Changes to the Employment Rights Act 1996: Unfair Dismissal Remedies, Study notes of Remedies

Download Changes to the Employment Rights Act 1996: Unfair Dismissal Remedies and more Study notes Remedies in PDF only on Docsity! Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes Employment Rights Act 1996 1996 CHAPTER 18 PART X UNFAIR DISMISSAL CHAPTER II REMEDIES FOR UNFAIR DISMISSAL Modifications etc. (not altering text) C1 Pt. 10 Ch. 2 modified (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155), reg. 18(6) Introductory 111 Complaints to [F1employment tribunal]. (1) A complaint may be presented to an [F1employment tribunal] against an employer by any person that he was unfairly dismissed by the employer. (2) [F2Subject to the following provisions of this section], an [F1employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. [F3(2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).] 2 Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes (3) Where a dismissal is with notice, an [F1employment tribunal] shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination. (4) In relation to a complaint which is presented as mentioned in subsection (3), the provisions of this Act, so far as they relate to unfair dismissal, have effect as if— (a) references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires, (b) references to reinstatement included references to the withdrawal of the notice by the employer, (c) references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice, and (d) references to an employee ceasing to be employed included references to an employee having been given notice of dismissal. [F4(5) Where the dismissal is alleged to be unfair by virtue of section 104F (blacklists), (a) subsection (2)(b) does not apply, and (b) an employment tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.] Textual Amendments F1 Words in s. 111(1)-(3) and sidenote to s. 111 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1 F2 Words in s. 111(2) substituted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(5)(a) F3 S. 111(2A) substituted (31.12.2020) by The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 (S.I. 2019/469), reg. 1(1), Sch. 1 para. 12(23) (with reg. 5) (as amended by S.I. 2020/1493, regs. 1(1), 4(5)(6)); 2020 c. 1, Sch. 5 para. 1(1) F4 S. 111(5) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(5)(b) [F5111A Confidentiality of negotiations before termination of employment (1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5). (2) In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee. (3) Subsection (1) does not apply where, according to the complainant's case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed. Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 5 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes 115 Order for re-engagement. (1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment. (2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including— (a) the identity of the employer, (b) the nature of the employment, (c) the remuneration for the employment, (d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, (e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (f) the date by which the order must be complied with. (3) In calculating for the purposes of subsection (2)(d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of re-engagement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances. F12(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Textual Amendments F12 S. 115(4) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 21, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11) 116 Choice of order and its terms. (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, 6 Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms. (4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement. (5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement. (6) Subsection (5) does not apply where the employer shows— (a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or (b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement. 117 Enforcement of order and compensation. (1) An [F13employment tribunal] shall make an award of compensation, to be paid by the employer to the employee, if— (a) an order under section 113 is made and the complainant is reinstated or re- engaged, but (b) the terms of the order are not fully complied with. (2) Subject to section 124 F14. . ., the amount of the compensation shall be such as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order. [F15(2A) There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113.] (3) Subject to subsections (1) and (2) F14. . ., if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make— (a) an award of compensation for unfair dismissal (calculated in accordance with sections 118 to [F16126]), and (b) except where this paragraph does not apply, an additional award of compensation of [F17an amount not less than twenty-six nor more than fifty- two weeks’ pay], to be paid by the employer to the employee. (4) Subsection (3)(b) does not apply where— (a) the employer satisfies the tribunal that it was not practicable to comply with the order, F18. . . Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 7 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes F18(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F19(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F19(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (7) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining for the purposes of subsection (4)(a) whether it was practicable to comply with the order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement. (8) Where in any case an [F20employment tribunal] finds that the complainant has unreasonably prevented an order under section 113 from being complied with, in making an award of compensation for unfair dismissal F21. . . it shall take that conduct into account as a failure on the part of the complainant to mitigate his loss. Textual Amendments F13 Words in s. 117(1)(8) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1 F14 Words in s. 117(2)(3) repealed (25.10.1999) by 1999 c. 26, s. 44, Sch. 9(11); S.I. 1999/2830, art. 2(3), Sch. 2 Pt. I F15 S. 117(2A) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 34(4), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3) F16 Word in s. 117(3)(a) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 37; S.I. 2004/2185, art. 2 F17 Words in s. 117(3)(b) substituted (25.10.1999) by 1999 c. 26, s. 33(2); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 8) F18 S. 117(4)(b) and the preceding word “or” repealed (25.10.1999) by 1999 c. 26, ss. 33(1)(a), 44, Sch. 9(10); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 8) F19 S. 117(5)(6) repealed (25.10.1999) by 1999 c. 26, ss. 33(2), 44, Sch. 9(10); S.I. 1999/2830, art. 2(1) (3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 8) F20 S. 117(6)(c) and preceding word “and” inserted (1.8.1998) by 1998 c. 8, s. 14(1); S.I. 1998/1658, art. 2(1), Sch. 1 (with art. 3(7)) F21 Words in s. 117(8) repealed (1.8.1998) by 1998 c. 8, s. 15, Sch. 2; S.I. 1998/1658, art. 2(1), Sch. 1 Modifications etc. (not altering text) C3 S. 117: power to modify conferred (1.8.1998) by 1992 c. 52, s. 212A(8)(a) (as inserted (1.8.1998) by 1998 c. 8, s. 7; S.I. 1998/1658, art. 2(1), Sch. 1) S. 117 applied (21.5.2001) by S.I. 2001/1185, arts. 2, 3, Sch. para. 160 S. 117-127A applied (with modifications) (2.7.1999) by S.I. 1999/1548, reg. 3 S. 117 modified (21.5.2001) by S.I. 2001/1185, art. 5 C4 S. 117 applied (6.4.2004) by The ACAS Arbitration Scheme (Great Britain) Order 2004 (S.I. 2004/753), arts. 1(1), 2, 3, Sch. para. 185 S. 117 applied (with modifications) (6.4.2004) by The ACAS Arbitration Scheme (Great Britain) Order 2004 (S.I. 2004/753), arts. 1(1), 6 10 Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes 121 Basic award of two weeks’ pay in certain cases. The amount of the basic award shall be two weeks’ pay where the tribunal finds that the reason (or, where there is more than one, the principal reason) for the dismissal of the employee is that he was redundant and the employee— (a) by virtue of section 138 is not regarded as dismissed for the purposes of Part XI, or (b) by virtue of section 141 is not, or (if he were otherwise entitled) would not be, entitled to a redundancy payment. Modifications etc. (not altering text) C9 Ss. 117-127A applied (with modifications) (2.7.1999) by S.I. 1999/1548, reg. 3 122 Basic award: reductions. (1) Where the tribunal finds that the complainant has unreasonably refused an offer by the employer which (if accepted) would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that finding. (2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. (3) Subsection (2) does not apply in a redundancy case unless the reason for selecting the employee for dismissal was one of those specified in section 100(1)(a) and (b), [F33101A(d),] 102(1) or 103; and in such a case subsection (2) applies only to so much of the basic award as is payable because of section 120. [F34(3A) Where the complainant has been awarded any amount in respect of the dismissal under a designated dismissal procedures agreement, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that award.] (4) The amount of the basic award shall be reduced or further reduced by the amount of— (a) any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or (b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise). [F35(5) Where a dismissal is regarded as unfair by virtue of section 104F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award in respect of the same dismissal under section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992 (minimum basic award in case of dismissal on grounds related to trade union membership or activities).] Textual Amendments F33 Words in s. 122(3) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(5) Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 11 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes F34 S. 122(3A) inserted (1.8.1998) by 1998 c. 8, s. 15, Sch.1 para. 22; S.I. 1998/1658, art. 2(1), Sch. 1 F35 S. 122(5) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(7) Modifications etc. (not altering text) C10 Ss. 117-127A applied (with modifications) (2.7.1999) by S.I. 1999/1548, reg. 3 123 Compensatory award. (1) Subject to the provisions of this section and sections 124 [F36, 124A and 126] , the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (2) The loss referred to in subsection (1) shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. (3) The loss referred to in subsection (1) shall be taken to include in respect of any loss of— (a) any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI or otherwise), or (b) any expectation of such a payment, only the loss referable to the amount (if any) by which the amount of that payment would have exceeded the amount of a basic award (apart from any reduction under section 122) in respect of the same dismissal. (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. (5) In determining, for the purposes of subsection (1), how far any loss sustained by the complainant was attributable to action taken by the employer, no account shall be taken of any pressure which by— (a) calling, organising, procuring or financing a strike or other industrial action, or (b) threatening to do so, was exercised on the employer to dismiss the employee; and that question shall be determined as if no such pressure had been exercised. (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. [F37(6A) Where— (a) the reason (or principal reason) for the dismissal is that the complainant made a protected disclosure, and (b) it appears to the tribunal that the disclosure was not made in good faith, 12 Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the complainant by no more than 25%.] (7) If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise) exceeds the amount of the basic award which would be payable but for section 122(4), that excess goes to reduce the amount of the compensatory award. [F38(8) Where the amount of the compensatory award falls to be calculated for the purposes of an award under section 117(3)(a), there shall be deducted from the compensatory award any award made under section 112(5) at the time of the order under section 113.] Textual Amendments F36 Words in s. 123(1) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 39; S.I. 2004/2185, art. 2 F37 S. 123(6A) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(5), 103(2) (with s. 24(6)) F38 S. 123(8) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 34(5), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3) Modifications etc. (not altering text) C11 S. 123 applied (1.11.1998) by 1998 c. 39, s. 24(4)(b) Ss. 117-127A applied (with modifications) (2.7.1999) by S.I. 1999/1548, reg. 3 S. 123 applied (6.6.2000) by 1992 c. 52, s. 70A, Sch. A1 para. 160(2)(b) (as inserted (6.6.2000) by 1999 c. 26, s. 1, Sch. 1; S.I. 2000/1338, art. 2 (with transitional provisions in art. 3) 124 Limit of compensatory award etc. (1) The amount of— (a) any compensation awarded to a person under section 117(1) and (2), or (b) a compensatory award to a person calculated in accordance with section 123, shall not exceed [F39the amount specified in subsection (1ZA)]. [F40(1ZA) The amount specified in this subsection is the lower of— (a) [F41£93,878], and (b) 52 multiplied by a week’s pay of the person concerned.] [F42(1A) Subsection (1) shall not apply to compensation awarded, or a compensatory award made, to a person in a case where he is regarded as unfairly dismissed by virtue of section 100, 103A, 105(3) or 105(6A).] F43(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) In the case of compensation awarded to a person under section 117(1) and (2), the limit imposed by this section may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 114(2)(a) or section 115(2)(d). (4) Where— (a) a compensatory award is an award under paragraph (a) of subsection (3) of section 117, and (b) an additional award falls to be made under paragraph (b) of that subsection, Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 15 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes Textual Amendments F52 S. 127 repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 24, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11) 127A Internal appeal procedures. No commentary item could be found for this reference c20323811. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F53127B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Textual Amendments F53 S. 127B repealed (25.10.1999) by 1999 c. 26, ss. 37(2), 44, Sch. 9(11); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I Interim relief 128 Interim relief pending determination of complaint. [F54(1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief.] (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. 16 Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes Textual Amendments F54 S. 128(1) substituted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(8) Modifications etc. (not altering text) C16 Ss. 128-132 extended (4.9.2000) by 1999 c. 26, s. 12(5) (with ss. 14, 15); S.I. 2000/2242, art. 2 C17 Ss. 128-132 applied (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 47, Sch. 6 para. 13(6) (with regs. 44-46, Sch. 7) C18 Ss. 128-132 applied (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155), reg. 18(5) 129 Procedure on hearing of application and making of order. [F55(1) This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.] (2) The tribunal shall announce its findings and explain to both parties (if present)— (a) what powers the tribunal may exercise on the application, and (b) in what circumstances it will exercise them. (3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed. (4) For the purposes of subsection (3)(b) “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal. (5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect. (6) If the employer— (a) states that he is willing to re-engage the employee in another job, and (b) specifies the terms and conditions on which he is willing to do so, Employment Rights Act 1996 (c. 18) Part X – Unfair dismissal Chapter II – Remedies for unfair dismissal Document Generated: 2022-05-14 17 Changes to legislation: Employment Rights Act 1996, Chapter II is up to date with all changes known to be in force on or before 14 May 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions. (7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect. (8) If the employee is not willing to accept the job on those terms and conditions— (a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and (b) otherwise, the tribunal shall make no order. (9) If on the hearing of an application for interim relief the employer— (a) fails to attend before the tribunal, or (b) states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3), the tribunal shall make an order for the continuation of the employee’s contract of employment. Textual Amendments F55 S. 129(1) substituted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(9) Modifications etc. (not altering text) C19 Ss. 128-132 extended (4.9.2000) by 1999 c. 26, s. 12(5) (with ss. 14, 15); S.I. 2000/2242, art. 2 C20 Ss. 128-132 applied (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 47, Sch. 6 para. 13(6) (with regs. 44-46, Sch. 7) C21 Ss. 128-132 applied (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155), reg. 18(5) 130 Order for continuation of contract of employment. (1) An order under section 129 for the continuation of a contract of employment is an order that the contract of employment continue in force— (a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and (b) for the purposes of determining for any purpose the period for which the employee has been continuously employed, from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint. (2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint. (3) Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid— (a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and