Employment Protection (Consolidation) Act 1978

73 Calculation of basic award. E+W+S

(1) The amount of the basic award shall be the amount calculated in accordance with subsections (3) to [F1 (6A)], subject to—

(a) subsection (2) of this section (which provides for an award of two weeks’ pay in certain redundancy cases);

(b)

[F2 F3 (ba) subsection (7A) (which provides for the amount of the award to be reduced where the employee has unreasonably refused an offer of reinstatement);

(bb) subsection (7B) (which provides for the amount of the award to be reduced because of the employee’s conduct);]

(c)

F4 (d) subsection (9) (which provides for the amount of the award to be reduced where the employee received a payment in respect of redundancy); and

(e) section 76 (which prohibits compensation being awarded under this Part and under the M1 Sex Discrimination Act 1975 or the M2 Race Relations Act 1976 in respect of the same matter).

(2) The amount of the basic award shall be two weeks’ pay where the tribunal finds that the reason or principal reason for the dismissal of the employee was that he was redundant and the employee—

(a) by virtue of section 82(5) or (6) is not, or if he were otherwise entitled would not be, entitled to a redundancy payment; or

(b) by virtue of the operation of section 84(1) is not treated as dismissed for the purposes of Part VI.

(3) The amount of the basic award shall be calculated by reference to the period, ending with the effective date of termination, during which the employee has been continuously employed, by starting at the end of that period and reckoning backwards the numbers of years of employment falling within that period, and allowing—

(a) one and a half weeks’ pay for each such year of employment F5 in which the employee was not below the age of forty-one;

[F6 (b) one week’s pay for each year of employment not falling within paragraph (a) F5 in which the employee was not below the age of twenty-two; and

(c) half a week’s pay for each such year of employment not falling within either of paragraphs (a) and (b).]

(4) Where, in reckoning the number of years of employment in accordance with subsection (3), twenty years of employment have been reckoned no account shall be taken of any year of employment earlier than those twenty years.

(4A )F7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4B )F7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where in the case of an employee the effective date of termination is after the specified anniversary the amount of the basic award calculated in accordance with subsections (3) and (4) shall be reduced by the appropriate fraction.

(6) In subsection (5) [F8 “the specified anniversary” in relation to an employee means the sixty-fourth anniversary of the day of his birth], and “the appropriate fraction” means the fraction of which—

(a) the numerator is the number of whole months reckoned from the specified anniversary in the period beginning with that anniversary and ending with the effective date of termination; and

(b) the denominator is twelve.

[F9 (6A) 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 the amount of the basic award (before any reduction under the following provisions of this section) shall not be less than £2,700.

(6B) For the purposes of this section a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b).

(6C) The Secretary of State may by order increase the sum specified in subsection (6A).

(6D) No order shall be made under subsection (6C) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.]

(7)

[F10 F11 (7A) 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 an extent as it considers just and equitable having regard to that finding.

(7B) 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), F12 , was such that it would be just and equitable to reduce or further reduce that amount of the basic award to any extent, the tribunal shall reduce or further reduce the amount accordingly.]

[F13 (7C) Subsection (7B) does not apply [F14 in a redundancy case unless the reason for selecting the employee for dismissal was an inadmissible reason; and, in that event, subsection (7B) shall apply only to so much of the basic award as is payable because of subsection (6A)].]

(8)

F15 (9) The amount of the basic award shall be reduced or, as the case may be, be further reduced, by the amount of any redundancy payment awarded by the tribunal under Part VI in respect of the same dismissal or 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 VI or otherwise.

Textual Amendments

F1 Words in s. 73(1) substituted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para. 8(a); S.I. 1993/1908, art. 2(1), Sch.1

F2 S. 73(1)(ba)(bb) inserted with saving by Employment Act 1980 (c. 42, SIF 43:5), s. 9(1)(2) and S.I. 1980/1170, art. 4, Sch. 3

F3 S. 73(1)(b) repealed by Employment Act 1982 (c. 46, SIF 43:5), Sch. 4 with saving in S.I. 1982/1656, Sch. 2

F4 S. 73(1)(c) repealed with saving by Employment Act 1980 (c. 42, SIF 43:5), Sch. 2 and S.I. 1980/1170, art. 4, Sch. 3

F5 Words repealed with saving by Employment Act 1982 (c. 46, SIF 43:5), s. 20, Sch. 2 para. 5(2), Sch. 4

F6 S. 73(3)(b)(c) substituted with saving by Employment Act 1980 (c. 42, SIF 43:5), s. 9(1)(3) and S.I. 1980/1170, art. 4, Sch. 3

F7 S. 73(4A)(4B) (which were inserted with saving by Employment Act 1980 (c. 42),s. 9(1)(4) and S.I. 1980/1170, art. 4, Sch. 3) repealed (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 300(1), 302, Sch. 1 (with savings in Sch. 3 para. 2).

F8 Words substituted by Sex Discrimination Act 1986 (c. 59, SIF 106:1), s. 3(2)(3)

F9 S. 73(6A)-(6D) inserted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para. 8(b); S.I. 1993/1908, art. 2(1), Sch.1

F10 S. 73(7A)(7B) inserted with saving by Employment Act 1980 (c. 42, SIF 43:5), s. 9(1)(4) and S.I. 1980/1170, art. 4, Sch. 3

F11 S. 73(7) repealed by Employment Act 1982 (c. 46, SIF 43:5), s. 4(2)(a), Sch. 4 with saving in S.I. 1982/1656, Sch. 2

F12 Words repealed by Employment Act 1982 (c. 46, SIF 43:5), s. 4(2)(b), Sch. 4 with saving in S.I. 1982/1656, Sch. 2

F13 S. 73(7C) (which was added by Employment Act 1982 (c. 46, SIF 43:5), s. 4(2) (with saving in S.I. 1982/1656, Sch. 2)) substituted (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c.52), ss. 300(2), 302, Sch. 2 para. 17.

F14 Words in s. 73(7C) substituted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para. 8(c); S.I. 1993/1908, art. 2(1), Sch.1

F15 S. 73(8) repealed with saving by Employment Act 1980 (c. 42, SIF 43:5), Sch. 2 and S.I. 1980/1170, art. 4, Sch. 3

Marginal Citations

M1 1975 c. 65.

M2 1976 c. 74.