue

12

(1) Subject to subsection (2) below, when a recognition issue is referred to the Service under section 11 above the Service shall examine the issue, shall consult all parties who it considers will be affected by the outcome of the reference and shall make such inquiries as it thinks fit.

(2) The Service may decline to proceed on a reference under section 11 above if it is of the opinion that the issue referred is substantially the same as an issue which has previously been the subject of a reference under that section, or of an application under section 13 below, unless the trade union shows that the circumstances have changed to such an extent as to justify a new reference.

(3) At all times after a recognition issue has been referred to the Service and before the Service has reported on it—

(a) the Service shall have regard to the desirability of encouraging the settlement of the issue by agreement and shall, where appropriate, seek to assist such a settlement by conciliation; and

(b) the trade union or unions which made the reference may, by notice in writing, withdraw the reference, and one or more such unions may, by notice in writing, withdraw from the reference, and in the latter case only such unions as remain parties to the reference may be recommended for recognition.

(4) If the issue has not been settled and the reference not withdrawn the Service shall prepare a written report setting out its findings, any advice in connection with those findings and any recommendation for recognition and the reasons for it, or, where no such recommendation is made, the reasons for not making any recommendation.

(5) A recommendation for recognition shall specify—

(a) the employer or employers and the trade union or unions to which it relates;

(b) the description or descriptions of workers in respect of which recognition is recommended ;

(d) the level or levels at which recognition is recommended.

(6) A recommendation for recognition may be subject to such conditions, to be complied with on the part of the trade union, as the Service thinks fit, and any conditions shall be set out in the report.

(7) The Service shall send a copy of the report to every trade union and employer concerned in the recognition issue and to such other persons as it thinks fit.

Application for variation or revocation of recommendation

13

(1) At any time when a recommendation of the Service has been made and has not been—

(a) superseded by agreement, whether express or implied, between the employer and the union ;

(b) superseded by another recommendation under section 12 above; or

an application may be made under this section for the variation or revocation of that recommendation.

(2) Such an application may be made—

(a) jointly by all the trade unions and employers to whom the recommendation relates; or

(b) by any trade union or employer to whom the recommendation relates,

and in each case the application shall be in writing and in such form as the Service may require.

(3) Where the Service is of the opinion that the issue raised by an application which is not a joint application such as is referred to in subsection (2)(a) above is substantially the same as an issue which has previously been the subject of a reference under section 11 above or of an application under this section, it may decline to proceed with that application unless the applicant shows—

(a) that the, reconsideration of the recommendation is justified because circumstances have changed or further information has become available ; or

(b) that a condition to which the recommendation is subject is no longer being sufficiently complied with.

(4) Subject to subsection (3) above, on receipt of an application under this section the Service shall examine the issue raised by the application, shall consult such persons and make such inquiries as it thinks fit and, if the application is not settled or withdrawn, shall report on it stating its conclusions and the reasons for them.

(5) A variation or revocation may be subject to such conditions, to be complied with on the part of the trade union or the employer, as the Service thinks fit, and any conditions shall be set out in the report.

(6) A variation or revocation shall take effect—

(a) in the case of an unconditional variation or revocation, on the date when the Service transmits its report to the parties to whom the recommendation relates; and

(b) in the case of a conditional variation or revocation, on the date on which the Service, on the application of the party by whom the condition or conditions were to be complied with, transmits to the other party its opinion that the condition or all the conditions have been sufficiently complied with.

Inquiries under ss. 12 and 13

14

(1) In the course of its inquiries into a recognition issue under section 12 or 13 above the Service shall ascertain the opinions of workers to whom the issue relates by any means it thinks fit, but if in any case it determines to take a formal ballot of those workers or any description of such workers, the following provisions of this section shall apply.

(2) In making arrangements for any such ballot the Service shall have regard to the need for securing that every worker invited to take part in the ballot has an equal right and a fair opportunity of voting, and that the vote cast by any individual in the ballot will be kept secret.

(3) Before taking any such ballot the Service shall give notice to every employer and union concerned in the reference or application, including every union known to the Service to have members among the workers proposed to be invited to take part in the ballot, of—

(a) the description or descriptions of workers proposed to be invited to take part in the ballot;

(b) the question or questions on which the ballot is proposed to be taken ; and

and the Service shall consider any representations made by any such employer or union with respect to the proposals.

(4) Subject to subsections (2) and (3) above, any such ballot may be conducted in such manner as the Service thinks fit.

(5) Where a formal ballot has been taken in accordance with this section the Service shall arrange for—

(a) the question or questions on which the ballot was taken ; and

(b) the results of the ballot on that question or on each such question,

to be notified to every employer and union concerned in the reference or application, including every union known to the Service to have members among the workers invited to take part in the ballot.

(6) An employer who is notified in accordance with subsection (5) above of the results of the ballot and who has workers among those invited to take part in the ballot shall arrange for those results to be notified to them.

Complaint of failure to comply with recommendation

15

(1) A recommendation for recognition made by the Service under section 12 above, so far as it relates to employees, but not so far as it relates to workers who are not employees, shall become operative for the purpose of the following provisions of this Act—

(a) in the case of an unconditional recommendation, at the end of the period of 14 days beginning with the date on which the Service's report under section 12 above is received by the employer ; and

(b) in the case of a conditional recommendation, at the end of the period of 14 days beginning with the date on which the Service, on the application of the union, notifies the employer of its opinion that the condition or all the conditions have been sufficiently complied with,

and shall remain operative except in so far as it is—

(i) superseded by agreement, whether express or implied, between the employer and the union ;

(ii) superseded by another recommendation under section 12 above; or

(iii) revoked on an application under section 13 above.

(2) Where a recommendation is operative, then at any time after the end of the period of two months beginning with the date on which it became operative, the trade union may refer in writing to the Service a complaint that the employer is at the time of the complaint, wholly or in part, not complying with the recommendation, that is to say, that he is not then taking such action by way of or with a view to carrying on negotiations as might reasonably be expected to be taken by an employer ready and willing to carry on such negotiations as are envisaged by the recommendation.

(3) When a complaint is referred to the Service under this section the Service shall attempt to settle the matter by conciliation.

Application arising from failure to comply with recommendation

16

(1) If conciliation under section 15(3) above does not result in a settlement, the trade union which referred the complaint under that section may apply to the Central Arbitration Committee in accordance with the following provisions of this section.

(2) The application shall be in writing and in such form as the Committee may require and shall consist of—

(a) a complaint that the employer is not complying (within the meaning of section 15(2) above) with a recommendation of the Service; and

(b) a claim that in respect of one or more descriptions of employees covered by that recommendation their contracts should include the terms and conditions specified in the claim.

(3) An application under this section comprising a complaint on substantially the same grounds as those of a complaint in a previous application under this section, shall not be entertained by the Committee before the end of the period of 12 months beginning with the date on which the Committee made its award under subsection (6) below, or determined not to make such an award, on that previous application.

(4) Subject to subsection (3) above, the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether it finds the complaint well founded, wholly or in part, and stating the reasons for its finding.

(5) If the Committee finds the complaint wholly or partly well-founded, the declaration shall specify—

(a) the description or descriptions of employees in relation to whom the employer has failed to comply with the recommendation; and

(b) the matters in relation to which the employer has failed to comply with the recommendation.

(6) If the Committee finds the complaint wholly or partly well-founded, it may, after hearing the parties, make an award that in respect of any description of employees specified in the declaration under subsection (5)(a) above the employer shall observe either—

(a) the terms and conditions specified in the claim by the trade union in accordance with subsection (2)(b) above; or

(b) other terms and conditions which the Committee considers appropriate,

being in either case terms and conditions falling within the scope of the matters specified in the declaration under subsection (5)(b) above.

(7) Any terms and conditions which by an award under subsection (6) above the employer is required to observe in respect of employees of his shall have effect as part of the contract of employment of any such employee, as from the date specified in the award, except in so far as they are superseded or varied—

(a) by a subsequent award under this section;

(b) by a collective agreement between the employer and the union for the time being representing that employee; or

(c) by express or implied agreement between the employee and the employer so far as that agreement effects an improvement in any terms and conditions having effect by virtue of the award.

(8) Where—

(a) by virtue of any enactment, other than one contained in this section, providing for minimum remuneration or terms and conditions, a contract of employment is to have effect as modified by an award, order or other instrument under that enactment, and

(b) by virtue of an award under this section any terms and conditions are to have effect as part of that contract,

that contract shall have effect in accordance with that award, order or other instrument or in accordance with the award under this section, whichever is the more favourable, in respect of any terms and conditions of that contract, to the employee.

(9) No award shall be made under this section in respect of any terms and conditions of employment which are fixed by virtue of any enactment.

Disclosure of information

General duty of employers to disclose information

17

Restrictions on general duty under s. 17

18

Complaint of failure to disclose information

19

Further complaint arising from failure to disclose information

20

Determination of claim and award

21

Part II

Guarantee payments

Right to guarantee payment

22

(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 hereafter in this section and sections 23 to 26 below—

(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 23 to 27 below " day " means the period of 24 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.

(3) An employee shall not be entitled to a guarantee payment under subsection (1) above in respect of a workless day unless he has been continuously employed for a period of four weeks ending with the last complete week before that day.

General exclusions from right under s. 22

23

(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

24

(1) Subject to the limits set by section 25 below, 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 (4) below, 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 12 the total number of the employee's normal working hours during the period of 12 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) above 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) For the purposes of Part II of Schedule 4 to this Act as it applies for the calculation of a week's pay for the purposes of this section, the calculation date is, subject to subsection (4) below, the day in respect of which the guarantee payment is payable.

(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, subsections (2) and (3) above shall have effect as if for the references in those subsections to the day in respect of which the guarantee payment is payable there were substituted references to the last day on which the original contract was in force.

(5) In this section and section 25 below "week ", in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, means a week ending with that other day, and in relation to other employees, means a week ending with Saturday.

Limits on amount of and entitlement to guarantee payment

25

(1) The amount of guarantee payment payable to an employee in respect of any day shall not exceed £6.

(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) above shall be, subject to subsection (4) below.—

(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 12 the total number of such days during the period of 12 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) above 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) above 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) above, after a review under section 86 below, by order made in accordance with that section.

Supplementary

26

(1) Subject to subsection (2) below, a right to a guarantee payment shall not affect any right of an employee in relation to remuneration under his contract of employment (hereafter 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) above, 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 22(2), 24 and 25(3) above, as originally enacted or as varied under section 25(5) above, and of subsections (1) to (3) above, and, so far as they apply for the purposes of those provisions, the provisions of Schedule 4 to this Act, shall have effect subject to such modifications and adaptations as may be prescribed by the order.

Complaint to industrial tribunal

27

(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) above 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

28

(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 22 above 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) above 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) above the appropriate Minister means—

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

(b) as respects such an order as is referred to in subsection (2)(b) above, 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) above an industrial tribunal shall have jurisdiction over such a complaint as if it were a complaint falling within section 27 above.

(5) Without prejudice to section 123(4) below, 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

29

(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 2 to this Act, 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 26 weeks.

(2) For the purposes of this section and sections 30 to 33 below 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 2 to this Act.

(4) If an employee is dismissed by reason of any such requirement or recommendation as is referred to in subsection (1) above, paragraph 10(a) of Schedule 1 to the 1974 Act (qualifying period for right not to be unfairly dismissed) shall have effect in relation to that dismissal as if for the words " 26 weeks" there were substituted the words " 4 weeks ".

General exclusions from right under s. 29

30

(1) An employee shall not be entitled to remuneration under section 29 above unless he has been continuously employed for a period of four weeks ending with the last complete week before the day on which the suspension begins.

(2) An employee shall not be entitled to remuneration under section 29 above in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

(3) An employee shall not be entitled to remuneration under section 29 above in respect of any period during which—

(a) his employer has offered to provide him with suitable alternative work, whether or not work which the employee is under his contract, or was under the contract in force before the suspension, employed to perform, and the employee has unreasonably refused to perform that work ; or

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

Calculation of remuneration

31

(1) The amount of remuneration payable by an employer to an employee under section 29 above 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) For the purposes of Part II of Schedule 4 to this Act as it applies for the calculation of a week's pay for the purposes of this section the calculation date is the day before that on which the suspension begins.

(3) Subject to subsection (4) below, a right to remuneration under section 29 above shall not affect any right of an employee in relation to remuneration under his contract of employment (hereafter in this section referred to as "contractual remuneration ").

(4) 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 29 above in respect of that period, and conversely any payment of remuneration in discharge of an employer's liability under section 29 above in respect of any period shall go towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

(5) In this section " week ", in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday means a week ending with that other day, and in relation to any other employee means a week ending on Saturday.

Complaint to industrial tribunal

32

(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 29 above.

(2) An industrial tribunal shall not entertain a complaint relating to remuneration under section 29 above 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) above well-founded the tribunal shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

Dismissal of replacement

33

Where an employer—

(a) on engaging an employee informs the employee in writing that his employment will be terminated on the end of a suspension such as is referred to in section 29(1) above of another employee; and

(b) dismisses the first mentioned employee in order to make it possible to allow the other employee to resume his original work;

then, for the purposes of paragraph 6(1)(b) of Schedule 1 to the 1974 Act (employer to show substantial reason for dismissal), but without prejudice to the application of paragraph 6(8) of that Schedule (whether dismissal fair or unfair to depend on whether employer acted reasonably), the dismissal shall be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

Maternity

Dismissal on grounds of pregnancy

34

(1) An employee shall be treated for the purposes of Schedule 1 to the 1974 Act as unfairly dismissed if the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy, except one of the following reasons—

(a) that at the effective date of termination she is or will have become, because of her pregnancy, incapable of adequately doing the work which she is employed to do;

(b) that, because of her pregnancy, she cannot or will not be able to continue after that date to do that work without contravention (either by her or her employer) of a duty or restriction imposed by or under any enactment.

(2) An employee shall be treated for the purposes of Schedule 1 to the 1974 Act as unfairly dismissed if her employer dismisses her for a reason mentioned in subsection (1)(d) or (b) above, but neither he nor any successor of his, where there is a suitable available vacancy, makes her an offer before or on the effective date of termination to engage her under a new contract of employment complying with subsection (3) below.

(3) The new contract of employment must—

(a) take effect immediately on the ending of employment under the previous contract, or, where that employment ends on a Friday, Saturday or Sunday, on or before the next Monday after that Friday, Saturday or Sunday;

(b) be such that the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

(c) be such that 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 the corresponding provisions of the previous contract.

(4) On a complaint of unfair dismissal on the ground of failure to offer to engage an employee as mentioned in subsection (2) above, it shall be for the employer to show that he or a successor made an offer to engage her in compliance with subsections (2) and (3) above or, as the case may be, that there was no suitable available vacancy for her.

(5) Paragraph 5(3) of Schedule 1 to the 1974 Act (employee treated as dismissed where he gives notice to the employer within the period of the employer's notice) shall not apply in a case where an employer gives notice to an employee to terminate her contract of employment for a reason mentioned in subsection (1)(a) or (b) above.

(6) In paragraph 12 of Schedule 1 to the 1974 Act (exclusion of certain fixed term contracts) as it applies to an employee treated as unfairly dismissed by virtue of subsection (1) or (2) above, for the reference to 28th February 1972 there shall be substituted a reference to the commencement of this section.

(7) Paragraph 13(3) of Schedule 1 to the 1974 Act (exclusion of right not to be unfairly dismissed and remedy for breach of that right where a dismissal procedures agreement is in force) shall not apply to the right not to be unfairly dismissed for any reason mentioned in subsection (1) or (2) above.

Rights of employee in connection with pregnancy and confinement

35

(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, be entitled—

(a) in accordance with sections 36 to 38 below, to be paid by her employer a sum to be known as maternity pay ; and

(b) in accordance with sections 48 to 50 below and Schedule 3 to this Act, to return to work.

(2) An employee shall be entitled to the rights referred to in subsection (1) above whether or not a contract of employment subsists during the period of her absence but, subject to subsection (3) below, 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 11th week before the expected week of confinement;

(b) she has at the beginning of that 11th 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 three weeks 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.

(3) An employee who has been dismissed by her employer for a reason falling within section 34(1)(a) or (b) above and has not been re-engaged in accordance with that section, shall be entitled to the rights referred to in subsection (1) above notwithstanding that she has thereby ceased to be employed before the beginning of the 11th week before the expected week of confinement if, but for that dismissal, she would at the beginning of that 11th 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.

(4) An employee shall not be entitled to either of the rights referred to in subsection (1) above 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.

(5) The Secretary of State may by order vary the periods of two years referred to in subsections (2) and (3) above, or those periods as varied from time to time under this section, 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

36

(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 (hereafter in this section and sections 37 and 38 below 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 11th 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 11th week.

(3) The Secretary of State may by order vary the periods of six weeks referred to in subsections (1) and (2) above, or those periods as varied from time to time under this section, 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 35(2)(c) above or produces any certificate requested under section 35(4) above after the beginning of the payment period or the first of the payment 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

37

(1) The amount of maternity pay to which an employee is entitled as respects any week shall be 9/10ths of a week's pay reduced by the amount of maternity allowance payable for that 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 1/6th of the amount of the maternity pay for the week in which the day falls.

(3) Subject to subsection (4) below, a right to maternity pay shall not affect any right of an employee in relation to remuneration under any contract of employment (hereafter 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.

(5) For the purposes of Part II of Schedule 4 to this Act as it applies for the calculation of a week's pay for the purposes of this section, the calculation date is the last day on which the employee worked under the contract of employment in force immediately before the beginning of her absence.

Complaint to industrial tribunal of failure to pay maternity pay

38

(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) above 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) above 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

39

(1) There shall be established under the control and management of the Secretary of State a fund to be called the Maternity Pay Fund out of which payments shall be made in accordance with the following provisions of this Act.

(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.

Financing of Maternity Pay Fund

40

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advances out of National Loans Fund

41

(1) Subject to the provisions of subsections (2) to (4) below, 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 that Fund.

(2) The aggregate amount outstanding by way of principal in respect of sums advanced to the Secretary of State under subsection (1) above 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) above 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) above 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

42

(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 45 and 46 below referred to as a " 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 38(2) above, a complaint by the employee has been dismissed, or would not be entertained, by an industrial tribunal.

(3) For the purposes of subsections (1) and (2) above, 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 37(4) above.—

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

(b) in a case falling within subsection (2) above, 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 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

43

(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 69 below for the purposes of sections 64 to 68 below);

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 be treated for the purpose of discharging any liability of the employer to the employee as if it had been made by the employer.

Unreasonable default by employer

44

(1) Where the Secretary of State makes a payment to an employee in respect of unpaid maternity pay in a case falling within section 43(1)(a) above 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 in relation to employer's insolvency

45

(1) Where the Secretary of State makes a payment to an employee under section 64 below (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 43 above the amount of any unpaid maternity pay, section 37(4) above 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 64 below which, if it had been made by the employer to the employee, would have attracted a rebate from the Maternity Pay Fund in accordance with section 42 above, 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.

Complaint and appeals to industrial tribunal

46

(1) A person who has—

(a) made a claim for a rebate under section 42 above, in a case to which subsection (1) of that section applies; or

(b) applied for a payment under section 43 above,

may, subject to subsection (5) below, 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 rebate under section 42 above, in a case to which subsection (2) of that section applies, may, subject to subsection (5) below, appeal to an industrial tribunal on the ground that—

(a) the Secretary of State has refused to pay a 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 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 44 above, the employer may, subject to subsection (5) below, 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

47

(1) Where an application is made to the Secretary of State by an employee under section 43 above, 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 42 above or an application under section 43 above or in purporting to comply with a requirement of a notice under this section knowingly or recklesly makes any false statement he shall be liable on summary conviction to a fine not exceeding £400.

Right to return to work

48

(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 29 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) above—

(a) " job ", in relation to an employee, means the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed ; and

(b) " 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) In sections 35 and 49 to 51 of, and Schedule 3 to, this Act, except where the context otherwise requires, " to return to work " means to return to work in accordance with subsection (1) above, and cognate expressions shall be construed accordingly.

(4) If an employee is entitled to return to work in accordance with subsection (1) above, 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 (5) below.

(5) 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) above.

(6) The remedies of an employee for infringement of either of the rights mentioned in this section are those conferred by or by virtue of the provisions of sections 49 and 50 below and Schedule 3 to this Act.

Exercise of right to return

49

(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 one week before the day on which she proposes to return of her proposal to return on that day (hereafter in this section and section 50 below and Schedule 3 to this Act 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) below, 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 29 weeks mentioned in section 48(1) above ; 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) above, so that she returns to work not later than four weeks from the expiration of the said period of 29 weeks;

if before the notified day of return or, as the case may be, the expiration of the period of 29 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) above, 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 29 weeks referred to in section 48(1) above, 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) above so that she returns to work at any time before the end of the period of 14 days from the end of the interruption notwithstanding that she returns to work outside the said period of 29 weeks.

(7) Where the employee has either—

(a) exercised the right under subsection (3)(b) above 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) above,

the other of those subsections shall apply as if for the reference to the expiration of the period of 29 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 14 days from the end of the interruption of work.

(8) Where—

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

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

then, subject to subsection (4) above, references in those subsections and in section 50 below and Schedule 3 to this Act 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.

Failure to permit to return treated as dismissal

50

(1) Where an employee is entitled to return to work and has exercised her right to return in accordance with section 49 above but is not permitted to return to work, then, she shall be treated for the purposes of—

(a) the provisions of this Act and the 1974 Act relating to unfair dismissal; and

(b) the Redundancy Payments Act 1965 ;

as if she had been employed until the notified day of return, and, if she would not otherwise be so treated, as having been continuously employed until that day, and as if she had been dismissed with effect from that day for the reason for which she was not permitted to return.

(2) The provisions of Schedule 3 to this Act shall have effect for the purpose of supplementing the foregoing provisions of this Act relating to an employee's right to return to work.

Dismissal of replacement

51

Where an employer—

(a) on engaging an employee informs the employee in writing that his employment will be terminated on the return to work of another employee who is, or will be, absent wholly or partly because of pregnancy or confinement; and

(b) dismisses the first-mentioned employee in order to make it possible to give work to the other employee;

Interpretation of ss. 35 to 51

52

In sections 35 to 51 above, this section and Schedule 3 to this Act, except so far as the context otherwise requires.—

" certified midwife " means a midwife certified under the Mid wives Act 1951 or the Mid wives (Scotland) Act 1951;

" confinement " means the birth of a living child or the birth of a child whether living or dead after 28 weeks of pregnancy;

" expected week of confinement " means the week in which it is expected that confinement will take place ;

" original contract of employment ", in relation to an employee who is absent from work wholly or partly because of pregnancy or confinement, means the contract under which she worked immediately before the beginning of her absence or, if she entered into that contract during her pregnancy by virtue of section 34(2) above or otherwise by reason of her pregnancy, the contract under which she was employed immediately before she entered into the later contract or, if there was more than one later contract, the first of the later contracts;

" week "— in sections 35(2)(c) and 49(1) above, means a period of seven days; in the expression " expected week of confinement ", means a period of seven days beginning with midnight between Saturday and Sunday; and in any other case, means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day, and in relation to any other employee, a week ending with Saturday.

Trade union membership and activities

53

(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) below 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) above 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) above 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 Service has made a recommendation for recognition of that union covering the employee in question which is operative within the meaning of section 15 above ; or

(ii) the union has referred a recognition issue covering that employee to the Service under section 11 above and the Service has not declined to proceed on the reference under section 12 above, 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

54

(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 53 above.

(2) An industrial tribunal shall not entertain a complaint under subsection (1) above 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 56 below, to be paid by the employer to the employee in respect of the action complained of.

Supplementary

55

(1) On a complaint under section 54 above 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 53(1)(a) to (c) or (6) above.

(2) In determining, on a complaint under section 54 above, 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.

(3) If on a complaint under section 54 above it is shown that the action complained of was taken for the purpose of safeguarding national security, the industrial tribunal shall dismiss the complaint.

(4) A certificate signed by or on behalf of a Minister of the Crown, and certifying that the action specified in the certificate was taken for the purpose of safeguarding national security, shall for the purposes of this section be conclusive evidence of that fact; and a document purporting to be such a certificate shall be taken to be such a certificate unless the contrary is proved.

Assessment of compensation on complaint under s. 54

56

(1) The amount of the compensation awarded by a tribunal on a complaint under section 54 above 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 53 above 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) above no account shall be taken of any pressure as is referred to in section 55(2) above, 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

57

(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) below, 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 Service under section 6 above.

(3) In the Code of Practice referred to in section 6(2)(b)(i) above the Service shall in particular provide practical guidance on the circumstances in which a trade union official is to be permitted to take time off under this section in respect of duties connected with industrial action.

(4) 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.

(5) The average hourly earnings referred to in subsection (4)(b) above 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.

(6) Subject to subsection (7) below, a right to be paid any amount under subsection (4) above shall not affect any right of an employee in relation to remuneration under his contract of employment (hereafter in this section referred to as " contractual remuneration ").

(7) Any contractual remuneration paid to an employee in respect of a period of time off to which subsection (1) above applies shall go towards discharging any liability of the employer under subsection (4) above in respect of that period, and conversely any payment of any amount under subsection (4) above in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

(8) 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

58

(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) below, 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) above, 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 Service under section 6 above.

(4) In the Code of Practice referred to in section 6(2)(b)(ii) above the Service shall in particular provide practical guidance on the following matters, that is to say, the question whether, and the circumstances in which a trade union member is to be permitted to take time off under this section for trade union activities connected with industrial action.

(5) 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

59

(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) below, 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) above—

(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 Reorganisation Act 1973, 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) above 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 57 and 58 above;

(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) above 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) above.

(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

60

(1) An industrial tribunal shall not consider—

(a) a complaint under section 57, 58 or 59 above that an employer has failed to permit an employee to take time off; or

(b) a complaint under section 57 above 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) above 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 57 above 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

61

(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 1(1) of the Contracts of Employment Act 1972 (minimum period of notice),

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) above 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 12 the total number of the employee's normal working hours during the period of 12 weeks ending with the last complete week before the day on which notice was given.

(5) For the purposes of Part II of Schedule 4 to this Act as it applies for the calculation of a week's pay for the purposes of this section, the calculation date is the day on which the employer's notice was given.

(6) In this section, " week " in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, means a week ending with that other day, and in relation to any other employee means a week ending with Saturday.

(7) If an employer unreasonably refuses to allow an employee time off from work under this section, the employee shall, subject to subsection (11) below, be entitled to be paid an amount equal to the remuneration to which he would have been entitled under subsection (3) above if he had been allowed the time off.

(8) 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 (7) above.

(9) An industrial tribunal shall not entertain a complaint under subsection (8) above 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.

(10) If on a complaint under subsection (8) above 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.

(11) The amount—

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

(b) which may be ordered by a tribunal to be paid by an employer under subsection (7) above,

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 a week's pay of that employee.

(12) Subject to subsection (13) below, a right to any amount under subsection (3) or (7) above shall not affect any right of an employee in relation to remuneration under the contract of employment (hereafter in this section referred to as " contractual remuneration ").

(13) 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) above shall go towards discharging any liability of the employer to pay remuneration under subsection (3) above in respect of that period, and conversely any payment of remuneration under subsection (3) above 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. 57 to 61

62

For the purposes of sections 57 to 61 above—

(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 Service has made a recommendation for recognition which is operative within the meaning of section 15 above;

(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; and

Insolvency

Priority of certain debts on insolvency

63

(1) An amount to which this section applies shall be treated for the purposes of—

(a) section 33 of the Bankruptcy Act 1914 ;

(b) section 118 of the Bankruptcy (Scotland) Act 1913 ; and

as if it were wages payable by the employer to the employee in respect of the period for which it is payable.

(2) This section applies to any amount owed by an employer to an employee in respect of—

(a) a guarantee payment;

(b) remuneration on suspension on medical grounds under section 29 above;

(d) remuneration under a protective award made under section 101 below.

Employee's rights on insolvency of employer

64

(1) If on an application made to him in writing by an employee the Secretary of State is satisfied—

(a) that the employer of that employee has become insolvent ; and

(b) that on the relevant date the employee was entitled to be paid the whole or part of any debt to which this section applies,

the Secretary of State shall, subject to the provisions of this section, pay the employee out of the Redundancy Fund the amount to which in the opinion of the Secretary of State the employee is entitled in respect of that debt.

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