Part V Protection from suffering detriment in employment
Rights not to suffer detriment
43MF27Jury service
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee—
a
has been summoned under the Juries Act 1974, F50Part 1 of the Coroners and Justice Act 2009, the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or
b
has been absent from work because he attended at any place in pursuance of being so summoned.
2
This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.
3
For the purposes of this section, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration.
4
In subsection (3) “ a relevant period ” means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in subsection (1)(a).
44 Health and safety cases.
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—
a
having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,
b
being a representative of workers on matters of health and safety at work or member of a safety committee—
i
in accordance with arrangements established under or by virtue of any enactment, or
ii
by reason of being acknowledged as such by the employer,
the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,
F1ba
the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),
c
being an employee at a place where—
i
there was no such representative or safety committee, or
ii
there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,
F72d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F73e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F741A
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that—
a
in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or
b
in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.
2
3
F77A worker is not to be regarded as having been subjected to any detriment on the ground specified in subsection F78(1A)(b) if the employer shows that it was (or would have been) so negligent for F79the worker to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.
4
E145 Sunday working for shop and betting workers.
1
An employee who is—
a
a protected shop worker or an opted-out shop worker, or
b
a protected betting worker or an opted-out betting worker,
has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.
2
Subsection (1) does not apply to anything done in relation to an opted-out shop worker or an opted-out betting worker on the ground that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.
3
An employee who is a shop worker or a betting worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee gave (or proposed to give) an opting-out notice to his employer.
4
Subsections (1) and (3) do not apply where the detriment in question amounts to dismissal (within the meaning of Part X).
5
For the purposes of this section a shop worker or betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—
a
a failure to pay remuneration in respect of shop work, or betting work, on a Sunday which he has not done,
b
a failure to provide him with any other benefit, where that failure results from the application (in relation to a Sunday on which the employee has not done shop work, or betting work) of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or
c
a failure to provide him with any work, remuneration or other benefit which by virtue of section 38 or 39 the employer is not obliged to provide.
6
Where an employer offers to pay a sum specified in the offer to any one or more employees—
a
who are protected shop workers or opted-out shop workers or protected betting workers or opted-out betting workers, or
b
who under their contracts of employment are not obliged to do shop work, or betting work, on Sunday,
if they agree to do shop work, or betting work, on Sunday or on a particular Sunday subsections (7) and (8) apply.
7
An employee to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to make the offer to him or to pay him the sum specified in the offer.
8
An employee who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay him the sum specified in the offer.
9
For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the date of the act or failure to act.
10
For the purposes of subsection (9)—
a
where an act extends over a period, the “date of the act” means the first day of that period, and
b
a deliberate failure to act shall be treated as done when it was decided on;
and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.
45ZAF67Sunday working for shop workers: additional hours
1
Subsection (2) applies where a shop worker has given an objection notice to his or her employer and the notice has not been withdrawn.
2
The shop worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer done on the ground that the shop worker refused (or proposed to refuse) to do shop work for additional hours on Sunday or on a particular Sunday.
3
Subsection (2) does not apply to anything done on the ground that the shop worker refused (or proposed to refuse) to do shop work for additional hours on any Sunday or Sundays falling before the end of the relevant period.
4
A shop worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer on the ground that the shop worker gave (or proposed to give) an objection notice to the employer.
5
Subsections (2) and (4) do not apply where the detriment in question amounts to dismissal (within the meaning of Part 10).
6
For the purposes of this section, a shop worker who does not do shop work for additional hours on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—
a
a failure to pay remuneration in respect of doing shop work for additional hours on Sunday which the shop worker has not done, or
b
a failure to provide any other benefit where the failure results from the application (in relation to a Sunday on which the shop worker has not done shop work for additional hours) of a contractual term under which the extent of the benefit varies according to the number of hours worked by, or the remuneration paid to, the shop worker.
7
Subsections (8) and (9) apply where—
a
an employer offers to pay a sum specified in the offer to a shop worker if he or she agrees to do shop work for additional hours on Sunday or on a particular Sunday, and
b
the shop worker—
i
has given an objection notice to the employer that has not been withdrawn, or
ii
is not obliged under a contract of employment to do shop work for additional hours on Sunday.
8
A shop worker to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure—
a
to make the offer to the shop worker, or
b
to pay the shop worker the sum specified in the offer.
9
A shop worker who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay the shop worker the sum specified in the offer.
10
In this section—
“additional hours” and “objection notice” have the meanings given by section 41A(2);
“relevant period” means the period determined by section 43ZA(2) (but subject to section 41D(3)).
45AF4 Working time cases.
1
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker—
a
refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M1 Working Time Regulations 1998,
b
refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,
c
failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations,
d
being—
i
a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or
ii
a candidate in an election in which any person elected will, on being elected, be such a representative,
performed (or proposed to perform) any functions or activities as such a representative or candidate,
e
brought proceedings against the employer to enforce a right conferred on him by those Regulations, or
f
alleged that the employer had infringed such a right.
2
It is immaterial for the purposes of subsection (1)(e) or (f)—
a
whether or not the worker has the right, or
b
whether or not the right has been infringed,
but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.
3
It is sufficient for subsection (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.
4
This section does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part X F5 . . ..
F65
A reference in this section to the Working Time Regulations 1998 includes a reference to
F7a
the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.
F8b
the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.
F9c
the Cross-border Railway Services (Working Time) Regulations 2008
F69d
the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58).
I1C146 Trustees of occupational pension schemes.
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.
2
F122A
This section applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).
3
In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the M2Pension Schemes Act 1993) established under a trust.
47 Employee representatives.
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being—
a
b
a candidate in an election in which any person elected will, on being elected, be such an employee representative,
he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.
F141A
An employee has the right not to be subjected to any detriment by any act, or by any deliberate failure to act, by his employer done on the ground of his participation in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or F15 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 .
2
47AF18 Employees exercising right to time off work for study or training.
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer or the principal (within the meaning of section 63A(3)) done on the ground that, being a person entitled to—
a
time off under section 63A(1) or (3), and
b
remuneration under section 63B(1) in respect of that time taken off,
the employee exercised (or proposed to exercise) that right or received (or sought to receive) such remuneration.
2
47BF21 Protected disclosures.
1
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
F461A
A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—
a
by another worker of W's employer in the course of that other worker's employment, or
b
by an agent of W's employer with the employer's authority,
on the ground that W has made a protected disclosure.
1B
Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.
1C
For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.
1D
In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker—
a
from doing that thing, or
b
from doing anything of that description.
1E
A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if—
a
the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and
b
it is reasonable for the worker or agent to rely on the statement.
But this does not prevent the employer from being liable by reason of subsection (1B).
2
F22 . . . This section does not apply where—
a
the worker is an employee, and
b
the detriment in question amounts to dismissal (within the meaning of F23Part X).
3
For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K.
47CF24 Leave for family and domestic reasons.
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.
2
A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to—
a
pregnancy, childbirth or maternity,
F53aa
time off under section 57ZE,
F54ab
time off under section 57ZJ or 57ZL,
b
ordinary, compulsory or additional maternity leave,
F25ba
ordinary or additional adoption leave,
F55bb
shared parental leave,
F87bc
carer’s leave,
c
parental leave,
F70cb
parental bereavement leave, or
d
time off under section 57A.
3
A reason prescribed under this section in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement.
4
Regulations under this section may make different provision for different cases or circumstances.
F655
An agency worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the temporary work agency or the hirer done on the ground that—
a
being a person entitled to—
i
time off under section 57ZA, and
ii
remuneration under section 57ZB in respect of that time off,
the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration,
b
being a person entitled to time off under section 57ZG, the agency worker exercised (or proposed to exercise) that right,
c
being a person entitled to—
i
time off under section 57ZN, and
ii
remuneration under section 57ZO in respect of that time off,
the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration, or
d
being a person entitled to time off under section 57ZP, the agency worker exercised (or proposed to exercise) that right.
6
Subsection (5) does not apply where the agency worker is an employee.
7
In this section the following have the same meaning as in the Agency Workers Regulations 2010 ( S.I. 2010/93)—
“agency worker”;
“hirer”;
“temporary work agency”.
47DF28 Tax credits
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that—
a
any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right conferred on the employee by regulations under section 25 of the Tax Credits Act 2002,
b
a penalty was imposed on the employer, or proceedings for a penalty were brought against him, under that Act, as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, such a right, or
c
the employee is entitled, or will or may be entitled, to working tax credit.
2
It is immaterial for the purposes of subsection (1)(a) or (b)—
a
whether or not the employee has the right, or
b
whether or not the right has been infringed,
but, for those provisions to apply, the claim to the right and (if applicable) the claim that it has been infringed must be made in good faith.
3
Subsections (1) and (2) apply to a person who is not an employee within the meaning of this Act but who is an employee within the meaning of section 25 of the Tax Credits Act 2002, with references to his employer in those subsections (and sections 48(2) and (4) and 49(1)) being construed in accordance with that section.
4
Subsections (1) and (2) do not apply to an employee if the detriment in question amounts to dismissal (within the meaning of Part 10).
47EF29 Flexible working
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee—
a
made (or proposed to make) an application under section 80F,
F56 b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
brought proceedings against the employer under section 80H, or
d
alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.
2
This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.
47FF30Study and training
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employee's employer done on the ground that the employee—
a
made (or proposed to make) a section 63D application,
b
exercised (or proposed to exercise) a right conferred on the employee under section 63F,
c
brought proceedings against the employer under section 63I, or
d
alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.
2
This section does not apply if the detriment in question amounts to dismissal within the meaning of Part 10.
47GF51Employee shareholder status
1
An employee has the right not to be subjected to a detriment by any act, or any deliberate failure to act, by the employee's employer done on the ground that the employee refused to accept an offer by the employer for the employee to become an employee shareholder (within the meaning of section 205A).
2
This section does not apply if the detriment in question amounts to dismissal within the meaning of Part 10.
Enforcement
C2C3C448 Complaints to F31employment tribunals.
1
F821XA
A worker may present a complaint to an employment tribunal that the worker has been subjected to a detriment in contravention of section 44(1A).
F681YA
A shop worker may present a complaint to an employment tribunal that he or she has been subjected to a detriment in contravention of section 45ZA.
F351ZA
A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 45A.
F361A
A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.
F591AA
An agency worker may present a complaint to an employment tribunal that the agency worker has been subjected to a detriment in contravention of section 47C(5) by the temporary work agency or the hirer.
F371B
A person may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47D.
C5C6C7C8C9C10C11C202
F602A
On a complaint under subsection (1AA) it is for the temporary work agency or (as the case may be) the hirer to show the ground on which any act, or deliberate failure to act, was done.
C5C6C7C8C9C10C11C203
An F31employment tribunal shall not consider a complaint under this section unless it is presented—
a
before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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.
C5C6C7C8C9C10C11C20C224
For the purposes of subsection (3)—
a
where an act extends over a period, the “date of the act” means the last day of that period, and
b
a deliberate failure to act shall be treated as done when it was decided on;
and, in the absence of evidence establishing the contrary, an employerF64, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.
F714A
Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3)(a).
F385
In this section and section 49 any reference to the employer F47includes—
F47a
where a person complains that he has been subjected to a detriment in contravention of section 47A, the principal (within the meaning of section 63A(3)).
F48b
in the case of proceedings against a worker or agent under section 47B(1A), the worker or agent.
F616
In this section and section 49 the following have the same meaning as in the Agency Workers Regulations 2010 ( S.I. 2010/93)—
“agency worker”;
“hirer”;
“temporary work agency”.
C12C13C2149 Remedies.
C14C15C16C17C18C191
Where an F39employment tribunal finds a complaint F58under section 48(1), F84(1XA), (1ZA), (1A) or (1B) 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 employer to the complainant in respect of the act or failure to act to which the complaint relates.
F571A
Where an employment tribunal finds a complaint under section 48(1AA) 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 temporary work agency or (as the case may be) the hirer to the complainant in respect of the act or failure to act to which the complaint relates.
C14C15C16C17C18C192
Subject to subsections F85(5ZA), (5A) and (6) the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—
a
the infringement to which the complaint relates, and
b
any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.
C14C15C16C17C18C193
The loss shall be taken to include—
a
any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and
b
loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.
C14C15C16C17C18C194
In ascertaining the loss 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.
C14C15C16C17C18C195
Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
F865ZA
Where—
a
the complaint is made under section 48(1XA),
b
the detriment to which the worker is subjected is the termination of his or her contract, and
c
that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 100.
F405A
Where—
a
the complaint is made under section 48 (1ZA),
b
the detriment to which the worker is subjected is the termination of his worker’s contract, and
c
that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 101A.
F416
Where—
a
the complaint is made under section 48(1A),
b
the detriment to which the worker is subjected is the termination of his worker’s contract, and
c
that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A.
F496A
Where—
a
the complaint is made under section 48(1A), and
b
it appears to the tribunal that the protected disclosure was not made in good faith,
the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%.
F427
Where—
a
the complaint is made under section 48(1B) by a person who is not an employee, and
b
the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002,
any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the complainant had been an employee and had been dismissed for the reason specified in section 104B.
F45 Application to police of rights relating to health and safety
F43 49A Application to police of section 44 and related provisions.
1
For the purposes of section 44, and of sections 48 and 49 so far as relating to that section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as police cadet shall be treated as employment by the relevant officer under a contract of employment.
F442
In this section “ the relevant officer ”, in relation to—
a
a person holding the office of constable, or
b
a person holding an appointment as a police cadet,
means the person who under section 51A of the Health and Safety at Work etc. Act 1974 is to be treated as his employer for the purposes of Part 1 of that Act.
S. 49A and crossheading inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2