Office of Public Sector Information
PART XI continued CHAPTER III continued
(1) An employee is not entitled to a redundancy payment by reason of being laid off or kept on short-time if he is dismissed by his employer.
(2) Subsection (1) does not prejudice any right of the employee to a redundancy payment in respect of the dismissal.
(1) An employee is not entitled to a redundancy payment in pursuance of a notice of intention to claim if—
(a) on the date of service of the notice it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter on a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week, and
(b) the employer gives a counter-notice to the employee within seven days after the service of the notice of intention to claim.
(2) Subsection (1) does not apply where the employee—
(a) continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and
(b) is or has been laid off or kept on short-time for each of those weeks.
For the purposes of the provisions of this Act relating to redundancy payments “the relevant date” in relation to a notice of intention to claim or a right to a redundancy payment in pursuance of such a notice—
(a) in a case falling within paragraph (a) of subsection (2) of section 148, means the date on which the last of the four or more consecutive weeks before the service of the notice came to an end, and
(b) in a case falling within paragraph (b) of that subsection, means the date on which the last of the series of six or more weeks before the service of the notice came to an end.
For the purposes of sections 148(2) and 152(2)—
(a) it is immaterial whether a series of weeks consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other, and
(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out (whether or not in the trade or industry in which the employee is employed and whether in Great Britain or elsewhere).
An employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending with the relevant date.
(1) An employee does not have any right to a redundancy payment if before the relevant date he has attained—
(a) in a case where—
(i) in the business for the purposes of which the employee was employed there was a normal retiring age of less than sixty-five for an employee holding the position held by the employee, and
(ii) the age was the same whether the employee holding that position was a man or woman,
that normal retiring age, and
(b) in any other case, the age of sixty-five.
(2) Subsection (1) does not apply to a case within section 137(1).
(1) Where an order under this section is in force in respect of an agreement covered by this section, an employee who, immediately before the relevant date, is an employee to whom the agreement applies does not have any right to a redundancy payment.
(2) An agreement is covered by this section if it is an agreement between—
(a) one or more employers or organisations of employers, and
(b) one or more trade unions representing employees,
under which employees to whom the agreement applies have a right in certain circumstances to payments on the termination of their contracts of employment.
(3) Where, on the application of all the parties to an agreement covered by this section, the Secretary of State is satisfied, having regard to the provisions of the agreement, that the employees to whom the agreement applies should not have any right to a redundancy payment, he may make an order under this section in respect of the agreement.
(4) The Secretary of State shall not make an order under this section in respect of an agreement unless the agreement indicates (in whatever terms) the willingness of the parties to it to submit to an industrial tribunal any question arising under the agreement as to—
(a) the right of an employee to a payment on the termination of his employment, or
(b) the amount of such a payment.
(5) An order revoking an earlier order under this section may be made in pursuance of an application by all or any of the parties to the agreement in question or in the absence of such an application.
(6) Subsection (1) does not apply to a case within section 137(1).
(1) The Secretary of State shall by regulations make provision for excluding the right to a redundancy payment, or reducing the amount of any redundancy payment, in such cases to which subsection (2) applies as are prescribed by the regulations.
(2) This subsection applies to cases in which an employee has (whether by virtue of any statutory provision or otherwise) a right or claim (whether or not legally enforceable) to a periodical payment or lump sum by way of pension, gratuity or superannuation allowance which—
(a) is to be paid by reference to his employment by a particular employer, and
(b) is to be paid, or to begin to be paid, at the time when he leaves the employment or within such period after he leaves the employment as may be prescribed by the regulations.
(3) The regulations shall secure that the right to a redundancy payment shall not be excluded, and that the amount of a redundancy payment shall not be reduced, by reason of any right or claim to a periodical payment or lump sum, in so far as the payment or lump sum—
(a) represents compensation for loss of employment or for loss or diminution of emoluments or of pension rights, and
(b) is payable under a statutory provision (whether passed or made before or after the passing of this Act).
(4) In relation to any case where (in accordance with any provision of this Part) an industrial tribunal determines that an employer is liable to pay part (but not the whole) of a redundancy payment the references in this section to a redundancy payment, or to the amount of a redundancy payment, are to the part of the redundancy payment, or to the amount of the part.
A person does not have any right to a redundancy payment in respect of any employment which—
(a) is employment in a public office within the meaning of section 39 of the [1965 c. 74.] Superannuation Act 1965, or
(b) is for the purposes of pensions and other superannuation benefits treated (whether by virtue of that Act or otherwise) as service in the civil service of the State.
(1) A person does not have any right to a redundancy payment in respect of employment in any capacity under the Government of an overseas territory.
(2) The reference in subsection (1) to the Government of an overseas territory includes a reference to—
(a) a Government constituted for two or more overseas territories, and
(b) any authority established for the purpose of providing or administering services which are common to, or relate to matters of common interest to, two or more overseas territories.
(3) In this section references to an overseas territory are to any territory or country outside the United Kingdom.
(1) A person does not have any right to a redundancy payment in respect of employment as a domestic servant in a private household where the employer is the parent (or step-parent), grandparent, child (or step-child), grandchild or brother or sister (or half-brother or half-sister) of the employee.
(2) Subject to that, the provisions of this Part apply to an employee who is employed as a domestic servant in a private household as if—
(a) the household were a business, and
(b) the maintenance of the household were the carrying on of that business by the employer.
(1) The amount of a redundancy payment shall be calculated by—
(a) determining the period, ending with the relevant date, during which the employee has been continuously employed,
(b) reckoning backwards from the end of that period the number of years of employment falling within that period, and
(c) allowing the appropriate amount for each of those years of employment.
(2) In subsection (1)(c) “the appropriate amount” means—
(a) one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one,
(b) one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and
(c) half a week’s pay for each year of employment not within paragraph (a) or (b).
(3) Where twenty years of employment have been reckoned under subsection (1), no account shall be taken under that subsection of any year of employment earlier than those twenty years.
(4) Where the relevant date is after the sixty-fourth anniversary of the day of the employee’s birth, the amount arrived at under subsections (1) to (3) shall be reduced by the appropriate fraction.
(5) In subsection (4) “the appropriate fraction” means the fraction of which—
(a) the numerator is the number of whole months reckoned from the sixty-fourth anniversary of the day of the employee’s birth in the period beginning with that anniversary and ending with the relevant date, and
(b) the denominator is twelve.
(6) Subsections (1) to (5) apply for the purposes of any provision of this Part by virtue of which an industrial tribunal may determine that an employer is liable to pay to an employee—
(a) the whole of the redundancy payment to which the employee would have had a right apart from some other provision, or
(b) such part of the redundancy payment to which the employee would have had a right apart from some other provision as the tribunal thinks fit,
as if any reference to the amount of a redundancy payment were to the amount of the redundancy payment to which the employee would have been entitled apart from that other provision.
(7) Subsections (4) and (5) do not apply to a case within section 137(1).
(8) This section has effect subject to any regulations under section 158 by virtue of which the amount of a redundancy payment, or part of a redundancy payment, may be reduced.
(1) Any question arising under this Part as to—
(a) the right of an employee to a redundancy payment, or
(b) the amount of a redundancy payment,
shall be referred to and determined by an industrial tribunal.
(2) For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.
(3) Any question whether an employee will become entitled to a redundancy payment if he is not dismissed by his employer and he terminates his contract of employment as mentioned in section 150(1) shall for the purposes of this Part be taken to be a question as to the right of the employee to a redundancy payment.
(4) Where an order under section 157 is in force in respect of an agreement, this section has effect in relation to any question arising under the agreement as to the right of an employee to a payment on the termination of his employment, or as to the amount of such a payment, as if the payment were a redundancy payment and the question arose under this Part.
(1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—
(a) the payment has been agreed and paid,
(b) the employee has made a claim for the payment by notice in writing given to the employer,
(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an industrial tribunal, or
(d) a complaint relating to his dismissal has been presented by the employee under section 111.
(2) An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee—
(a) makes a claim for the payment by notice in writing given to the employer,
(b) refers to an industrial tribunal a question as to his right to, or the amount of, the payment, or
(c) presents a complaint relating to his dismissal under section 111,
and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.
(3) In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an industrial tribunal shall have regard to—
(a) the reason shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1), and
(b) all the other relevant circumstances.
(1) On making any redundancy payment, otherwise than in pursuance of a decision of a tribunal which specifies the amount of the payment to be made, the employer shall give to the employee a written statement indicating how the amount of the payment has been calculated.
(2) An employer who without reasonable excuse fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.
(3) If an employer fails to comply with the requirements of subsection (1), the employee may by notice in writing to the employer require him to give to the employee a written statement complying with those requirements within such period (not being less than one week beginning with the day on which the notice is given) as may be specified in the notice.
(4) An employer who without reasonable excuse fails to comply with a notice under subsection (3) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) Where an employee claims that his employer is liable to pay to him an employer’s payment and either—
(a) that the employee has taken all reasonable steps, other than legal proceedings, to recover the payment from the employer and the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or
(b) that the employer is insolvent and the whole or part of the payment remains unpaid,
the employee may apply to the Secretary of State for a payment under this section.
(2) In this Part “employer’s payment”, in relation to an employee, means—
(a) a redundancy payment which his employer is liable to pay to him under this Part, or
(b) a payment which his employer is, under an agreement in respect of which an order is in force under section 157, liable to make to him on the termination of his contract of employment.
(3) In relation to any case where (in accordance with any provision of this Part) an industrial tribunal determines that an employer is liable to pay part (but not the whole) of a redundancy payment the reference in subsection (2)(a) to a redundancy payment is to the part of the redundancy payment.
(4) In subsection (1)(a) “legal proceedings”—
(a) does not include any proceedings before an industrial tribunal, but
(b) includes any proceedings to enforce a decision or award of an industrial tribunal.
(5) An employer is insolvent for the purposes of subsection (1)(b)—
(a) where the employer is an individual, if (but only if) subsection (6) is satisfied, and
(b) where the employer is a company, if (but only if) subsection (7) is satisfied.
(6) This subsection is satisfied in the case of an employer who is an individual—
(a) in England and Wales if—
(i) he has been adjudged bankrupt or has made a composition or arrangement with his creditors, or
(ii) he has died and his estate falls to be administered in accordance with an order under section 421 of the [1986 c. 45.] Insolvency Act 1986, and
(b) in Scotland if—
(i) sequestration of his estate has been awarded or he has executed a trust deed for his creditors or has entered into a composition contract, or
(ii) he has died and a judicial factor appointed under section 11A of the [1889 c. 39.] Judicial Factors (Scotland) Act 1889 is required by that section to divide his insolvent estate among his creditors.
(7) This subsection is satisfied in the case of an employer which is a company—
(a) if a winding up order or an administration order has been made, or a resolution for voluntary winding up has been passed, with respect to the company,
(b) if a receiver or (in England and Wales only) a manager of the company’s undertaking has been duly appointed, or (in England and Wales only) possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge, or
(c) if a voluntary arrangement proposed in the case of the company for the purposes of Part I of the Insolvency Act 1986 has been approved under that Part of that Act.
(1) Where, on an application under section 166 by an employee in relation to an employer’s payment, the Secretary of State is satisfied that the requirements specified in subsection (2) are met, he shall pay to the employee out of the National Insurance Fund a sum calculated in accordance with section 168 but reduced by so much (if any) of the employer’s payment as has already been paid.
(2) The requirements referred to in subsection (1) are—
(a) that the employee is entitled to the employer’s payment, and
(b) that one of the conditions specified in paragraphs (a) and (b) of subsection (1) of section 166 is fulfilled,
and, in a case where the employer’s payment is a payment such as is mentioned in subsection (2)(b) of that section, that the employee’s right to the payment arises by virtue of a period of continuous employment (computed in accordance with the provisions of the agreement in question) which is not less than two years.
(3) Where under this section the Secretary of State pays a sum to an employee in respect of an employer’s payment—
(a) all rights and remedies of the employee with respect to the employer’s payment, or (if the Secretary of State has paid only part of it) all the rights and remedies of the employee with respect to that part of the employer’s payment, are transferred to and vest in the Secretary of State, and
(b) any decision of an industrial tribunal requiring the employer’s payment to be paid to the employee has effect as if it required that payment, or that part of it which the Secretary of State has paid, to be paid to the Secretary of State.
(4) Any money recovered by the Secretary of State by virtue of subsection (3) shall be paid into the National Insurance Fund.
(1) The sum payable to an employee by the Secretary of State under section 167—
(a) where the employer’s payment to which the employee’s application under section 166 relates is a redundancy payment or a part of a redundancy payment, is a sum equal to the amount of the redundancy payment or part, and
(b) where the employer’s payment to which the employee’s application under section 166 relates is a payment which the employer is liable to make under an agreement in respect of which an order is in force under section 157, is a sum equal to the amount of the employer’s payment or of the relevant redundancy payment, whichever is less.
(2) The reference in subsection (1)(b) to the amount of the relevant redundancy payment is to the amount of the redundancy payment which the employer would have been liable to pay to the employee on the assumptions specified in subsection (3).
(3) The assumptions referred to in subsection (2) are that—
(a) the order in force in respect of the agreement had not been made,
(b) the circumstances in which the employer’s payment is payable had been such that the employer was liable to pay a redundancy payment to the employee in those circumstances,
(c) the relevant date, in relation to any such redundancy payment, had been the date on which the termination of the employee’s contract of employment is treated as having taken effect for the purposes of the agreement, and
(d) in so far as the provisions of the agreement relating to the circumstances in which the continuity of an employee’s period of employment is to be treated as broken, and the weeks which are to count in computing a period of employment, are inconsistent with the provisions of Chapter I of Part XIV, the provisions of the agreement were substituted for those provisions.
(1) Where an employee makes an application to the Secretary of State under section 166, the Secretary of State may, by notice in writing given to the employer, require the employer—
(a) to provide the Secretary of State with such information, and
(b) to produce for examination on behalf of the Secretary of State documents in his custody or under his control of such description,
as the Secretary of State may reasonably require for the purpose of determining whether the application is well-founded.
(2) Where a person on whom a notice is served under subsection (1) fails without reasonable excuse to comply with a requirement imposed by the notice, he is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) A person is guilty of an offence if—
(a) in providing any information required by a notice under subsection (1), he makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular, or
(b) he produces for examination in accordance with a notice under subsection (1) a document which to his knowledge has been wilfully falsified.
(4) A person guilty of an offence under subsection (3) is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months, or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.
(1) Where on an application made to the Secretary of State for a payment under section 166 it is claimed that an employer is liable to pay an employer’s payment, there shall be referred to an industrial tribunal—
(a) any question as to the liability of the employer to pay the employer’s payment, and
(b) any question as to the amount of the sum payable in accordance with section 168.
(2) For the purposes of any reference under this section an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.
(1) The Secretary of State may by regulations provide that, subject to such exceptions and modifications as may be prescribed by the regulations, this Part and the provisions of this Act supplementary to this Part have effect in relation to any employment of a description to which this section applies as may be so prescribed as if—
(a) it were employment under a contract of employment,
(b) any person engaged in employment of that description were an employee, and
(c) such person as may be determined by or under the regulations were his employer.
(2) This section applies to employment of any description which—
(a) is employment in the case of which secondary Class 1 contributions are payable under Part I of the [1992 c. 4.] Social Security Contributions and Benefits Act 1992 in respect of persons engaged in it, but
(b) is not employment under a contract of service or of apprenticeship or employment of any description falling within subsection (3).
(3) The following descriptions of employment fall within this subsection—
(a) any employment such as is mentioned in section 159 (whether as originally enacted or as modified by an order under section 209(1)),
(b) any employment remunerated out of the revenue of the Duchy of Lancaster or the Duchy of Cornwall,
(c) any employment remunerated out of the Queen’s Civil List, and
(d) any employment remunerated out of Her Majesty’s Privy Purse.
(1) The Secretary of State may by regulations provide that, subject to such exceptions and modifications as may be prescribed by the regulations, this Part has effect in relation to any person who by virtue of any statutory provisions—
(a) is transferred to, and becomes a member of, a body specified in those provisions, but
(b) at a time so specified ceases to be a member of that body unless before that time certain conditions so specified have been fulfilled,
as if the cessation of his membership of that body by virtue of those provisions were dismissal by his employer by reason of redundancy.
(2) The power conferred by subsection (1) is exercisable whether or not membership of the body in question constitutes employment within the meaning of section 230(5); and, where that membership does not constitute such employment, that power may be exercised in addition to any power exercisable under section 171.
(1) For the purposes of the operation of the provisions of this Part (and Chapter I of Part XIV) in relation to any employee whose remuneration is, by virtue of any statutory provision, payable to him by a person other than his employer, each of the references to the employer specified in subsection (2) shall be construed as a reference to the person by whom the remuneration is payable.
(2) The references referred to in subsection (1) are the first reference in section 135(1), the third reference in section 140(3), the first reference in section 142(3) and the first reference in section 143(2)(c) and the references in sections 142(2)(b), 143(4) and (5), 149(a) and (b), 150(3), 152(1)(b), 158(4), 162(6), 164 to 169, 170(1) and 214(5).
(1) Where the contract of employment of an employee is taken for the purposes of this Part to be terminated by his employer by reason of the employer’s death, this Part has effect in accordance with the following provisions of this section.
(2) Section 138 applies as if—
(a) in subsection (1)(a), for the words “in pursuance” onwards there were substituted “by a personal representative of the deceased employer”,
(b) in subsection (1)(b), for the words “either immediately” onwards there were substituted “not later than eight weeks after the death of the deceased employer”, and
(c) in subsections (2)(b) and (6)(a), for the word “employer” there were substituted “personal representative of the deceased employer”.
(3) Section 141(1) applies as if—
(a) for the words “before the end of his employment” there were substituted “by a personal representative of the deceased employer”, and
(b) for the words “either immediately” onwards there were substituted “not later than eight weeks after the death of the deceased employer.”
(4) For the purposes of section 141—
(a) provisions of the contract as renewed, or of the new contract, do not differ from the corresponding provisions of the contract in force immediately before the death of the deceased employer by reason only that the personal representative would be substituted for the deceased employer as the employer, and
(b) no account shall be taken of that substitution in determining whether refusal of the offer was unreasonable or whether the employee acted reasonably in terminating or giving notice to terminate the new or renewed employment.
(5) Section 146 has effect as if—
(a) subsection (1) were omitted, and
(b) in subsection (2), paragraph (a) were omitted and, in paragraph (b), for the word “four” there were substituted “eight”.
(6) For the purposes of the application of this Part (in accordance with section 161(2)) in relation to an employee who was employed as a domestic servant in a private household, references in this section and sections 175 and 218(4) and (5) to a personal representative include a person to whom the management of the household has passed, otherwise than in pursuance of a sale or other disposition for valuable consideration, in consequence of the death of the employer.
Employment Rights Act 1996