Part III Rights in relation to union membership and activities
Dismissal F1of employee
163 Procedure on hearing of application and making of order.
1
If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply.
2
The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—
a
to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or
b
if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.
3
For this purpose “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means as regards seniority, pension rights and other similar rights that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.
4
If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.
5
If the employer states that he is willing to re-engage the employee in another job, and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions; and—
a
if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect, and
b
if he is not, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and otherwise the tribunal shall make no order.
6
If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee’s contract of employment.
S. 152 cross-heading: words inserted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(1), 59(2)-(4); S.I. 2005/2566, art. 3(a) (with arts. 4-8)