Making an Employment Or Similar Claim - Legislation That May Help You

4.—(1) An employee may present a complaint to an employment tribunal that his employer—

(a) has unreasonably refused to permit him to take time off as required by paragraph 2, or

(b) has failed to pay the whole or part of any amount to which the employee is entitled under paragraph 3.

(2) A tribunal shall not consider a complaint under this paragraph unless it is presented—

(a) before the end of the period of three months beginning with the day on which the time off was taken or on which it is alleged the time off should have been permitted, 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.

(3) Where a tribunal finds a complaint under this paragraph well-founded, the tribunal shall make a declaration to that effect.

(4) If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which he would have been entitled under paragraph 3 if the employer had not refused.

(5) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which he is entitled under paragraph 3, the tribunal shall also order the employer to pay to the employee the amount it finds due to him.

8.—(1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of paragraph 7.

(2) The provisions of sections 48(2) to (4) and 49(1) to (5) of the 1996 Act(1) (complaints to employment tribunals and remedies) shall apply in relation to a complaint under this paragraph as they apply in relation to a complaint under section 48 of that Act.

[F168A Complaint of infringement of rights.

(1) A worker may present a complaint to an [F2employment tribunal] that his employer has made a deduction from his wages in contravention of section 68—

(a) within the period of three months beginning with the date of the payment of the wages from which the deduction, or (if the complaint relates to more than one deduction) the last of the deductions, was made, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable.

[F3(1A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).]

[F4(2) Where a tribunal finds that a complaint under this section is well founded, it shall make a declaration to that effect and shall order the employer to pay to the worker the whole amount of the deduction, less any such part of the amount as has already been paid to the worker by the employer.]

(3) Where the making of a deduction from the wages of a worker both contravenes section 68(1) and involves one or more of the contraventions specified in subsection (4) of this section, the aggregate amount which may be ordered by an [F2employment tribunal] or court (whether on the same occasion or on different occasions) to be paid in respect of the contraventions shall not exceed the amount, or (where different amounts may be ordered to be paid in respect of different contraventions) the greatest amount, which may be ordered to be paid in respect of any one of them.

(4) The contraventions referred to in subsection (3) are—

(a) a contravention of the requirement not to make a deduction without having given the particulars required by section 8 (itemised pay statements) or 9(1) (standing statements of fixed deductions) of [F5the Employment Rights Act 1996],

(b) a contravention of [F6section 13 of that Act] (requirement not to make unauthorised deductions), and

(c) a contravention of section 86(1) or 90(1) of this Act (requirements not to make deductions of political fund contributions in certain circumstances).]

[F187 Complaint in respect of employer’s failure.

(1) A person who claims his employer has failed to comply with section 86 in deducting or refusing to deduct any amount from emoluments payable to him may present a complaint to an employment tribunal.

(2) A tribunal shall not consider a complaint under subsection (1) unless it is presented—

(a) within the period of three months beginning with the date of the payment of the emoluments or (if the complaint relates to more than one payment) the last of the payments, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable.

[F2(2A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).]

(3) Where on a complaint under subsection (1) arising out of subsection (3) (refusal to deduct union dues) of section 86 the question arises whether the employer’s refusal to deduct an amount was attributable to the giving of the certificate or was otherwise connected with the duty imposed by subsection (1) of that section, it is for the employer to satisfy the tribunal that it was not.

(4) Where a tribunal finds that a complaint under subsection (1) is well-founded—

(a) it shall make a declaration to that effect and, where the complaint arises out of subsection (1) of section 86, order the employer to pay to the complainant the amount deducted in contravention of that subsection less any part of that amount already paid to him by the employer, and

(b) it may, if it considers it appropriate to do so in order to prevent a repetition of the failure, make an order requiring the employer to take, within a specified time, the steps specified in the order in relation to emoluments payable by him to the complainant.

(5) A person who claims his employer has failed to comply with an order made under subsection (4)(b) on a complaint presented by him may present a further complaint to an employment tribunal; but only one complaint may be presented under this subsection in relation to any order.

(6) A tribunal shall not consider a complaint under subsection (5) unless it is presented—

(a) after the end of the period of four weeks beginning with the date of the order, but

(b) before the end of the period of six months beginning with that date.

(7) Where on a complaint under subsection (5) a tribunal finds that an employer has, without reasonable excuse, failed to comply with an order made under subsection (4)(b), it shall order the employer to pay to the complainant an amount equal to two weeks’ pay.

(8) Chapter II of Part XIV of the M1Employment Rights Act 1996 (calculation of a week’s pay) applies for the purposes of subsection (7) with the substitution for section 225 of the following—

For the purposes of this Chapter in its application to subsection (7) of section 87 of the M2Trade Union and Labour Relations (Consolidation) Act 1992, the calculation date is the date of the payment, or (if more than one) the last of the payments, to which the complaint related.]

137 Refusal of employment on grounds related to union membership.

(1) It is unlawful to refuse a person employment—

(a) because he is, or is not, a member of a trade union, or

(b) because he is unwilling to accept a requirement—

(i) to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

(ii) to make payments or suffer deductions in the event of his not being a member of a trade union.

(2) A person who is thus unlawfully refused employment has a right of complaint to an [F1employment tribunal].

(3) Where an advertisement is published which indicates, or might reasonably be understood as indicating—

(a) that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or

(b) that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to employment to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.

(4) Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.

(5) A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—

(a) refuses or deliberately omits to entertain and process his application or enquiry, or

(b) causes him to withdraw or cease to pursue his application or enquiry, or

(c) refuses or deliberately omits to offer him employment of that description, or

(d) makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or

(e) makes him an offer of such employment but withdraws it or causes him not to accept it.

(6) Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.

(7) Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in this section applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union.

For this purpose an “office” means any position—

(a) by virtue of which the holder is an official of the union, or

(b) to which Chapter IV of Part I applies (duty to hold elections).

(8) The provisions of this section apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

[F1145A Inducements relating to union membership or activities

(1) A worker has the right not to have an offer made to him by his employer for the sole or main purpose of inducing the worker—

(a) not to be or seek to become a member of an independent trade union,

(b) not to take part, at an appropriate time, in the activities of an independent trade union,

(c) not to make use, at an appropriate time, of trade union services, or

(d) to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In subsection (1) “an appropriate time” means—

(a) a time outside the worker’s working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services.

(3) In subsection (2) “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.

(4) In subsections (1) and (2)—

(a) “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and

(b) references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

(5) A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.]

[F1145B Inducements relating to collective bargaining

(1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—

(a) acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and

(b) the employer’s sole or main purpose in making the offers is to achieve that result.

(2) The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.

(3) It is immaterial for the purposes of subsection (1) whether the offers are made to the workers simultaneously.

(4) Having terms of employment determined by collective agreement shall not be regarded for the purposes of section 145A (or section 146 or 152) as making use of a trade union service.

(5) A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.]

146 [F1Detriment] on grounds related to union membership or activities.

(1) [F2A worker] has the right not to [F3be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for [F4the sole or main purpose] of—

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, F5. . .

[F6(ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or]

(c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In subsection [F7(1)]“an appropriate time” means—

(a) a time outside the [F8worker's] working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union [F9or (as the case may be) make use of trade union services];

and for this purpose “working hours”, in relation to [F10a worker], means any time when, in accordance with his contract of employment [F11(or other contract personally to do work or perform services)], he is required to be at work.

[F12(2A) In this section—

(a) “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and

(b) references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

(2B) If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba).

(2C) A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B.

(2D) For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).]

(3) [F2A worker] also has the right not to [F13be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for [F4the sole or main purpose] of enforcing a requirement (whether or not imposed by [F14a contract of employment] or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(4) For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to [F10a worker] in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as [F15a detriment to which he has been subjected as an individual by an act of his employer taking place] for [F4the sole or main purpose] of enforcing a requirement of a kind mentioned in that subsection.

(5) [F16A worker or former worker] may present a complaint to an industrial tribunal on the ground that [F17he has been subjected to a detriment]by his employer in contravention of this section.

[F18(5A) This section does not apply where—

(a) the worker is an employee; and

(b) the detriment in question amounts to dismissal.]

168 Time off for carrying out trade union duties.

(1) An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out any duties of his, as such an official, concerned with—

(a) negotiations with the employer related to or connected with matters falling within section 178(2) (collective bargaining) in relation to which the trade union is recognised by the employer, or

(b) the performance on behalf of employees of the employer of functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union[F1, or

(c) receipt of information from the employer and consultation by the employer under section 188 (redundancies) or under the [F2Transfer of Undertakings (Protection of Employment) Regulations 2006]][F3, or

(d) negotiations with a view to entering into an agreement under regulation 9 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 that applies to employees of the employer, or

(e) the performance on behalf of employees of the employer of functions related to or connected with the making of an agreement under that regulation.]

(2) He shall also permit such an employee to take time off during his working hours for the purpose of undergoing training in aspects of industrial relations—

(a) relevant to the carrying out of such duties as are mentioned in subsection (1), and

(b) approved by the Trades Union Congress or by the independent trade union of which he is an official.

(3) 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 provisions of a Code of Practice issued by ACAS.

(4) An employee may present a complaint to an [F4employment tribunal] that his employer has failed to permit him to take time off as required by this section.

[F1168A Time off for union learning representatives

(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.]

169 Payment for time off under section 168.

(1) An employer who permits an employee to take time off under section 168 [F1or 168A] shall pay him for the time taken off pursuant to the permission.

(2) Where the employee’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he shall be paid as if he had worked at that work for the whole of that time.

(3) Where the employee’s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he shall be paid an amount calculated by reference to the average hourly earnings for that work.

The average hourly earnings shall be those of the employee concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.

(4) A right to be paid an amount under this section does not affect any right of an employee in relation to remuneration under his contract of employment, but—

(a) any contractual remuneration paid to an employee in respect of a period of time off to which this section applies shall go towards discharging any liability of the employer under this section in respect of that period, and

(b) any payment under this section in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

(5) An employee may present a complaint to an [F2employment tribunal] that his employer has failed to pay him in accordance with this section.

170 Time off for trade union activities.

(1) 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 taking part in—

(a) any activities of the union, and

(b) any activities in relation to which the employee is acting as a representative of the union.

(2) The right conferred by subsection (1) does not extent to activities which themselves consist of industrial action, whether or not in contemplation or furtherance of a trade dispute.

[F1(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.]

(3) 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 provisions of a Code of Practice issued by ACAS.

(4) An employee may present a complaint to an [F2employment tribunal] that his employer has failed to permit him to take time off as required by this section.

[F3(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.]

[F1174 Right not to be excluded or expelled from union.

(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.

(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if)—

(a) he does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union,

(b) he does not qualify, or no longer qualifies, for membership of the union by reason of the union operating only in a particular part or particular parts of Great Britain,

(c) in the case of a union whose purpose is the regulation of relations between its members and one particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers, or

(d) the exclusion or expulsion is entirely attributable to [F2conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct].

(3) A requirement in relation to membership of a union is “enforceable” for the purposes of subsection (2)(a) if it restricts membership solely by reference to one or more of the following criteria—

(a) employment in a specified trade, industry or profession,

(b) occupational description (including grade, level or category of appointment), and

(c) possession of specified trade, industrial or professional qualifications or work experience.

[F3(4) For the purposes of subsection (2)(d) “excluded conduct”, in relation to an individual, means—

(a) conduct which consists in his being or ceasing to be, or having been or ceased to be, a member of another trade union,

(b) conduct which consists in his being or ceasing to be, or having been or ceased to be, employed by a particular employer or at a particular place, or

(c) conduct to which section 65 (conduct for which an individual may not be disciplined by a union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union.

(4A) For the purposes of subsection (2)(d) “protected conduct” is conduct which consists in the individual’s being or ceasing to be, or having been or ceased to be, a member of a political party.

(4B) Conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection (4A).]

[F4(4C) Conduct which consists in an individual's being or having been a member of a political party is not conduct falling within subsection (4A) if membership of that political party is contrary to—

(a) a rule of the trade union, or

(b) an objective of the trade union.

(4D) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual's being a member of a political party, an objective is to be disregarded—

(a) in relation to an exclusion, if it is not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual;

(b) in relation to an expulsion, if it is not reasonably practicable for the objective to be ascertained by a member of the union.

(4E) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual's having been a member of a political party, an objective is to be disregarded—

(a) in relation to an exclusion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual;

(b) in relation to an expulsion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a member of the union.

(4F) Where the exclusion or expulsion of an individual from a trade union is wholly or mainly attributable to conduct which consists of an individual's being or having been a member of a political party but which by virtue of subsection (4C) is not conduct falling within subsection (4A), the exclusion or expulsion is not permitted by virtue of subsection (2)(d) if any one or more of the conditions in subsection (4G) apply.

(4G) Those conditions are—

(a) the decision to exclude or expel is taken otherwise than in accordance with the union's rules;

(b) the decision to exclude or expel is taken unfairly;

(c) the individual would lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union.

(4H) For the purposes of subsection (4G)(b) a decision to exclude or expel an individual is taken unfairly if (and only if)—

(a) before the decision is taken the individual is not given—

(i) notice of the proposal to exclude or expel him and the reasons for that proposal, and

(ii) a fair opportunity to make representations in respect of that proposal, or

(b) representations made by the individual in respect of that proposal are not considered fairly.]

(5) An individual who claims that he has been excluded or expelled from a trade union in contravention of this section may present a complaint to an [F5employment tribunal].]

192 Complaint by employee to [F1employment tribunal].

(1) An employee may present a complaint to an [F1employment tribunal] on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award.

(2) An [F1employment tribunal] shall not entertain a complaint under this section unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it may consider reasonable.

[F2(2A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).]

(3) Where the tribunal finds a complaint under this section well-founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

(4) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise.

Remedy for failure to notify employee liability information

12.—(1) On or after a relevant transfer, the transferee may present a complaint to an employment tribunal that the transferor has failed to comply with any provision of regulation 11.

(2) An employment tribunal shall not consider a complaint under this regulation unless it is presented—

(a) before the end of the period of three months beginning with the date of the relevant transfer;

(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.

(3) Where an employment tribunal finds a complaint under paragraph (1) well-founded, the tribunal—

(a) shall make a declaration to that effect; and

(b) may make an award of compensation to be paid by the transferor to the transferee.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances, subject to paragraph (5), having particular regard to—

(a) any loss sustained by the transferee which is attributable to the matters complained of; and

(b) the terms of any contract between the transferor and the transferee relating to the transfer under which the transferor may be liable to pay any sum to the transferee in respect of a failure to notify the transferee of employee liability information.

(5) Subject to paragraph (6), the amount of compensation awarded under paragraph (3) shall be not less than £500 per employee in respect of whom the transferor has failed to comply with a provision of regulation 11, unless the tribunal considers it just and equitable, in all the circumstances, to award a lesser sum.

(6) In ascertaining the loss referred to in paragraph (4)(a) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to any damages recoverable under the common law of England and Wales, Northern Ireland or Scotland, as applicable.

(7) Section 18 of the 1996 Tribunals Act (conciliation) shall apply to the right conferred by this regulation and to proceedings under this regulation as it applies to the rights conferred by that Act and the employment tribunal proceedings mentioned in that Act.

11 Complaint to employment tribunal.

(1) A worker may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with section 10(2) or (4).

(2) A tribunal shall not consider a complaint under this section in relation to a failure or threat unless the complaint is presented—

(a) before the end of the period of three months beginning with the date of the failure or threat, 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.

(3) Where a tribunal finds that a complaint under this section is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay.

(4) Chapter II of Part XIV of the M1Employment Rights Act 1996 (calculation of a week’s pay) shall apply for the purposes of subsection (3); and in applying that Chapter the calculation date shall be taken to be—

(a) in the case of a claim which is made in the course of a claim for unfair dismissal, the date on which the employer’s notice of dismissal was given or, if there was no notice, the effective date of termination, and

(b) in any other case, the date on which the relevant hearing took place (or was to have taken place).

(5) The limit in section 227(1) of the Employment Rights Act 1996 (maximum amount of week’s pay) shall apply for the purposes of subsection (3) above.

(6) No award shall be made under subsection (3) in respect of a claim which is made in the course of a claim for unfair dismissal if the tribunal makes a supplementary award under section 127A(2) of the Employment Rights Act 1996 (internal appeal procedures).

Refusal of employment

5.—(1) A person (P) has a right of complaint to an employment tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either—

(a) R contravenes regulation 3 in relation to that list, or

(b) R—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.

(2) R shall be taken to refuse to employ P if P seeks employment of any description with R and R—

(a) refuses or deliberately omits to entertain and process P’s application or enquiry;

(b) causes P to withdraw or cease to pursue P’s application or enquiry;

(c) refuses or deliberately omits to offer P employment of that description;

(d) makes P an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or

(e) makes P an offer of such employment but withdraws it or causes P not to accept it.

(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not.

Refusal of employment agency services

6.—(1) A person (P) has a right of complaint to an employment tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either—

(a) E contravenes regulation 3 in relation to that list, or

(b) E—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.

(2) E shall be taken to refuse P a service if P seeks to make use of the service and E—

(a) refuses or deliberately omits to make the service available to P;

(b) causes P not to make use of the service or to cease to make use of it; or

(c) does not provide P the same service, on the same terms, as is provided to others.

(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that E contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless E shows that it did not.

Detriment

9.—(1) A person (P) has a right of complaint to an employment tribunal against P’s employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either—

(a) D contravenes regulation 3 in relation to that list, or

(b) D—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.

(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that D contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless D shows that it did not.

(3) This regulation does not apply where the detriment in question amounts to the dismissal of an employee within the meaning in Part 10 of the Employment Rights Act 1996.

[F163I Complaints to employment tribunals

(1) An employee who makes a section 63D application may present a complaint to an employment tribunal that—

(a) the employer has failed to comply with section 63F(4), (5) or (6), or

(b) the employer's decision to refuse the application, or part of it, is based on incorrect facts.

This is subject to the following provisions of this section.

(2) No complaint under this section may be made in respect of a section 63D application which has been disposed of by agreement or withdrawn.

(3) In the case of a section 63D application that has not been disposed of by agreement or withdrawn, a complaint under this section may only be made if the employer—

(a) notifies the employee of a decision to refuse the application (or part of it) on appeal, or

(b) commits a breach of regulations under section 63F(4), where the breach is of a description specified by the Secretary of State in regulations.

(4) No complaint under this section may be made in respect of failure to comply with provision included in regulations under section 63F(4) because of—

(a) section 63G(1)(a) or (b), if provision is included in regulations under section 63F(4) by virtue of section 63G(1)(d), or

(b) section 63G(1)(c).

(5) An employment tribunal may not consider a complaint under this section unless the complaint is presented—

(a) before the end of the period of three months beginning with the relevant date, or

(b) within any further period that the tribunal considers reasonable, if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(6) 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;

(b) in the case of a complaint permitted by subsection (3)(b), the date on which the breach was committed.

[F2(7) Section 207A(3) (extension because of mediation in certain European cross-border disputes) [F3and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply] to subsection (5)(a).]]

Rights of agency workers in relation to the basic working and employment conditions

5.—(1) Subject to regulation 7, an agency worker (A) shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer—

(a) other than by using the services of a temporary work agency; and

(b) at the time the qualifying period commenced.

(2) For the purposes of paragraph (1), the basic working and employment conditions are —

(a) where A would have been recruited as an employee, the relevant terms and conditions that are ordinarily included in the contracts of employees of the hirer;

(b) where A would have been recruited as a worker, the relevant terms and conditions that are ordinarily included in the contracts of workers of the hirer,

whether by collective agreement or otherwise, including any variations in those relevant terms and conditions made at any time after the qualifying period commenced.

(3) Paragraph (1) shall be deemed to have been complied with where—

(a) an agency worker is working under the same relevant terms and conditions as an employee who is a comparable employee, and

(b) the relevant terms and conditions of that comparable employee are terms and conditions ordinarily included in the contracts of employees, who are comparable employees of the hirer, whether by collective agreement or otherwise.

(4) For the purposes of paragraph (3) an employee is a comparable employee in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place—

(a) both that employee and the agency worker are—

(i) working for and under the supervision and direction of the hirer, and

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills; and

(b) the employee works or is based at the same establishment as the agency worker or, where there is no comparable employee working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

(5) An employee is not a comparable employee if that employee’s employment has ceased.

(6) This regulation is subject to regulation 10.

Rights of agency workers in relation to access to collective facilities and amenities

12.—(1) An agency worker has during an assignment the right to be treated no less favourably than a comparable worker in relation to the collective facilities and amenities provided by the hirer.

(2) The rights conferred by paragraph (1) apply only if the less favourable treatment is not justified on objective grounds.

(3) “Collective facilities and amenities” includes, in particular—

(a) canteen or other similar facilities;

(b) child care facilities; and

(c) transport services.

(4) For the purposes of paragraph (1) an individual is a comparable worker in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place—

(a) both that individual and the agency worker are—

(i) working for and under the supervision and direction of the hirer, and

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills;

(b) that individual works or is based at the same establishment as the agency worker or, where there is no comparable worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements; and

(c) that individual is an employee of the hirer or, where there is no employee satisfying the requirements of sub-paragraphs (a) and (b), is a worker of the hirer and satisfies those requirements.

Rights of agency workers in relation to access to employment

13.—(1) An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.
(2) For the purposes of paragraph (1) an individual is a comparable worker in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place—

(a) both that individual and the agency worker are—

(i) working for and under the supervision and direction of the hirer, and

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills;

(b) that individual works or is based at the same establishment as the agency worker; and

(c) that individual is an employee of the hirer or, where there is no employee satisfying the requirements of sub-paragraphs (a) and (b), is a worker of the hirer and satisfies those requirements.

(3) For the purposes of paragraph (1), an individual is not a comparable worker if that individual’s employment with the hirer has ceased.

(4) For the purposes of paragraph (1) the hirer may inform the agency worker by a general announcement in a suitable place in the hirer’s establishment.

Unfair dismissal and the right not to be subjected to detriment

17.—(1) An agency worker who is an employee and is dismissed shall be regarded as unfairly dismissed for the purposes of Part 10 of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).

(2) An agency worker has the right not to be subjected to any detriment by, or as a result of, any act, or any deliberate failure to act, of a temporary work agency or the hirer, done on a ground specified in paragraph (3).

(3) The reasons or, as the case may be, grounds are—

(a) that the agency worker—

(i) brought proceedings under these Regulations;

(ii) gave evidence or information in connection with such proceedings brought by any agency worker;

(iii) made a request under regulation 16 for a written statement;

(iv) otherwise did anything under these Regulations in relation to a temporary work agency, hirer, or any other person;

(v) alleged that a temporary work agency or hirer has breached these Regulations;

(vi) refused (or proposed to refuse) to forgo a right conferred by these Regulations; or

(b) that the hirer or a temporary work agency believes or suspects that the agency worker has done or intends to do any of the things mentioned in sub-paragraph (a).

(4) Where the reason or principal reason for subjection to any act or deliberate failure to act is that mentioned in paragraph (3)(a)(v), or paragraph 3(b) so far as it relates to paragraph (3)(a)(v), neither paragraph (1) nor paragraph (2) applies if the allegation made by the agency worker is false and not made in good faith.

(5) Paragraph (2) does not apply where the detriment in question amounts to a dismissal of an employee within the meaning of Part 10 of the 1996 Act.

3 Civil remedy.

(1) An actual or apprehended breach of [F1section 1(1)] may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

(3) Where—

(a) in such proceedings the High Court or [F2the county] court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and

(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant.

(4) An application under subsection (3) may be made—

(a) where the injunction was granted by the High Court, to a judge of that court, and

(b) where the injunction was granted by [F2the county] court, to a judge [F3of that] court.

(5) The judge F4... to whom an application under subsection (3) is made may only issue a warrant if—

(a) the application is substantiated on oath, and

(b) the judge F4... has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.

(6) Where—

(a) the High Court or [F2the county] court grants an injunction for the purpose mentioned in subsection (3)(a), and

(b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,

he is guilty of an offence.

(7) Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court.

( A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court.

(9) A person guilty of an offence under subsection (6) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.