Employment Act 2002 (c. 22)

(The document as of February, 2008)

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(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) Without prejudice to the generality of this section, the regulations may make any provision in relation to employees which appears to the Department for Employment and Learning to be necessary or expedient--

(a) for the purpose of implementing Council Directive 99/70/EC on the framework agreement on fixed-term work in its application to terms and conditions of employment;

(b) for the purpose of dealing with any matter arising out of or related to the United Kingdom's obligations under that Directive;

(c) for the purpose of any matter dealt with by the framework agreement or for the purpose of applying the provisions of the framework agreement to any matter relating to fixed term workers.

(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.

47 Flexible working

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

(2) After Part 8 there is inserted--

" Part 8A Flexible working

80F Statutory right to request contract variation

(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 Employer's duties in relation to application under section 80F

(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;

and may make different provision for different cases.

(4) The Secretary of State may by order amend subsection (2).

80H Complaints to employment tribunals

(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 Remedies

(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--

" 47D Flexible working

(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,

(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 Flexible working

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,

(d) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings. "

48 Rate of maternity allowance

(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

" (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.

49 Work-focused interviews for partners

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 Full entitlement to certain benefits conditional on work-focused interview for partner

(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;

(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;

(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--
(a)
the Secretary of State,
(b)
a person providing services to the Secretary of State,
(c)
a local authority, and
(d)
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. "

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

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

General

51 Orders and regulations

(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 30, 31, 32, 33 or 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).

52 Financial provisions

(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.

53 Minor and consequential amendments

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

54 Repeals and revocations

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

55 Short title etc.

(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;

(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;

(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 or statutory adoption pay include statutory pay under Northern Ireland legislation corresponding to Part 12ZA or Part 12ZB of the Social Security Contributions and Benefits Act 1992 (c. 4).

SCHEDULES

Sections 11 and 12

SCHEDULE 1 Penalties: procedure and appeals

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 tax.

(3) On an appeal by virtue of sub-paragraph (2) against the determination of a penalty under paragraph 1, the General or Special Commissioners may--

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

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

(c) if the amount determined appears to them to be excessive, reduce it to such other amount (including nil) as they consider appropriate;

(d) if the amount determined appears to them to be insufficient, increase it to such amount not exceeding the permitted maximum as they consider appropriate.

(4) An appeal from a decision of the Commissioners against the amount of a penalty which has been determined under paragraph 1 or this paragraph shall lie, at the instance of the person liable to the penalty--

(a) to the High Court, or

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