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Part VE+W+S Protection from suffering detriment in employment

Rights not to suffer detrimentE+W+S

[F143MJury serviceE+W+S

(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, [F2Part 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). ]

Textual Amendments

44 Health and safety cases.E+W+S

(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,

[F3(ba)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,

(d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2)For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3)An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4)F4. . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F5Part X]).

Textual Amendments

F3S. 44(1)(ba) inserted (1.10.1996) by S.I. 1996/1513, reg. 8

F5Words in s. 44(4) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I (with Sch. 3 para. 2)

45 Sunday working for shop and betting workers.E+W+S

(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.

Extent Information

E1S. 45, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

[F645A Working time cases.E+W+S

(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 F7 . . ..

[F8(5)A reference in this section to the Working Time Regulations 1998 includes a reference to

[F9(a)]the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F10(b)the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.]

[F11(c)the Cross-border Railway Services (Working Time) Regulations 2008]

[F12(d)the Merchant Shipping (Hours of Work) Regulations 2002.]]]

Textual Amendments

F6S. 45A inserted (1.10.1998) by S.I. 1998/1833, reg. 31(1)

Marginal Citations

46 Trustees of occupational pension schemes.E+W+S

(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)F13. . .this section does not apply where the detriment in question amounts to dismissal (within the meaning of [F14Part X]).

[F15(2A)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.

Textual Amendments

F14Words in s. 46(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2(2))

F15S. 46(2A) inserted (11.11.1999 for specified purposes and otherwise 25.4.2000) by 1999 c. 30, s. 18, Sch. 2 para. 19(2); S.I. 2000/1047, art. 2(2), Sch. Pt. II

Modifications etc. (not altering text)

C1S. 46 applied (11.11.1999 for specified purposes and otherwise 8.10.2001) by 1999 c. 30, s. 6(1), 89(1)(5)(a) (with s. 8(6)); S.I. 2000/1047, art. 2(2), Sch. Pt. V

Commencement Information

I1S. 46 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

47 Employee representatives.E+W+S

(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)an employee representative for the M3purposes of Chapter II of Part IV of the M4Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F16regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006] , or

(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.

[F17(1A) 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 [F18 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ] . ]

(2)F19. . . This section does not apply where the detriment in question amounts to a dismissal (within the meaning of [F20Part X]).

Textual Amendments

F16Words in s. 47(1)(a) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(a)

F17S. 47(1A) inserted (28.7.1999) by S.I. 1999/1925, reg. 12

F18Words in s. 47(1A) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(a)

F20Words in s. 47(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

Marginal Citations

[F2147A Employees exercising right to time off work for study or training.E+W+S

(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)F22 . . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F23 Part X ] ). ]

Textual Amendments

F21S. 47A inserted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 10 (with s. 42(8)); S.I. 1999/987, art. 2

F23Words in s. 47A(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

[F2447B Protected disclosures.E+W+S

(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.

[F25(1A)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)F26 . . . 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 [F27Part 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. ]

Textual Amendments

F24S. 47B inserted (2.7.1999) by 1998 c. 23, s. 2; S.I. 1999/1547, art. 2

F27Words in s. 47B(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

[F2847C Leave for family and domestic reasons.E+W+S

(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,

[F29(aa)time off under section 57ZE,]

[F30(ab)time off under section 57ZJ or 57ZL,]

(b)ordinary, compulsory or additional maternity leave,

[F31(ba)ordinary or additional adoption leave,]

[F32(bb)shared parental leave,]

(c)parental leave,

[F33(ca)F34... paternity 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.

[F35(5)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)—

Textual Amendments

F35S. 47C(5)-(7) inserted (1.10.2014 for specified purposes, 5.4.2015 for specified purposes) by Children and Families Act 2014 (c. 6), ss. 129(1), 139(6); S.I. 2014/1640, arts. 4(b), 6(e)

[F3647D Tax creditsE+W+S

(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).]

Textual Amendments

F36S. 47D inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(2); S.I. 2002/1727, art. 2

[F3747E Flexible workingE+W+S

(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,

F38( 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.]

Textual Amendments

[F3947FStudy and trainingE+W+S

(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.]

Textual Amendments

F39S. 47F inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40(3), 269(4); S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

[F4047GEmployee shareholder statusE+W+S

(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.]

Textual Amendments