Legalize / United Kingdom / Public General Act

Employment Protection (Consolidation) Act 1978

Type Public General Act

Publication 1978-07-31

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment having regard to the reason shown by the employee for his failure to take any such step as is referred to in paragraph (a), (b) or (c) of this subsection within the period mentioned in subsection (1). and to all the other relevant circumstances.

Written particulars of redundancy payment

102

(1) On making any redundancy payment, otherwise than in pursuance of a decision of a tribunal which specifies the amount of the payment to be made, the employer shall give to the employee a written statement indicating how the amount of the payment has been calculated.

(2) Any employer who without reasonable excuse fails to comply with subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding £20.

(3) If an employer fails to comply with the requirements of subsection (1), then (without prejudice to any proceedings for an offence under subsection (2)) the employee may by notice in writing to the employer require him to give to the employee a written statement complying with those requirements within such period (not being less than one week beginning with the day on which the notice is given) as may be specified in the notice; and if the employer without reasonable excuse fails to comply with the notice he shall be guilty of an offence under this subsection and liable on summary conviction-

(a) if it is his first conviction of an offence under this subsection, to a fine not exceeding £20, or

(b) in any other case, to a fine not exceeding £100.

Redundancy Fund

Establishment and maintenance of fund

103

(1) The Secretary of State shall continue to have the control and management of the Redundancy Fund established under section 26 of the Redundancy Payments Act 1965 (in this Part referred to as "the fund"), and payments shall be made out of the fund in accordance with the provisions of sections 104 to 109 and 156 and Part VII.

(2) The Secretary of State shall prepare accounts of the 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 the accounts and shall lay copies thereof, together with his report thereon, before Parliament.

(3) Any moneys forming part of the fund may from time to time be paid over to the National Debt Commissioners and by them invested, in accordance with such directions as may be given by the Treasury, in 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.

Redundancy rebates

104

(1) Subject to the provisions of this section, the Secretary of State shall make a payment (in this Part referred to as a " redundancy rebate ") out of the fund to any employer who—

(a) is liable under the foregoing provisions of this Part to pay, and has paid, a redundancy payment to an employee, or

(b) under an agreement in respect of which an order is in force under section 96, is liable to make, and has made, a payment to an employee on the termination of his contract of employment, or

(c) by virtue of any award made by the Central Arbitration Committee as mentioned in section 97(2) in relation to an agreement in respect of which such an order is in force, is liable to make, and has made, a payment to an employee on the termination of his contract of employment.

(2) No redundancy rebate shall be payable by virtue of this section in a case falling within paragraph (b) or paragraph (c) of subsection (1) if the employee's right to the payment referred to in that paragraph arises by virtue of a period of employment (computed in accordance with the provisions of the agreement in question) which is less than one hundred and four weeks.

(3) The Secretary of State may if he thinks fit pay a redundancy rebate to an employer who has paid an employee a redundancy payment in circumstances in which, owing to section 101, the employee had no right to, and the employer had no liability for, the payment, if the Secretary of State is satisfied that it would be just and equitable to do so having regard to all the relevant circumstances.

(4) The amount of any redundancy rebate shall (subject to subsection (7)) be calculated in accordance with Schedule 6.

(5) The Secretary of State shall make provision by regulations as to the making of claims for redundancy rebates; and any such regulations may in particular—

(a) require any claim for a redundancy rebate to be made at or before a time prescribed by the regulations ;

(b) in such cases as may be so prescribed, require prior notice that such a claim may arise to be given at or before a time so prescribed, so however that, where the claim would relate to an employer's payment in respect of dismissal, the regulations shall not require the notice to be given more than four weeks before the date on which the termination of the contract of employment takes effect; and

(c) for the purpose of determining the right of any person to, and the amount of, any redundancy rebate, require a person at any time when he makes a claim or gives prior notice as mentioned in paragraph (a) or paragraph (b) to provide such evidence and such other information, and to produce for examination on behalf of the Secretary of State documents in his custody or under his control of such descriptions, as may be determined in accordance with the regulations.

(6) 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, the reference in subsection (1)(a) to a redundancy payment shall be construed as a reference to that part of the redundancy payment.

(7) If any employer who, in accordance with subsection (1), would be entitled to a redundancy rebate fails to give prior notice as required by any such regulations in accordance with paragraph (b) of subsection (5) and it appears to the Secretary of State that he has so failed without reasonable excuse, the Secretary of State may, subject to section 108, reduce the amount of the rebate by such proportion (not exceeding one-tenth) as appears to the Secretary of State to be appropriate in the circumstances.

(8) Any person who—

(a) in providing any information required by regulations under this section, makes a statement which he knows to be false in a material particular, or recklessly makes a statement which is false in a material particular, or

(b) produces for examination in accordance with any such regulations a document which to his knowledge has been wilfully falsified,

shall be guilty of an offence.

(9) A person guilty of an offence under subsection (8) shall be liable on summary conviction to a fine not exceeding the prescribed sum or to imprisonment for a term not exceeding three months or both, or on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or both.

(10) In subsection (9) above " the prescribed sum " means—

(a) in England and Wales, the prescribed sum within the meaning of section 28 of the Criminal Law Act 1977 (that is to say, £1,000 or another sum fixed by order under section 61 of that Act to take account of changes in the value of money);

(b) in Scotland, the prescribed sum within the meaning of section 289B of the Criminal Procedure (Scotland) Act 1975 (that is to say, £1,000 or another sum fixed by an order made under section 289D of that Act for that purpose).

Payments out of fund to employers in other cases

105

(1) The Secretary of State may make payments out of the fund to employers in respect of employees to whom this section applies.

(2) This section applies to employees to whom, by virtue of section 144(2), 145 or 149, section 81 does not apply.

(3) The Secretary of State may determine the classes of employees to whom this section applies in respect of whom payments are to be made by virtue of this section, and, with the approval of the Treasury, may determine the amounts of the payments which may be so made in respect of any class of such employees.

(4) The payments made to an employer by virtue of this section shall not, in respect of any period, exceed the amount appearing to the Secretary of State to be equal to the amount paid into the fund from the appropriate employment protection allocation (under section 134 of the Social Security Act 1975) from all secondary Class 1 contributions paid by that employer under Part I of that Act.

Payments out of fund to employees

106

(1) Where an employee claims that his employer is liable to pay to him an employer's payment, and either—

(a) that the employee has taken all reasonable steps (other than legal proceedings) to recover the payment from the employer and that the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or

(b) that the employer is insolvent and that the whole or part of the payment remains unpaid,

the employee may apply to the Secretary of State for a payment under this section.

(2) If on an application under this section the Secretary of State is satisfied—

(a) that the employee is entitled to the employer's payment;

(b) that either of the conditions specified in subsection (1) is fulfilled; and

(c) that, in a case where the employer's payment is such a payment as is mentioned in paragraph (b) or paragraph (c) of section 104(1), the employee's right to the payment arises by virtue of a period of employment (computed in accordance with the provisions of the agreement in question) which is not less than one hundred and four weeks,

the Secretary of State shall pay to the employee out of the fund a sum calculated in accordance with Schedule 7, reduced by so much (if any) of the employer's payment as has been paid.

(3) Where the Secretary of State pays a sum to an employee in respect of an employer's payment—

(a) all rights and remedies of the employee with respect to the employer's payment, or (if die Secretary of State has paid only part of it) all his rights and remedies with respect to that part of the employer's payment, shall be transferred to and vest in the Secretary of State; and

(b) any decision of an industrial tribunal requiring the employer's payment to be paid to the employee shall have effect as if it required that payment, or, as the case may be, that part of it which the Secretary of State has paid, to be paid to the Secretary of State;

and any moneys recovered by the Secretary of State by virtue of this subsection shall be paid into the fund.

(4) Where the Secretary of State pays a sum under this section in respect of an employer's payment, then (subject to the following provisions of this subsection) section 104 shall apply as if that sum had been paid by the employer to the employee on account of that payment; but if, in a case falling within paragraph (a) of subsection (1), it appears to the Secretary of State that the refusal or failure of the employer to pay the employer's payment, or part of it, as the case may be, was without reasonable excuse, the Secretary of State may, subject to section 108, withhold any redundancy rebate to which the employer would otherwise be entitled in respect of the employer's payment, or may reduce the amount of any such rebate to such extent as the Secretary of State considers appropriate.

(5) For the purposes of this section an employer shall be taken to be insolvent if—

(a) he has become bankrupt or has made a composition or arrangement with his creditors or a receiving order is made against him;

(b) he has died and an order has been made under section 130 of the Bankruptcy Act 1914 for the administration of his estate according to the law of bankruptcy, or by virtue of an order of the court his estate is being administered in accordance with the rules set out in Part I of Schedule 1 to the Administration of Estates Act 1925; or

(c) where the employer is a company, a winding-up order has been made with respect to it or a resolution for voluntary winding-up has been passed with respect to it, or a receiver or manager of its undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge.

(6) In the application of this section to Scotland, for paragraphs (a), (b) and (c) of subsection (5) there shall be substituted the following paragraphs: —

(a) an award of sequestration has been made on his estate, or he has executed a trust deed for his creditors or entered into a composition contract;

(b) he has died and a judicial factor appointed under section 163 of the Bankruptcy (Scotland) Act 1913 is required by the provisions of that section to divide his insolvent estate among his creditors ; or

(c) where the employer is a company, a winding-up order has been made or a resolution for voluntary winding-up is passed with respect to it or a receiver of its undertaking is duly appointed.

(7) In this section " legal proceedings " does not include any proceedings before an industrial tribunal, but includes any proceedings to enforce a decision or award of an industrial tribunal.

Supplementary provisions relating to applications under s. 106

107

(1) Where an employee makes an application to the Secretary of State under section 106, the Secretary of State may, by notice in writing given to the employer, require the employer to provide the Secretary of State with such information, and to produce for examination on behalf of the Secretary of State documents in his custody or under his control of such descriptions, as the Secretary of State may reasonably require for the purpose of determining whether the application is well-founded.

(2) If any person on whom a notice is served under this section fails without reasonable excuse to comply with a requirement imposed by the notice, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £100.

(3) Any person who—

(a) in providing any information required by a notice under this section, makes a statement which he knows to be false in a material particular, or recklessly makes a statement which is false in a material particular, or

(b) produces for examination in accordance with any such notice a document which to his knowledge has been wilfully falsified,

shall be guilty of an offence under this subsection.

(4) A person guilty of an offence under subsection (3) shall be liable on summary conviction to a fine not exceeding the prescribed sum or to imprisonment for a term not exceeding three months or both, or on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or both.

(5) In subsection (4) above " the prescribed sum " means—

(a) in England and Wales, the prescribed sum within the meaning of section 28 of the Criminal Law Act 1977 (that is to say, £1,000 or another sum fixed by order under section 61 of that Act to take account of changes in the value of money);

(b) in Scotland, the prescribed sum within the meaning of section 289B of the Criminal Procedure (Scotland) Act 1975 (that is to say, £1,000 or another sum fixed by an order made under section 289D of that Act for that purpose).

References and appeals to tribunal relating to payments out of fund

108

(1) Subsections (2) and (3) shall have effect where

(a) a claim is made for a redundancy rebate on the grounds that an employer is liable to pay, and has paid, an employer's payment, or prior notice that such a claim may arise is given in accordance with regulations made under section 104(5)(M, or

(b) an application is made to the Secretary of State for a payment under section 106, where it is claimed that an employer is liable to pay an employer's payment.

(2) Where any such claim or application is made or such prior notice is given, there shall be referred to an industrial tribunal—

(a) any question as to the liability of the employer to pay the employer's payment;

(b) in a case falling within paragraph (a) of subsection (1), any question as to the amount of the rebate payable in accordance with Schedule 6 ;

(c) in a case falling within paragraph (b) of subsection (1), any question as to the amount of the sum payable in accordance with Schedule 7.

(3) For the purposes of any reference under subsection (2), 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.

(4) Where, in any case to which section 104(3) applies, the Secretary of State refuses to pay a redundancy rebate, the employer may appeal to an industrial tribunal; 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 redundancy rebate should be paid, the tribunal shall determine accordingly, and the Secretary of State shall comply with any such determination of a tribunal.

(5) In any case where the Secretary of State withholds, or reduces the amount of, a redundancy rebate in pursuance of section 104(7) or section 106(4), the employer may appeal to an industrial tribunal; and if on any such appeal the tribunal is satisfied—

(a) in a case where the rebate was withheld, that it should be paid in full, or should be reduced instead of being withheld, or

(b) in a case where the rebate was reduced, that it should not be reduced, or should be reduced by a smaller or larger proportion than that which the Secretary of State has applied,

the tribunal shall determine accordingly, and the Secretary of State shall comply with any such determination.

Financial provisions relating to the fund

109

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

(2) The aggregate amount outstanding by way of principal in respect of sums advanced to the Secretary of State under this section shall not at any time exceed £16 million or such larger sum not exceeding £40 million as the Secretary of State may by order made with the consent of the Treasury determine.

(3) Any sums advanced to the Secretary of State under this section shall be repaid by the Secretary of State out of the 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.

(4) An order shall not be made under this section unless a draft of die order has been laid before Parliament and approved by resolution of each House of Parliament.

Miscellaneous and supplemental

Strike during currency of employer's notice to terminate contract

110

(1) The provisions of this section shall have effect where, after an employer has given notice to an employee to terminate his contract of employment (in this section referred to as a " notice of termination ")—

(a) the employee begins to take part in a strike of employees of the employer, and

(b) the employer serves on him a notice in writing (in this section referred to as a " notice of extension ") requesting him to agree to extend the contract of employment beyond the time of expiry by an additional period comprising as many available days as the number of working days lost by striking (in this section referred to as " the proposed period of extension ").

(2) A notice of extension shall indicate the reasons for which the employer makes the request contained in the notice, and shall state that unless either—

(a) the employee complies with the request, or

(b) the employer is satisfied that, in consequence of sickness, injury or otherwise, he is unable to comply with it, or that (notwithstanding that he is able to comply with it) in the circumstances it is reasonable for him not to do so,

the employer will contest any liability to pay him a redundancy payment in respect of the dismissal effected by the notice of termination.

(3) For the purposes of this section an employee shall be taken to comply with the request contained in a notice of extension if, but only if, on each available day within the proposed period of extension, he attends at his proper or usual place of work and is ready and willing to work, whether he has signified his agreement to the request in any other way or not.

(4) Where an employee on whom a notice of extension has been served—

(a) complies with the request contained in the notice, or

(b) does not comply with it, but attends at his proper or usual place of work and is ready and willing to work on one or more (but not all) of the available days within the proposed period of extension,

the notice of termination shall have effect, and shall be deemed at all material times to have had effect, as if the period specified in it had (in a case falling within paragraph (a)) been extended beyond the time of expiry by an additional period equal to the proposed period of extension or (in a case falling within paragraph (b)) had been extended beyond the time of expiry up to the end of the day (or, if more than one, the last of the days) on which he so attends and is ready and willing to work; and section 50 and Schedule 3 shall apply accordingly as if (he period of notice required by section 49 were extended to a corresponding extent.

(5) Subject to subsection (6), if an employee on whom a notice of extension is served in pursuance of subsection (1) does not comply with the request contained in the notice, he shall not be entitled to a redundancy payment by reason of the dismissal effected by the notice of termination, unless the employer agrees to pay such a payment to him notwithstanding that the request has not been complied with.

(6) Where a notice of extension has been served, and on a reference to an industrial tribunal it appears to the tribunal that the employee has not complied with the request contained in the notice and the employer has not agreed to pay a redundancy payment in respect of the dismissal in question, but that the employee was unable to comply with the request, or it was reasonable for him not to comply with it, as mentioned in subsection (2)(b) the tribunal may determine that the employer shall be liable to pay to the employee—

(a) the whole of any redundancy payment to which the employee would have been entitled apart from subsection (5), or

(b) such part of any such redundancy payment as the tribunal thinks fit

(7) The service of a notice of extension, and any extension, by virtue of subsection (4) of the period specified in a notice of termination.—

(a) shall not affect any right either of the employer or of the employee to terminate the contract of employment (whether before, at or after the time of expiry) by a further notice or without notice, and

(b) shall not affect the operation of sections 81 to 102 in relation to any such termination of the contract of employment.

(8) In this section any reference to the number of working days lost by striking is a reference to the number of working days in the period beginning with the date of service of the notice of termination and ending with the time of expiry which are days on which the employee in question takes part in a strike of employees of the employer.

(9) In this section, " strike " has the meaning given by paragraph 24 of Schedule 13, "time of expiry", in relation to a notice of termination, means the time at which the notice would expire apart from this section, " working day ", in relation to an employee, means a day on which, in accordance with his contract of employment, he is normally required to work," available day ", in relation to an employee, means a working day beginning at or after the time of expiry which is a day on which he is not taking part in a strike of employees of the employer, and " available day within the proposed period of extension " means an available day which begins before the end of that period.

Payments equivalent to redundancy rebates in respect of civil servants, etc.

111

(1) The provisions of this section shall have effect with respect to employment of any of the following descriptions, that is to say—

(a) any such employment as is mentioned in paragraph (a), paragraph (b) or paragraph (c) of subsection (1) of section 99 (whether as originally enacted or as modified by any order under section 149(D);

(b) any employment remunerated out of the revenue of the Duchy of Lancaster or the Duchy of Cornwall;

(d) any employment remunerated out of Her Majesty's Privy Purse.

(2) Where the Secretary of State is satisfied that a payment has been, or will be, made in respect of the termination of any person's employment of any description specified in subsection (1), and that the payment has been, or will be, so made to or in respect of him—

(a) in accordance with the Superannuation Act 1965, as that Act continues to have effect by virtue of section 23(1) of the Superannuation Act 1972,

(b) in accordance with any provision of a scheme made under section 1 of the Superannuation Act 1972, or

the Secretary of State shall pay the appropriate sum out of the fund to the appropriate fund or authority.

(3) The arrangements referred to in paragraph (c) of subsection (2) are any arrangements made with the approval of the Minister for the Civil Service for securing that payments by way of compensation for loss of any such employment as is mentioned in subsection (1) will be made—

(a) in circumstances which in the opinion of the Minister for the Civil Service correspond (subject to the appropriate modifications) to those in which a right to a redundancy payment would have accrued if section 81 had applied, and

(b) on a scale which in the opinion of the Minister for the Civil Service, taking into account any sums which are payable as mentioned in subsection (2) (a) or (b) to or in respect of the person losing the employment in question, corresponds (subject to the appropriate modifications) to that on which a redundancy payment would have been payable if section 81 had applied.

(4) For the purposes of subsection (2) the appropriate sum is the sum appearing to the Secretary of State to be equal to the amount of the redundancy rebate which would have been payable under section 104 if such a right as is mentioned in paragraph (a) of subsection (3) had accrued, and such a redundancy payment as is mentioned in paragraph (b) of subsection (3) had been payable and had been paid.

(5) Any accounts prepared by the Secretary of State under section 103(2) shall show as a separate item the aggregate amount of sums paid under subsection (2) during the period to which the accounts relate.

(6) In this section " the appropriate fund or authority "—

(a) in relation to employment of any description falling within paragraph 7 of subsection (1) of section 39 of the Superannuation Act 1965 (whether as originally enacted or as modified by any order under that section), means the fund out of which, or the body out of whose revenues, the employment is remunerated;

(b) in relation to any employment remunerated out of the revenues of the Duchy of Lancaster, means the Chancellor of the Duchy, and, in relation to any employment remunerated out of the revenues of the Duchy of Cornwall, means such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints;

(c) in relation to any employment remunerated out of the Queen's Civil List or out of Her Majesty's Privy Purse, means the Civil List or the Privy Purse, as the case may be; and

(d) in any other case, means the Consolidated Fund.

References to tribunal relating to equivalent payments

112

(1) This section applies to any such payment as is mentioned in subsection (3) of section 111 which is payable in accordance with any such arrangements as are mentioned in that subsection.

(2) Where the terms and conditions (whether constituting a contract of employment or not) on which any person is employed in any such employment as is mentioned in subsection (1) of section 111 include provision—

(a) for the making of any payment to which this section applies, and

(b) for referring to a tribunal any such question as is mentioned in the following provisions of this subsection,

any question as to the right of any person to such a payment in respect of that employment, or as to the amount of such a payment shall be referred to and determined by an industrial tribunal.

Employment under Government of overseas territory

113

(1) Where the Secretary of State is satisfied that, in accordance with any such arrangements as are mentioned in subsection (3), a payment has been, or will be, made in respect of the termination of a person's employment in any capacity under the Government of an overseas territory (in this section referred to as " the relevant Government"), and that in respect of the whole or part of the period during which that person was in that employment, employer's contributions were paid in respect of him, the Secretary of State shall pay the appropriate sum out of the fund to such other fund or authority as may be designated in that behalf by the relevant Government.

(2) The reference in subsection (1) to employer's contributions is a reference to secondary Class 1 contributions paid in respect of the person in question by persons who were in relation to him secondary Class 1 contributors by virtue of section 4(4)(a) of the Social Security Act 1975, and in relation to any period before 6th April 1975, to employer's contributions within the meaning of the National Insurance Act 1965.

(3) The arrangements referred to in subsection (1) are any arrangements made by or on behalf of the relevant Government for securing that payments by way of compensation for loss of employment in the capacity in question will be made—

(a) in circumstances which in the opinion of the Secretary of State correspond (subject to the appropriate modifications) to those in which a right to a redundancy payment would have accrued if section 81 had applied, and

(b) on a scale which in the opinion of the Secretary of State corresponds (subject to the appropriate modifications) to that on which a redundancy payment would have been payable if that section had applied.

(4) For the purposes of subsection (1) the appropriate sum (subject to subsection (5)) is the sum appearing to the Secretary of State to be equal to the amount of the redundancy rebate which would have been payable under section 104 if such a right as is mentioned in paragraph (a) of subsection (3) had accrued, and such a redundancy payment as is mentioned in paragraph (b) of that subsection had been payable and had been paid.

(5) Where it appears to the Secretary of State that such contributions as are mentioned in subsection (1) were paid in respect of part (but not the whole) of the period of employment in question, the rebate which would have been payable as mentioned in subsection (4) shall be calculated as if the employment had been limited to that part of the period.

(6) Any accounts prepared by the Secretary of State under section 103(2) shall show as a separate item the aggregate amount of sums paid under subsection (1) during the period to which the accounts relate.

Meaning of " Government of overseas territory "

114

In this Part " overseas territory " means any territory or country outside the United Kingdom; and any reference to the Government of an overseas territory includes a reference to a Government constituted for two or more overseas territories and to any authority established for the purpose of providing or administering services which are common to, or relate to matters of common interest to, two or more such territories.

Application of Part VI to employment not under contract of employment

115

(1) This section applies to employment of any description which—

(a) is not employment under a contract of service or of apprenticeship, and

(b) is not employment of any description falling within paragraphs (a) to (d) of section 111(1),

but is employment such that secondary Class 1 contributions are payable under Part I of the Social Security Act 1975 in respect of persons engaged therein.

(2) The Secretary of State may by regulations under this section provide that, subject to such exceptions and modifications as may be prescribed by the regulations, this Part and the provisions of this Act supplementary thereto shall have effect in relation to any such employment of a description to which this section applies as may be so prescribed as if—

(a) it were employment under a contract of employment, and

(b) any person engaged in employment of that description were an employee, and

(3) Without prejudice to the generality of subsection (2), regulations made under this section may provide that section 105 shall apply to persons engaged in any such employment of a description to which this section applies as may be prescribed by the regulations, as if those persons were employees to whom that section applies.

Provision for treating termination of certain employments by statute as equivalent to dismissal

116

(1) The Secretary of State may by regulations under this section provide that, subject to such exceptions and modifications as may be prescribed by the regulations, the provisions of this Part shall have effect in relation to any person who, by virtue of any statutory provisions.—

(a) is transferred to, and becomes a member of, a body specified in those provisions, but

(b) at a time so specified ceases to be a member of that body unless before that time certain conditions so specified have been fulfilled,

as if the cessation of his membership of that body by virtue of those provisions were dismissal by his employer by reason of redundancy.

(2) The power conferred by subsection (1) shall be exercisable whether membership of the body in question constitutes employment within the meaning of section 153 or not; and, where that membership does not constitute such employment, that power may be exercised in addition to any power exercisable by virtue of section 115.

Employees paid by person other than employer

117

(1) This section applies to any employee whose remuneration is, by virtue of any statutory provision, payable to him by a person other than his employer.

(2) For the purposes of the operation, in relation to employees to whom this section applies, of the provisions of this Part and Schedule 13 specified in column 1 of Schedule 8, any reference to the employer which is specified in column 2 of Schedule 8 shall be construed as a reference to the person responsible for paying the remuneration.

(3) In relation to employees to whom this section applies, section 119 shall have effect as if—

(a) any reference in subsection (1) or subsection (2) of that section to a notice required or authorised to be given by or to an employer included a reference to a notice which, by virtue of subsection (2), is required or authorised to be given by or to the person responsible for paying the remuneration;

(b) in relation to a notice required or authorised to be given to that person, any reference to the employer in paragraph (a) or paragraph (b) of subsection (2) of that section were a reference to that person ; and

(4) In this section and in Schedule 8, " the person responsible for paying the remuneration " means the person by whom the remuneration is payable as mentioned in subsection (1).

Statutory compensation schemes

118

(1) This section applies to any statutory provision which was in force immediately before 6th December 1965, whereby the holders of such situations, places or employments as are specified in that provision are, or may become, entitled to compensation for loss of employment, or for loss or diminution of emoluments or of pension rights, in consequence of the operation of any other statutory provision referred to therein.

(2) The Secretary of State may make provision by regulations for seeming that where apart from this section a person is entitled to compensation under a statutory provision to which this section applies, and the circumstances are such that he is also entitled to a redundancy payment, the amount of the redundancy payment shall be set off against the compensation to which he would be entitled apart from this section; and any statutory provision to which any such regulations apply shall have effect subject to the regulations.

Provisions as to notices

119

(1) Any notice which under this Part is required or authorised to be given by an employer to an employee may be given by being delivered to the employee, or left for him at his usual or last-known place of residence, or sent by post addressed to him at that place.

(2) Any notice which under this Part is required or authorised to be given by an employee to an employer may be given either by the employee himself or by a person authorised by him to act on his behalf, and, whether given by or on behalf of the employee.—

(a) may be given by being delivered to the employer, or sent by post addressed to him at the place where the employee is or was employed by him, or

(b) if arrangements in that behalf have been made by the employer, may be given by being delivered to a person designated by the employer in pursuance of the arrangements, or left for such a person at a place so designated, or sent by post to such a person at an address so designated.

(3) In the preceding provisions of this section, any reference to the delivery of a notice shall, in relation to a notice which is not required by this Part to be in writing, be construed as including a reference to the oral communication of the notice.

(4) Any notice which, in accordance with any provision of this section, is left for a person at a place referred to in that provision shall, unless the contrary is proved, be presumed to have been received by him on the day on which it was left there.

(5) Nothing in subsection (1) or subsection (2) shall be construed as affecting the capacity of an employer to act by a servant or agent for the purposes of any provision of this Part, including either of those subsections.

Offences

120

(1) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) In this section " director ", in relation to a body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate.

PART VII — Insolvency of Employer

Priority of certain debts on insolvency

121

(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 19;

(d) remuneration under a protective award made under section 101 of the Employment Protection Act 1975.

Employee's rights on insolvency of employer

122

(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.

(2) In this section the " relevant date " in relation to a debt means the date on which the employer became insolvent or the date of the termination of the employee's employment, whichever is the later.

(3) This section applies to the following debts: —

(a) any arrears of pay in respect of a period or periods not exceeding in the aggregate eight weeks ;

(b) any amount which the employer is liable to pay the employee for the period of notice required by section 49(1) or (2) or for any failure of the employer to give the period of notice required by section 49(1);

(c) any holiday pay in respect of a period or periods of holiday, not exceeding six weeks in all, to which the employee became entitled during the twelve months immediately preceding the relevant date ;

(d) any basic award of compensation for unfair dismissal (within the meaning of section 72);

(e) any reasonable sum by way of reimbursement of the whole or part of any fee or premium paid by an apprentice or articled clerk.

(4) For the purposes of subsection (3)(a), any such amount as is referred to in section 121(2) shall be treated as if it were arrears of pay.

(5) The total amount payable to an employee in respect of any debt mentioned in subsection (3), where the amount of that debt is referable to a period of time, shall not exceed £100 in respect of any one week or, in respect of a shorter period, an amount bearing the same proportion to £100 as that shorter period bears to a week.

(6) The Secretary of State may vary the limit referred to in subsection (5) after a review under section 148, by order made in accordance with that section.

(7) A sum shall be taken to be reasonable for the purposes of subsection (3)(e) in a case where a trustee in bankruptcy or liquidator has been or is required to be appointed if it is admitted to be reasonable by the trustee in bankruptcy or liquidator under section 34 of the Bankruptcy Act 1914 (preferential claims of apprentices and articled clerks), whether as originally enacted or as applied to the winding up of a company by section 317 of the Companies Act 1948.

(8) Subsection (7) shall not apply to Scotland, but in Scotland a sum shall be taken to be reasonable for the purposes of subsection (3)(e) in a case where a trustee in bankruptcy or liquidator has been or is required to be appointed if it is admitted by the trustee in bankruptcy or the liquidator for the purposes of the bankruptcy or winding up.

(9) The provisions of subsections (10) and (11) shall apply in a case where one of the following officers (hereafter in this section referred to as the " relevant officer") has been or is required to be appointed in connection with the employer's insolvency, that is to say, a trustee in bankruptcy, a liquidator, a receiver or manager, or a trustee under a composition or arrangement between the employer and his creditors or under a trust deed for his creditors executed by the employer; and in this subsection " liquidator " and " receiver " include the Official Receiver in his capacity as a provisional liquidator or interim receiver.

(10) Subject to subsection (11), the Secretary of State shall not in such a case make any payment under this section in respect of any debt until he has received a statement from the relevant officer of the amount of that debt which appears to have been owed to the employee on the relevant date and to remain unpaid; and the relevant officer shall, on request by the Secretary of State, provide him, as soon as reasonably practicable, with such a statement.

(11) Where—

(a) a period of six months has elapsed since the application for a payment under this section was received by the Secretary of State, but no such payment has been made;

(b) the Secretary of State is satisfied that a payment under this section should be made; and

(c) it appears to the Secretary of State that there is likely to be further delay before he receives a statement about the debt in question, then, the Secretary of State may, if the applicant so requests or, if the Secretary of State thinks fit, without such a request, make a payment under this section, notwithstanding that no such statement has been received.

Payment of unpaid contributions to occupational pension scheme

123

(1) If, on application made to him in writing by the persons competent to act in respect of an occupational pension scheme, the Secretary of State is satisfied that an employer has become insolvent and that at the time that he did so there remained unpaid relevant contributions falling to be paid by him to the scheme, the Secretary of State shall, subject to the provisions of this section, pay into the resources of the scheme out of the Redundancy Fund the sum which in his opinion is payable in respect of the unpaid relevant contributions.

(2) In this section "relevant contributions" means contributions falling to be paid by an employer in accordance with an occupational pension scheme, either on his own account or on behalf of an employee; and for the purposes of this section a contribution of any amount shall not be treated as falling to be paid on behalf of an employee unless a sum equal to that amount has been deducted from the pay of the employee by way of a contribution from him.

(3) The sum payable under this section in respect of unpaid contributions of an employer on his own account to an occupational pension scheme shall be the least of the following amounts—

(a) the balance of relevant contributions remaining unpaid on the date when he became insolvent and payable by the employer on his own account to the scheme in respect of the twelve months immediately preceding that date;

(b) the amount certified by an actuary to be necessary for the purpose of meeting the liability of the scheme on dissolution to pay the benefits provided by the scheme to or in respect of the employees of the employer;

(c) an amount equal to ten per cent, of the total amount of remuneration paid or payable to those employees in respect of the twelve months immediately preceding the date on which the employer became insolvent.

(4) For the purposes of subsection (3)(c), "remuneration" includes holiday pay, maternity pay and any such payment as is referred to in section 121(2).

(5) Any sum payable under this section in respect of unpaid contributions on behalf of an employee shall not exceed the amount deducted from the pay of the employee in respect of the employee's contributions to the occupational pension scheme during the twelve months immediately preceding the date on which the employer became insolvent.

(6) The provisions of subsections (7) to (9) shall apply in a case where one of the following officers (hereafter in this section referred to as the " relevant officer") has been or is required to be appointed in connection with the employer's insolvency, that is to say, a trustee in bankruptcy, a liquidator, a receiver or manager, or a trustee under a composition or arrangement between the employer and his creditors or under a trust deed for his creditors executed by the employer; and in this subsection " liquidator " and " receiver " include the Official Receiver in his capacity as a provisional liquidator or interim receiver.

(7) Subject to subsection (9), the Secretary of State shall not in such a case make any payment under this section in respect of unpaid relevant contributions until he has received a statement from the relevant officer of the amount of relevant contributions which appear to have been unpaid on the date on which the employer became insolvent and to remain unpaid ; and the relevant officer shall, on request by the Secretary of State provide him, as soon as reasonably practicable, with such a statement.

(8) Subject to subsection (9), an amount shall be taken to be payable, paid or deducted as mentioned in subsection (3)(a) or (c) or subsection (5), only if it is so certified by the relevant officer.

(9) Where—

(a) a period of six months has elapsed since the application for a payment under this section was received by the Secretary of State, but no such payment has been made;

(b) the Secretary of State is satisfied that a payment under this section should be made; and

(c) it appears to the Secretary of State that there is likely to be further delay before he receives a statement or certificate about the contributions in question,

then, the Secretary of State may, if the applicants so request or, if the Secretary of State thinks fit, without such a request, make a payment under this section, notwithstanding that no such statement or certificate has been received.

Complaint to industrial tribunal

124

(1) A person who has applied for a payment under section 122 may, within the period of three months beginning with the date on which the decision of the Secretary of State on that application was communicated to him or, if that is not reasonably practicable, within such further period as is reasonable, present a complaint to an industrial tribunal that—

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

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

(2) Any persons who are competent to act in respect of an occupational pension scheme and who have applied for a payment to be made under section 123 into the resources of the scheme may, within the period of three months beginning with the date on which the decision of the Secretary of State on that application was communicated to them, or, if that is not reasonably practicable, within such further period as is reasonable, present a complaint to an industrial tribunal that—

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

(b) any such payment made by him is less than the amount which should have been paid.

(3) Where an industrial tribunal finds that the Secretary of State ought to make a payment under section 122 or 123, 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.

Transfer to Secretary of State of rights and remedies

125

(1) Where, in pursuance of section 122, the Secretary of State makes any payment to an employee in respect of any debt to which that section applies—

(a) any rights and remedies of the employee in respect of that debt (or, if the Secretary of State has paid only part of it, in respect of that part) shall, on the making of the payment, become rights and remedies of the Secretary of State; and

(b) any decision of an industrial tribunal requiring an employer to pay that debt to the employee shall have the effect that the debt or, as the case may be, that part of it which the Secretary of State has paid, is to be paid to the Secretary of State.

(2) There shall be included among the rights and remedies which become rights and remedies of the Secretary of State in accordance with subsection (1)(a) any right to be paid in priority to other creditors of the employer in accordance with—

(a) section 33 of the Bankruptcy Act 1914;

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

and the Secretary of State shall be entitled to be so paid in priority to any other unsatisfied claim of the employee; and in computing for the purposes of any of those provisions any limit on the amount of sums to be so paid any sums paid to the Secretary of State shall be treated as if they had been paid to the employee.

(3) Where in pursuance of section 123 the Secretary of State makes any payment into the resources of an occupational pension scheme in respect of any contributions to the scheme, any rights and remedies in respect of those contributions belonging to the persons competent to act in respect of the scheme shall, on the making of the payment, become rights and remedies of the Secretary of State.

(4) Any sum recovered by the Secretary of State in exercising any right or pursuing any remedy which is his by virtue of this section shall be paid into the Redundancy Fund.

Power of Secretary of State to obtain information in connection with applications

126

(1) Where an application is made to the Secretary of State under section 122 or 123 in respect of a debt owed, or contributions to an occupational pension scheme falling to be made, by an employer, 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 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 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 a person, in purporting to comply with a requirement of a notice under this section, knowingly or recklessly makes any false statement he shall be liable on summary conviction to a fine not exceeding £400.

Interpretation of ss. 122 to 126

127

(1) For the purposes of sections 122 to 126, an employer shall be taken to be insolvent if, but only if, in England and Wales.—

(a) he becomes bankrupt or makes a composition or arrangement with his creditors or a receiving order is made against him;

(b) he has died and an order is made under section 130 of the Bankruptcy Act 1914 for the administration of his estate according to the law of bankruptcy, or by virtue of an order of the court his estate is being administered in accordance with rules set out in Part I of Schedule 1 to the Administration of Estates Act 1925; or

(c) where the employer is a company, a winding up order is made or a resolution for voluntary winding up is passed with respect to it, or a receiver or manager of its undertaking is duly appointed, or possession is taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge.

(2) For the purposes of sections 122 to 126, an employer shall be taken to be insolvent if, but only if, in Scotland.—

(a) an award of sequestration is made on his estate or he executes a trust deed for his creditors or enters into a composition contract;

(b) he has died and a judicial factor appointed under section 163 of the Bankruptcy (Scotland) Act 1913 is required by that section to divide his insolvent estate among his creditors ; or

(c) where the employer is a company, a winding-up order is made or a resolution for voluntary winding up is passed with respect to it or a receiver of its undertaking is duly appointed.

(3) In sections 122 to 126—

" holiday pay " means— pay in respect of a holiday actually taken ; or any accrued holiday pay which under the employee's contract of employment would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday ;

" occupational pension scheme " means any scheme or arrangement which provides or is capable of providing, in relation to employees in any description of employment, benefits (in the form of pensions or otherwise) payable to or in respect of any such employees on the termination of their employment or on their death or retirement;

and any reference in those sections to the resources of such a scheme is a reference to the funds out of which the benefits provided by the scheme are from time to time payable.

PART VIII — Resolution of Disputes Relating to Employment

Industrial tribunals

128

(1) The Secretary of State may by regulations make provision for the establishment of tribunals, to be known as industrial tribunals, to exercise the jurisdiction conferred on them by or under this Act or any other Act, whether passed before or after this Act.

(2) Regulations made wholly or partly under section 12 of the Industrial Training Act 1964 and in force immediately before the date on which this section comes into force shall, so far as so made, continue to have effect as if they had been made under subsection (1), and tribunals established in accordance with such regulations shall continue to be known as industrial tribunals,

(3) Schedule 9, which makes provision, among other things, with respect to proceedings before industrial tribunals, shall have effect.

(4) Complaints, references and appeals to industrial tribunals shall be made in accordance with regulations made under paragraph 1 of Schedule 9.

Remedy for infringement of certain rights under this Act

129

The remedy of an employee for infringement of any of the rights conferred on him by sections 8 and 53 and Parts II, III, V and VII shall, if provision is made for a complaint or for the reference of a question to an industrial tribunal, be by way of such complaint or reference and not otherwise.

Jurisdiction of referees to be exercised by tribunals

130

(1) There shall be referred to and determined by an industrial tribunal any question which by any statutory provision is directed (in whatsoever terms) to be determined by a referee or board of referees constituted under any of the statutory provisions specified in Schedule 10 or which is so directed to be determined in the absence of agreement to the contrary.

(2) The transfer of any jurisdiction by this section shall not affect the principles on which any question is to be determined or the persons on whom the determination is binding, or any provision which requires particular matters to be expressly dealt with or embodied in the determination, or which relates to evidence.

Power to confer jurisdiction on industrial tribunals in respect of damages, etc., for breach of contract of employment

131

(1) The appropriate Minister may by order provide that on any claim to which this section applies or any such claim of a description specified in the order, being in either case a claim satisfying the relevant condition or conditions mentioned in subsection (3), proceedings for the recovery of damages or any other sum, except damages or a sum due in respect of personal injuries, may be brought before an industrial tribunal.

(2) Subject to subsection (3), this section applies to any of the following claims, that is to say—

(a) a claim for damages for breach of a contract of employment or any other contract connected with employment ;

(b) a claim for a sum due under such a contract;

(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract;

being in each case a claim such that a court in England and Wales or Scotland, as the case may be, would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.

(3) An order under this section may make provision with respect to any such claim only if it satisfies either of the following conditions, that is to say—

(a) it arises or is outstanding on the termination of the employee's employment; or

(b) it arises in circumstances which also give rise to proceedings already or simultaneously brought before an industrial tribunal otherwise than by virtue of this section;

or, if the order so provides, it satisfies both those condition

(4) Where on proceedings under this section an industrial tribunal finds that the whole or part of a sum claimed in the proceedings is due, the tribunal shall order the respondent to the proceedings to pay the amount which it finds due.

(5) Without prejudice to section 154(3), an order under this section may include provisions—

(a) as to the manner in which and time within which proceedings are to be brought by virtue of this section ; and

(b) modifying any other enactment.

(6) Any jurisdiction conferred on an industrial tribunal by virtue of this section in respect of any claim shall be exercisable concurrently with any court in England and Wales or in Scotland, as the case may be, which has jurisdiction to hear and determine an action in respect of the claim.

(7) In this section—

" appropriate Minister ", as respects a claim in respect of which an action could be heard and determined in England and Wales, means the Lord Chancellor and, as respects a claim in respect of which an action could be heard and determined by a court in Scotland, means the Secretary of State;

" personal injuries " includes any disease and any impairment of a person's physical or mental condition;

and any reference to breach of a contract includes a reference to breach of—

(a) a term implied in a contract by or under any enactment or otherwise;

(b) a term of a contract as modified by or under any enactment or otherwise; and

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

Recoupment of certain benefits

Recoupment of unemployment benefit and supplementary benefit

132

(1) This section applies to payments which are the subject of proceedings before industrial tribunals, and which are—

(a) payments of wages or compensation for loss of wages; or

(b) payments, by employers to employees, under Part II, III or V or section 53 or in pursuance of an award under section 103 of the Employment Protection Act 1975; or

(c) payments, by employers to employees, of a nature similar to, or for a purpose corresponding to the purpose of, such payments as are mentioned in paragraph (b);

and to payments of remuneration in pursuance of a protective award under section 101 of the said Act of 1975.

(2) The Secretary of State may by regulations make provision with respect to payments to which this section applies for all or any of the following purposes—

(a) enabling the Secretary of State to recover from an employer, by way of total or partial recoupment of unemployment benefit or supplementary benefit, a sum not exceeding the amount of the prescribed element of the monetary award or, in the case of a protective award, the amount of the remuneration ;

(b) requiring or authorising the tribunal to order the payment of such a sum, by way of total or partial recoupment of either benefit, to the Secretary of State instead of to the employee ;

(c) requiring the tribunal to order the payment to the employee of only the excess of the prescribed element of the monetary award over the amount of any unemployment benefit or supplementary benefit shown to the tribunal to have been paid to the employee, and enabling the Secretary of State to recover from the employer, by way of total or partial recoupment of the benefit, a sum not exceeding that amount.

(3) Without prejudice to subsection (2), regulations under that subsection may—

(a) be so framed as to apply to all payments to which this section applies or one or more classes of those payments, and so as to apply both to unemployment benefit and supplementary benefit or only to one of those benefits;

(b) confer powers and impose duties on industrial tribunals, on the Supplementary Benefits Commission and on insurance officers and other persons;

(c) impose, on an employer to whom a monetary award or protective award relates, a duty to furnish particulars connected with the award and to suspend payments in pursuance of the award during any period prescribed by the regulations;

(d) provide for an employer who pays a sum to the Secretary of State in pursuance of this section to be relieved from any liability to pay the sum to another person;

(e) confer on an employee who is aggrieved by any decision of the Commission as to the total or partial recoupment of supplementary benefit in pursuance of the regulations (including any decision as to the amount of benefit) a right to appeal against the decision to an Appeal Tribunal constituted in accordance with the Supplementary Benefits Act 1976 and for that purpose apply section 15(2) and (3) of that Act (appeals) with or without modifications;

(f) provide for the proof in proceedings before industrial tribunals (whether by certificate or in any other manner) of any amount of unemployment benefit or supplementary benefit paid to an employee; and

(g) make different provision for different cases.

(4) Where in pursuance of any regulations under subsection (2) a sum has been recovered by or paid to the Secretary of State by way of total or partial recoupment of unemployment benefit or supplementary benefit—

(a) section 119(1) and (2) of the Social Security Act 1975 (repayment of benefit revised on review) shall not apply to the unemployment benefit recouped; and

(b) sections 18 and 20 of the Supplementary Benefits Act 1976 (recovery of expenditure on supplementary benefits from persons liable for maintenance and recovery in cases of misrepresentation or non-disclosure) shall not apply to the supplementary benefit recouped.

(5) Any amount found to have been duly recovered by or paid to the Secretary of State in pursuance of regulations under subsection (2) by way of total or partial recoupment of unemployment benefit shall be paid into the National Insurance Fund.

(6) In this section—

" monetary award " means the amount which is awarded or ordered to be paid, to the employee by the tribunal or would be so awarded or ordered apart from any provision of regulations under this section;

" the prescribed element ", in relation to any monetary award, means so much of that award as is attributable to such matters as may be prescribed by regulations under subsection (2);

" supplementary benefit " has the same meaning as in the Supplementary Benefits Act 1976 ; and

" unemployment benefit " means unemployment benefit under the Social Security Act 1975.

Conciliation officers

General provisions as to conciliation officers

133

(1) The provisions of subsections (2) to (6) shall have effect in relation to industrial tribunal proceedings, or claims which could be the subject of tribunal proceedings.—

(a) arising out of a contravention, or alleged contravention, of any of the following provisions of this Act, that is to say, sections 8, 12, 19, 23, 27, 28, 29, 31, 33 and 53 ; or

(b) arising out of a contravention, or alleged contravention, of section 99 or 102 of the Employment Protection Act 1975 or of a provision of any other Act specified by an order under subsection (7) as one to which this paragraph applies; or

(c) which are proceedings or claims in respect of which an industrial tribunal has jurisdiction by virtue of an order under section 131.

(2) Where a complaint has been presented to an industrial tribunal, and a copy of it has been sent to a conciliation officer, it shall be the duty of the conciliation officer—

(a) if he is requested to do so by the complainant and by the person against whom the complaint is presented, or

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

to endeavour to promote a settlement of the complaint without its being determined by an industrial tribunal.

(3) Where at any time—

(a) a person claims that action has been taken in respect of which a complaint could be presented by him to an industrial tribunal, but

(b) before any complaint relating to that action has been presented by him,

a request is made to a conciliation officer (whether by that person or by the person against whom the complaint could be made) to make his services available to them, the conciliation officer shall act in accordance with subsection (2) as if a complaint has been presented to an industrial tribunal.

(4) Subsections (2) and (3) shall apply, with appropriate modifications, to the presentation of a claim and the reference of a question to an industrial tribunal as they apply to the presentation of a complaint.

(5) In proceeding under subsection (2) or (3) a conciliation officer shall, where appropriate, have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.

(6) Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an industrial tribunal, except with the consent of the person who communicated it to that officer.

(7) The Secretary of State may by order—

(a) direct that further provisions of this Act be added to the list in subsection (1)(a);

(b) specify a provision of any other Act as one to which subsection (1)(b) applies.

Functions of conciliation officers on complaint under s. 67

134

(1) Where a complaint has been presented to an industrial tribunal under section 67 by a person (in this section referred to as the complainant) and a copy of it has been sent to a conciliation officer, it shall be the duty of the conciliation officer—

(a) if he is requested to do so by the complainant and by the employer against whom it was presented, or

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

to endeavour to promote a settlement of the complaint without its being determined by an industrial tribunal.

(2) For the purpose of promoting such a settlement, in a case where the complainant has ceased to be employed by the employer against whom the complaint was made.—

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

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

(3) Where at any time—

(a) after the complainant has ceased to be employed by an employer, in circumstances where the employee claims that he was unfairly dismissed, but

(b) before any complaint relating to that claim has been presented by the claimant under section 67,

a request is made to a conciliation officer (whether by the employer or by the employee) to make his services available to them, the conciliation officer shall act in accordance with subsections (1) and (2) as if a complaint had been presented in pursuance of that claim.

(4) In proceeding under subsections (1) to (3), a conciliation officer shall where appropriate have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.

(5) Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an industrial tribunal, except with the consent of the person who communicated it to that officer.

Employment Appeal Tribunal

135

(1) The Employment Appeal Tribunal established under section 87 of the Employment Protection Act 1975 shall continue in existence by that name for the purpose of hearing appeals under section 136.

(2) The Employment Appeal Tribunal (in this Act referred to as " the Appeal Tribunal") shall consist of—

(a) such number of judges as may be nominated from time to time by the Lord Chancellor from among the judges (other than the Lord Chancellor) of the High Court and the Court of Appeal;

(b) at least one judge of the Court of Session nominated from time to time by the Lord President of that Court; and

(c) such number of other members as may be appointed from time to time by Her Majesty on the joint recommendation of me Lord Chancellor and the Secretary of State.

(3) The members of the Appeal Tribunal appointed under subsection (2)(c) shall be persons who appear to the Lord Chancellor and the Secretary of State to have special knowledge or experience of industrial relations, either as representatives of employers or as representatives of workers (within the meaning of the Trade Union and Labour Relations Act 1974).

(4) The Lord Chancellor shall, after consultation with the Lord President of the Court of Session, appoint one of the judges nominated under subsection (2) to be President of the Appeal Tribunal.

(5) No judge shall be nominated a member of the Appeal Tribunal except with his consent.

(6) The provisions of Schedule 11 shall have effect with respect to the Appeal Tribunal and proceedings before the Tribunal.

Appeals to Tribunal from industrial tribunals and Certification Officer

136

(1) An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, the following Acts—

(a) the Equal Pay Act 1970 ;

(b) the Sex Discrimination Act 1975 ;

(d) the Race Relations Act 1976 ;

(e) this Act.

(2) The Appeal Tribunal shall hear appeals on questions of law arising in any proceedings before, or arising from any decision of, the Certification Officer under the following enactments—

(a) sections 3, 4 and 5 of the Trade Union Act 1913;

(b) section 4 of the Trade Union (Amalgamations, etc.) Act 1964.

(3) The Appeal Tribunal shall hear appeals on questions of fact or law arising in any proceedings before, or arising from any decision of, the Certification Officer under the following enactments—

(a) section 8 of the Trade Union and Labour Relations Act 1974;

(b) section 8 of the Employment Protection Act 1975.

(4) Without prejudice to section 13 of the Administration of Justice Act 1960 (appeal in case of contempt of court), an appeal shall lie on any question of law from any decision or order of the Appeal Tribunal with the leave of the Tribunal or of the Court of Appeal or, as the case may be, the Court of Session.—

(a) in the case of proceedings in England and Wales, to the Court of Appeal;

(b) in the case of proceedings in Scotland, to the Court of Session.

(5) No appeal shall lie except to the Appeal Tribunal from any decision of an industrial tribunal under the Acts listed in subsection (1) or from any decision under the enactments listed in subsections (2) and (3) of the Certification Officer appointed under section 7 of the Employment Protection Act 1975.

PART IX — Miscellaneous and Supplemental

Extension of employment protection legislation

Power to extend employment protection legislation

137

(1) Her Majesty may by Order in Council provide that—

(a) the provisions of this Act; and

(b) any legislation (that is to say any enactment of the Parliament of Northern Ireland and any provision made by or under a Measure of the Northern Ireland Assembly for the time being in force in Northern Ireland which makes provision for purposes corresponding to any of the purposes of this Act,

shall, to such extent and for such purposes as may be specified in the Order, apply (with or without modification) to or in relation to any person in employment to which this section applies.

(2) This section applies to employment for the purposes of any activities—

(a) in the territorial waters of the United Kingdom ; or

(b) connected with the exploration of the sea bed or subsoil or the exploitation of their natural resources in any area designated by order under section 1(7) of the Continental Shelf Act 1964 ; or

(c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.

(3) An Order in Council under subsection (1)—

(a) may make different provision for different cases ;

(b) may provide that all or any of the enactments referred to in subsection (1), as applied by such an Order, shall apply to individuals whether or not they are British subjects and to bodies corporate whether or not they are incorporated under the law of any part of the United Kingdom (notwithstanding that the application may affect their activities outside the United Kingdom);

(c) may make provision for conferring jurisdiction on any court or class of court specified in the Order, or on industrial tribunals, in respect of offences, causes of action or other matters arising in connection with employment to which this section applies ;

(d) without prejudice to the generality of subsection (1) or of paragraph (a), may provide that the enactments referred to in subsection (1), as applied by the Order, shall apply in relation to any person in employment for the purposes of such activities as are referred to in subsection (2) in any part of the areas specified in paragraphs (a) and (b) of that subsection ;

(e) may exclude from the operation of section 3 of the Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under the enactments referred to in subsection (1) in connection with employment to which this section applies ;

(f) may provide that such proceedings shall not be brought without such consent as may be required by the Order ;

(g) may, without prejudice to the generality of the power under subsection (1) to modify the enactments referred to in that subsection in their application for the purposes of this section, modify or exclude the operation of sections 141 and 144 or paragraph 14 of Schedule 13 or of any corresponding provision in any such Northern Irish legislation as is referred to in subsection (1)(b).

(4) Any jurisdiction conferred on any court or tribunal under this section shall be without prejudice to jurisdiction exercisable apart from this section by that or any other court or tribunal.

(5) In subsection (2) above—

" cross-boundary petroleum field " means a petroleum field that extends across the boundary between a designated area and a foreign sector of the continental shelf;

" foreign sector of the continental shelf " means an area which is outside the territorial waters of any State and within which rights are exercisable by a State other than the United Kingdom with respect to the sea bed and subsoil and their natural resources;

" petroleum field " means a geological structure identified as an oil or gas field by the Order in Council concerned.

Crown employment

Application of Act to Crown employment

138

(1) Subject to the following provisions of this section. Parts I (so far as it relates to itemised pay statements). II, III (except section 44), V, VIII and this Part and section 53 shall have effect in relation to Crown employment and to persons in Crown employment as they have effect in relation to other employment and to other employees.

(2) In this section, subject to subsections (3) to (5), " Crown employment " means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by any enactment.

(3) This section does not apply to service as a member of the naval, military or air forces of the Crown, or of any women's service administered by the Defence Council, but does apply to employment by any association established for the purposes of the Auxiliary Forces Act 1953.

(4) For the purposes of this section, Crown employment does not include any employment in respect of which there is in force a certificate issued by or on behalf of a Minister of the Crown certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or, at a time specified in the certificate, was) required to be excepted from this section for the purpose of safeguarding national security; and any document purporting to be a certificate so issued shall be received in evidence and shall, unless the contrary is proved, be deemed to be such a certificate.

(5) For the purposes of Parts I (so far as it relates to itemised pay statements), II, III (except section 44(3) and (4)), V, VII (except section 126(3) and (4)), VIII and this Part and section 53, none of the bodies referred to in Schedule 5 shall be regarded as performing functions on behalf of the Crown and accordingly employment by any such body shall not be Crown employment within the meaning of this section.

(6) For the purposes of the application of the provisions of this Act in relation to employment by any such body as is referred to in subsection (5), any reference to redundancy shall be construed as a reference to the existence of such circumstances as, in accordance with any arrangements for the time being in force as mentioned in section 111(3), are treated as equivalent to redundancy in relation to such employment.

(7) For the purposes of the application of the provisions of this Act in relation to Crown employment in accordance with subsection (1)—

(a) any reference to an employee shall be construed as a reference to a person in Crown employment;

(b) any reference to a contract of employment shall be construed as a reference to the terms of employment of a person in Crown employment;

(d) any reference to redundancy shall be construed as a reference to the existence of such circumstances as, in accordance with any arrangements for the time being in force as mentioned in section 111(3), are treated as equivalent to redundancy in relation to Crown employment ;

(e) the reference in paragraph 1(5)(c) of Schedule 9 to a person's undertaking or any undertaking in which he works shall be construed as a reference to the national interest; and

(f) any other reference to an undertaking shall be construed, in relation to a Minister of the Crown, as a reference to his functions or (as the context may require) to the department of which he is in charge and, in relation to a government department, officer or body, shall be construed as a reference to the functions of the department, officer or body or (as the context may require) to the department, officer or body.

(8) Where the terms of employment of a person in Crown employment restrict his right to take part in—

(a) certain political activities; or

(b) activities which may conflict with his official functions,

nothing in section 29 shall require him to be allowed time off work for public duties connected with any such activities.

House of Commons staff

Provisions as to House of Commons staff

139

(1) The provisions of Parts I (so far as it relates to itemised pay statements), II, III (except section 44), V and VIII, and this Part and section 53 shall apply to relevant members of House of Commons staff as they apply to persons in Crown employment within the meaning of section 138 and accordingly for the purposes of the application of those provisions in relation to any such members—

(a) any reference to an employee shall be construed as a reference to any such member;

(b) any reference to a contract of employment shall be construed as including a reference to the terms of employment of any such member ;

(c) any reference to dismissal shall be construed as including a reference to the termination of any such member's employment;

(d) the reference in paragraph 1(5)(c) of Schedule 9 to a person's undertaking or any undertaking in which he works shall be construed as a reference to the national interest or, if the case so requires, the interests of the House of Commons ; and

(e) any other reference to an undertaking shall be construed as a reference to the House of Commons.

(2) Nothing in any rule of law or the law or practice of Parliament shall prevent a relevant member of the House of Commons staff from bringing a civil employment claim before the court or from bringing before an industrial tribunal proceedings of any description which could be brought before such a tribunal by any person who is not such a member.

(3) In this section—

" relevant member of the House of Commons staff " means— any person appointed by the House of Commons Commission (in this section referred to as the Commission) or employed in the refreshment department; and any member of Mr. Speaker's personal staff;

" civil employment claim " means a claim arising out of or relating to a contract of employment or any other contract connected with employment, or a claim in tort arising in connection with a person's employment; and

" the court " means the High Court or the county court.

(4) It is hereby declared that for the purposes of the enactments applied by subsection (1) and of Part VI (where applicable to relevant members of House of Commons staff) and for the purposes of any civil employment claim—

(a) the Commission is the employer of staff appointed by the Commission; and

(b) Mr. Speaker is the employer of his personal staff and of any person employed in the refreshment department and not falling within paragraph (a);

but the foregoing provision shall have effect subject to subsection (5).

(5) The Commission or, as the case may be, Mr. Speaker may designate for all or any of the purposes mentioned in subsection (4)—

(a) any description of staff other than Mr. Speaker's personal staff; and

(b) in relation to staff so designated, any person;

and where a person is so designated he, instead of the Commission or Mr. Speaker, shall be deemed for the purposes to which the designation relates to be the employer of the persons in relation to whom he is so designated.

(6) Where any proceedings are brought by virtue of this section against the Commission or Mr. Speaker or any person designated under subsection (5), the person against whom the proceedings are brought may apply to the court or the industrial tribunal, as the case may be, to have some other person against whom the proceedings could at the time of the application be properly brought substituted for him as a party to those proceedings.

(7) For the purposes mentioned in subsection (4) a person's employment in or for the purposes of the House of Commons shall not, provided he continues to be employed in such employment, be treated as terminated by reason only of a change (whether effected before or after the passing of the House of Commons (Administration) Act 1978, and whether effected by virtue of that Act or otherwise) in his employer and (provided he so continues) his first appointment to such employment shall be deemed after the change to have been made by his employer for the time being, and accordingly—

(a) he shall be treated for the purposes so mentioned as being continuously employed by that employer from the commencement of such employment until its termination; and

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