Employment Rights Act 1996

• (3) A reason or set of circumstances prescribed under this section must relate to—

• (a) pregnancy, childbirth or maternity,

• (aa) time off under section 57ZE,

• (ab) time off under section 57ZJ or 57ZL,

• (b) ordinary, compulsory or additional maternity leave,

• (ba) ordinary or additional adoption leave,

• (bb) shared parental leave,

• (bc) carer’s leave,

• (c) parental leave,

• (ca) paternity leave,

• (cb) parental bereavement leave,

• (cc) neonatal care leave, or

• (d) time off under section 57A;

and it may also relate to redundancy or other factors.

• (4) A reason or set of circumstances prescribed under subsection (1) satisfies subsection (3)(c) or (d) if it relates to action which an employee—

• (a) takes,

• (b) agrees to take, or

• (c) refuses to take,

under or in respect of a collective or workforce agreement which deals with parental leave.

• (5) Regulations under this section may—

• (a) make different provision for different cases or circumstances;

• (b) apply any enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to persons regarded as unfairly dismissed by reason of this section.

Health and safety cases

100

• (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

• (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

• (b) being a representative of workers on matters of health and safety at work or member of a safety committee—

• (i) in accordance with arrangements established under or by virtue of any enactment, or

• (ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

• (c) being an employee at a place where—

• (i) there was no such representative or safety committee, or

• (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

• (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

• (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

• (2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

• (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.

Shop workers and betting workers who refuse Sunday work

101

• (1) Where an employee who is—

• (a) a protected shop worker or an opted-out shop worker, or

• (b) a protected betting worker or an opted-out betting worker,

is dismissed, he shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

• (2) Subsection (1) does not apply in relation to an opted-out shop worker or an opted-out betting worker where the reason (or principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

• (3) A shop worker or betting worker who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the shop worker or betting worker gave (or proposed to give) an opting-out notice to the employer.

• (4) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

Trustees of occupational pension schemes

102

• (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

• (1A) This section applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).

• (2) In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the Pension Schemes Act 1993) established under a trust.

Employee representatives

103

• (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee, being—

• (a) an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, or

• (b) a candidate in an election in which any person elected will, on being elected, be such an employee representative,

performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

• (2) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee took part in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 .

Assertion of statutory right

104

• (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

• (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

• (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

• (2) It is immaterial for the purposes of subsection (1)—

• (a) whether or not the employee has the right, or

• (b) whether or not the right has been infringed;

but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

• (3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

• (4) The following are relevant statutory rights for the purposes of this section—

• (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal,

• (b) the right conferred by section 86 of this Act, . . .

• (c) the rights conferred by sections 68, 86, 145A, 145B, 146, 168, 168A, 168B, 169 , 170 and 236A of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) ...

• (d) the rights conferred by the Working Time Regulations 1998, the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58), the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003 , the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008. , and

• (e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.

• (5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).

Redundancy

105

• (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

• (a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant,

• (b) 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 the employee and who have not been dismissed by the employer, and

• (c) it is shown that any of subsections (2A) to (7N) applies.

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

• (2A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 98B (unless the case is one to which subsection (2) of that section applies).

• (3) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 100 (read with subsections (2) and (3) of that section).

• (4) This subsection applies if either—

• (a) the employee was a protected shop worker or an opted-out shop worker, or a protected betting worker or an opted-out betting worker, and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (1) of section 101 (read with subsection (2) of that section), or

• (b) the employee was a shop worker or a betting worker and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (3) of that section.

• (4A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 101A.

• (5) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 102(1).

• (6) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103.

• (6A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103A.

• (7) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104 (read with subsections (2) and (3) of that section).

• (7A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104A (read with subsection (2) of that section).

• (7B) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104B (read with subsection (2) of that section).

• (7BA) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104C.

• (7BB) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104E.

• (7C) This subsection applies if—

• (a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the reason mentioned in section 238A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (participation in official industrial action), and

• (b) subsection (3), (4) or (5) of that section applies to the dismissal.

• (7D) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (read with paragraphs (4) and (7) of that regulation).

• (7E) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (unless the case is one to which paragraph (4) of that regulation applies).

• (7F) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (unless the case is one to which paragraph (4) of that regulation applies).

• (7G) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations 2004 (read with paragraphs (4) and (7) of that regulation).

• (7H) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 30 of the Information and Consultation of Employees Regulations 2004 (read with paragraphs (4) and (7) of that regulation).

• (7I) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph 5(3) or (5) of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (read with paragraph 5(6) of that Schedule).

• (7IA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7J) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 31 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (read with paragraphs (4) and (7) of that regulation).

• (7JA) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104D (read with subsection (2) of that section).

• (7K) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7L) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 29 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009( S.I. 2009/2401) (read with paragraphs (4) and (7) of that regulation).

• (7M) This subsection applies if—

• (a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1), and

• (b) the condition in paragraph (a) or (b) of that subsection was met.

• (7N) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in—

• (a) paragraph (3) of regulation 17 of the Agency Workers Regulations 2010 (unless the case is one to which paragraph (4) of that regulation applies); or

• (b) paragraph (3) of regulation 5 of the Agency Workers (Amendment) Regulations 2019 (unless the case is one to which paragraph (4) of that regulation applies).

• (8) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

• (9) In this Part “redundancy case” means a case where paragraphs (a) and (b) of subsection (1) of this section are satisfied.

Replacements

106

• (1) Where this section applies to an employee he shall be regarded for the purposes of section 98(1)(b) as having been dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

• (2) This section applies to an employee where—

• (a) on engaging him the employer informs him in writing that his employment will be terminated on the resumption of work by another employee who is, or will be, absent wholly or partly because of pregnancy or childbirth, or on adoption leaveor shared parental leave and

• (b) the employer dismisses him in order to make it possible to give work to the other employee.

• (3) This section also applies to an employee where—

• (a) on engaging him the employer informs him in writing that his employment will be terminated on the end of a suspension of another employee from work on medical grounds or maternity grounds (within the meaning of Part VII), and

• (b) the employer dismisses him in order to make it possible to allow the resumption of work by the other employee.

• (4) Subsection (1) does not affect the operation of section 98(4) in a case to which this section applies.

Pressure on employer to dismiss unfairly

107

• (1) This section applies where there falls to be determined for the purposes of this Part a question—

• (a) as to the reason, or principal reason, for which an employee was dismissed,

• (b) whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirement of section 98(1)(b), or

• (c) whether an employer acted reasonably in treating the reason or principal reason for which an employee was dismissed as a sufficient reason for dismissing him.

• (2) In determining the question 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 the question shall be determined as if no such pressure had been exercised.

Exclusion of right

Qualifying period of employment

108

• (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.

• (2) If an employee is dismissed by reason of any such requirement or recommendation as is referred to in section 64(2), subsection (1) has effect in relation to that dismissal as if for the words “two years” there were substituted the words “ one month ”.

• (3) Subsection (1) does not apply if—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,

• (b) subsection (1) of section 99 (read with any regulations made under that section) applies,

• (c) subsection (1) of section 100 (read with subsections (2) and (3) of that section) applies,

• (d) subsection (1) of section 101 (read with subsection (2) of that section) or subsection (3) of that section applies,

• (da) subsection (2) of section 101ZA applies (read with subsection (3) of that section) or subsection (4) of that section applies,

• (dd) section 101A applies,

• (e) section 102 applies,

• (f) section 103 applies,

• (ff) section 103A applies,

• (g) subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, . . .

• (gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, . . .

• (gh) subsection (1) of section 104B (read with subsection (2) of that section) applies, . . .

• (gi) section 104C applies,

• (gj) subsection (1) of section 104D (read with subsection (2) of that section) applies,

• (gk) section 104E applies,

• (gl) subsection (1) of section 104F (read with subsection (2) of that section) applies,

• (gm) section 104G applies,

• (h) section 105 applies,. . .

• (hh) paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (read with paragraphs (4) and (7) of that regulation) applies, . . .

• (i) paragraph (1) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applies,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (j) paragraph (1) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 applies,

. . .

• (k) paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations 2004 applies,

. . .

• (l) paragraph (3) or (6) of regulation 30 of the Information and Consultation of Employees Regulations 2004 (read with paragraphs (4) and (7) of that regulation) applies, . . .

• (m) paragraph 5(3) or (5) of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (read with paragraph 5(6) of that Schedule) applies ..., or

• (n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (o) paragraph (3) or (6) of regulation 31 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (read with paragraphs (4) and (7) of that regulation) applies,

• (p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (q) paragraph (1)(a) or (b) of regulation 29 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009( S.I. 2009/2401) applies, or

• (r) paragraph (1) of regulation 17 of the Agency Workers Regulations 2010 applies

• (4) Subsection (1) does not apply if the reason (or, if more than one, the principal reason) for the dismissal is, or relates to, the employee's political opinions or affiliation.

• (5) Subsection (1) does not apply if the reason (or, if more than one, the principal reason) for the dismissal is, or is connected with, the employee's membership of a reserve force (as defined in section 374 of the Armed Forces Act 2006).

Upper age limit

109

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dismissal procedures agreements

110

• (1) Where a dismissal procedures agreement is designated by an order under subsection (3) which is for the time being in force—

• (a) the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under section 94, and

• (b) accordingly, section 94 does 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.

• (2) But if the agreement includes provision that it does not apply to dismissals of particular descriptions, subsection (1) does not apply in relation to a dismissal of any such description.

• (3) An order designating a dismissal procedures agreement may be made by the Secretary of State, on an application being made to him jointly by all the parties to the agreement, if he is satisfied that—

• (a) every trade union which is a party to the agreement is an independent trade union,

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

• (d) 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) the agreement includes provision either for arbitration in every case or for—

• (i) arbitration where (by reason of equality of votes or for any other reason) a decision under the agreement cannot otherwise be reached, and

• (ii) a right to submit to arbitration any question of law arising out of such a decision, and

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

• (4) If at any time when an order under subsection (3) is in force in relation to a dismissal procedures agreement the Secretary of State is satisfied, whether on an application made to him by any of the parties to the agreement or otherwise, either—

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

• (b) that the agreement no longer satisfies all the conditions specified in subsection (3),

the Secretary of State shall revoke the order by an order under this subsection.

• (5) The transitional provisions which may be made in an order under subsection (4) include, in particular, provisions directing—

• (a) that an employee—

• (i) shall not be excluded from his right under section 94 where the effective date of termination falls within a transitional period which ends with the date on which the order takes effect and which is specified in the order, and

• (ii) shall have an extended time for presenting a complaint under section 111 in respect of a dismissal where the effective date of termination falls within that period, and

• (b) that, where the effective date of termination falls within such a transitional period, an employment tribunal shall, in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, have regard to such considerations as are specified in the order (in addition to those specified in this Part and section 10(4) and (5) of the Employment Tribunals Act 1996).

• (6) Where an award is made under a designated dismissal procedures agreement—

• (a) in England and Wales it may be enforced, by leave of the county court, in the same manner as a judgment of the court to the same effect and, where leave is given, judgment may be entered in terms of the award, and

• (b) in Scotland it may be recorded for execution in the Books of Council and Session and shall be enforceable accordingly.

Chapter II — Remedies for unfair dismissal

Introductory

Complaints to industrial tribunal

111

• (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

• (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

• (a) before the end of the period of three months beginning with the effective date of termination, or

• (b) 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 that period of three months.

• (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).

• (3) Where a dismissal is with notice, an employment tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.

• (4) In relation to a complaint which is presented as mentioned in subsection (3), the provisions of this Act, so far as they relate to unfair dismissal, have effect as if—

• (a) 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) references to reinstatement included references to the withdrawal of the notice by the employer,

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

• (5) Where the dismissal is alleged to be unfair by virtue of section 104F (blacklists),

• (a) subsection (2)(b) does not apply, and

• (b) an employment tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

The remedies: orders and compensation

112

• (1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are well-founded.

• (2) The tribunal shall—

• (a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and

• (b) ask him whether he wishes the tribunal to make such an order.

• (3) If the complainant expresses such a wish, the tribunal may make an order under section 113.

• (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126. . .) to be paid by the employer to the employee.

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

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orders for reinstatement or re-engagement

The orders

113

An order under this section may be—

• (a) an order for reinstatement (in accordance with section 114), or

• (b) an order for re-engagement (in accordance with section 115),

as the tribunal may decide.

Order for reinstatement

114

• (1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

• (2) On making an order for reinstatement 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) 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) In calculating for the purposes of subsection (2)(a) 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 by way of—

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

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

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

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

Order for re-engagement

115

• (1) An order for re-engagement is an order, on such terms as the tribunal may decide, 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.

• (2) On making an order for re-engagement 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.

• (3) In calculating for the purposes of subsection (2)(d) 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 re-engagement by way of—

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

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

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

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

Choice of order and its terms

116

• (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—

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

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

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

• (2) 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.

• (3) In so doing the tribunal shall take into account—

• (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 a successor or an associated employer) to comply with an order for re-engagement, and

• (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.

• (4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(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.

• (5) 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 (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.

• (6) Subsection (5) does not apply where 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—

• (i) 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

• (ii) 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.

Enforcement of order and compensation

117

• (1) An employment tribunal shall make an award of compensation, to be paid by the employer to the employee, if—

• (a) an order under section 113 is made and the complainant is reinstated or re-engaged, but

• (b) the terms of the order are not fully complied with.

• (2) Subject to section 124 . . ., the amount of the compensation shall be such 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.

• (2A) There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113.

• (3) Subject to subsections (1) and (2) . . ., if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make—

• (a) an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126), and

• (b) except where this paragraph does not apply, an additional award of compensation of an amount not less than twenty-six nor more than fifty-two weeks’ pay,

to be paid by the employer to the employee.

• (4) Subsection (3)(b) does not apply where—

• (a) the employer satisfies the tribunal that it was not practicable to comply with the order, . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) 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 (4)(a) 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.

• (8) Where in any case an employment tribunal finds that the complainant has unreasonably prevented an order under section 113 from being complied with, in making an award of compensation for unfair dismissal . . . it shall take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Compensation

General

118

• (1) . . .Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of—

• (a) a basic award (calculated in accordance with sections 119 to 122 and 126), and

• (b) a compensatory award (calculated in accordance with sections 123, 124, 124A and 126).

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

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

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

Basic award

119

• (1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by—

• (a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed,

• (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and

• (c) allowing the appropriate amount for each of those years of employment.

• (2) In subsection (1)(c) “the appropriate amount” means—

• (a) one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one,

• (b) one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and

• (c) half a week’s pay for a year of employment not within paragraph (a) or (b).

• (3) Where twenty years of employment have been reckoned under subsection (1), no account shall be taken under that subsection of any year of employment earlier than those twenty years.

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

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

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Basic award: minimum in certain cases

120

• (1) The amount of the basic award (before any reduction under section 122) shall not be less than £9,157 where the reason (or, if more than one, the principal reason)—

• (a) in a redundancy case, for selecting the employee for dismissal, or

• (b) otherwise, for the dismissal,

is one of those specified in section 100(1)(a) and (b), 101A(d), 102(1) or 103.

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1C) Where an employee is regarded as unfairly dismissed by virtue of section 104F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of the basic award of compensation (before any reduction is made under section 122) shall not be less than £5,000.

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

Basic award of two weeks' pay in certain cases

121

The amount of the basic award shall be two weeks’ pay where the tribunal finds that the reason (or, where there is more than one, the principal reason) for the dismissal of the employee is that he was redundant and the employee—

• (a) by virtue of section 138 is not regarded as dismissed for the purposes of Part XI, or

• (b) by virtue of section 141 is not, or (if he were otherwise entitled) would not be, entitled to a redundancy payment.

Basic award: reductions

122

• (1) Where the tribunal finds that the complainant has unreasonably refused an offer by the employer which (if accepted) would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that finding.

• (2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

• (3) Subsection (2) does not apply in a redundancy case unless the reason for selecting the employee for dismissal was one of those specified in section 100(1)(a) and (b), 101A(d), 102(1) or 103; and in such a case subsection (2) applies only to so much of the basic award as is payable because of section 120.

• (3A) Where the complainant has been awarded any amount in respect of the dismissal under a designated dismissal procedures agreement, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that award.

• (4) The amount of the basic award shall be reduced or further reduced by the amount of—

• (a) any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or

• (b) 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 XI or otherwise).

• (5) Where a dismissal is regarded as unfair by virtue of section 104F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award in respect of the same dismissal under section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992 (minimum basic award in case of dismissal on grounds related to trade union membership or activities).

Compensatory award

123

• (1) Subject to the provisions of this section and sections 124 , 124A and 126 , 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 loss referred to in subsection (1) 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 loss referred to in subsection (1) shall be taken to include in respect of any loss of—

• (a) any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI or otherwise), or

• (b) any expectation of such a payment,

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 122) in respect of the same dismissal.

• (4) In ascertaining the loss referred to in subsection (1) 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 (as the case may be) Scotland.

• (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—

• (a) calling, organising, procuring or financing a strike or other industrial action, or

• (b) 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.

• (6A) Where—

• (a) the reason (or principal reason) for the dismissal is that the complainant made a protected disclosure, and

• (b) it appears to the tribunal that the disclosure was not made in good faith,

the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the complainant by no more than 25%.

• (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 XI or otherwise) exceeds the amount of the basic award which would be payable but for section 122(4), that excess goes to reduce the amount of the compensatory award.

• (8) Where the amount of the compensatory award falls to be calculated for the purposes of an award under section 117(3)(a), there shall be deducted from the compensatory award any award made under section 112(5) at the time of the order under section 113.

Limit of compensatory award etc

124

• (1) The amount of—

• (a) any compensation awarded to a person under section 117(1) and (2), or

• (b) a compensatory award to a person calculated in accordance with section 123,

shall not exceed the amount specified in subsection (1ZA).

• (1ZA) The amount specified in this subsection is the lower of—

• (a) £123,543, and

• (b) 52 multiplied by a week’s pay of the person concerned.

• (1A) Subsection (1) shall not apply to compensation awarded, or a compensatory award made, to a person in a case where he is regarded as unfairly dismissed by virtue of section 100, 103A, 105(3) or 105(6A).

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

• (3) In the case of compensation awarded to a person under section 117(1) and (2), the limit imposed by this section may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 114(2)(a) or section 115(2)(d).

• (4) Where—

• (a) a compensatory award is an award under paragraph (a) of subsection (3) of section 117, and

• (b) an additional award falls to be made under paragraph (b) of that subsection,

the limit imposed by this section on the compensatory award may be exceeded to the extent necessary to enable the aggregate of the compensatory and additional awards fully to reflect the amount specified as payable under section 114(2)(a) or section 115(2)(d).

• (5) The limit imposed by this section applies to the amount which the employment tribunal would, apart from this section, award in respect of the subject matter of the complaint after taking into account—

• (a) any payment made by the respondent to the complainant in respect of that matter, and

• (b) any reduction in the amount of the award required by any enactment or rule of law.

Special award

125

Acts which are both unfair dismissal and discrimination

126

• (1) This section applies where compensation falls to be awarded in respect of any act both under—

• (a) the provisions of this Act relating to unfair dismissal, and

• (b) the Equality Act 2010.

• (2) An employment tribunal shall not award compensation under either of those Acts in respect of any loss or other matter which is or has been taken into account under the other by the tribunal (or another employment tribunal) in awarding compensation on the same or another complaint in respect of that act.

Dismissal of woman at or after end of maternity leave period

127

Interim relief

Interim relief pending determination of complaint

128

• (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and—

• (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—

• (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or

• (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or

• (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met,

may apply to the tribunal for interim relief.

• (2) The tribunal shall not entertain an application for interim relief unless 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).

• (3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.

• (4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.

• (5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

Procedure on hearing of application and making of order

129

• (1) This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find—

• (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—

• (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or

• (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or

• (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.

• (2) The tribunal shall announce its findings and explain to both parties (if present)—

• (a) what powers the tribunal may exercise on the application, and

• (b) in what circumstances it will exercise them.

• (3) The tribunal 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 treat him 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.

• (4) For the purposes of subsection (3)(b) “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 should be regarded as continuous with his employment following the dismissal.

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

• (6) If the employer—

• (a) states that he is willing to re-engage the employee in another job, and

• (b) 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.

• (7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect.

• (8) If the employee is not willing to accept the job on those terms and conditions—

• (a) where 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, and

• (b) otherwise, the tribunal shall make no order.

• (9) If on the hearing of an application for interim relief the employer—

• (a) fails to attend before the tribunal, or

• (b) states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3),

the tribunal shall make an order for the continuation of the employee’s contract of employment.

Order for continuation of contract of employment

130

• (1) An order under section 129 for the continuation of a contract of employment is an order that the contract of employment continue in force—

• (a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and

• (b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.

• (2) Where the tribunal makes such an 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 dismissal and the determination or settlement of the complaint.

• (3) Subject to the following provisions, 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—

• (a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and

• (b) in the case of a payment for any past period, within such time as may be specified in the order.

• (4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.

• (5) 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 a normal pay period, or part of any such period, goes towards discharging the employer’s liability in respect of that period under subsection (2); and, conversely, any payment under that subsection in respect of a period goes towards discharging any liability of the employer under, or in respect of breach of, the contract of employment in respect of that period.

• (6) 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.

• (7) 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.

Application for variation or revocation of order

131

• (1) At any time between—

• (a) the making of an order under section 129, and

• (b) the determination or settlement of the complaint,

the employer or the employee may apply to an employment tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.

• (2) Sections 128 and 129 apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, section 128(4) has effect with the substitution of a reference to the employee for the reference to the employer.

Consequence of failure to comply with order

132

• (1) If, on the application of an employee, an employment 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 129(5) or (7), the tribunal shall—

• (a) make an order for the continuation of the employee’s contract of employment, and

• (b) order the employer to pay compensation to the employee.

• (2) Compensation under subsection (1)(b) shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard—

• (a) to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and

• (b) to any loss suffered by the employee in consequence of the non-compliance.

• (3) Section 130 applies to an order under subsection (1)(a) as in relation to an order under section 129.

• (4) If on the application of an employee an employment tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment subsection (5) or (6) applies.

• (5) Where the non-compliance consists of a failure to pay an amount by way of pay specified in the order—

• (a) the tribunal shall determine the amount owed by the employer on the date of the determination, and

• (b) if on that date the tribunal also determines the employee’s complaint that he has been unfairly dismissed, it shall specify that amount separately from any other sum awarded to the employee.

• (6) 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.

Chapter III — Supplementary

Death of employer or employee

133

• (1) Where—

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

• (b) before that termination the employee or the employer dies,

this Part applies as if the contract had been duly terminated by the employer by notice expiring on the date of the death.

• (2) Where—

• (a) an employee’s contract of employment has been terminated,

• (b) by virtue of subsection (2) or (4) of section 97 a date later than the effective date of termination as defined in subsection (1) of that section is to be treated for certain purposes as the effective date of termination, and

• (c) the employer or the employee dies before that date,

subsection (2) or (4) of section 97 applies as if the notice referred to in that subsection as required by section 86 expired on the date of the death.

• (3) Where an employee has died, sections 113 to 116 do not apply; and, accordingly, if the employment tribunal finds that the grounds of the complaint are well-founded, the case shall be treated as falling within section 112(4) as a case in which no order is made under section 113.

• (4) Subsection (3) does not prejudice an order for reinstatement or re-engagement made before the employee’s death.

• (5) Where an order for reinstatement or re-engagement has been made and the employee dies before the order is complied with—

• (a) if the employer has before the death refused to reinstate or re-engage the employee in accordance with the order, subsections (3) to (6) of section 117 apply, and an award shall be made under subsection (3)(b) of that section, unless the employer satisfies the tribunal that it was not practicable at the time of the refusal to comply with the order, and

• (b) if there has been no such refusal, subsections (1) and (2) of that section apply if the employer fails to comply with any ancillary terms of the order which remain capable of fulfilment after the employee’s death as they would apply to such a failure to comply fully with the terms of an order where the employee had been reinstated or re-engaged.

Teachers in aided schools

134

• (1) Where a teacher in a foundation, voluntary aided or foundation special school is dismissed by the governing body of the school in pursuance of a requirement of the local authority under paragraph 7 of Schedule 2 to the Education Act 2002, this Part has effect in relation to the dismissal as if—

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

• (b) the local authority had dismissed him, and

• (c) 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 111 as it has effect by virtue of subsection (1)—

• (a) section 117(4)(a) applies 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 123(5) applies as if the references in it to the employer were to the local authority.

• (3) In this section “ local authority ” has the meaning given by section 579(1) of the Education Act 1996.

Part XI — Redundancy payments etc.

Chapter I — Right to redundancy payment

The right

135

• (1) An employer shall pay a redundancy payment to any employee of his if the employee—

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

• (b) is eligible for a redundancy payment by reason of being laid off or kept on short-time.

• (2) Subsection (1) has effect subject to the following provisions of this Part (including, in particular, sections 140 to 144, 149 to 152, 155 to 161 and 164).

Chapter II — Right on dismissal by reason of redundancy

Dismissal by reason of redundancy

Circumstances in which an employee is dismissed

136

• (1) Subject to the provisions of this section and sections 137 and 138, for the purposes of this Part an employee is dismissed by his employer if (and only if)—

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

• (b) he is employed under a limited term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or

• (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

• (2) Subsection (1)(c) does not apply if the employee terminates the contract without notice in circumstances in which he is entitled to do so by reason of a lock-out by the employer.

• (3) An employee shall be taken to be dismissed by his employer for the purposes of this Part if—

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

• (b) at a time within the obligatory period of 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.

• (4) In this Part the “obligatory period of notice”, in relation to notice given by an employer to terminate an employee’s contract of employment, means—

• (a) the actual period of the notice in a case where 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 (by virtue of any enactment or otherwise) is required to be given by the employer to terminate the contract of employment, and

• (b) the period which—

• (i) is equal to the minimum period referred to in paragraph (a), and

• (ii) ends at the time when the notice expires,

in any other case.

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

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

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

operates to terminate a contract under which an employee is employed by him, the act or event shall be taken for the purposes of this Part to be a termination of the contract by the employer.

Failure to permit return after childbirth treated as dismissal

137

No dismissal in cases of renewal of contract or re-engagement

138

• (1) Where—

• (a) 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 before the end of his employment under the previous contract, and

• (b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment,

the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.

• (2) Subsection (1) does not apply if—

• (a) the provisions of the contract as renewed, or of the new contract, as to—

• (i) the capacity and place in which the employee is employed, and

• (ii) the other terms and conditions of his employment,

differ (wholly or in part) from the corresponding provisions of the previous contract, and

• (b) during the period specified in subsection (3)—

• (i) the employee (for whatever reason) terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated, or

• (ii) the employer, for a reason connected with or arising out of any difference between the renewed or new contract and the previous contract, terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated.

• (3) The period referred to in subsection (2)(b) is the period—

• (a) beginning at the end of the employee’s employment under the previous contract, and

• (b) ending with—

• (i) the period of four weeks beginning with the date on which the employee starts work under the renewed or new contract, or

• (ii) such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract;

and is in this Part referred to as the “trial period”.

• (4) Where subsection (2) applies, for the purposes of this Part—

• (a) the employee shall be regarded as 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, and

• (b) the reason for the dismissal shall be taken to be the reason for which the employee was then dismissed, or would have been dismissed had the offer (or original offer) of renewed or new employment not been made, or the reason which resulted in that offer being made.

• (5) Subsection (2) does not apply if 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.

• (6) For the purposes of subsection (3)(b)(ii) a period of retraining is agreed in accordance with this subsection only if the agreement—

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

• (b) is in writing,

• (c) specifies the date on which the period of retraining ends, and

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

Redundancy

139

• (1) 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 wholly or mainly attributable to—

• (a) the fact that his employer has ceased or intends to cease—

• (i) to carry on the business for the purposes of which the employee was employed by him, or

• (ii) to carry on that business in the place where the employee was so employed, or

• (b) the fact that the requirements of that business—

• (i) for employees to carry out work of a particular kind, or

• (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

• (2) For the purposes of subsection (1) 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 paragraphs (a) and (b) of that subsection would be satisfied without so treating them).

• (3) For the purposes of subsection (1) the activities carried on by a local authority with respect to the schools maintained by it, and the activities carried on by the governing bodies of those schools, shall be treated as one business (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them).

• (4) Where—

• (a) the contract under which a person is employed is treated by section 136(5) as terminated by his employer by reason of an act or event, and

• (b) the employee’s contract is not renewed and he is not re-engaged under a new contract of employment,

he shall be taken for the purposes of this Act to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in paragraphs (a) and (b) of subsection (1).

• (5) In its application to a case within subsection (4), paragraph (a)(i) of subsection (1) has effect as if the reference in that subsection to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.

• (6) In subsection (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.

• (7) In subsection (3) “ local authority ” has the meaning given by section 579(1) of the Education Act 1996.

Exclusions

Summary dismissal

140

• (1) Subject to subsections (2) and (3), an employee is not 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,

• (b) by giving shorter notice than that which, in the absence of conduct entitling the employer to terminate the contract without notice, the employer would be required to give to terminate the contract, or

• (c) by giving notice 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.

• (2) Where 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 section 148(1) indicating his intention to claim a redundancy payment in respect of lay-off or short-time,

takes part in a strike at any relevant time in circumstances which entitle the employer to treat the contract of employment as terminable without notice, subsection (1) does not apply if the employer terminates the contract by reason of his taking part in the strike.

• (3) Where the contract of employment of 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 section 148(1) indicating his intention to claim a redundancy payment in respect of lay-off or short-time,

is terminated as mentioned in subsection (1) at any relevant time otherwise than by reason of his taking part in a strike, an employment tribunal may determine that the employer is liable to make an appropriate payment to the employee if on a reference to the tribunal it appears to the tribunal, in the circumstances of the case, to be just and equitable that the employee should receive it.

• (4) In subsection (3) “appropriate payment” means—

• (a) the whole of the redundancy payment to which the employee would have been entitled apart from subsection (1), or

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

• (5) In this section “relevant time”—

• (a) in the case of an employee who has been given notice by his employer to terminate his contract of employment, means any time within the obligatory period of notice, and

• (b) in the case of an employee who has given notice to his employer under section 148(1), means any time after the service of the notice.

Renewal of contract or re-engagement

141

• (1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment—

• (a) to renew his contract of employment, or

• (b) to re-engage him under a new contract of employment,

with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.

• (2) Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.

• (3) This subsection is satisfied where—

• (a) the provisions of the contract as renewed, or of the new contract, as to—

• (i) the capacity and place in which the employee would be employed, and

• (ii) the other terms and conditions of his employment,

would not differ from the corresponding provisions of the previous contract, or

• (b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee.

• (4) The employee is not entitled to a redundancy payment if—

• (a) his contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of the offer,

• (b) the provisions of the contract as renewed or new contract as to the capacity or place in which he is employed or the other terms and conditions of his employment differ (wholly or in part) from the corresponding provisions of the previous contract,

• (c) the employment is suitable in relation to him, and

• (d) during the trial period he unreasonably terminates the contract, or unreasonably gives notice to terminate it and it is in consequence terminated.

Employee anticipating expiry of employer’s notice

142

• (1) Subject to subsection (3), an employee is not entitled to a redundancy payment where—

• (a) he is taken to be dismissed by virtue of section 136(3) by reason of giving to his employer notice terminating his contract of employment on a date earlier than the date on which notice by the employer terminating the contract is due to expire,

• (b) before the employee’s notice is due to expire, the employer gives him a notice such as is specified in subsection (2), and

• (c) the employee does not comply with the requirements of that notice.

• (2) The employer’s notice referred to in subsection (1)(b) is a notice in writing—

• (a) requiring the employee to withdraw his notice terminating the contract of employment and to continue in employment until the date on which the employer’s notice terminating the contract 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.

• (3) An employment tribunal may determine that the employer is liable to make an appropriate payment to the employee if on a reference to the tribunal it appears to the tribunal, having regard to—

• (a) the reasons for which the employee seeks to leave the employment, and

• (b) the reasons for which the employer requires him to continue in it,

to be just and equitable that the employee should receive the payment.

• (4) In subsection (3) “appropriate payment” means—

• (a) the whole of the redundancy payment to which the employee would have been entitled apart from subsection (1), or

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

Strike during currency of employer’s notice

143

• (1) This section applies where—

• (a) an employer has given notice to an employee to terminate his contract of employment (“notice of termination”),

• (b) after the notice is given the employee begins to take part in a strike of employees of the employer, and

• (c) the employer serves on the employee a notice of extension.

• (2) A notice of extension is a notice in writing which—

• (a) requests the employee to agree to extend the contract of employment beyond the time of expiry by a period comprising as many available days as the number of working days lost by striking (“the proposed period of extension”),

• (b) indicates the reasons for which the employer makes that request, and

• (c) states that the employer will contest any liability to pay the employee a redundancy payment in respect of the dismissal effected by the notice of termination unless either—

• (i) the employee complies with the request, or

• (ii) the employer is satisfied that, in consequence of sickness or injury or otherwise, the employee is unable to comply with it or that (even though he is able to comply with it) it is reasonable in the circumstances for him not to do so.

• (3) Subject to subsections (4) and (5), if the employee does not comply with the request contained in the notice of extension, he is not entitled to a redundancy payment by reason of the dismissal effected by the notice of termination.

• (4) Subsection (3) does not apply if the employer agrees to pay a redundancy payment to the employee in respect of the dismissal effected by the notice of termination even though he has not complied with the request contained in the notice of extension.

• (5) An employment tribunal may determine that the employer is liable to make an appropriate payment to the employee if on a reference to the tribunal it appears to the tribunal that—

• (a) the employee has not complied with the request contained in the notice of extension and the employer has not agreed to pay a redundancy payment in respect of the dismissal effected by the notice of termination, but

• (b) either the employee was unable to comply with the request or it was reasonable in the circumstances for him not to comply with it.

• (6) In subsection (5) “appropriate payment” means—

• (a) the whole of the redundancy payment to which the employee would have been entitled apart from subsection (3), or

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

• (7) If the employee—

• (a) complies with the request contained in the notice of extension, 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 has effect, and shall be deemed at all material times to have had effect, as if the period specified in it had been appropriately extended; and sections 87 to 91 accordingly apply as if the period of notice required by section 86 were extended to a corresponding extent.

• (8) In subsection (7) “appropriately extended” means—

• (a) in a case within paragraph (a) of that subsection, extended beyond the time of expiry by an additional period equal to the proposed period of extension, and

• (b) in a case within paragraph (b) of that subsection, extended beyond the time of expiry up to the end of the day (or last of the days) on which he attends at his proper or usual place of work and is ready and willing to work.

Provisions supplementary to section 143

144

• (1) For the purposes of section 143 an employee complies with the request contained in a notice of extension if, but only if, on each available day within the proposed period of extension, he—

• (a) attends at his proper or usual place of work, and

• (b) is ready and willing to work,

whether or not he has signified his agreement to the request in any other way.

• (2) The reference in section 143(2) to the number of working days lost by striking is a reference to the number of working days in the period—

• (a) beginning with the date of service of the notice of termination, and

• (b) ending with the time of expiry,

which are days on which the employee in question takes part in a strike of employees of his employer.

• (3) In section 143 and this section—

• “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,

• “available day within the proposed period of extension” means an available day which begins before the end of the proposed period of extension,

• “time of expiry”, in relation to a notice of termination, means the time at which the notice would expire apart from section 143, and

• “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.

• (4) Neither the service of a notice of extension nor any extension by virtue of section 143(7) of the period specified in a notice of termination affects—

• (a) 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, or

• (b) the operation of this Part in relation to any such termination of the contract of employment.

Supplementary

The relevant date

145

• (1) For the purposes of the provisions of this Act relating to redundancy payments “the relevant date” in relation to the dismissal of an employee has the meaning given by this section.

• (2) Subject to the following provisions of this section, “the relevant date”—

• (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

• (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

• (c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.

• (3) Where the employee is taken to be dismissed by virtue of section 136(3) the “relevant date” means the date on which the employee’s notice to terminate his contract of employment expires.

• (4) Where the employee is regarded by virtue of section 138(4) as having been dismissed on the date on which his employment under an earlier contract ended, “the relevant date” means—

• (a) for the purposes of section 164(1), the date which is the relevant date as defined by subsection (2) in relation to the renewed or new contract or, where there has been more than one trial period, the last such contract, and

• (b) for the purposes of any other provision, the date which is the relevant date as defined by subsection (2) in relation to the previous contract or, where there has been more than one such trial period, the original contract.

• (5) Where—

• (a) the contract of employment is terminated by the employer, and

• (b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this section),

for the purposes of sections 155, 162(1) and 227(3) the later date is the relevant date.

• (6) In subsection (5)(b) “the material date” means—

• (a) the date when notice of termination was given by the employer, or

• (b) where no notice was given, the date when the contract of employment was terminated by the employer.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provisions supplementing sections 138 and 141

146

• (1) In sections 138 and 141—

• (a) references to re-engagement are to re-engagement by the employer or an associated employer, and

• (b) references to an offer are to an offer made by the employer or an associated employer.

• (2) For the purposes of the application of section 138(1) or 141(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 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 to which those provisions refer shall be calculated as if the employment had ended on that next Monday.

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