(1)This section applies in relation to an employee who has a right to complain of unfair dismissal (the “complainant”) and who claims to have been unfairly dismissed, where at the date of the dismissal—
(a)the employer was conducting or instituting a lock-out, or
(b)the complainant was taking part in a strike or other industrial action.
(2)In such a case an [F1employment tribunal] shall not determine whether the dismissal was fair or unfair unless it is shown—
(a)that one or more relevant employees of the same employer have not been dismissed, or
(b)that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement.
F2[F3(2A)Subsection (2) does not apply to the dismissal of the employee if it is shown that 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 one of those specified in [F4or under—.
(a)section [F598B,] 99, 100, 101A(d) [F6 , 103, 104C [F7, 104D or 104E]] of the Employment Rights Act 1996 (dismissal in [F8jury service,] family, health and safety, working time [F9 , employee representative, flexible working [F10 , pension scheme membership, and study and training]] cases),
(b)section 104 of that Act in its application in relation to time off under section 57A of that Act (dependants);]][F11; and a reference to a specified reason for dismissal includes a reference to specified circumstances of dismissal]
[F3(2B)Subsection (2) does not apply in relation to an employee who is regarded as unfairly dismissed by virtue of section 238A below.]
(3)For this purpose “relevant employees” means—
(a)in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and
(b)in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action.
Nothing in section 237 (dismissal of those taking part in unofficial industrial action) affects the question who are relevant employees for the purposes of this section.
(4)An offer of re-engagement means an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.
(5)In this section “date of dismissal” means—
(a)where the employee’s contract of employment was terminated by notice, the date on which the employer’s notice was given, and
(b)in any other case, the effective date of termination.
Textual Amendments
F1Words in s. 238(2) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1
F2S. 238(2A) inserted (10.6.1994) by 1993 c. 19, s. 49(2), Sch. 8 para. 77; S.I. 1994/1365, art. 2, Sch. (with art. 3(1))
F3S. 238(2B) inserted (24.4.2000) by 1999 c. 26, s. 16, Sch. 5 para. 2; S.I. 2000/875, art. 3
F4Words in S. 238(2A) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt III para. 3; S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. II (with Sch. 3 para. 10, 11)
F5Words in s. 238(2A)(a) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 40(9)(a), 59(2)-(4); S.I. 2005/872, art. 4, Sch (with arts. 6-21)
F6Words in s. 238(2A)(a) substituted (30.6.2012) by Pensions Act 2008 (c. 30), ss. 57(7)(a), 149(1); S.I. 2012/1682, art. 2, Sch. 2
F7Words in s. 238(2A)(a) substituted (6.4.2010 for specified purposes) by virtue of Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), s. 269(4), Sch. 1 para. 15(a); S.I. 2010/303, art. 4, Sch. 3
F8Words in s. 238(2A)(a) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 40(9)(b), 59(2)-(4); S.I. 2005/872, art. 4, Sch (with arts. 6-21)
F9Words in s. 238(2A)(a) substituted (30.6.2012) by Pensions Act 2008 (c. 30), ss. 57(7)(b), 149(1); S.I. 2012/1682, art. 2, Sch. 2
F10Words in s. 238(2A)(a) substituted (6.4.2010 for specified purposes) by virtue of Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), s. 269(4), Sch. 1 para. 15(b); S.I. 2010/303, art. 4, Sch. 3
F11Words in s. 238(2A) inserted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 3; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)