Employment Protection (Consolidation) Act 1978

• (5) Where the notice required to be given by an employer by section 49 would, if duly given when notice of termination was given by the employer, or (where no notice was given) when the contract of employment was terminated by the employer, expire on a date later than the effective date of termination as defined by subsection (4), that later date shall be treated as the effective date of termination in relation to the dismissal for the purposes of sections 53(2), 64(1)(a) and 73(3) and paragraph 8(3) of Schedule 14.

Failure to permit woman to return to work after confinement treated as dismissal

56

Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 but is not permitted to return to work, then she shall be treated for the purposes of this Part 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.

General provisions relating to fairness of dismissal

57

• (1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show—

• (a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

• (b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

• (2) In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which—

• (a) related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, or

• (b) related to the conduct of the employee, or

• (c) was that the employee was redundant, or

• (d) was that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

• (3) Where the employer has fulfilled the requirements of subsection (1), then, subject to sections 58 to 62, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether the employer can satisfy the tribunal that in the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee.

• (4) In this section, in relation to an employee.—

• (a) " capability " means capability assessed by reference to skill, aptitude, health or any other physical or mental quality;

• (b) " qualifications " means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held.

Dismissal relating to trade union membership

58

• (1) For the purposes of this Part, the dismissal of an employee by an employer shall be regarded as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

• (a) was, or proposed to become, a member of an inde pendent trade union;

• (b) had taken, or proposed to take, part at any appropriate time in the activities of an independent trade union; or

• (c) had refused, or proposed to refuse, to become or remain a member of a trade union which was not an independent trade union.

• (2) In subsection (1), " appropriate time" in relation to an employee taking part in the 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 m 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) Dismissal of an employee by an employer shall be regarded as fair for the purposes of this Part if—

• (a) it is the practice, in accordance with a union membership agreement, for employees for the time being of the same class as the dismissed employee to belong to a specified independent trade union, or to one of a number of specified independent trade unions; and

• (b) the reason for the dismissal was that the employee was not a member of the specified union or one of the specified unions, or had refused or proposed to refuse to become or remain a member of that union or one of those unions;

unless the employee genuinely objects on grounds of religious belief to being a member of any trade union whatsoever, in which case the dismissal shall be regarded as unfair.

• (4) For the purposes of subsection (3), a union shall be treated as specified for the purposes of or in relation to a union membership agreement (in a case where it would not otherwise be so treated) if—

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

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

• (5) Any reason by virtue of which a dismissal is to be regarded as unfair in consequence of subsection (1) or (3) is in this Part referred to as an inadmissible reason.

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

Dismissal on ground of redundancy

59

Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and either—

• (a) that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was an inadmissible reason; or

• (b) that he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his case,

then, for the purposes of this Part, the dismissal shall be regarded as unfair.

Dismissal on ground of pregnancy

60

• (1) An employee shall be treated for the purposes of this Part 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 this Part as unfairly dismissed if her employer dismisses her for a reason mentioned in subsection (1)(a) or (b), 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).

• (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), 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) or, as the case may be, that there was no suitable available vacancy for her.

• (5) Section 55(3) 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).

Dismissal of replacement

61

• (1) 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;

then, for the purposes of section 57(1)(b), but without prejudice to the application of section 57(3), 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.

• (2) 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 19 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 section 57(1)(b), but without prejudice to the application of section 57(3), 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 mat employee held.

Dismissal in connection with a lock-out, strike or other industrial action

62

• (1) The provisions of this section shall have effect in relation to an employee who claims that he has been unfairly dismissed by his employer where at the date of dismissal—

• (a) the employer was conducting or instituting a lock-out, or

• (b) the employee was taking part in a strike or other industrial action.

• (2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

• (a) that one or more relevant employees of the same employer have not been dismissed, or

• (b) that one or more such employees have been offered re-engagement, and that the employee concerned has not been offered re-engagement.

• (3) Where it is shown that the condition referred to in paragraph (b) of subsection (2) is fulfilled, the provisions of sections 57 to 60 shall have effect as if in those sections for any reference to the reason or principal reason for which the employee was dismissed there were substituted a reference to the reason or principal reason for which he has not been offered re-engagement.

• (4) In this section—

• (a) " date of dismissal " means—

• (i) where the employee's contract of employment was terminated by notice, the date on which the employer's notice was given, and

• (ii) in any other case, the effective date of termination ;

• (b) " relevant employees " means—

• (i) in relation to a lock-out, employees who were directly interested in the trade dispute in contemplation or furtherance of which the lock-out occurred and

• (ii) in relation to a strike or other industrial action, employees who took part in it; and

• (c) any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

Pressure on employer to dismiss unfairly

63

In determining, for the purposes of this Part any question as to the reason, or principal reason, for which an employee was dismissed or any question whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirements of section 57(1)(b) or whether the employer acted reasonably in treating it as a sufficient reason for dismissing him.—

• (a) 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 dismiss the employee, and

• (b) any such question shall be determined as if no such pressure had been exercised.

Exclusion of section 54

Qualifying period and upper age limit

64

• (1) Subject to subsection (3), section 54 does not apply to the dismissal of an employee from any employment if the employee—

• (a) was not continuously employed for a period of not less than twenty-six weeks ending with the effective date of termination, or

• (b) on or before the effective date of termination attained the age which, in the undertaking in which he was employed, was the normal retiring age for an employee holding the position which he held, or, if a man, attained the age of sixty-five, or, if a woman, attained the age of sixty.

• (2) If an employee is dismissed by reason of any such requirement or recommendation as is referred to in section 19(1), subsection (1)(a) shall have effect in relation to that dismissal as if for the words " twenty-six weeks " there were substituted the words " four weeks ".

• (3) Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal was an inadmissible reason.

Exclusion in respect of dismissal procedures agreement

65

• (1) An application may be made jointly to the Secretary of State by all the parties to a dismissal procedures agreement to make an order designating that agreement for the purposes of this section.

• (2) On any such application the Secretary of State may make such an order if he is satisfied—

• (a) that every trade union which is a party to the dismissal procedures agreement is an independent trade union;

• (b) that the agreement provides for procedures to be followed in cases where an employee claims that he has been, or is in the course of being, unfairly dismissed ;

• (c) that those procedures are available without discrimination to all employees falling within any description to which the agreement applies ;

• (d) that the remedies provided by the agreement in respect of unfair dismissal are on the whole as beneficial as (but not necessarily identical with) those provided in respect of unfair dismissal by this Part;

• (e) that the procedures provided by the agreement include a right to arbitration or adjudication by an independent referee, or by a tribunal or other independent body, in cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached; and

• (f) that the provisions of the agreement are such that it can be determined with reasonable certainty whether a particular employee is one to whom the agreement applies or not.

• (3) Where a dismissal procedures agreement is designated by an order under this section which is for the time being in force, the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under section 54 ; and accordingly that section shall not apply to the dismissal of an employee from any employment if it is employment to which, and he is an employee to whom, those provisions of the agreement apply.

• (4) Subsection (3) shall not apply to the right not to be unfairly dismissed for any reason mentioned in subsection (1) or (2) of section 60.

Revocation of exclusion order under s. 65

66

• (1) At any time when an order under section 65 is in force, any of the parties to the dismissal procedures agreement to which the order relates may apply to the Secretary of State for the order to be revoked.

• (2) If on any such application the Secretary of State is satisfied either—

• (a) that it is the desire of all the parties to the dismissal procedures agreement that the order should be revoked or

• (b) that the agreement has ceased to fulfil all the conditions specified in section 65(2),

the Secretary of State shall revoke the order by a further order made under this section.

• (3) Any order made under this section may contain such transitional provisions as appear to the Secretary of State to be appropriate in the circumstances, and, in particular, may direct—

• (a) that, notwithstanding section 65(3), an employee shall not be excluded from his rights under section 54 where the effective date of termination falls within a transitional period which is specified in the order and is a period ending with the date on which the order under this section takes effect and shall have an extended time for presenting a complaint under section 67 in respect of a dismissal where the effective date of termination falls within that period, and

• (b) that in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, where the effective date of termination falls within that transitional period, an industrial tribunal shall have regard to such considerations (in addition to those specified in this Part and paragraph 2 of Schedule 9) as may be specified in the order.

Remedies for unfair dismissal

Complaint to industrial tribunal

67

• (1) A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.

• (2) Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination 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 before the end of the period of three months.

• (3) Subsection (2) shall apply in relation to a complaint to which section 62(3) applies as if for the reference to the effective date of termination there were substituted a reference to the first date on which any relevant employee was offered re-engagement (within the meaning of section 62(4)).

• (4) An industrial tribunal shall consider a complaint under this section if, where the dismissal is with notice, the complaint is presented after the notice is given notwithstanding that it is presented before the effective date of termination and in relation to such a complaint the provisions of this Act, so far as they relate to unfair dismissal, shall have effect—

• (a) as if references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires ;

• (b) as if references to reinstatement included references to the withdrawal of the notice by the employer;

• (c) as if references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice ; and

• (d) as if references to an employee ceasing to be employed included references to an employee having been given notice of dismissal.

Remedies for unfair dismissal

68

• (1) Where on a complaint under section 67 an industrial tribunal finds that the grounds of the complaint are well-founded, it shall explain to the complainant what orders for reinstatement or re-engagement may be made under section 69 and in what circumstances they may be made, and shall ask him whether he wishes the tribunal to make such an order, and if he does express such a wish the tribunal may make an order under section 69.

• (2) If on a complaint under section 67 the tribunal finds that the grounds of the complaint are well-founded and no order is made under section 69, the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with sections 72 to 74, to be paid by the employer to the employee.

Order for reinstatement or re-engagement

69

• (1) An order under this section may be an order for reinstatement (in accordance with subsections (2) and (3)) or an order for re-engagement (in accordance with subsection (4)), as the industrial tribunal may decide, and in the latter case may be on such terms as the tribunal may decide.

• (2) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed, and on making such an order the tribunal shall specify—

• (a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal, including arrears of pay, for the period between the date of termination of employment and the date of reinstatement;

• (b) any rights and privileges, including seniority and pension rights, which must be restored to the employee; and

• (c) the date by which the order must be complied with.

• (3) Without prejudice to the generality of subsection (2), if the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.

• (4) An order for re-engagement is an order that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment, and on making such an order the tribunal shall specify the terms on which re-engagement is to take place including—

• (a) the identity of the employer ;

• (b) the nature of the employment;

• (c) the remuneration for the employment;

• (d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal, including arrears of pay, for the period between the date of termination of employment and the date of re-engagement;

• (e) any rights and privileges, including seniority and pension rights, which must be restored to the employee ; and

• (f) the date by which the order must be complied with.

• (5) In exercising its discretion under this section the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account the following considerations, that is to say—

• (a) whether the complainant wishes to be reinstated ;

• (b) whether it is practicable for the employer to comply with an order for reinstatement;

• (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

• (6) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and if so on what terms; and in so doing the tribunal shall take into account the following considerations, that is to say—

• (a) any wish expressed by the complainant as to the nature of the order to be made;

• (b) whether it is practicable for the employer or, as the case may be, a successor or associated employer to comply with an order for re-engagement;

• (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and if so on what terms;

and except in a case where the tribunal takes into account contributory fault under paragraph (c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.

Supplementary provisions relating to s. 69

70

• (1) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (5)(b) or (6)(b) of section 69, whether it is practicable to comply with an order for reinstatement or re-engagement unless the employer shows—

• (a) that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement; or

• (b) that he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and that when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee's work to be done except by a permanent replacement.

• (2) In calculating for the purpose of subsection (2)(c) or (4)(d) of section 69 any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement or re-engagement by way of—

• (a) wages in lieu of notice or ex gratia payments paid by the employer;

• (b) remuneration paid in respect of employment with another employer;

and such other benefits as the tribunal thinks appropriate in the circumstances.

Enforcement of s. 69 order and compensation

71

• (1) If an order under section 69 is made and the complainant is reinstated or, as the case may be, re-engaged but the terms of the order are not fully complied with, then, subject to section 75, an industrial tribunal shall make an award of compensation, to be paid by the employer to the employee, of such amount as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order.

• (2) Subject to subsection (1), if an order under section 69 is made but the complainant is not reinstated or, as the case may be, re-engaged in accordance with the order—

• (a) the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with sections 72 to 74, to be paid by the employer to the employee; and

• (b) unless the employer satisfies the tribunal that it was not practicable to comply with the order, the tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount—

• (i) where the dismissal is of a description referred to in subsection (3), not less than twenty-six nor more than fifty-two weeks' pay, or

• (ii) in any other case, not less than thirteen nor more than twenty-six weeks' pay.

• (3) The descriptions of dismissal in respect of which an employer may incur a higher additional award in accordance with subsection (2)(b)(i) are the following, that is to say.—

• (a) a dismissal which is unfair by virtue of section 58(1) or (3);

• (b) a dismissal which is an act of discrimination within the meaning of the Sex Discrimination Act 1975 which is unlawful by virtue of that Act;

• (c) a dismissal which is an act of discrimination within the meaning of the Race Relations Act 1976 which is unlawful by virtue of that Act.

• (4) Where in any case an employer has engaged a permanent replacement for a dismissed employee the tribunal shall not take that fact into account in determining, for the purposes of subsection (2)(b) whether it was practicable to comply with the order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement.

• (5) Where in any case an industrial tribunal makes an award of compensation for unfair dismissal, calculated in accordance with sections 72 to 74, and the tribunal finds that the complainant has unreasonably prevented an order under section 69 from being complied with, it shall, without prejudice to the generality of section 74(4), take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Amount of compensation

Compensation for unfair dismissal

72

Where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) the award shall consist of a basic award (calculated in accordance with section 73) and a compensatory award (calculated in accordance with section 74).

Calculation of basic award

73

• (1) The amount of the basic award shall be the amount calculated in accordance with subsections (3) to (6), subject to—

• (a) subsection (2) of this section (which provides for an award of two weeks' pay in certain redundancy cases);

• (b) subsection (7) (which provides for the amount of the award to be reduced where the employee contributed to the dismissal);

• (c) subsection (8) (which provides for a minimum award of two weeks' pay in certain cases);

• (d) subsection (9) (which provides for the amount of the award to be reduced where the employee received a payment in respect of redundancy); and

• (e) section 76 (which prohibits compensation being awarded under this Part and under the Sex Discrimination Act 1975 or the Race Relations Act 1976 in respect of the same matter).

• (2) The amount of the basic award shall be two weeks' pay where the tribunal finds that the reason or principal reason for the dismissal of the employee was that he was redundant and the employee—

• (a) by virtue of section 82(5) or (6) is not, or if he were otherwise entitled would not be, entitled to a redundancy payment; or

• (b) by virtue of the operation of section 84(1) is not treated as dismissed for the purposes of Part VI.

• (3) The amount of the basic award shall be calculated by reference to the period, ending with the effective date of termination, during which the employee has been continuously employed, by starting at the end of that period and reckoning backwards the numbers of years of employment falling within that period, and allowing—

• (a) one and a half weeks' pay for each such year of employment which consists wholly of weeks in which the employee was not below the age of forty-one;

• (b) one week's pay for each such year of employment which consists wholly of weeks in which the employee was below the age of forty-one and was not below the age of twenty-two; and

• (c) half a week's pay for each such year of employment which consists wholly of weeks in which the employee was below the age of twenty-two and was not below the age of eighteen.

• (4) Where, in reckoning the number of years of employment in accordance with subsection (3), twenty years of employment have been reckoned no account shall be taken of any year of employment earlier than those twenty years.

• (5) Where in the case of an employee the effective date of termination is after the specified anniversary the amount of the basic award calculated in accordance with subsections (3) and (4) shall be reduced by the appropriate fraction.

• (6) In subsection (5) " the specified anniversary " in relation to a man means the sixty-fourth anniversary of the day of his birth, and in relation to a woman means the fifty-ninth anniversary of the day of her birth, and " the appropriate fraction " means the fraction of which—

• (a) the numerator is the number of whole months reckoned from the specified anniversary in the period beginning with that anniversary and ending with the effective date of termination; and

• (b) the denominator is twelve.

• (7) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall, except in a case where the dismissal was by reason of redundancy, reduce the amount of the basic award by such proportion as it considers just and equitable having regard to that finding.

• (8) Where the amount calculated in accordance with subsections (3) to (7) is less than the amount of two weeks' pay, the amount of the basic award shall be two weeks' pay.

• (9) The amount of the basic award shall be reduced or, as the case may be, be further reduced, by the amount of any redundancy payment awarded by the tribunal under Part VI in respect of the same dismissal or of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise.

Calculation of compensatory award

74

• (1) Subject to sections 75 and 76, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

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

• (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and

• (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.

• (3) The said loss, in respect of any loss of any entitlement or potential entitlement to, or expectation of, a payment on account of dismissal by reason of redundancy, whether in pursuance of Part VI or otherwise, shall include only the loss referable to the amount, if any, by which the amount of that payment would have exceeded the amount of a basic award (apart from any reduction under section 73(7) or (9)) in respect of the same dismissal.

• (4) 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.

• (5) In determining, for the purposes of subsection (1), how far any loss sustained by the complainant was attributable to action taken by the employer 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 dismiss the employee, and that question shall be determined as if no such pressure had been exercised.

• (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

• (7) If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise, exceeds the amount of the basic award which would be payable but for section 73(9) that excess shall go to reduce the amount of the compensatory award.

Limit on compensation.

75

• (1) The amount of compensation awarded to a person under section 71(1) or of a compensatory award to a person calculated in accordance with section 74 shall not exceed £5,200.

• (2) The Secretary of State may by order increase the said nmit of £5,200 or that limit as from time to time increased under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

• (3) It is hereby declared for the avoidance of doubt that the limit imposed by this section applies to the amount which the industrial tribunal would, apart from this section, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law.

Compensation for act which is both sex or racial discrimination (or both) and unfair dismissal

76

• (1) Where compensation falls to be awarded in respect of any act both under the provisions of this Act relating to unfair dismissal and under one or both of the following Acts, namely the Sex Discrimination Act 1975 and the Race Relations Act 1976, an industrial tribunal shall not award compensation under any one of those two or, as the case may be, three Acts in respect of any loss or other matter which is or has been taken into account under the other or any other of them by the tribunal or another industrial tribunal in awarding compensation on the same or another complaint in respect of that act.

• (2) Without prejudice to section 75 (whether as enacted or as applied by section 65 of the Sex Discrimination Act 1975 or section 56 of the Race Relations Act 1976) in a case to which subsection (1) applies, the aggregate of the following amounts of compensation awarded by an industrial tribunal, that is to say—

• (a) any compensation awarded under the said Act of 1975 ; and

• (b) any compensation awarded under the said Act of 1976 ; and

• (c) any compensation awarded under section 71(1) or, as the case may be, which is calculated in accordance with section 74,

shall not exceed the limit for the time being imposed by section 75.

Interim relief

Interim relief pending determination of complaint of unfair dismissal

77

• (1) An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed by his employer and that the reason for the dismissal (or, if more than one, the principal reason) was that the employee—

• (a) was, or proposed to become, a member of a particular independent trade union ; or

• (b) had taken, or proposed to take, part at any appropriate time in the activities of a particular independent trade union of which he was or proposed to become a member;

may, subject to the following provisions of this section, apply to the tribunal for an order under the following provisions of this section.

• (2) An industrial tribunal shall not entertain an application under this section unless—

• (a) it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date); and

• (b) before the end of that period there is also so presented a certificate in writing signed by an authorised official of the independent trade union of which the employee was or had proposed to become a member stating that on the date of the dismissal the employee was or had proposed to become a member of the union and that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.

• (3) An industrial tribunal shall determine an application under this section as soon as practicable after receiving the application and the relevant certificate, but shall, at least seven days before the date of the hearing, give the employer a copy of the application and certificate, together with notice of the date, time and place of the hearing.

• (4) An industrial tribunal shall not exercise any power it has of postponing the hearing in the case of an application under this section except where the tribunal is satisfied that special circumstances exist which justify it in doing so.

• (5) If on hearing an application under this section it appears to an industrial tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the complainant was unfairly dismissed and that the reason for the dismissal (or if more than one, the principal reason) was a reason mentioned in subsection (1), the tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on an application under this section and in what circumstances it may exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—

• (a) to reinstate the employee, that is to say, to treat the employee in all respects as if he had not been dismissed ; or

• (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

• (6) In subsection (5) " terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed " means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.

• (7) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.

• (8) If the employer states that he is willing to re-engage the employee in another job and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions, and—

• (a) if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect; and

• (b) if the employee is unwilling to accept the job on those terms and conditions, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, but otherwise the tribunal shall make no order under this section.

• (9) If, on the hearing of an application under this section, the employer fails to attend before the tribunal or he states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (5), the tribunal shall make an order for the continuation of the employee's contract of employment.

• (10) In this section—

• " appropriate time " has the same meaning as in section 23;

• " authorised official ", in relation to a trade union, means an official of the union authorised by the union to act for the purposes of this section ;

and any reference to the date of dismissal is a reference—

• (a) where the employee's contract of employment was terminated by notice (whether given by his employer or by him), to the date on which the employer's notice was given; and

• (b) in any other case, to the effective date of termination.

• (11) A document purporting to be an authorisation of an official by a trade union to act for the purposes of this section and to be signed on behalf of the union shall be taken to be such an authorisation unless the contrary is proved, and a document purporting to be a certificate signed by such an official shall be taken to be signed by him unless the contrary is proved.

Orders for continuation of contract of employment

78

• (1) An order for the continuation of a contract of employment under section 77 shall be an order that the contract of employment, if it has been terminated, shall continue in force as if it had not been terminated and if not, shall on its termination, continue in force, in either case until the determination or settlement of the complaint and only for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters and for the purpose of determining for any purpose the period for which the employee has been continuously employed.

• (2) Where the tribunal makes any such order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period or part of any such period falling between the date of the dismissal and the determination or settlement of the complaint and, subject to subsection (5), the amount so specified shall be that which the employee could reasonably have been expected to earn during that period or part, and shall be paid, in the case of a payment for any such period falling wholly or partly after the order, on the normal pay day for that period and, in the case of a payment for any past period, within a time so specified.

• (3) If an amount is payable by way of pay in pursuance of any such order in respect only of part of a normal pay period the amount shall be calculated by reference to the whole period and be reduced proportionately.

• (4) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of any normal pay period or part of any such period shall go towards discharging the employer's liability in respect of that period under subsection (2), and conversely any payment under subsection (2) in respect of any period shall go towards discharging any liability of the employer under, or in respect of breach of, the contract of employment in respect of that period.

• (5) If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.

• (6) For the purposes of this section the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed.

Supplementary provisions relating to interim relief

79

• (1) At any time between the making of an order by an industrial tribunal under section 77 and the determination or settlement of the complaint to which it relates, the employer or the employee may apply to the tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order, and that section shall apply to the application as it applies to an application for an order under that section except that—

• (a) no certificate need be presented to the tribunal under subsection (2)(b), and no copy of the certificate need be given to the employer under subsection (3), of that section; and

• (b) in the case of an application by an employer, for the reference in the said subsection (3) to the employer there shall be substituted a reference to the employee.

• (2) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under section 77(7) or (8).—

• (a) the tribunal shall make an order for the continuation of the employee's contract of employment and section 78 shall apply to an order under this subsection as it applies to an order for the continuation of a contract of employment under section 77 ; and

• (b) the tribunal shall also order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the employee's right to be reinstated or re-engaged in pursuance of the order under section 77(7) or (8) and to any loss suffered by the employee in consequence of the non-compliance.

• (3) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment, then—

• (a) if the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the tribunal shall determine the amount of pay owed by the employer to the employee on the date of the determination, and, if on that date the tribunal also determines the employee's complaint that he has been unfairly dismissed by his employer, the tribunal shall specify that amount separately from any other sum awarded to the employee; and

• (b) in any other case, the tribunal shall order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance.

Teachers in aided schools

Teacher in aided school dismissed on requirement of local education authority

80

• (1) Where a teacher in an aided school is dismissed by the governors or managers of the school in pursuance of a requirement of the local education authority under paragraph (a) of the proviso to section 24(2) of the Education Act 1944, this Part shall have effect in relation to the dismissal as if—

• (a) the local education authority had at all material times been the teacher's employer, and

• (b) the local education authority had dismissed him, and the reason or principal reason for which they did so had been the reason or principal reason for which they required his dismissal.

• (2) For the purposes of a complaint under section 67 as applied by this section—

• (a) section 71(2)(b) shall have effect as if for the words " not practicable to comply" there were substituted the words " not practicable for the local education authority to permit compliance "; and

• (b) section 74(5) shall have effect as if any reference to the employer were a reference to the local education authority.

PART VI — Redundancy Payments

Right to redundancy payment

General provisions as to right to redundancy payment

81

• (1) Where an employee who has been continuously employed for the requisite period—

• (a) is dismissed by his employer by reason of redundancy, or

• (b) is laid off or kept on short-time to the extent specified in subsection (1) of section 88 and complies with the requirements of that section,

then, subject to the following provisions of this Act, the employer shall be liable to pay to him a sum (in this Act referred to as a " redundancy payment") calculated in accordance with Schedules 4, 13 and 14.

• (2) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

• (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

• (b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish.

For the purposes of this subsection, the business of the employer together with the business or businesses of his associated employers shall be treated as one unless either of the conditions specified in this subsection would be satisfied without so treating those businesses.

• (3) In subsection (2), "cease" means cease either permanently or temporarily and from whatsoever cause, and " diminish " has a corresponding meaning.

• (4) For the purposes of subsection (1), the requisite period is the period of two years ending with the relevant date, excluding any week which began before the employee attained the age of eighteen.

General exclusions from right to redundancy payment

82

• (1) An employee shall not be entitled to a redundancy payment if immediately before the relevant date the employee—

• (a) if a man, has attained the age of sixty-five, or

• (b) if a woman, has attained the age of sixty.

• (2) Except as provided by section 92, an employee shall not be entitled to a redundancy payment by reason of dismissal where his employer, being entitled to terminate his contract of employment without notice by reason of the employee's conduct, terminates it either—

• (a) without notice, or

• (b) by giving shorter notice than that which, in the absence of such conduct, the employer would be required to give to terminate the contract, or

• (c) by giving notice (not being such shorter notice as is mentioned in paragraph (b)) which includes, or is accompanied by, a statement in writing that the employer would, by reason of the employee's conduct, be entitled to terminate the contract without notice.

• (3) If an employer makes an employee an offer (whether in writing or not) before the ending of his employment under the previous contract to renew his contract of employment, or to re-engage him under a new contract of employment, so that the renewal or re-engagement would take effect either immediately on the ending of his employment under the previous contract or after an interval of not more than four weeks thereafter, the provisions of subsections (5) and (6) shall have effect.

• (4) For the purposes of the application of subsection (3) to a contract under which the employment ends on a Friday, Saturday or Sunday—

• (a) the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next Monday after that Friday, Saturday or Sunday; and

• (b) the interval of four weeks shall be calculated as if the employment had ended on that Monday.

• (5) If an employer makes an employee such an offer as is referred to in subsection (3) and either—

• (a) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract; or

• (b) the first-mentioned provisions would differ (wholly or in part) from those corresponding provisions, but the offer constitutes an offer of suitable employment in relation to the employee ;

and in either case the employee unreasonably refuses that offer, he shall not be entitled to a redundancy payment by reason of his dismissal.

• (6) If an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of such an offer as is referred to in subsection (3), and the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, differ (wholly or in part) from the corresponding provisions of the previous contract but the employment is suitable in relation to the employee, and during the trial period referred to in section 84 the employee unreasonably terminates the contract, or unreasonably gives notice to terminate it and the contract is thereafter, in consequence, terminated, he shall not be entitled to a redundancy payment by reason of his dismissal from employment under the previous contract.

• (7) Any reference in this section to re-engagement by the employer shall be construed as including a reference to re-engagement by the employer or by any associated employer, and any reference in this section to an offer made by the employer shall be construed as including a reference to an offer made by an associated employer.

Dismissal by employer

83

• (1) In this Part, except as respects a case to which section 86 applies, "dismiss" and "dismissal" shall, subject to sections 84, 85 and 93, be construed in accordance with subsection (2).

• (2) An employee shall be treated as dismissed by his employer if, but only if.—

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

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

• (c) the employee terminates that contract with or without notice, in circumstances (not falling within section 92(4)) such that he is entitled to terminate it without notice by reason of the employer's conduct.

Renewal of contract or re-engagement

84

• (1) If an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made by his employer before the ending of his employment under the previous contract, and the renewal or re-engagement takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter, then, subject to subsections (3) to (6), the employee shall not be regarded as having been dismissed by his employer by reason of the ending of his employment under the previous contract.

• (2) For the purposes of the application of subsection (1) to a contract under which the employment ends on a Friday, Saturday or Sunday—

• (a) the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment if it takes effect on or before the Monday after that Friday, Saturday or Sunday, and

• (b) the interval of four weeks referred to in that subsection shall be calculated as if the employment had ended on that Monday.

• (3) If, in a case to which subsection (1) applies, the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which the employee is employed, and as to the other terms and conditions of his employment, differ (wholly or in part) from the corresponding provisions of the previous contract, there shall be a trial period in relation to the contract as renewed, or the new contract (whether or not there has been a previous trial period under this section).

• (4) The trial period shall begin with the ending of the employee's employment under the previous contract and end with the expiration of the period of four weeks beginning with the date on which the employee starts work under the contract as renewed, or the new contract, or such longer period as may be agreed in accordance with the next following subsection for the purpose of retraining the employee for employment under that contract.

• (5) Any such agreement shall—

• (a) be made between the employer and the employee or his representative before the employee starts work under the contract as renewed or, as the case may be, the new contract;

• (b) be in writing ;

• (c) specify the date of the end of the trial period; and

• (d) specify the terms and conditions of employment which will apply in the employee's case after the end of that period.

• (6) If during the trial period—

• (a) the employee, for whatever reason, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated; or

• (b) the employer, for a reason connected with or arising out of the change to the renewed, or new, employment, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated,

then, unless the employee's contract of employment is again renewed, or he is again re-engaged under a new contract of employment, in circumstances such that subsection (1) again applies, he shall be treated as having been dismissed on the date on which his employment under the previous contract or, if there has been more than one trial period, the original contract ended for the reason for which he was then dismissed or would have been dismissed had the offer (or original offer) of renewed, or new, employment not been made, or, as the case may be, for the reason which resulted in that offer being made.

• (7) Any reference in this section to re-engagement by the employer shall be construed as including a reference to re-engagement by the employer or by any associated employer, and any reference in this section to an offer made by the employer shall be construed as including a reference to an offer made by an associated employer.

Employee anticipating expiry of employer's notice

85

• (1) The provisions of this section shall have effect where—

• (a) an employer gives notice to an employee to terminate his contract of employment, and

• (b) at a time within the obligatory period of that notice, the employee gives notice in writing to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire.

• (2) Subject to the following provisions of this section, in the circumstances specified in subsection (1) the employee shall, for the purposes of this Part, be taken to be dismissed by his employer.

• (3) If, before the employee's notice is due to expire, the employer gives him notice in writing—

• (a) requiring him to withdraw his notice terminating the contract of employment as mentioned in subsection (1)(b) and to continue in the employment until the date on which the employer's notice expires, and

• (b) stating that, unless he does so, the employer will contest any liability to pay to him a redundancy payment in respect of the termination of his contract of employment,

but the employee does not comply with the requirements of that notice, the employee shall not be entitled to a redundancy payment by virtue of subsection (2) except as provided by subsection (4).

• (4) Where, in the circumstances specified in subsection (1), the employer has given notice to the employee under subsection (3), and on a reference to a tribunal it appears to the tribunal, having regard both to the reasons for which the employee seeks to leave the employment and those for which the employer requires him to continue in it, to be just and equitable that the employee should receive the whole or part of any redundancy payment to which he would have been entitled apart from subsection (3), the tribunal may determine that the employer shall be liable to pay to the employee—

• (a) the whole of the redundancy payment to which the employee would have been so entitled, or

• (b) such part of that redundancy payment as the tribunal thinks fit.

• (5) In this section—

• (a) if the actual period of the employer's notice (that is to say, the period beginning at the time when the notice is given and ending at the time when it expires) is equal to the minimum period which (whether by virtue of any enactment or otherwise) is required to be given by the employer to terminate the contract of employment, "the obligatory period", in relation to that notice, means the actual period of the notice;

• (b) in any other case, " the obligatory period ", in relation to an employer's notice, means that period which, being equal to the minimum period referred to in paragraph (a), expires at the time when the employer's notice expires.

Failure to permit woman to return to work after confinement treated as dismissal

86

Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 but is not permitted to return to work, then she shall be treated for the purposes of the provisions of this Part 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.

Lay-off and short-time

87

• (1) Where an employee is employed under a contract on such terms and conditions that his remuneration thereunder depends on his being provided by the employer with work of the kind which he is employed to do, he shall, for the purposes of this Part, be taken to be laid off for any week in respect of which, by reason that the employer does not provide such work for him, he is not entitled to any remuneration under the contract.

• (2) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for any week is less than half a week's pay, he shall for the purposes of this Part be taken to be kept on short-time for that week.

Right to redundancy payment by reason of lay-off or short-time

88

• (1) An employee shall not be entitled to a redundancy payment by reason of being laid off or kept on short-time unless he gives notice in writing to his employer indicating (in whatsoever terms) his intention to claim a redundancy payment in respect of lay-off or short-time (in this Act referred to as a " notice of intention to claim ") and, before the service of that notice, either—

• (a) he has been laid off or kept on short-time for four or more consecutive weeks of which the last before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date, or

• (b) he has been laid off or kept on short-time for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date.

• (2) Where an employee has given notice of intention to claim.—

• (a) he shall not be entitled to a redundancy payment in pursuance of that notice unless he terminates his contract of employment by a week's notice which (whether given before or after or at the same time as the notice of intention to claim) is given before the end of the period allowed for the purposes of this paragraph (as specified in subsection (5) of section 89), and

• (b) he shall not be entitled to a redundancy payment in pursuance of the notice of intention to claim if he is dismissed by his employer (but without prejudice to any right to a redundancy payment by reason of the dismissal):

Provided that, if the employee is required by his contract of employment to give more than a week's notice to terminate the contract, the reference in paragraph (a) to a week's notice shall be construed as a reference to the minimum notice which he is so required to give.

• (3) Subject to subsection (4), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

• (4) Subsection (3) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

Supplementary provisions relating to redundancy payments in respect of lay-off or short-time

89

• (1) If, in a case where an employee gives notice of intention to claim and the employer gives notice under section 88(4) (in this section referred to as a " counter-notice "), the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (3) of section 88 was not fulfilled.

• (2) For the purposes of both subsection (1) of section 88 and subsection (1) of this section, it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other.

• (3) For the purposes mentioned in subsection (2), no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out (within the meaning of paragraph 24 of Schedule 13) whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in Great Britain or elsewhere.

• (4) Where the employer gives a counter-notice within seven days after the service of a notice of intention to claim, and does not withdraw the counter-notice by a subsequent notice in writing, the employee shall not be entitled to a redundancy payment in pursuance of the notice of intention to claim except in accordance with a decision of an industrial tribunal.

• (5) The period allowed for the purposes of subsection (2)(a) of section 88 is as follows, that is to say.—

• (a) if the employer does not give a counter-notice within seven days after the service of the notice of intention to claim, that period is three weeks after the end of those seven days;

• (b) if the employer gives a counter-notice within those seven days, but withdraws it by a subsequent notice in writing, that period is three weeks after tie service of the notice of withdrawal;

• (c) if the employer gives a counter-notice within those seven days and does not so withdraw it, and a question as to the right of the employee to a redundancy payment in pursuance of the notice of intention to claim is referred to a tribunal, that period is three weeks after the tribunal has notified to the employee its decision on that reference.

• (6) For the purposes of paragraph (c) of subsection (5) no account shall be taken of any appeal against the decision of the tribunal, or of any requirement to the tribunal to state a case for the opinion of the High Court or the Court of Session, or of any proceedings or decision in consequence of such an appeal or requirement.

The relevant date

90

• (1) Subject to the following provisions of this section, for the purposes of the provisions of this Act so far as they relate to redundancy payments, " the relevant date ", in relation to the dismissal of an employee—

• (a) where his contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires ;

• (b) where his contract of employment is terminated without notice, means the date on which the termination takes effect;

• (c) where he is employed under a contract for a fixed term and that term expires as mentioned in subsection (2)(b) of section 83, means the date on which that term expires;

• (d) where he is treated, by virtue of subsection (6) of section 84, as having been dismissed on the termination of his employment under a previous contract, means—

• (i) for the purposes of section 101, the date which is the relevant date as defined by paragraph (a), (b) or (c) in relation to the renewed, or new, contract, or, where there has been more than one trial period under section 84, the last such contract; and

• (ii) for the purposes of any other provision, the date which is the relevant date as defined by paragraph (a), (b) or (c) in relation to the previous contract, or, where there has been more than one trial period under section 84, the original contract; and

• (e) where he is taken to be dismissed by virtue of section 85(2), means the date on which the employee's notice to terminate his contract of employment expires.

• (2) " The relevant date ", in relation to a notice of intention to claim or a right to a redundancy payment in pursuance of such a notice.—

• (a) in a case falling within paragraph (a) of subsection (1) of section 8, means the date on which the last of the four or more consecutive weeks before the service of the notice came to an end, and

• (b) in a case falling within paragraph (b) of that subsection, means the date on which the last of the series of six or more weeks before the service of the notice came to an end.

• (3) Where the notice required to be given by an employer to terminate a contract of employment by section 49(1) would, if duly given when notice of termination was given by the employer, or (where no notice was given) when the contract of employment was terminated by the employer, expire on a date later than the relevant date as defined by subsection (1), then for the purposes of section 81(4) and paragraph 1 of Schedule 4 and paragraph 8(4) of Schedule 14, that later date shall be treated as the relevant date in relation to the dismissal.

Reference of questions to tribunal

91

• (1) Any question arising under this Part as to the right of an employee to a redundancy payment, or as to the amount of a redundancy payment, shall be referred to and determined by an industrial tribunal.

• (2) For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

• (3) In relation to lay-off or short-time, the questions which may be referred to and determined by an industrial tribunal, as mentioned in subsection (1), shall include any question whether an employee will become entitled to a redundancy payment if he is not dismissed by his employer and he terminates his contract of employment as mentioned in subsection (2)(a) of section 88; and any such question shall for the purposes of this Part be taken to be a question as to the right of the employee to a redundancy payment.

Special provisions as to termination of contract in cases of misconduct or industrial dispute

92

• (1) Where at any such time as is mentioned in subsection (2), an employee who—

• (a) has been given notice by his employer to terminate his contract of employment, or

• (b) has given notice to his employer under subsection (1) of section 88,

takes part in a strike, in such circumstances that the employer is entitled, by reason of his taking part in the strike, to treat the contract of employment as terminable without notice, and the employer for that reason terminates the contract as mentioned in subsection (2) of section 82, that subsection shall not apply to that termination of the contract.

• (2) The times referred to in subsection (1) are—

• (a) in a case falling within paragraph (a) of that subsection any time within the obligatory period of the employer's notice (as defined by section 85(5)), and

• (b) in a case falling within paragraph (b) of subsection (1), any time after the service of the notice mentioned in that paragraph.

• (3) Where at any such time as is mentioned in subsection (2) an employee's contract of employment, otherwise than by reason of his taking part in a strike, is terminated by his employer in the circumstances specified in subsection (2) of section 82, and is so terminated as mentioned therein, and on a reference to an industrial tribunal it appears to the tribunal, in the circumstances of the case, to be just and equitable that the employee should receive the whole or part of any redundancy payment to which he would have been entitled apart from section 82(2), the tribunal may determine that the employer shall be liable to pay to the employee—

• (a) the whole of the redundancy payment to which the employee would have been so entitled, or

• (b) such part of that redundancy payment as the tribunal thinks fit.

• (4) Where an employee terminates his contract of employment without notice, being entitled to do so by reason of a lock-out by his employer, section 83 (2) (c) shall not apply to that termination of the contract.

• (5) In this section " strike " and " lock-out" each has the meaning given by paragraph 24 of Schedule 13.

Implied or constructive termination of contract

93

• (1) Where in accordance with any enactment or rule of law—

• (a) any act on the part of an employer, or

• (b) any event affecting an employer (including, in the case of an individual, his death),

operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Part be treated as a termination of the contract by the employer, if apart from this subsection it would not constitute a termination of the contract by him and, in particular, the provisions of sections 83, 84 and 90 shall apply accordingly.

• (2) Where subsection (1) applies, and the employee's contract of employment is not renewed, and he is not re-engaged under a new contract of employment, so as to be treated, by virtue of section 84(1), as not having been dismissed, he shall, without prejudice to section 84(6), be taken for the purposes of this Part to be dismissed by reason of redundancy if the circumstances in which his contract is not so renewed and he is not so re-engaged are wholly or mainly attributable to one or other of the facts specified in paragraphs (a) and (b) of section 81(2)

• (3) For the purposes of subsection (2), section 81(2) (a), in so far as it relates to the employer ceasing or intending to cease to carry on the business, shall be construed as if the reference to the employer included a reference to any person to whom, in consequence of the act or event in question, power to dispose of the business has passed.

• (4) In this section, any reference to section 84(1) includes a reference to that subsection as applied by section 94(2) or as so applied and (where appropriate) modified by section 95(2), and where section 84(1) applies as so modified the references in subsection (2) of this section to renewal of or re-engagement under a contract of employment shall be construed as including references to renewal of or re-engagement in employment otherwise than under a contract of employment.

Change of ownership of business

94

• (1) The provisions of this section shall have effect where—

• (a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business, and

• (b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as "the previous owner ") terminates the employee's contract of employment, whether by notice or without notice.

• (2) If, by agreement with the employee, the person who immediately after the change occurs is the owner of the business, or of the part of the business in question, as the case may be (in this section referred to as " the new owner "), renews the employee's contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, sections 84 and 90 shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner).

• (3) If the new owner offers to renew the employee's contract of employment (with the substitution of the new owner for the previous owner) or to re-engage him under a new contract of employment, subsections (3) to (6) of section 82 shall have effect subject to subsection (4), in relation to that offer as they would have had effect in relation to the like offer made by the previous owner.

• (4) For the purposes of the operation, in accordance with subsection (3), of subsections (3) to (6) of section 82 in relation to an offer made by the new owner—

• (a) the offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, as the case may be, would differ from the corresponding provisions of the contract as in force immediately before the dismissal by reason only that the new owner would be substituted for the previous owner as the employer, and

• (b) no account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable or, as the case may be, whether the employee acted reasonably in terminating the renewed, or new, employment during the trial period referred to in section 84.

• (5) The preceding provisions of this section shall have effect (subject to the necessary modifications) in relation to a case where—

• (a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

• (b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as those provisions have effect where the previous owner and the new owner are wholly different persons.

• (6) Sections 82(7) and 84(7) shall not apply in any case to which this section applies.

• (7) Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract.

Transfer to Crown employment

95

• (1) Section 94 shall apply to a transfer of functions from a person not acting on behalf of the Crown (in this section referred to as the transferor) to a government department or any other officer or body exercising functions on behalf of the Crown (in this section referred to as the transferee) as that section applies to a transfer of a business, but with the substitution for references to the previous owner and new owner of references to the transferor and transferee respectively.

• (2) In so far as the renewal or re-engagement of the employee by the transferee is in employment otherwise than under a contract of employment—

• (a) references in section 94 (and in sections 82(4) to (6), 84 and 90 as they apply by virtue of that section) to a contract of employment or to the terms of such a contract shall be construed as references to employment otherwise than under such a contract and to the terms of such employment; and

• (b) references in subsection (4) of section 94, as modified by subsection (1) of this section, to the substitution of the transferee for the transferor shall be construed as references to the substitution of employment by the transferee otherwise than under a contract of employment for employment by the transferor under such a contract.

Exemption orders

96

• (1) If at any time there is in force an agreement between one or more employers or organisations of employers and one or more trade unions representing employees, whereby employees to whom the agreement applies have a right in certain circumstances to payments on the termination of their contracts of employment, and, on the application of all the parties to the agreement, the Secretary of State, having regard to the provisions of the agreement, is satisfied that section 81 should not apply to those employees, he may make an order under this section in respect of that agreement.

• (2) The Secretary of State shall not make an order under this section in respect of an agreement unless the agreement indicates (in whatsoever terms) the willingness of the parties to it to submit to an industrial tribunal such questions as are mentioned in paragraph (b) of subsection (3).

• (3) Where an order under this section is in force in respect of an agreement—

• (a) section 81 shall not have effect in relation to any employee who immediately before the relevant date is an employee to whom the agreement applies, but

• (b) section 91 shall have effect in relation to any question arising under the agreement as to the right of an employee to a payment on the termination of his employment, or as to the amount of such a payment, as if the payment were a redundancy payment and the question arose under this Part.

• (4) Any order under this section may be 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 without any such application.

Claims as to extension of terms and conditions

97

• (1) A claim under paragraph 1 of Schedule 11 to the Employment Protection Act 1975 (claims as to recognised terms and conditions and general level of terms and conditions) may be reported to the Advisory, Conciliation and Arbitration Service in accordance with that Schedule, and may be referred by the Service to the Central Arbitration Committee, and the Committee may make an award under that Schedule, notwithstanding that the terms and conditions which it is claimed that the employer is not observing consist of or include terms and conditions as to payments to be made to employees in the circumstances specified in paragraph (a) or paragraph (b) of section 81(1) or in similar circumstances, and that provision for redundancy payments is made by this Act.

• (2) Where a claim which is reported to the Advisory, Conciliation and Arbitration Service under the said paragraph 1 is founded upon recognised terms and conditions and relates to an agreement in respect of which an order under section 96 is for the time being in force, and the Central Arbitration Committee makes an award in pursuance of that claim, section 96(3) shall have effect in relation to all persons in respect of whom the employer is required by that award to observe the recognised terms and conditions, whether they are persons to whom section 96(3) would apply apart from this subsection or not.

Exclusion or reduction of redundancy payment on account of pension rights

98

• (1) The Secretary of State shall by regulations make provision for excluding the right to a redundancy payment, or reducing the amount of any redundancy payment, in such cases as may be prescribed by the regulations, being cases in which an employee has (whether by virtue of any statutory provision or otherwise) a right or claim (whether legally enforceable or not) to a periodical payment or lump sum by way of pension, gratuity or superannuation allowance which is to be paid by reference to his employment by a particular employer and is to be paid, or to begin to be paid, at the time when he leaves that employment or within such period thereafter as may be prescribed by the regulations.

• (2) Provision shall be made by any such regulations for securing that the right to a redundancy payment shall not be excluded, and that the amount of a redundancy payment shall not be reduced, by reason of any right or claim to a periodical payment or lump sum, in so far as that payment or lump sum represents such compensation as is mentioned in section 118(1) and is payable under a statutory provision, whether made or passed before, on or after the passing of this Act.

• (3) In relation to any case where, under section 85 or 92 or 110, an industrial tribunal determines that an employer is liable to pay part (but not the whole) of a redundancy payment, any reference in this section to a redundancy payment, or to the amount of a redundancy payment, shall be construed as a reference to that part of the redundancy payment, or to the amount of that part, as the case may be.

Public offices, etc.

99

• (1) Without prejudice to any exemption or immunity of the Crown, section 81 shall not apply to any person in respect of any employment which—

• (a) is employment in a public office for the purposes of section 38 of the Superannuation Act 1965, or

• (b) whether by virtue of that Act or otherwise, is treated for the purposes of pensions and other superannuation benefits as service in the civil service of the State, or

• (c) is employment by any such body as is specified in Schedule 5.

• (2) Without prejudice to any exemption or immunity of the Crown, section 81 shall not apply to any person in respect of his employment in any capacity under the Government of an overseas territory (as defined by section 114).

Domestic servants

100

• (1) For the purposes of the application of the provisions of this Part to an employee who is employed as a domestic servant in a private household, those provisions (except section 94) shall apply as if the household were a business and the maintenance of the household were the carrying on of that business by the employer.

• (2) Without prejudice to section 146(1), section 81 shall not apply to any person in respect of employment as a domestic servant in a private household, where the employer is the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, or half-sister of the employee.

Claims for redundancy payments

101

• (1) Notwithstanding anything in the preceding previsions of this Part, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—

• (a) the payment has been agreed and paid, or

• (b) the employee has made a claim for the payment by notice in writing given to the employer, or

• (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to an industrial tribunal, or

• (d) a complaint relating to his dismissal has been presented by the employee under section 67.

• (2) An employee shall not by virtue of subsection (1) lose his right to a redundancy payment if, during the period of six months immediately following the period mentioned in that subsection, the employee—

• (a) makes such a claim as is referred to in paragraph (b) of that subsection,

• (b) refers to a tribunal such a question as is referred to in paragraph (c) of that subsection, or

• (c) makes such a complaint as is referred to in paragraph (d) of that subsection,