Employment Protection (Consolidation) Act 1978

71 Enforcement of s. 69 order and compensation. E+W+S

(1) If an order under section 69 is made and the complainant is reinstated or, as the case may be, re-engaged but the terms of the order are not fully complied with, then, subject to [F1 subsection (1A)], an industrial tribunal shall make an award of compensation, to be paid by the employer to the employee, of such amount 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.

[F2 (1A) Subsection (1) is subject to section 75 except that the limit imposed by that section may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 69(2)(a) or (4)(d), as the case may be.]

(2) Subject to subsection (1), if an order under section 69 is made but the complainant is not reinstated or, as the case may be, re-engaged in accordance with the order—

(a) the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with [F3 sections 72 to 76], to be paid by the employer to the employee; and

(b) [F4 unless][F5 the case is one where this paragraph is excluded or] the employer satisfies the tribunal that it was not practicable to comply with the order, the tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount—

(i) where the dismissal is of a description referred to in subsection (3), not less than twenty-six nor more than fifty-two weeks’ pay, or

(ii) in any other case, not less than thirteen nor more than twenty-six weeks’ pay.

[F6 (2A) Subsection (2)(b) is excluded where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.

(2B) For the purposes of subsection (2A) a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b) [F7 or section 57AA].]

(3) The descriptions of dismissal in respect of which an employer may incur a higher additional award in accordance with subsection (2)(b)(i) are the following, that is to say,—

(a)

F8 (b) a dismissal which is an act of discrimination within the meaning of the M1 Sex Discrimination Act 1975 which is unlawful by virtue of that Act;

(c) a dismissal which is an act of discrimination within the meaning of the M2 Race Relations Act 1976 which is unlawful by virtue of that Act.

(4) 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 (2)(b) 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.

(5) Where in any case an industrial tribunal makes an award of compensation for unfair dismissal, calculated in accordance with [F9 sections 72 to 76], and the tribunal finds that the complainant has unreasonably prevented an order under section 69 from being complied with, it shall, without prejudice to the generality of section 74(4), take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Textual Amendments

F1 Words in s. 71(1) substituted (30.8.1993) by 1993 c. 19, s. 30(2)(a); S.I. 1993/1908, art. 2(1), Sch. 1

F2 S. 71(1A) inserted (30.8.1993) by 1993 c. 19, s. 30(2)(b); S.I. 1993/1908, art. 2(1), Sch. 1

F3 Words substituted by Employment Act 1982 (c. 46, SIF 43:5), Sch. 3 para. 22 with saving in S.I. 1982/1656, Sch. 2

F4 Words in s. 71(2)(b) substituted (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c.52), ss. 300(2), 302, Sch. 2 para. 15.

F5 Words in s. 71(2)(b) inserted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para. 6(a); S.I. 1993/1908, art. 2(1), Sch. 1

F6 S. 71(2A)(2B) inserted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para. 6(b); S.I. 1993/1908, art.2(1), Sch. 1

F7 Words in s. 71(2B) inserted (26.10.1995) by S.I. 1995/2587, reg. 14(3)

F8 S. 71(3)(a) repealed by Employment Act 1982 (c. 46, SIF 43:5), Sch. 4 with saving in S.I. 1982/1656, Sch. 2

F9 Words substituted by Employment Act 1982 (c. 46, SIF 43:5), Sch. 3 para. 22 with saving in S.I. 1982/1656, Sch. 2

Modifications etc. (not altering text)

C1 S. 71(2)(b) excluded (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 157(2), 302.

Marginal Citations

M1 1975 c. 65.

M2 1976 c. 74.