Employment Rights Act 1996

Chapter II E+W+S Other miscellaneous matters

Restrictions on disclosure of information E+W+S

202 National security. E+W+S

(1) Where in the opinion of any Minister of the Crown the disclosure of any information would be contrary to the interests of national security—

(a) nothing in any of the provisions to which this section applies requires any person to disclose the information, and

(b) no person shall disclose the information in any proceedings in any court or tribunal relating to any of those provisions.

(2) This section applies to—

(a) Part I, so far as it relates to employment particulars,

(b) in Part V, [F1 sections [F2 43M,] 44, 45A [F3 , 47 and 47C]], and sections 48 and 49 so far as relating to those sections,

(c) in Part VI, sections [F4 55 to 57B] and 61 to 63,

(d) in Part VII, sections 66 to 68, and sections 69 and 70 so far as relating to those sections,

(e) Part VIII,

(f) in Part IX, sections 92 and 93 where they apply by virtue of section 92(4),

(g) Part X so far as relating to a dismissal which is treated as unfair—

[F5 (i) by section [F6 98B,] 99, 100, 101A(d) or 103, or by section 104 in its application in relation to time off under section 57A,]

(ii) by subsection (1) of section 105 by reason of the application of subsection [F7 (2A),](3) or (6) of that section, [F8 or by reason of the application of subsection (4A) in so far as it applies where the reason (or, if more than one, the principal reason) for which an employee was selected for dismissal was that specified in section 101A(d)] and

(h) this Part and Parts XIV and XV (so far as relating to any of the provisions in paragraphs (a) to (g)).

Textual Amendments

F1 Words in s. 202(2)(b) substituted (1.10.1998) by S.I. 1998/1833, reg. 31(5)

F2 Word in s. 202(2)(b) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 39(2); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F3 Words in s. 202(2)(b) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 36(a); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

F4 Words in s. 202(2)(c) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 36(b); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

F5 S. 202(2)(g)(i) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 36(c); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

F6 Words in s. 202(2)(g)(i) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 39(3)(a); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F7 Words in s. 202(2)(g)(ii) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 39(3)(b); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F8 Words in s. 202(2)(g)(ii) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(6)(b)

Contracting out etc. and remedies E+W+S

203 Restrictions on contracting out. E+W+S

(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a) to exclude or limit the operation of any provision of this Act, or

(b) to preclude a person from bringing any proceedings under this Act before an [F9 employment tribunal].

(2) Subsection (1)—

(a) does not apply to any provision in a collective agreement excluding rights under section 28 if an order under section 35 is for the time being in force in respect of it,

(b) does not apply to any provision in a dismissal procedures agreement excluding the right under section 94 if that provision is not to have effect unless an order under section 110 is for the time being in force in respect of it,

(c) does not apply to any provision in an agreement if an order under section 157 is for the time being in force in respect of it,

(d) F10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of [F9 the M1 Employment Tribunals Act 1996], and

(f) does not apply to any agreement to refrain from instituting or continuing F11 . . . any proceedings within

[F12 the following provisions of section 18(1) of the Employment Tribunals Act 1996 (cases where conciliation available)—

(i)

paragraph (d) (proceedings under this Act),

(ii)

paragraph (h) (proceedings arising out of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000),] if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement

(iii)

[F13 paragraph (i)(proceedings arising out of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002),

(iv)

paragraph (j)(proceedings under those Regulations),]

(3) For the purposes of subsection (2)(f) the conditions regulating compromise agreements under this Act are that—

(a) the agreement must be in writing,

(b) the agreement must relate to the particular [F14 proceedings],

(c) the employee or worker must have received [F15 advice from a relevant independent adviser] as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an [F9 employment tribunal],

(d) there must be in force, when the adviser gives the advice, a [F16 contract of insurance, or an indemnity provided for members of a profession or professional body,] covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e) the agreement must identify the adviser, and

(f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

[F17 (3A) A person is a relevant independent adviser for the purposes of subsection (3)(c)—

(a) if he is a qualified lawyer,

(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

(d) if he is a person of a description specified in an order made by the Secretary of State.

(3B) But a person is not a relevant independent adviser for the purposes of subsection (3)(c) in relation to the employee or worker—

(a) if he is, is employed by or is acting in the matter for the employer or an associated employer,

(b) in the case of a person within subsection (3A)(b) or (c), if the trade union or advice centre is the employer or an associated employer,

(c) in the case of a person within subsection (3A)(c), if the employee or worker makes a payment for the advice received from him, or

(d) in the case of a person of a description specified in an order under subsection (3A)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

(4) In subsection (3A)(a) “qualified lawyer” means—

(a) as respects England and Wales, [F18 a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act), and]

(b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.]

[F19 (5) An agreement under which the parties agree to submit a dispute to arbitration—

(a) shall be regarded for the purposes of subsection (2)(e) and (f) as being an agreement to refrain from instituting or continuing proceedings if—

(i) the dispute is covered by a scheme having effect by virtue of an order under section 212A of the Trade Union and Labour Relations (Consolidation) Act 1992, and

(ii) the agreement is to submit it to arbitration in accordance with the scheme, but

(b) shall be regarded as neither being nor including such an agreement in any other case.]

Textual Amendments

F9 Words in s. 203(1)(b)(2)(e)(f)(3)(c) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(c) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F10 S. 203(2)(d) omitted (1.10.2002) by virtue of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(17)(a) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

F11 Words in s. 203(2)(f) repealed (1.8.1998) by 1998 c. 8, s. 15, Sch. 2; S.I. 1998/1658, art. 2(1), Sch. 1

F12 Words in s. 203(2)(f) and s. 203(2)(f)(i)(ii) substituted for words in s. 203(2)(f) (1.5.2001) by S.I. 2001/1107, reg. 3

F13 S. 203(2)(f)(iii)(iv) inserted (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(17)(b) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

F14 Word in s. 203(3)(b) substituted (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 24(2); S.I. 1998/1658, art. 2(1), Sch. 1

F15 Words in s. 203(3)(c) substituted (1.8.1998) by 1998 c. 8, s. 9(1)(2)(e); S.I. 1998/1658, art. 2(1), Sch. 1

F16 Words in s. 203(3)(d) substituted (1.8.1998) by 1998 c. 8, s. 10(1)(2)(e); S.I. 1998/1658, art. 2(1), Sch. 1

F17 S. 203(3A)(3B)(4) substituted for s. 203(4) (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 24(3); S.I. 1998/1658, art. 2(1), Sch. 1

F18 Words in s. 203(4)(a) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211(2), Sch. 21 para. 120 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)

F19 S. 203(5) inserted (1.8.1998) by 1998 c. 8, s. 8(5); S.I. 1998/1658, art. 2(2), Sch. 1

Modifications etc. (not altering text)

C1 S. 203 applied (1.7.2000) by S.I. 2000/1551, reg. 9

C2 S. 203 applied (with modifications) (1.10.2002) by The fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 10 (with regs. 13-20)

C3 S. 203 applied (with modifications) (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), 18

C4 S. 203 applied (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 15

C5 S. 203(1)(2)(e)(f)(3)(4) amended (4.9.2000) by 1999 c. 26, s. 14(a); S.I. 2000/2242, art. 2

Marginal Citations

M1 1996 c. 17.

204 Law governing employment. E+W+S

(1) For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

F20 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F20 S. 204(2) repealed (25.10.1999) by 1999 c. 26, s. 44, Sch. 9(9); S.I. 1999/2830, art. 2(3), Sch. 2 Pt. I (with transitional provisions in Sch. 3 para. 7(2))

205 Remedy for infringement of certain rights. E+W+S

(1) The remedy of an employee for infringement of any of the rights conferred by section 8, Part III, Parts V to VIII, section 92, Part X and Part XII is, where provision is made for a complaint or the reference of a question to an [F21 employment tribunal], by way of such a complaint or reference and not otherwise.

[F22 (1A) In relation to the right conferred by section 47B, the reference in subsection (1) to an employee has effect as a reference to a worker.]

[F23 (1ZA) In relation to the right conferred by section 45A, the reference in subsection (1) to an employee has effect as a reference to a worker.]

(2) The remedy of a worker in respect of any contravention of section 13, 15, 18(1) or 21(1) is by way of a complaint under section 23 and not otherwise.

Textual Amendments

F21 Words in s. 205(1) 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

F22 S. 205(1A) inserted (2.7.1999) by 1998 c. 23, s. 14; S.I. 1999/1547, art. 2

F23 S. 205(1ZA) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(7)

Modifications etc. (not altering text)

C6 S. 205(1) applied (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), 16(1)

General provisions about death of employer or employee E+W+S

206 Institution or continuance of tribunal proceedings. E+W+S

(1) Where an employer has died, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be defended by a personal representative of the deceased employer.

(2) This section and section 207 apply to—

(a) Part I, so far as it relates to itemised pay statements,

(b) Part III,

(c) Part V,

(d) Part VI, apart from sections 58 to 60,

(e) Parts VII and VIII,

(f) in Part IX, sections 92 and 93, and

(g) Parts X to XII.

(3) Where an employee has died, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be instituted or continued by a personal representative of the deceased employee.

(4) If there is no personal representative of a deceased employee, any tribunal proceedings arising under any of the provisions of this Act to which this section applies may be instituted or continued on behalf of the estate of the deceased employee by any appropriate person appointed by the [F24 employment tribunal].

(5) In subsection (4) “appropriate person” means a person who is—

(a) authorised by the employee before his death to act in connection with the proceedings, or

(b) the widow or widower, [F25 surviving civil partner,] child, parent or brother or sister of the deceased employee;

and in Part XI and the following provisions of this section and section 207 references to a personal representative include a person appointed under subsection (4).

(6) In a case where proceedings are instituted or continued by virtue of subsection (4), any award made by the [F24 employment tribunal] shall be—

(a) made in such terms, and

(b) enforceable in such manner,

as the Secretary of State may by regulations provide.

(7) Any reference in the provisions of this Act to which this section applies to the doing of anything by or in relation to an employer or employee includes a reference to the doing of the thing by or in relation to a personal representative of the deceased employer or employee.

(8) Any reference in the provisions of this Act to which this section applies to a thing required or authorised to be done by or in relation to an employer or employee includes a reference to a thing required or authorised to be done by or in relation to a personal representative of the deceased employer or employee.

(9) Subsections (7) and (8) do not prevent a reference to a successor of an employer including a personal representative of a deceased employer.

Textual Amendments

F24 Words in s. 206(4)(6) 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

F25 Words in s. 206(5)(b) inserted (5.12.2005) by The Civil Partnership Act 2004 (Overseas Relationships and Consequential, etc. Amendments) Order 2005 (S.I. 2005/3129), arts. 1, 4(4), Sch. 4 para. 11

207 Rights and liabilities accruing after death. E+W+S

(1) Any right arising under any of the provisions of this Act to which this section applies which accrues after the death of an employee devolves as if it had accrued before his death.

(2) Where an [F26 employment tribunal] determines under any provision of Part XI that an employer is liable to pay to a personal representative of a deceased employee—

(a) the whole of a redundancy payment to which he would have been entitled but for some provision of Part XI or section 206, or

(b) such part of such a redundancy payment as the tribunal thinks fit,

the reference in subsection (1) to a right includes any right to receive it.

(3) Where—

(a) by virtue of any of the provisions to which this section applies a personal representative is liable to pay any amount, and

(b) the liability has not accrued before the death of the employer,

it shall be treated as a liability of the deceased employer which had accrued immediately before his death.

Textual Amendments

F26 Words in s. 207(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

[F27 Mediation in certain cross-border dispute E+W+S

Textual Amendments

F27 S. 207A and cross-heading inserted (20.5.2011 with application as mentioned in regs. 3 and 4 of the amending S.I.) by The Cross-Border Mediation (EU Directive) Regulations 2011 (S.I. 2011/1133), regs. 2, 48

207A Extension of time limits because of mediation in certain cross-border disputes E+W+S

(1) In this section—

(a) “Mediation Directive” means Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters,

(b) “mediation” has the meaning given by article 3(a) of the Mediation Directive,

(c) “mediator” has the meaning given by article 3(b) of the Mediation Directive, and

(d) “relevant dispute” means a dispute to which article 8(1) of the Mediation Directive applies (certain cross-border disputes).

(2) Subsection (3) applies where—

(a) this Act provides for that subsection to apply for the purposes of a provision of this Act,

(b) a time limit is set by that provision in relation to the whole or part of a relevant dispute,

(c) a mediation in relation to the relevant dispute starts before the time limit expires, and

(d) if not extended by this section, the time limit would expire before the mediation ends or less than four weeks after it ends.

(3) The time limit expires instead at the end of four weeks after the mediation ends (subject to subsection (4)).

(4) If a time limit mentioned in subsection (2)(b) has been extended by this section, subsections (2) and (3) apply to the extended time limit as they apply to a time limit mentioned in subsection (2)(b).

(5) Subsection (6) applies where—

(a) a time limit is set by section 164(1)(c) or (2) in relation to the whole or part of a relevant dispute,

(b) a mediation in relation to the relevant dispute starts before the time limit expires, and

(c) if not extended by this section, the time limit would expire before the mediation ends or less than eight weeks after it ends.

(6) The time limit expires instead at the end of eight weeks after the mediation ends (subject to subsection (7)).

(7) If a time limit mentioned in subsection (5)(a) has been extended by this section, subsections (5) and (6) apply to the extended time limit as they apply to a time limit mentioned in subsection (5)(a).

(8) Where more than one time limit applies in relation to a relevant dispute, the extension by subsection (3) or (6) of one of those time limits does not affect the others.

(9) For the purposes of this section, a mediation starts on the date of the agreement to mediate that is entered into by the parties and the mediator.

(10) For the purposes of this section, a mediation ends on the date of the first of these to occur—

(a) the parties reach an agreement in resolution of the relevant dispute,

(b) a party completes the notification of the other parties that it has withdrawn from the mediation,

(c) a party to whom a qualifying request is made fails to give a response reaching the other parties within 14 days of the request,

(d) the parties, after being notified that the mediator's appointment has ended (by death, resignation or otherwise), fail to agree within 14 days to seek to appoint a replacement mediator,

(e) the mediation otherwise comes to an end pursuant to the terms of the agreement to mediate.

(11) For the purpose of subsection (10), a qualifying request is a request by a party that another (A) confirm to all parties that A is continuing with the mediation.

(12) In the case of any relevant dispute, references in this section to a mediation are references to the mediation so far as it relates to that dispute, and references to a party are to be read accordingly.

(13) Where an employment tribunal has power under this Act to extend a time limit to which subsection (3) applies, the power is exercisable in relation to the time limit as extended by this section.]

Modifications of Act E+W+S

F28 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F28 S. 208 repealed (17.12.1999) by 1999 c. 26, ss. 36(2)(3), 44, Sch. 9(10); S.I. 1999/3374, art. 2(b)(c), Sch.

209 Powers to amend Act. E+W+S

(1) The Secretary of State may by order—

(a) provide that any provision of this Act, other than any to which this paragraph does not apply, which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order,

(b) provide that any provision of this Act, other than any to which this paragraph does not apply, shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed, or

(c) vary, or exclude the operation of, any of the provisions to which this paragraph applies.

(2) Subsection (1)(a) does not apply to—

(a) Parts II and IV,

(b) in Part V, sections 45 and 46, and sections 48 and 49 so far as relating to those sections,

(c) in Part VI, sections 58 to 60,

(d) in Part IX, sections 87(3), 88 to 90, 91(1) to (4) and (6) and 92(6) to (8),

(e) in Part X, sections 95, 97(1) to (5), 98(1) to (4) and (6), 100, 101, [F29 101A,] 102, 103, 105, 107, 110, 111, 120(2), 124(1), (2) and (5), 125(7) and 134,

(f) in Part XI, sections 143, 144, 160(2) and (3), 166 to 173 and 177 to 180,

(g) in Part XIII, sections F30 . . . F31 . . .,

(h) Chapter I of Part XIV, or

(j) in Part XV, section 236(3) so far as relating to sections 120(2), 124(2) and 125(7).

(3) Subsection (1)(b) does not apply to—

(a) any of the provisions to which subsection (1)(a) does not apply,

(b) sections 1 to 7, or

(c) the provisions of sections 86 to 91 not specified in subsection (2).

(4) The provision which may be made by virtue of paragraph (b) of subsection (1) in relation to section 94 does not include provision for application subject to exceptions or modifications; but this subsection does not prejudice paragraph (a) of that subsection.

(5) Subsection (1)(c) applies to sections 29(2), 65(2), 86(5), 92(3), 108(1), F32 . . . 159, 160(1), 196(2), (3) and (5) and 199(1), (2), (4) and (5).

F33 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F34 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The provisions of this section are without prejudice to any other power of the Secretary of State to amend, vary or repeal any provision of this Act or to extend or restrict its operation in relation to any person or employment.

Textual Amendments

F29 Words in s. 209(2)(e) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(7)

F30 Words in s. 209(2)(g) repealed (25.10.1999) by virtue of 1999 c. 26, s. 44, Sch. 9(9); S.I. 1999/2830, art. 2(3), Sch. 2 Pt. I

F31 Words in s. 209(2)(g) repealed (25.10.1999) by 1999 c. 26, s. 44, Sch. 9(3); S.I. 1999/2830, art. 2(3), Sch. 2 Pt. I (with Sch. 3 para. 2(2))

F32 Words in s. 209(5) omitted (1.10.2006) by virtue of The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 34(2) (with regs. 44-46)

F33 S. 209(6) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 37, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

F34 S. 209(7) repealed and superseded (25.10.1999) by 1999 c. 26, ss. 23(6), 44, Sch. 9(4); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I