(1)Where an [F1employment tribunal] finds a complaint under section 48 well-founded, the tribunal—
(a)shall make a declaration to that effect, and
(b)may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.
(2)[F2Subject to [F3subsections (5A) and (6)]] the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—
(a)the infringement to which the complaint relates, and
(b)any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.
(3)The loss shall be taken to include—
(a)any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and
(b)loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.
(4)In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.
(5)Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
[F4(5A)Where—
(a)the complaint is made under section 48 (1ZA),
(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and
(c)that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 101A.]
[F5(6)Where—
(a)the complaint is made under section 48(1A),
(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and
(c)that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A.]
Textual Amendments
F1Words in s. 49(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
F2Words in s. 49(2) inserted (2.7.1999) by 1998 c. 23, s. 4(2); S.I. 1999/1547, art. 2
F3Words in s. 49(2) substituted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(a)
F4S. 49(5A) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(b)
F5S. 49(6) inserted (2.7.1999) by 1998 c. 23, s. 4(3); S.I. 1999/1547, art. 2
Modifications etc. (not altering text)
C1S. 49 applied (with modifications) (1.11.1998) by 1998 c. 39, s. 24(2)(a)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1
S. 49 restricted (1.11.1998) by 1998 c. 39, s. 14(3)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1
S. 49 applied (with modifications) (15.1.2000) by S.I. 1999/3323, reg. 32(2)(a)
S. 49 extended (with modifications) (5.10.1999) by 1999 c. 10, ss. 7, 20(2), Sch. 3 para. 2(2)(a)