Employment Act 2002

• (1) For section 167 of the Social Security Contributions and Benefits Act 1992 (c. 4) there is substituted—

(167) (1) Regulations shall make provision for the payment by employers of statutory maternity pay to be funded by the Commissioners of Inland Revenue to such extent as may be prescribed. (2) Regulations under subsection (1) shall— (a) make provision for a person who has made a payment of statutory maternity pay to be entitled, except in prescribed circumstances, to recover an amount equal to the sum of— (i) the aggregate of such of those payments as qualify for small employers’ relief; and (ii) an amount equal to 92 per cent of the aggregate of such of those payments as do not so qualify; and (b) include provision for a person who has made a payment of statutory maternity pay qualifying for small employers’ relief to be entitled, except in prescribed circumstances, to recover an additional amount, determined in such manner as may be prescribed— (i) by reference to secondary Class 1 contributions paid in respect of statutory maternity pay; (ii) by reference to secondary Class 1 contributions paid in respect of statutory sick pay; or (iii) by reference to the aggregate of secondary Class 1 contributions paid in respect of statutory maternity pay and secondary Class 1 contributions paid in respect of statutory sick pay. (3) For the purposes of this section a payment of statutory maternity pay which a person is liable to make to a woman qualifies for small employers’ relief if, in relation to that woman’s maternity pay period, the person liable to make the payment is a small employer. (4) For the purposes of this section “small employer”, in relation to a woman’s maternity pay period, shall have the meaning assigned to it by regulations, and, without prejudice to the generality of the foregoing, any such regulations— (a) may define that expression by reference to the amount of a person’s contributions payments for any prescribed period; and (b) if they do so, may in that connection make provision for the amount of those payments for that prescribed period— (i) to be determined without regard to any deductions that may be made from them under this section or under any other enactment or instrument; and (ii) in prescribed circumstances, to be adjusted, estimated or otherwise attributed to him by reference to their amount in any other prescribed period. (5) Regulations under subsection (1) may, in particular, make provision— (a) for funding in advance as well as in arrear; (b) for funding, or the recovery of amounts due under provision made by virtue of subsection (2)(b), by means of deductions from such amounts for which employers are accountable to the Commissioners of Inland Revenue as may be prescribed, or otherwise; (c) for the recovery by the Commissioners of Inland Revenue of any sums overpaid to employers under the regulations. (6) Where in accordance with any provision of regulations under subsection (1) an amount has been deducted from an employer’s contributions payments, the amount so deducted shall (except in such cases as may be prescribed) be treated for the purposes of any provision made by or under any enactment in relation to primary or secondary Class 1 contributions— (a) as having been paid (on such date as may be determined in accordance with the regulations), and (b) as having been received by the Commissioners of Inland Revenue, towards discharging the employer’s liability in respect of such contributions. (7) Regulations under this section must be made with the concurrence of the Commissioners of Inland Revenue. (8) In this section “contributions payments”, in relation to an employer, means any payments which the employer is required, by or under any enactment, to make in discharge of any liability in respect of primary or secondary Class 1 contributions.

• (2) For section 163 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7) there is substituted—

(163) (1) Regulations shall make provision for the payment by employers of statutory maternity pay to be funded by the Commissioners of Inland Revenue to such extent as may be prescribed. (2) Regulations under subsection (1) shall— (a) make provision for a person who has made a payment of statutory maternity pay to be entitled, except in prescribed circumstances, to recover an amount equal to the sum of— (i) the aggregate of such of those payments as qualify for small employers’ relief; and (ii) an amount equal to 92 per cent of the aggregate of such of those payments as do not so qualify; and (b) include provision for a person who has made a payment of statutory maternity pay qualifying for small employers’ relief to be entitled, except in prescribed circumstances, to recover an additional amount, determined in such manner as may be prescribed— (i) by reference to secondary Class 1 contributions paid in respect of statutory maternity pay; (ii) by reference to secondary Class 1 contributions paid in respect of statutory sick pay; or (iii) by reference to the aggregate of secondary Class 1 contributions paid in respect of statutory maternity pay and secondary Class 1 contributions paid in respect of statutory sick pay. (3) For the purposes of this section a payment of statutory maternity pay which a person is liable to make to a woman qualifies for small employers’ relief if, in relation to that woman’s maternity pay period, the person liable to make the payment is a small employer. (4) For the purposes of this section “small employer”, in relation to a woman’s maternity pay period, shall have the meaning assigned to it by regulations, and, without prejudice to the generality of the foregoing, any such regulations— (a) may define that expression by reference to the amount of a person’s contributions payments for any prescribed period; and (b) if they do so, may in that connection make provision for the amount of those payments for that prescribed period— (i) to be determined without regard to any deductions that may be made from them under this section or under any other enactment or instrument; and (ii) in prescribed circumstances, to be adjusted, estimated or otherwise attributed to him by reference to their amount in any other prescribed period. (5) Regulations under subsection (1) may, in particular, make provision— (a) for funding in advance as well as in arrear; (b) for funding, or the recovery of amounts due under provision made by virtue of subsection (2)(b), by means of deductions from such amounts for which employers are accountable to the Commissioners of Inland Revenue as may be prescribed, or otherwise; (c) for the recovery by the Commissioners of Inland Revenue of any sums overpaid to employers under the regulations. (6) Where in accordance with any provision of regulations under subsection (1) an amount has been deducted from an employer’s contributions payments, the amount so deducted shall (except in such cases as may be prescribed) be treated for the purposes of any provision made by or under any enactment in relation to primary or secondary Class 1 contributions— (a) as having been paid (on such date as may be determined in accordance with the regulations), and (b) as having been received by the Commissioners of Inland Revenue, towards discharging the employer’s liability in respect of such contributions. (7) Regulations under any provision of this section shall be made by the Secretary of State. (8) Regulations under this section must be made with the concurrence of the Commissioners of Inland Revenue. (9) In this section “contributions payments”, in relation to an employer, means any payments which the employer is required, by or under any enactment, to make in discharge of any liability in respect of primary or secondary Class 1 contributions.

Part 2 — Tribunal reform

Costs and expenses

Employment tribunals

22

• (1) In section 13 of the Employment Tribunals Act 1996 (c. 17) (costs and expenses), for subsection (1) there is substituted—

(1) Employment tribunal procedure regulations may include provision— (a) for the award of costs or expenses; (b) for the award of any allowances payable under section 5(2)(c) or (3). (1A) Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person’s ability to pay when considering the making of an award against him under such regulations. (1B) Employment tribunal procedure regulations may include provision for authorising an employment tribunal— (a) to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative’s conduct of the proceedings; (b) to order a representative of a party to proceedings before it to meet all or part of the costs or expenses incurred by a party by reason of the representative’s conduct of the proceedings; (c) to order a representative of a party to proceedings before it to meet all or part of any allowances payable by the Secretary of State under section 5(2)(c) or (3) by reason of the representative’s conduct of the proceedings. (1C) Employment tribunal procedure regulations may also include provision for taxing or otherwise settling the costs or expenses referred to in subsection (1)(a) or (1B)(b) (and, in particular in England and Wales, for enabling the amount of such costs to be assessed by way of detailed assessment in a county court).

• (2) After that section there is inserted—

(13A) (1) Employment tribunal procedure regulations may include provision for authorising an employment tribunal to order a party to proceedings before it to make a payment to any other party in respect of time spent in preparing that other party’s case. (2) Regulations under subsection (1) may include provision authorising an employment tribunal to have regard to a person’s ability to pay when considering the making of an order against him under such regulations. (3) If employment tribunal procedure regulations include— (a) provision of the kind mentioned in subsection (1), and (b) provision of the kind mentioned in section 13(1)(a), they shall also include provision to prevent an employment tribunal exercising its powers under both kinds of provision in favour of the same person in the same proceedings.

Employment Appeal Tribunal

23

For section 34 of the Employment Tribunals Act 1996 (c. 17) (costs and expenses) there is substituted—

(34) (1) Appeal Tribunal procedure rules may include provision for the award of costs or expenses. (2) Rules under subsection (1) may include provision authorising the Appeal Tribunal to have regard to a person’s ability to pay when considering the making of an award against him under such rules. (3) Appeal Tribunal procedure rules may include provision for authorising the Appeal Tribunal— (a) to disallow all or part of the costs or expenses of a representative of a party to proceedings before it by reason of that representative’s conduct of the proceedings; (b) to order a representative of a party to proceedings before it to meet all or part of the costs or expenses incurred by a party by reason of the representative’s conduct of the proceedings. (4) Appeal Tribunal procedure rules may also include provision for taxing or otherwise settling the costs or expenses referred to in subsection (1) or (3)(b) (and, in particular in England and Wales, for enabling the amount of such costs to be assessed by way of detailed assessment in the High Court).

Miscellaneous

Conciliation

24

• (1) In section 7 of the Employment Tribunals Act 1996 (employment tribunal procedure regulations), in subsection (3)(f) (power to prescribe the procedure to be followed in proceedings before an employment tribunal), before sub-paragraph (ii) there is inserted—

(ia) for postponing fixing a time and place for a hearing, or postponing a time fixed for a hearing, for such period as may be determined in accordance with the regulations for the purpose of giving an opportunity for the proceedings to be settled by way of conciliation and withdrawn, and

.

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

• (3) In section 19 of that Act (conciliation procedure), paragraph (c) (which requires employment tribunal procedure regulations, in relation to conciliation cases, to include provision postponing the hearing to give an opportunity for conciliation) shall cease to have effect.

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

Power to delegate prescription of forms etc.

25

In section 7 of the Employment Tribunals Act 1996 (c. 17) (employment tribunal procedure regulations), after subsection (3) there is inserted—

(3ZA) Employment tribunal procedure regulations may— (a) authorise the Secretary of State to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of instituting, or entering an appearance to, proceedings before employment tribunals, (b) authorise the Secretary of State to prescribe requirements in relation to documents to be supplied with any such form, and (c) make provision about the publication of anything prescribed under authority conferred by virtue of this subsection.

Determination without a hearing

26

In section 7 of the Employment Tribunals Act 1996 (employment tribunal procedure regulations) for subsection (3A) there is substituted—

(3A) Employment tribunal procedure regulations may authorise the determination of proceedings without any hearing in such circumstances as the regulations may prescribe.

Practice directions

27

After section 7 of the Employment Tribunals Act 1996 (c. 17) there is inserted—

(7A) (1) Employment tribunal procedure regulations may include provision— (a) enabling the President to make directions about the procedure of employment tribunals, including directions about the exercise by tribunals of powers under such regulations, (b) for securing compliance with such directions, and (c) about the publication of such directions. (2) Employment tribunal procedure regulations may, instead of providing for any matter, refer to provision made or to be made about that matter by directions made by the President. (3) In this section, references to the President are to a person appointed in accordance with regulations under section 1(1) as— (a) President of the Employment Tribunals (England and Wales), or (b) President of the Employment Tribunals (Scotland).

Pre-hearing reviews

28

• (1) Section 9 of the Employment Tribunals Act 1996 (pre-hearing reviews) is amended as follows.

• (2) In subsection (1) (power to make provision for pre-hearing reviews), for paragraph (a) there is substituted—

(a) for authorising an employment tribunal to carry out a review of any proceedings before it at any time before a hearing held for the purpose of determining them (a “pre-hearing review”),

.

• (3) After subsection (2) there is inserted—

(2A) Regulations under subsection (1)(b), so far as relating to striking out, may not provide for striking out on a ground which does not apply outside a pre-hearing review.

Part 3 — Dispute resolution etc.

Statutory procedures

Statutory dispute resolution procedures

29

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

Contracts of employment

30

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

Non-completion of statutory procedure: adjustment of awards

31

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

Complaints about grievances

32

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

Consequential adjustment of time limits

33

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

Procedural fairness in unfair dismissal

34

• (1) Part 10 of the Employment Rights Act 1996 (c. 18) (unfair dismissal) is amended as follows.

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

• (3) In section 112 (the remedies: orders and compensation), at the end there is inserted—

(5) Where— (a) an employee is regarded as unfairly dismissed by virtue of section 98A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason), and (b) an order is made in respect of the employee under section 113, the employment tribunal shall, subject to subsection (6), also make an award of four weeks’ pay to be paid by the employer to the employee. (6) An employment tribunal shall not be required to make an award under subsection (5) if it considers that such an award would result in injustice to the employer.

• (4) In section 117 (under which an award of compensation falls to be made if an employee is reinstated or re-engaged in pursuance of an order under section 113, but the terms of the order are not fully complied with), after subsection (2) there is inserted—

(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.

• (5) In section 123 (compensatory award) at the end there is inserted—

(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.

• (6) In section 120 (basic award: minimum in certain cases) after subsection (1) there is inserted—

(1A) Where— (a) an employee is regarded as unfairly dismissed by virtue of section 98A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason), (b) an award of compensation falls to be made under section 112(4), and (c) the amount of the award under section 118(1)(a), before any reduction under section 122(3A) or (4), is less than the amount of four weeks’ pay, the employment tribunal shall, subject to subsection (1B), increase the award under section 118(1)(a) to the amount of four weeks’ pay. (1B) An employment tribunal shall not be required by subsection (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.

Employment particulars

Particulars of procedures relating to discipline or dismissal

35

• (1) Section 3 of the Employment Rights Act 1996 (c. 18) (note about disciplinary rules and procedures) is amended as follows.

• (2) In subsection (1) (which requires a statement under section 1 of that Act to include a note specifying the disciplinary rules and procedures applying to an employee), after paragraph (a) there is inserted—

(aa) specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee,

.

• (3) In that subsection, in paragraph (b)(i) (which requires the note to specify a person for the employee to apply to if he is dissatisfied with a disciplinary decision) after “him” there is inserted “ or any decision to dismiss him ”.

• (4) In subsection (2) (which provides that the note does not need to specify the rules and procedures relating to health and safety at work) after “decisions,” there is inserted “ decisions to dismiss ”.

Removal of exemption for small employers

36

In section 3 of the Employment Rights Act 1996 (c. 18) (note about disciplinary rules and procedures), subsections (3) and (4) (exemptions for undertakings with less than 20 employees) shall cease to have effect.

Use of alternative documents to give particulars

37

In Part 1 of the Employment Rights Act 1996 (employment particulars), after section 7 there is inserted—

(7A) (1) Subsections (2) and (3) apply where— (a) an employer gives an employee a document in writing in the form of a contract of employment or letter of engagement, (b) the document contains information which, were the document in the form of a statement under section 1, would meet the employer’s obligation under that section in relation to the matters mentioned in subsections (3) and (4)(a) to (c), (d)(i), (f) and (h) of that section, and (c) the document is given after the beginning of the employment and before the end of the period for giving a statement under that section. (2) The employer’s duty under section 1 in relation to any matter shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under that section, would meet the employer’s obligation under that section in relation to that matter. (3) The employer’s duty under section 3 shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under section 1 and the information included in the form of a note, would meet the employer’s obligation under section 3. (4) For the purposes of this section a document to which subsection (1)(a) applies shall be treated, in relation to information in respect of any of the matters mentioned in section 1(4), as specifying the date on which the document is given to the employee as the date as at which the information applies. (5) Where subsection (2) applies in relation to any matter, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date in relation to that matter for the purposes of section 4(1). (6) Where subsection (3) applies, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date for the purposes of section 4(1) in relation to the matters of which particulars are required to be given under section 3. (7) The reference in section 4(6) to an employer having given a statement under section 1 shall be treated as including his having given a document by virtue of which his duty to give such a statement is treated as met. (7B) A document in the form of a contract of employment or letter of engagement given by an employer to an employee before the beginning of the employee’s employment with the employer shall, when the employment begins, be treated for the purposes of section 7A as having been given at that time.

Failure to give statement of employment particulars etc.

38

• (1) This section applies to proceedings before an employment tribunal relating to a claim by a worker under any of the jurisdictions listed in Schedule 5.

• (2) If in the case of proceedings to which this section applies—

• (a) the employment tribunal finds in favour of the worker, but makes no award to him in respect of the claim to which the proceedings relate, and

• (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18) (duty to give a written statement of initial employment particulars or of particulars of change or (in the case of a claim by an worker) under section 41B or 41C of that Act (duty to give a written statement in relation to rights not to work on Sunday),

the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the worker and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

• (3) If in the case of proceedings to which this section applies—

• (a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and

• (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 or (in the case of a claim by an worker) under section 41B or 41C of that Act,

the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

• (4) In subsections (2) and (3)—

• (a) references to the minimum amount are to an amount equal to two weeks’ pay, and

• (b) references to the higher amount are to an amount equal to four weeks’ pay.

• (5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

• (6) The amount of a week’s pay of an a worker shall—

• (a) be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c. 18), and

• (b) not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week’s pay).

• (6A) The provisions referred to in subsection (6) shall apply for the purposes of that subsection—

• (a) as if a reference to an employee were a reference to a worker; and

• (b) as if a reference to an employee’s contract of employment were a reference to a worker’s contract of employment or other worker’s contract.

• (7) For the purposes of Chapter 2 of Part 14 of the Employment Rights Act 1996 as applied by subsection (6), the calculation date shall be taken to be—

• (a) if the worker was employed by the employer on the date the proceedings were begun, that date, and

• (b) if he was not, in the case of an employee, the effective date of termination as defined by section 97 of that Act or in the case of all other workers the date on which the termination takes effect.

• (8) The Secretary of State may by order—

• (a) amend Schedule 5 for the purpose of—

• (i) adding a jurisdiction to the list in that Schedule, or

• (ii) removing a jurisdiction from that list;

• (b) make provision, in relation to a jurisdiction listed in Schedule 5, for this section not to apply to proceedings relating to claims of a description specified in the order;

• (c) make provision for this section to apply, with or without modifications, as if—

• (i) any individual of a description specified in the order who would not otherwise be an employee for the purposes of this section were an employee for those purposes, and

• (ii) a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

General

Unfair dismissal: adjustments under sections 31 and 38

39

In the Employment Rights Act 1996 (c. 18), after section 124 there is inserted—

(124A) Where an award of compensation for unfair dismissal falls to be— (a) reduced or increased under section 31 of the Employment Act 2002 (non-completion of statutory procedures), or (b) increased under section 38 of that Act (failure to give statement of employment particulars), the adjustment shall be in the amount awarded under section 118(1)(b) and shall be applied immediately before any reduction under section 123(6) or (7).

Interpretation of Part 3

40

In this Part—

• “employer” and “employee” have the same meanings as in the Employment Rights Act 1996 (c. 18);

• “worker” has the same meaning as in the Employment Rights Act 1996.

• ...

Part 4 — Miscellaneous and general

...

Power to confer rights on individuals: amendment

41

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

Equal pay: questionnaires

42

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

Union learning representatives

43

• (1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is amended as follows.

• (2) After section 168 there is inserted—

(168A) (1) An employer shall permit an employee of his who is— (a) a member of an independent trade union recognised by the employer, and (b) a learning representative of the trade union, to take time off during his working hours for any of the following purposes. (2) The purposes are— (a) carrying on any of the following activities in relation to qualifying members of the trade union— (i) analysing learning or training needs, (ii) providing information and advice about learning or training matters, (iii) arranging learning or training, and (iv) promoting the value of learning or training, (b) consulting the employer about carrying on any such activities in relation to such members of the trade union, (c) preparing for any of the things mentioned in paragraphs (a) and (b). (3) Subsection (1) only applies if— (a) the trade union has given the employer notice in writing that the employee is a learning representative of the trade union, and (b) the training condition is met in relation to him. (4) The training condition is met if— (a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact, (b) the trade union has in the last six months given the employer notice in writing that the employee will be undergoing such training, or (c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact. (5) Only one notice under subsection (4)(b) may be given in respect of any one employee. (6) References in subsection (4) to sufficient training to carry out the activities mentioned in subsection (2) are to training that is sufficient for those purposes having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State. (7) If an employer is required to permit an employee to take time off under subsection (1), he shall also permit the employee to take time off during his working hours for the following purposes— (a) undergoing training which is relevant to his functions as a learning representative, and (b) where the trade union has in the last six months given the employer notice under subsection (4)(b) in relation to the employee, undergoing such training as is mentioned in subsection (4)(a). (8) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State. (9) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section. (10) In subsection (2)(a), the reference to qualifying members of the trade union is to members of the trade union— (a) who are employees of the employer of a description in respect of which the union is recognised by the employer, and (b) in relation to whom it is the function of the union learning representative to act as such. (11) For the purposes of this section, a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules.

• (3) In section 169(1) (duty of employer to pay employee for time off under section 168), after “168” there is inserted “ or 168A ”.

• (4) In section 170 (duty to permit time off to take part in trade union activities), after subsection (2) there is inserted—

(2A) The right conferred by subsection (1) does not extend to time off for the purpose of acting as, or having access to services provided by, a learning representative of a trade union. (2B) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of having access to services provided by a person in his capacity as a learning representative of the trade union. (2C) Subsection (2B) only applies if the learning representative would be entitled to time off under subsection (1) of section 168A for the purpose of carrying on in relation to the employee activities of the kind mentioned in subsection (2) of that section.

• (5) In that section, at the end there is inserted—

(5) For the purposes of this section— (a) a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules, and (b) a person who is a learning representative of a trade union acts as such if he carries on the activities mentioned in section 168A(2) in that capacity.

• (6) At the end of section 173 (provisions supplementary to section 168 to 170), there is inserted—

(3) The Secretary of State may by order made by statutory instrument amend section 168A for the purpose of changing the purposes for which an employee may take time off under that section. (4) No order may be made under subsection (3) unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

• (7) In sections 199(1) and 203(1) (powers of ACAS and Secretary of State to produce Codes of Practice), at the end there is inserted “or for purposes connected with trade union learning representatives”.

• (8) For section 200(3) there is substituted—

(3) A Code containing practical guidance— (a) on the time off to be permitted to a trade union learning representative in accordance with section 168A (time off for training and carrying out functions as a learning representative), (b) on the training that is sufficient to enable a trade union learning representative to carry on the activities mentioned in section 168A(2) (activities for which time off is to be permitted), or (c) on any of the matters referred to in section 199(2), shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft.

Dismissal procedures agreements

44

In section 110 of the Employment Rights Act 1996 (c. 18) (dismissal procedures agreements) after subsection (3) there is inserted—

(3A) The Secretary of State may by order amend subsection (3) so as to add to the conditions specified in that subsection such conditions as he may specify in the order.

Fixed-term work

45

• (1) The Secretary of State shall make regulations—

• (a) for the purpose of securing that employees in fixed-term employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than employees in permanent employment, and

• (b) for the purpose of preventing abuse arising from the use of successive periods of fixed-term employment.

• (2) The regulations may—

• (a) specify classes of employee who are to be taken to be, or not to be, in fixed-term employment;

• (b) specify classes of employee who are to be taken to be, or not to be, in permanent employment;

• (c) specify circumstances in which employees in fixed-term employment are to be taken to be, or not to be, treated less favourably than employees in permanent employment;

• (d) specify circumstances in which periods of fixed-term employment are to be taken to be, or not to be, successive;

• (e) specify circumstances in which fixed-term employment is to have effect as permanent employment;

• (f) make provision which has effect in relation to employees in fixed-term employment generally or provision which has effect only in relation to specified classes of employee in fixed-term employment.

• (3) The regulations may—

• (a) confer jurisdiction (including exclusive jurisdiction) on employment tribunals;

• (b) provide for specified obligations not to apply in specified circumstances;

• (c) make provision about notices or information to be given, evidence to be produced and other procedures to be followed;

• (d) amend, apply with or without modifications, or make provision similar to any provision of—

• (i) the Employment Rights Act 1996 (c. 18) (including, in particular, Parts 5, 10 and 13),

• (ii) the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), or

• (iii) the Social Security Contributions and Benefits Act 1992 (c. 4);

• (e) provide for the provisions of specified agreements to have effect in place of provisions of the regulations to such extent and in such circumstances as may be specified.

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

• (5) In its application to this section, section 51(1)(b) includes power to amend an enactment.

• (6) In this section—

• (a) “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment, and

• (b) “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Fixed-term work: Northern Ireland

46

• (1) The Department for Employment and Learning shall make regulations—

• (a) for the purpose of securing that employees in fixed-term employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than employees in permanent employment, and

• (b) for the purpose of preventing abuse arising from the use of successive periods of fixed-term employment.

• (2) The regulations may—

• (a) specify classes of employee who are to be taken to be, or not to be, in fixed-term employment;

• (b) specify classes of employee who are to be taken to be, or not to be, in permanent employment;

• (c) specify circumstances in which employees in fixed-term employment are to be taken to be, or not to be, treated less favourably than employees in permanent employment;

• (d) specify circumstances in which periods of fixed-term employment are to be taken to be, or not to be, successive;

• (e) specify circumstances in which fixed-term employment is to have effect as permanent employment;

• (f) make provision which has effect in relation to employees in fixed-term employment generally or provision which has effect only in relation to specified classes of employee in fixed-term employment.

• (3) The regulations may—

• (a) confer jurisdiction (including exclusive jurisdiction) on industrial tribunals;

• (b) provide for specified obligations not to apply in specified circumstances;

• (c) make provision about notices or information to be given, evidence to be produced and other procedures to be followed;

• (d) amend, apply with or without modifications, or make provision similar to any provision of—

• (i) the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919) (including, in particular, Parts 6, 11 and 15),

• (ii) the Trade Union and Labour Relations (Northern Ireland) Order 1995 (S.I. 1995/1980 (N.I. 12)), or

• (iii) the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7);

• (e) provide for the provisions of specified agreements to have effect in place of provisions of the regulations to such extent and in such circumstances as may be specified.

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

• (5) Power to make regulations under this section includes power—

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

• (b) to make such incidental, supplementary, consequential or transitional provision as the Department for Employment and Learning thinks fit, including provision amending an enactment.

• (6) Power to make regulations under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

• (7) Regulations under this section shall not be made unless a draft of them has been laid before and approved by resolution of the Northern Ireland Assembly.

• (8) In this section—

• (a) “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment, and

• (b) “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Flexible working

47

• (1) The Employment Rights Act 1996 (c. 18) is amended as follows.

• (2) After Part 8 there is inserted—

(80F) (1) A qualifying employee may apply to his employer for a change in his terms and conditions of employment if— (a) the change relates to— (i) the hours he is required to work, (ii) the times when he is required to work, (iii) where, as between his home and a place of business of his employer, he is required to work, or (iv) such other aspect of his terms and conditions of employment as the Secretary of State may specify by regulations, and (b) his purpose in applying for the change is to enable him to care for someone who, at the time of application, is a child in respect of whom he satisfies such conditions as to relationship as the Secretary of State may specify by regulations. (2) An application under this section must— (a) state that it is such an application, (b) specify the change applied for and the date on which it is proposed the change should become effective, (c) explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with, and (d) explain how the employee meets, in respect of the child concerned, the conditions as to relationship mentioned in subsection (1)(b). (3) An application under this section must be made before the fourteenth day before the day on which the child concerned reaches the age of six or, if disabled, eighteen. (4) If an employee has made an application under this section, he may not make a further application under this section to the same employer before the end of the period of twelve months beginning with the date on which the previous application was made. (5) The Secretary of State may by regulations make provision about— (a) the form of applications under this section, and (b) when such an application is to be taken as made. (6) The Secretary of State may by order substitute a different age for the first of the ages specified in subsection (3). (7) In subsection (3), the reference to a disabled child is to a child who is entitled to a disability living allowance within the meaning of section 71 of the Social Security Contributions and Benefits Act 1992 (c. 4). (8) For the purposes of this section, an employee is— (a) a qualifying employee if he— (i) satisfies such conditions as to duration of employment as the Secretary of State may specify by regulations, and (ii) is not an agency worker; (b) an agency worker if he is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangement made between the agent and the principal. (80G) (1) An employer to whom an application under section 80F is made— (a) shall deal with the application in accordance with regulations made by the Secretary of State, and (b) shall only refuse the application because he considers that one or more of the following grounds applies— (i) the burden of additional costs, (ii) detrimental effect on ability to meet customer demand, (iii) inability to re-organise work among existing staff, (iv) inability to recruit additional staff, (v) detrimental impact on quality, (vi) detrimental impact on performance, (vii) insufficiency of work during the periods the employee proposes to work, (viii) planned structural changes, and (ix) such other grounds as the Secretary of State may specify by regulations. (2) Regulations under subsection (1)(a) shall include— (a) provision for the holding of a meeting between the employer and the employee to discuss an application under section 80F within twenty eight days after the date the application is made; (b) provision for the giving by the employer to the employee of notice of his decision on the application within fourteen days after the date of the meeting under paragraph (a); (c) provision for notice under paragraph (b) of a decision to refuse the application to state the grounds for the decision; (d) provision for the employee to have a right, if he is dissatisfied with the employer’s decision, to appeal against it within fourteen days after the date on which notice under paragraph (b) is given; (e) provision about the procedure for exercising the right of appeal under paragraph (d), including provision requiring the employee to set out the grounds of appeal; (f) provision for notice under paragraph (b) to include such information as the regulations may specify relating to the right of appeal under paragraph (d); (g) provision for the holding, within fourteen days after the date on which notice of appeal is given by the employee, of a meeting between the employer and the employee to discuss the appeal; (h) provision for the employer to give the employee notice of his decision on any appeal within fourteen days after the date of the meeting under paragraph (g); (i) provision for notice under paragraph (h) of a decision to dismiss an appeal to state the grounds for the decision; (j) provision for a statement under paragraph (c) or (i) to contain a sufficient explanation of the grounds for the decision; (k) provision for the employee to have a right to be accompanied at meetings under paragraph (a) or (g) by a person of such description as the regulations may specify; (l) provision for postponement in relation to any meeting under paragraph (a) or (g) which a companion under paragraph (k) is not available to attend; (m) provision in relation to companions under paragraph (k) corresponding to section 10(6) and (7) of the Employment Relations Act 1999 (c. 26) (right to paid time off to act as companion, etc.); (n) provision, in relation to the rights under paragraphs (k) and (l), for the application (with or without modification) of sections 11 to 13 of the Employment Relations Act 1999 (provisions ancillary to right to be accompanied under section 10 of that Act). (3) Regulations under subsection (1)(a) may include— (a) provision for any requirement of the regulations not to apply where an application is disposed of by agreement or withdrawn; (b) provision for extension of a time limit where the employer and employee agree, or in such other circumstances as the regulations may specify; (c) provision for applications to be treated as withdrawn in specified circumstances; and may make different provision for different cases. (4) The Secretary of State may by order amend subsection (2). (80H) (1) An employee who makes an application under section 80F may present a complaint to an employment tribunal— (a) that his employer has failed in relation to the application to comply with section 80G(1), or (b) that a decision by his employer to reject the application was based on incorrect facts. (2) No complaint under this section may be made in respect of an application which has been disposed of by agreement or withdrawn. (3) In the case of an application which has not been disposed of by agreement or withdrawn, no complaint under this section may be made until the employer— (a) notifies the employee of a decision to reject the application on appeal, or (b) commits a breach of regulations under section 80G(1)(a) of such description as the Secretary of State may specify by regulations. (4) No complaint under this section may be made in respect of failure to comply with provision included in regulations under subsection (1)(a) of section 80G because of subsection (2)(k), (l) or (m) of that section. (5) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the relevant date, 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. (6) In subsection (5)(a), the reference to the relevant date is— (a) in the case of a complaint permitted by subsection (3)(a), the date on which the employee is notified of the decision on the appeal, and (b) in the case of a complaint permitted by subsection (3)(b), the date on which the breach concerned was committed. (80I) (1) Where an employment tribunal finds a complaint under section 80H well-founded it shall make a declaration to that effect and may— (a) make an order for reconsideration of the application, and (b) make an award of compensation to be paid by the employer to the employee. (2) The amount of compensation shall be such amount, not exceeding the permitted maximum, as the tribunal considers just and equitable in all the circumstances. (3) For the purposes of subsection (2), the permitted maximum is such number of weeks’ pay as the Secretary of State may specify by regulations. (4) Where an employment tribunal makes an order under subsection (1)(a), section 80G, and the regulations under that section, shall apply as if the application had been made on the date of the order.

• (3) After section 47C there is inserted—

(47E) (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee— (a) made (or proposed to make) an application under section 80F, (b) exercised (or proposed to exercise) a right conferred on him under section 80G, (c) brought proceedings against the employer under section 80H, or (d) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings. (2) This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.

• (4) After section 104B there is inserted—

(104C) 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) made (or proposed to make) an application under section 80F, (b) exercised (or proposed to exercise) a right conferred on him under section 80G, (c) brought proceedings against the employer under section 80H, or (d) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

Rate of maternity allowance

48

• (1) In section 35A of the Social Security Contributions and Benefits Act 1992 (c. 4) (appropriate weekly rate of maternity allowance)—

• (a) for subsections (1) to (3) there is substituted—

(1) For the purposes of section 35(1) above the appropriate weekly rate is (subject to subsection (5A) below) whichever is the lower rate of— (a) a weekly rate equivalent to 90 per cent of the woman’s average weekly earnings; and (b) the weekly rate for the time being prescribed under section 166(1)(b) below.

;

• (b) in paragraph (c)(i) of subsection (5), for “the lower earnings limit” there is substituted “ an amount 90 per cent of which is equal to the weekly rate prescribed under section 166(1)(b) below that is ”; and

• (c) after that subsection there is inserted—

(5A) Where subsection (5B) below applies the appropriate weekly rate is the weekly rate for the time being prescribed under section 166(1)(b) below. (5B) This subsection applies where a woman is treated by virtue of regulations under sub-paragraph (i) of paragraph (c) of subsection (5) above as having received a payment in respect of each week in the specified period equal to the amount mentioned in that sub-paragraph.

• (2) In relation to any time before the coming into force of section 19, the reference to section 166(1)(b) of the Social Security Contributions and Benefits Act 1992 (c. 4) in section 35A(5)(c)(i) of that Act (as amended by subsection (1)(b) above) is a reference to section 166(3) of that Act.

Work-focused interviews for partners

49

After section 2A of the Social Security Administration Act 1992 (c. 5) (claim or full entitlement to certain benefits conditional on work-focused interview), there is inserted—

(2AA) (1) Regulations may make provision for or in connection with imposing, at a time when— (a) a person (“the claimant”) who— (i) is under the age of 60, and (ii) has a partner who is also under that age, is entitled to a benefit to which this section applies at a higher rate referable to his partner, and (b) prescribed circumstances exist, a requirement for the partner to take part in a work-focused interview as a condition of the benefit continuing to be payable to the claimant at that rate. (2) The benefits to which this section applies are— (a) income support; (b) an income-based jobseeker’s allowance other than a joint-claim jobseeker’s allowance; (c) incapacity benefit; (d) severe disablement allowance; and (e) invalid care allowance. (3) For the purposes of this section a benefit is payable to a person at a higher rate referable to his partner if the amount that is payable in his case— (a) is more than it would be if the person concerned was not a member of a couple; or (b) includes an increase of benefit for his partner as an adult dependant of his. (4) Regulations under this section may, in particular, make provision— (a) for securing, where the partner of the claimant would otherwise be required to take part in work-focused interviews relating to two or more benefits— (i) that the partner is required instead to take part in only one such interview; and (ii) that the interview is capable of counting for the purposes of all those benefits; (b) in a case where the claimant has more than one partner, for determining which of those partners is required to take part in the work-focused interview or requiring each of them to take part in such an interview; (c) for determining the persons by whom work-focused interviews are to be conducted; (d) conferring power on such persons or the designated authority to determine when and where work-focused interviews are to take place (including power in prescribed circumstances to determine that they are to take place in the homes of those being interviewed); (e) prescribing the circumstances in which partners attending work-focused interviews are to be regarded as having or not having taken part in them; (f) for securing that if— (i) a partner who has been notified of a requirement to take part in a work-focused interview fails to take part in it, and (ii) it is not shown (by him or by the claimant), within the prescribed period, that he had good cause for that failure, the amount payable to the claimant in respect of the benefit in relation to which the requirement applied is to be reduced by the specified amount until the specified time; (g) prescribing— (i) matters which are or are not to be taken into account in determining whether a partner does or does not have good cause for any failure to comply with the regulations; or (ii) circumstances in which a partner is or is not to be regarded as having or not having good cause for any such failure. (5) Regulations under this section may, in relation to a reduction under subsection (4)(f), provide— (a) for the amount of the reduction to be calculated in the first instance by reference to such amount as may be prescribed; (b) for the amount as so calculated to be restricted, in prescribed circumstances, to the prescribed extent; (c) where the claimant is entitled to two or more benefits in relation to each of which a requirement to take part in a work-focused interview applied, for determining the extent to, and the order in, which those benefits are to be reduced in order to give effect to the reduction required in his case. (6) Regulations under this section may provide that any requirement to take part in a work-focused interview that would otherwise apply to a partner by virtue of the regulations— (a) is, in any prescribed circumstances, either not to apply or not to apply until the specified time; (b) is not to apply if the designated authority determines that such an interview would not be of assistance to him or appropriate in the circumstances; (c) is not to apply until such time as the designated authority determines (if that authority determines that such an interview would not be of assistance to him or appropriate in the circumstances until that time); and the regulations may make provision for treating a partner to whom any such requirement does not apply, or does not apply until a particular time, as having complied with that requirement to such extent and for such purposes as are specified. (7) In this section— - “couple” means a married or unmarried couple (within the meaning of Part 7 of the Contributions and Benefits Act); - “designated authority” means such of the following as may be specified, namely— 1. the Secretary of State, 2. a person providing services to the Secretary of State, 3. a local authority, and 4. a person providing services to, or authorised to exercise any function of, a local authority; - “partner” means a person who is a member of the same couple as the claimant; - “specified” means prescribed by or determined in accordance with regulations; and - “work-focused interview” has the same meaning as in section 2A above.

Use of information for, or relating to, employment and training

50

Schedule 6 (which contains provision for the use of information for, or relating to, employment and training) has effect.

General

Orders and regulations

51

• (1) Any power of the Secretary of State to make orders or regulations under this Act includes power—

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

• (b) to make such incidental, supplementary, consequential or transitional provision as the Secretary of State thinks fit.

• (2) Any power of the Secretary of State to make orders or regulations under this Act is exercisable by statutory instrument.

• (3) No order may be made under this Act unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

• (4) No regulations may be made under section ... 45 unless a draft of the regulations has been laid before and approved by resolution of each House of Parliament.

• (5) A statutory instrument containing regulations under any other provision of this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (6) This section does not apply to orders under section 55(2).

Financial provisions

52

• (1) There shall be paid out of money provided by Parliament—

• (a) any expenses incurred by a Minister of the Crown or government department in consequence of this Act, and

• (b) any increase attributable to this Act in the sums so provided under any other Act.

• (2) There shall be paid into the Consolidated Fund any increase attributable to this Act in the sums payable into that Fund under any other Act.

Minor and consequential amendments

53

Schedule 7 (which makes minor and consequential amendments) has effect.

Repeals and revocations

54

The enactments and instruments specified in Schedule 8 are hereby repealed or revoked to the extent specified there.

Short title etc.

55

• (1) This Act may be cited as the Employment Act 2002.

• (2) This Act, except sections 45, 46, 51 and 52 and this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be so appointed for different purposes.

• (3) An order under subsection (2) may contain such transitional provisions and savings as the Secretary of State considers necessary or expedient in connection with the coming into force of any of the provisions of this Act.

• (4) The Secretary of State may by regulations make such transitional provisions and savings as he considers necessary or expedient for the purposes of or in connection with—

• (a) the coming into force of section 19 or 48, or Schedule 7 so far as relating to any amendment made in consequence of either of those sections; or

• (b) the operation of any enactment amended by any of those provisions during any period when the amendment is not wholly in force.

• (5) Subject to subsections (6) and (7), this Act extends to England and Wales and Scotland only.

• (6) The following provisions also extend to Northern Ireland—

• (a) section 5;

• (b) sections 13 to 15, and section 16 so far as relating thereto;

• (c) paragraphs 1, 4, 9 and 10 of Schedule 6, and section 50 so far as relating thereto;

• (d) sections 51 and 52;

• (e) paragraphs 1, 50, 52 and 53 of Schedule 7, and section 53 so far as relating thereto;

• (f) Schedule 8, so far as relating to the repeal of section 3(3) of the Social Security Act 1998 (c. 14), and section 54 so far as relating thereto;

• (g) this section.

• (7) The following provisions extend to Northern Ireland only—

• (a) sections 21(2) and 46;

• (b) paragraphs 7, 8, 12 and 14 of Schedule 6, and section 50 so far as relating thereto;

• (c) paragraph 17 of Schedule 7, and section 53 so far as relating thereto;

• (d) Schedule 8, so far as relating to—

• (i) the repeal in the Social Security Administration (Northern Ireland) Act 1992 (c. 8), and

• (ii) the revocations in the Social Security Administration (Fraud) (Northern Ireland) Order 1997 (S.I. 1997/1182 (N.I. 11)) and the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1999/671),

and section 54 so far as relating thereto.

• (8) In sections 5 and 13 to 15 and paragraph 53 of Schedule 7, references to statutory paternity pay, statutory adoption pay , statutory shared parental pay , statutory parental bereavement pay or statutory neonatal care pay include statutory pay under Northern Ireland legislation corresponding to Part 12ZA , Part 12ZB , Part 12ZC , Part 12ZD or Part 12ZE of the Social Security Contributions and Benefits Act 1992 (c. 4).

SCHEDULE 1

Determination of penalties by officer of Board

1

• (1) Subject to sub-paragraph (2) and except where proceedings have been instituted under paragraph 5, an officer of the Board authorised by the Board for the purposes of this paragraph may make a determination—

• (a) imposing a penalty under section 11 or 12, and

• (b) setting it at such amount as, in his opinion, is correct or appropriate.

• (2) Sub-paragraph (1) does not apply to the imposition of such a penalty as is mentioned in section 11(2)(a).

• (3) Notice of a determination of a penalty under this paragraph shall be served on the person liable to the penalty and shall state the date on which it is issued and the time within which an appeal against the determination may be made.

• (4) After the notice of a determination under this paragraph has been served the determination shall not be altered except in accordance with this paragraph or on appeal.

• (5) If it is discovered by an officer of the Board authorised by the Board for the purposes of this paragraph that the amount of a penalty determined under this paragraph is or has become insufficient, the officer may make a determination in a further amount so that the penalty is set at the amount which, in his opinion, is correct or appropriate.

Provisions supplementary to paragraph 1

2

• (1) A penalty determined under paragraph 1 above shall be due and payable at the end of the period of thirty days beginning with the date of the issue of the notice of determination.

• (2) Part 6 of the Taxes Management Act 1970 (c. 9) shall apply in relation to a penalty determined under paragraph 1 as if it were tax charged in an assessment and due and payable.

Appeals against penalty determinations

3

• (1) An appeal may be brought against the determination of a penalty under paragraph 1.

• (2) The provisions of the Taxes Management Act 1970 relating to appeals, except section 50(6) to (8), shall have effect in relation to an appeal against such a determination as they have effect in relation to an appeal against an assessment to taxexcept that references to the tribunal shall be taken to be references to the First-tier Tribunal.

• (3) On an appeal by virtue of sub-paragraph (2) against the determination of a penalty under paragraph 1, the First-tier Tribunal may—

• (a) if it appears ... that no penalty has been incurred, set the determination aside;

• (b) if the amount determined appears ... to be appropriate, confirm the determination;

• (c) if the amount determined appears ... to be excessive, reduce it to such other amount (including nil) as the tribunal considersappropriate;

• (d) if the amount determined appears ... to be insufficient, increase it to such amount not exceeding the permitted maximum as the tribunal considers appropriate.

• (4) In addition to any right of appeal on a point of law under section 11(2) of the Tribunals, Courts and Enforcement Act 2007, the person liable to the penalty may appeal to the Upper Tribunal against the amount of the penalty which had been determined under sub-paragraph (3), but not against any decision which falls under section 11(5)(d) or (e) of that Act and was made in connection with the determination of the amount of the penalty.

• (4A) Section 11(3) and (4) of the Tribunals, Courts and Enforcement Act 2007 applies to the right of appeal under sub-paragraph (4) as it applies to the right of appeal under section 11(2) of that Act.

• (4B) On an appeal under this paragraph the Upper Tribunal has the like jurisdiction as is conferred on the First-tier Tribunal by virtue of this paragraph.

Penalty proceedings before Commissioners

4

• (1) An officer of the Board authorised by the Board for the purposes of this paragraph may commence proceedings for any penalty to which sub-paragraph (1) of paragraph 1 does not apply by virtue of sub-paragraph (2) of that paragraph.

• (2) The person liable to the penalty shall be a party to the proceedings.

• (3) Part 6 of the Taxes Management Act 1970 (c. 9) shall apply in relation to a penalty determined in proceedings under this paragraph as if it were tax charged in an assessment and due and payable.

• (4) In addition to any right of appeal on a point of law under section 11(2) of the Tribunals, Courts and Enforcement Act 2007, the person liable to the penalty may appeal to the Upper Tribunal against the determination of a penalty in proceedings under sub-paragraph (1), but not against any decision which falls under section 11(5)(d) or (e) of that Act and was made in connection with the determination of the amount of the penalty.

• (4A) Section 11(3) and (4) of the Tribunals, Courts and Enforcement Act 2007 applies to the right of appeal under sub-paragraph (4) as it applies to the right of appeal under section 11(2) of that Act.

• (5) On any such appeal the Upper Tribunal may—

• (a) if it appears that no penalty has been incurred, set the determination aside;

• (b) if the amount determined appears to be appropriate, confirm the determination;

• (c) if the amount determined appears to be excessive, reduce it to such other amount (including nil) as the Upper Tribunal considers appropriate;

• (d) if the amount determined appears to be insufficient, increase it to such amount not exceeding the permitted maximum as the Upper Tribunal considers appropriate.

Penalty proceedings before court

5

• (1) Where in the opinion of the Board the liability of any person for a penalty under section 11 or 12 arises by reason of the fraud of that or any other person, proceedings for the penalty may be instituted before the High Court or, in Scotland, the Court of Session as the Court of Exchequer in Scotland.

• (2) Subject to sub-paragraph (3), proceedings under this paragraph shall be instituted—

• (a) in England and Wales, in the name of the Attorney General, and

• (b) in Scotland, in the name of the Advocate General for Scotland.

• (3) Sub-paragraph (2) shall not prevent proceedings under this paragraph being instituted in England and Wales under the Crown Proceedings Act 1947 (c. 44) by and in the name of the Board as an authorised department for the purposes of that Act.

• (4) Any proceedings under this paragraph instituted in England and Wales shall be deemed to be civil proceedings by the Crown within the meaning of Part 2 of the Crown Proceedings Act 1947.

• (5) If in proceedings under this paragraph the court does not find that fraud is proved but considers that the person concerned is nevertheless liable to a penalty, the court may determine a penalty notwithstanding that, but for the opinion of the Board as to fraud, the penalty would not have been a matter for the court.

Mitigation of penalties

6