Employment Protection (Consolidation) Act 1978

127 Interpretation of ss. 122 to 126. E+W+S

(1) For the purposes of sections 122 to 126, an employer shall be taken to be insolvent if, but only if, in England and Wales,—

[F1 (a) he has been adjudged bankrupt or has made a composition or arrangement with his creditors;

(b) he has died and his estate falls to be administered in accordance with an order under section [F2 421 of the Insolvency Act 1986]; or]

(c) where the employer is a company, a winding up order [F3 or an administration order] is made or a resolution for voluntary winding up is passed with respect to it, or a receiver or manager of its undertaking is duly appointed, or possession is 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 [F3 or a [F2 voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part]].

(2) For the purposes of sections 122 to 126, an employer shall be taken to be insolvent if, but only if, in Scotland,—

(a) [F4 sequestration of his estate is awarded] or he executes a trust deed for his creditors or enters into a composition contract;

(b) he has died and a judicial factor appointed under section [F5 11A of the Judicial Factors (Scotland) Act 1889] is required by that section to divide his insolvent estate among his creditors; or

(c) where the employer is a company, a winding-up order [F3 or an administration order] is made or a resolution for voluntary winding up is passed with respect to it or a receiver of its undertaking is duly appointed [F3 or a [F2 voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part ]].

(3) In sections 122 to 126—

• “holiday pay” means—

(a) pay in respect of a holiday actually taken; or

(b) any accrued holiday pay which under the employee’s contract of employment would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday;

F6 . . .

Textual Amendments

F1 S. 127(1)(a)(b) substituted by Insolvency Act 1985 (c. 65, SIF 66), s. 235(1), Sch. 8 Pt. I para. 31(5)(a)

F2 Words substituted by Insolvency Act 1986 (c. 45, SIF 66), s. 439(2), Sch. 14

F3 Words inserted by Insolvency Act 1985 (c. 65, SIF 66), s. 235, Sch. 8 Pt. I para. 31(5)(b)

F4 Words substituted by Employment Act 1989 (c. 38, SIF 43:1), s. 29(3), (6), Sch. 6 para. 23, Sch. 9 para. 4(1)

F5 Words in s. 127(2)(b) substituted (S.) by Bankruptcy (Scotland) Act 1985 (c. 66, SIF 66), s. 75(1), Sch. 7 para. 14(4)

F6 S. 127(3): definition of 'occupational pension scheme' and the words following it repealed (7.2.1994) by 1993 c. 48, s. 188, Sch. 5 Pt. I; S.I. 1994/86, art. 2