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Trade Union Reform and Employment Rights Act 1993 (c. 19)(The document as of February, 2008) Page 7 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 (1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee-- (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, carried out, or proposed to carry out, any such activities, (b) being a representative of workers on matters of health and safety at work, or a member of a safety committee-- (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, performed, or proposed to perform, any functions as such a representative or a member of such a committee, (c) being an employee at a place where-- (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which he reasonably believed to be serious and imminent, took, or proposed to take, appropriate steps to protect himself or other persons from the danger. (2) For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee was that specified in subsection (1)(e), the dismissal shall not be regarded as having been unfair if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have dismissed him for taking, or proposing to take, them. " . 4 In section 59 of the 1978 Act (dismissal on ground of redundancy), in subsection (2) (inserted by section 24(2) of this Act), between the words "section" and "60" there shall be inserted the words "57A(1) (read with (2) and (3))". 5 In section 64 of the 1978 Act (qualifying period etc for right not to be unfairly dismissed), in subsection (4) (inserted by section 24(3) of this Act), between the words "section" and "60" there shall be inserted the words "57A(1) (read with (2) and (3))". 6 In section 71 of the 1978 Act (compensation for failure to comply with section 69)-- (a) in subsection (2)(b) (additional award), after the word "unless" there shall be inserted the words "the case is one where this paragraph is excluded or"; and (b) after that subsection there shall be inserted-- " (2A) Subsection (2)(b) is excluded where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason. (2B) For the purposes of subsection (2A) a reason is "inadmissible" if it is one of those specified in section 57A(1)(a) and (b). " . 7 In section 72 of the 1978 Act (compensation for unfair dismissal) there shall be inserted at the end the following-- " (2) Where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason, then, unless-- (a) the complainant does not request the tribunal to make an order under section 69, or (b) the case falls within section 73(2), the award shall include a special award calculated in accordance with section 75A. (3) For the purposes of subsection (2) a reason is "inadmissible" if it is one of those specified in section 57A(1)(a) and (b). " and the preceding words shall become subsection (1) of section 72. 8 In section 73 of the 1978 Act (calculation of basic award)-- (a) in subsection (1), for "(6)" there shall be substituted "(6A)"; (b) after subsection (6) there shall be inserted-- " (6A) Where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason the amount of the basic award (before any reduction under the following provisions of this section) shall not be less than £2,700. (6B) For the purposes of this section a reason is "inadmissible" if it is one of those specified in section 57A(1)(a) and (b). (6C) The Secretary of State may by order increase the sum specified in subsection (6A). (6D) No order shall be made under subsection (6C) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament. " ; and (c) in subsection (7C), for the words following "apply" there shall be substituted the words "in a redundancy case unless the reason for selecting the employee for dismissal was an inadmissible reason; and, in that event, subsection (7B) shall apply only to so much of the basic award as is payable because of subsection (6A)". 9 After section 75 of that Act there shall be inserted-- " 75A Calculation of special award.(1) Subject to the following provisions of this section, the amount of the special award shall be-- (a) one week's pay multiplied by 104, or (b) £13,400, whichever is the greater, but shall not exceed £26,800. (2) Where the award of compensation is made under section 71(2)(a) then, unless the employer satisfies the tribunal that it was not practicable to comply with the preceding order under section 69, the amount of the special award shall be increased to-- (a) one week's pay multiplied by 156, or (b) £20,100, whichever is the greater, but subject to the following provisions of this section. (3) In a case where the amount of the basic award is reduced under section 73(5), the amount of the special award shall be reduced by the same fraction. (4) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly. (5) Where the tribunal finds that the complainant has unreasonably-- (a) prevented an order under section 69 from being complied with, or (b) refused an offer by the employer (made otherwise than in compliance with such an order) which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the special award to such extent as it considers just and equitable having regard to that finding. (6) Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining for the purposes of subsection (2) whether it was practicable to comply with an order under section 69 unless the employer shows that it was not practicable for him to arrange for the complainant's work to be done without engaging a permanent replacement. (7) The Secretary of State may by order increase any of the sums specified in subsections (1) and (2). (8) No order shall be made under subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament. " . 10 After section 76 of that Act there shall be inserted-- " Interim relief77 Interim relief pending determination of complaint of unfair dismissal.(1) An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed by his employer and that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 57A(1)(a) and (b) may apply to the tribunal for interim relief. (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4) The tribunal shall give to the employer (not later than seven days before the date of the hearing) a copy of the application together with notice of the date, time and place of the hearing. (5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. 77A Procedure on hearing of application and making of order.(1) If on hearing an employee's application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal was one of those specified in section 57A(1)(a) and (b) the following provisions shall apply. (2) The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint-- (a) to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed. (3) For this purpose "terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed" means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal. (4) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect. (5) If the employer states that he is willing to re-engage the employee in another job and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions; and-- (a) if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect, and (b) if he is not, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, but otherwise the tribunal shall make no order. (6) If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee's contract of employment. 78 Orders for continuation of contract of employment.(1) An order under section 77A for the continuation of a contract of employment is an order that the contract of employment continue in force-- (a) for the purposes of pay or of any other benefit derived from the employment, seniority, pension rights and other similar matters, and (b) for the purposes of determining for any purpose the period for which the employee has been continuously employed, from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint. (2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint. (3) Subject as follows, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid-- (a) in the case of payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and (b) in the case of a payment for any past period, within such time as may be specified in the order. (4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately. (5) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period, or part of any such period, shall go towards discharging the employer's liability in respect of that period under subsection (2); and, conversely, any payment under that subsection in respect of a period shall go towards discharging any liability of the employer under, or in respect of breach of, the contract of employment in respect of that period. (6) If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order. (7) For the purposes of this section, the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed. 78A Application for variation or revocation of order.(1) At any time between the making of an order under section 77A and the determination or settlement of the complaint, the employer or the employee may apply to an industrial tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order. (2) Sections 77 and 77A apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, section 77(4) has effect with the substitution of a reference to the employee for the reference to the employer. 79 Consequence of failure to comply with order.(1) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under section 77A(4) or (5), the tribunal shall-- (a) make an order for the continuation of the employee's contract of employment, and (b) order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard-- (i) to the infringement of the employee's right to be reinstated or re-engaged in pursuance of the order, and (ii) to any loss suffered by the employee in consequence of the non-compliance. (2) Section 78 applies to an order under subsection (1)(a) as in relation to an order under section 77A. (3) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment, the following provisions apply. (4) If the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the tribunal shall determine the amount owed by the employer on the date of the determination. (5) If on that date the tribunal also determines the employee's complaint that he has been unfairly dismissed, it shall specify that amount separately from any other sum awarded to the employee. (6) In any other case, the tribunal shall order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance. " . Section 39(2). SCHEDULE 6 Compromise ContractsSex Discrimination Act 1975 (c. 65)1 In section 77 of the Sex Discrimination Act 1975 (validity, etc. of contracts)-- (a) in subsection (4), after paragraph (a), there shall be inserted-- " (aa) to a contract settling a complaint to which section 63(1) of this Act or section 2 of the [1970 c. 41.] Equal Pay Act 1970 applies if the conditions regulating compromise contracts under this Act are satisfied in relation to the contract; " ; and (b) after subsection (4) there shall be inserted-- " (4A) The conditions regulating compromise contracts under this Act are that-- (a) the contract must be in writing; (b) the contract must relate to the particular complaint; (c) the complainant must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed contract and in particular its effect on his ability to pursue his complaint before an industrial tribunal; (d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice; (e) the contract must identify the adviser; and (f) the contract must state that the conditions regulating compromise contracts under this Act are satisfied. (4B) In subsection (4A)--
(a) as respects proceedings in England and Wales-- (i) a barrister, whether in practice as such or employed to give legal advice, or (ii) a solicitor of the Supreme Court who holds a practising certificate; (b) as respects proceedings in Scotland-- (i) an advocate, whether in practice as such or employed to give legal advice, or (ii) a solicitor who holds a practising certificate. (4C) For the purposes of subsection (4B) any two persons are to be treated as "connected" if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control. " . Race Relations Act 1976 (c. 74)2 In section 72 of the Race Relations Act 1976 (validity, etc. of contracts)-- (a) in subsection (4), after paragraph (a) there shall be inserted-- " (aa) to a contract settling a complaint to which section 54(1) applies if the conditions regulating compromise contracts under this Act are satisfied in relation to the contract; " ; and (b) after subsection (4) there shall be inserted-- " (4A) The conditions regulating compromise contracts under this Act are that-- (a) the contract must be in writing; (b) the contract must relate to the particular complaint; (c) the complainant must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed contract and in particular its effect on his ability to pursue his complaint before an industrial tribunal; (d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice; (e) the contract must identify the adviser; and (f) the contract must state that the conditions regulating compromise contracts under this Act are satisfied. (4B) In subsection (4A)--
(a) as respects proceedings in England and Wales-- (i) a barrister, whether in practice as such or employed to give legal advice, or (ii) a solicitor of the Supreme Court who holds a practising certificate. (b) as respects proceedings in Scotland-- (i) an advocate, whether in practice as such or employed to give legal advice, or (ii) a solicitor who holds a practising certificate. (4C) For the purposes of subsection (4B) any two persons are to be treated as "connected" if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control. " . Wages Act 1986 (c. 48)3 In section 6 of the Wages Act 1986 (remedies for Part I contraventions and restriction on contracting out)-- (a) in subsection (3) after the words "apply to" there shall be inserted "(a)" and at the end of the words so constituted paragraph (a) there shall be inserted the words " ; or (b) an agreement to refrain from presenting or continuing with a complaint if the conditions regulating compromise agreements under this Part of this Act are satisfied in relation to the agreement " ; and (b) after subsection (3) there shall be inserted-- " (4) The conditions regulating compromise agreements under this Part of this Act are that-- (a) the agreement must be in writing; (b) the agreement must relate to the particular complaint; (c) the worker must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his complaint before an industrial tribunal; (d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the worker in respect of loss arising in consequence of the advice; (e) the agreement must identify the adviser; and (f) the agreement must state that the conditions regulating compromise agreements under this Part of this Act are satisfied. (5) In subsection (4)--
(a) as respects proceedings in England and Wales-- (i) a barrister, whether in practice as such or employed to give legal advice, or (ii) a solicitor of the Supreme Court who holds a practising certificate; (b) as respects proceedings in Scotland-- (i) an advocate, whether in practice as such or employed to give legal advice, or (ii) a solicitor who holds a practising certificate. (6) For the purposes of subsection (5) any two persons are to be treated as "connected" if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control. " . Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52)4 In section 288 of the 1992 Act (restrictions on contracting out)-- (a) after subsection (2) there shall be inserted-- " (2A) Subsection (1) does not apply to an agreement to refrain from instituting or continuing any proceedings, other than excepted proceedings, specified in section 290 before an industrial tribunal if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement. (2B) The conditions regulating compromise agreements under this Act are that-- (a) the agreement must be in writing; (b) the agreement must relate to the particular complaint; (c) the complainant must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an industrial tribunal; (d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice; (e) the agreement must identify the adviser; and (f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied. (2C) The proceedings excepted from subsection (2A) are proceedings on a complaint of non-compliance with section 188. " ; and (b) after subsection (3) there shall be inserted-- " (4) In subsection (2B)--
(a) as respects proceedings in England and Wales-- (i) a barrister, whether in practice as such or employed to give legal advice, or (ii) a solicitor of the Supreme Court who holds a practising certificate; (b) as respects proceedings in Scotland-- (i) an advocate, whether in practice as such or employed to give legal advice, or (ii) a solicitor who holds a practising certificate. (5) For the purposes of subsection (4) any two persons are to be treated as "connected" if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control. " . Section 49(1). SCHEDULE 7 Miscellaneous AmendmentsUnfair selection for dismissal in redundancy cases:exclusion of qualifying conditions1 In section 154 of the 1992 Act (exclusion of requirement for qualifying period of employment, etc where reason for dismissal related to trade union membership or activities)-- (a) for the words "was one of those specified in section 152(1)" there shall be substituted the words "or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.", and (b) there shall be inserted after those words, as subsection (2), the following-- " (2) For the purposes of this section--
Qualifying period for unfair dismissal protection: small businesses2 Section 64A of the 1978 Act (extended qualifying period for right not to be unfairly dismissed where no more than twenty employees) shall be omitted. Application of 1978 Act to Crown Employment and House of Commons Staff3 In section 138 of the 1978 Act (application to Crown)-- (a) in subsection (1) (which applies Part I to Crown employees only so far as it relates to itemised pay statements), the words "(so far as it relates to itemised pay statements)" shall be omitted, and (b) in subsection (4) (disapplication of any provision which would otherwise apply to Crown employment where national security certificate in force), for the words "For the purposes of this section, Crown employment does not include any employment" there shall be substituted the words "Part I (so far as it relates to itemised pay statements), Part II (except sections 22A to 22C and 31A), section 53 (apart from subsection (2A)), Part V (except so far as relating to a dismissal which is regarded as unfair by reason of section 57A, 59(1)(a) or 60) and Part VIII and this Part (so far as relating to any of those provisions) shall not have effect in relation to any Crown employment". 4 In section 139(1) of the 1978 Act (application of Part I to House of Commons staff only so far as it relates to itemised pay statements), the words "(so far as it relates to itemised pay statements)" shall be omitted. Restrictions on disclosure of information, etc on grounds of national security5 After section 146 of the 1978 Act there shall be inserted-- " 146A National Security.(1) Where in the opinion of any Minister of the Crown the disclosure of any information would be contrary to the interests of national security-- (a) nothing in any of the provisions to which this section applies shall require any person to disclose the information, and (b) no person shall disclose the information in any proceedings in any court or tribunal relating to any of those provisions. (2) This section applies to-- (a) Part I so far as it relates to employment particulars, (b) sections 22A to 22C and section 31A, (c) Part III, (d) section 53(2A), (e) Part V so far as relating to a dismissal which is regarded as unfair by reason of section 57A, 59(1)(a) or 60, and (f) Part VIII and this Part so far as relating to any of the provisions in paragraphs (a) to (e). " . 6 In Schedule 9 of the 1978 Act (industrial tribunals)-- (a) in paragraph 1 (regulations as to procedure), after sub-paragraph (4), there shall be inserted-- " (4A) Without prejudice to sub-paragraph (5) or paragraph 2, a Minister of the Crown may on grounds of national security direct an industrial tribunal to sit in private when hearing or determining any proceedings specified in the direction. " , and (b) in paragraph 2 (national security), in sub-paragraph (2), for the words "A certificate" there shall be substituted the words "Except where the complaint is that a dismissal is unfair by reason of section 57A, 59(1)(a) or 60, a certificate". 7 In paragraph 18 of Schedule 11 to the 1978 Act (Employment Appeal Tribunal Rules), for sub-paragraph (c) (power for rules to enable private hearings) there shall be substituted-- " (c) for requiring or enabling the Appeal Tribunal to sit in private in circumstances in which an industrial tribunal is required or empowered to sit in private by virtue of paragraph 1 of Schedule 9; " . Extension of employment protection provisions and related legislation to House of Lords Staff8 In section 1 of the [1970 c. 41.] Equal Pay Act 1970 (requirement of equal treatment for men and women), after subsection (10A) there shall be inserted-- " (10B) This section applies in relation to employment as a relevant member of the House of Lords staff as in relation to other employment. In this subsection "relevant member of the House of Lords staff" has the same meaning as in section 139A of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978; and subsection (6) of that section applies for the purposes of this section. " . 9 After section 85A of the [1975 c. 65.] Sex Discrimination Act 1975 (application to House of Commons staff) there shall be inserted-- " 85B Application to House of Lords staff.(1) Parts II and IV apply in relation to employment as a relevant member of the House of Lords staff as they apply in relation to other employment. (2) In this section "relevant member of the House of Lords staff" has the same meaning as in section 139A of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978; and subsection (6) of that section applies for the purposes of this section. " . 10 After section 75A of the [1976 c. 74.] Race Relations Act 1976 (application to House of Commons staff) there shall be inserted-- " 75B Application to House of Lords staff.(1) Parts II and IV apply in relation to employment as a relevant member of the House of Lords staff as they apply in relation to other employment. (2) In this section "relevant member of the House of Lords staff" has the same meaning as in section 139A of the Employment Protection (Consolidation) Act 1978; and subsection (6) of that section applies for the purposes of this section. " . 11 After section 139 of the 1978 Act there shall be inserted-- " House of Lords staff139A Provisions as to House of Lords staff.(1) The provisions of Parts I, II, III, V and VIII, and this Part and section 53 shall apply in relation to employment as a relevant member of the House of Lords staff as they apply to other employment. (2) Nothing in any rule of law or the law or practice of Parliament shall prevent a relevant member of the House of Lords staff from bringing a civil employment claim before the court or from bringing before an industrial tribunal proceedings of any description which could be brought before such a tribunal by a person who is not such a member. (3) For the purposes of the application of the enactments applied by subsection (1) in relation to a relevant member of the House of Lords staff-- Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 -- Back --
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