The Employment Protection (Continuity of Employment) Regulations 1993

Statutory Instruments

1993 No. 2165

TERMS AND CONDITIONS OF EMPLOYMENT

The Employment Protection (Continuity of Employment) Regulations 1993

Made

3rd September 1993

Laid before Parliament

13th September 1993

Coming into force

4th October 1993

The Secretary of State, in exercise of the powers conferred on him by paragraph 20(1) of Schedule 13 to the Employment Protection (Consolidation) Act 1978(1), and of all other powers enabling him in that behalf, hereby makes the following Regulations:–

Citation, commencement and revocation

1.—(1) These Regulations may be cited as the Employment Protection (Continuity of Employment) Regulations 1993 and shall come into force on 4th October 1993.

(2) As from that date the Labour Relations (Continuity of Employment) Regulations 1976(2) shall be revoked.

Interpretation

2.  In these Regulations, “the 1978 Act” means the Employment Protection (Consolidation) Act 1978.

Application

3.—(1) These Regulations apply to any action taken in relation to the dismissal of an employee which consists of–

(a) the presentation by him of a relevant complaint of dismissal, or

(b) his making a claim in accordance with a dismissal procedures agreement designated by an order under section 65 of the 1978 Act(3), or

(c) any action taken by a conciliation officer under his relevant conciliation powers, or

(d) the making of a relevant compromise contract.

(2) In this regulation–

“relevant complaint of dismissal” means a complaint under section 67 of the 1978 Act(4), a complaint under section 63 of the Sex Discrimination Act 1975(5) (“the 1975 Act”) arising out of a dismissal or a complaint under section 54 of the Race Relations Act 1976(6) (“the 1976 Act”) arising out of a dismissal;

“relevant compromise contract” means–

(a)

any agreement authorised by section 140(2)(fb) of the 1978 Act(7) to refrain from instituting or continuing any proceedings specified in section 134(1) of that Act before an industrial tribunal,

(b)

any contract authorised by section 77(4)(aa) of the 1975 Act(8) settling a complaint arising out of a dismissal, or

(c)

any contract authorised by section 72(4)(aa) of the 1976 Act(9) settling a complaint arising out of a dismissal;

“relevant conciliation powers” means section 134(3) of the 1978 Act(10), section 64(2) of the 1975 Act or section 55(2) of the 1976 Act.

Continuity of employment where employee re–engaged

4.—(1) The provisions of this regulation shall have effect to preserve the continuity of a person’s period of employment for the purposes of Schedule 13 to the 1978 Act and for the purposes of that Schedule as applied by subsection (5) of section 281 and subsection (2) of section 282 of the Trade Union and Labour Relations (Consolidation) Act 1992(11) to those sections.

(2) If in consequence of any action to which these Regulations apply a dismissed employee is reinstated or re–engaged by his employer or by a successor or associated employer of the employer the continuity of that employee’s period of employment shall be preserved and, accordingly, the period beginning with the date on which the dismissal to which the action relates takes effect and ending with the date of reinstatement or re– engagement, as the case may be, shall count in the computation of the employee’s period of continuous employment.

Exclusion of operation of paragraph 12 of Schedule 13 to the 1978 Act where redundancy or equivalent payment repaid

5.—(1) Where–

(a) in consequence of any action to which these Regulations apply a dismissed employee is reinstated or re–engaged by his employer or by a successor or associated employer of the employer, and

(b) the terms upon which he is so reinstated or re–engaged include provision for him to repay the amount of a redundancy payment or an equivalent payment paid in respect of the relevant dismissal,

paragraph 12 of Schedule 13 to the 1978 Act (which requires the continuity of the period of employment to be treated as broken in redundancy cases where a redundancy payment or an equivalent payment is paid and he is subsequently re–engaged) shall not apply if that provision is complied with.

(2) For the purposes of this regulation the cases in which a redundancy payment shall be treated as having been paid are cases mentioned in sub–paragraphs (3)(a) and (3)(b) of paragraph 12 of Schedule 13 to the 1978 Act.

Signed by order of the Secretary of State

Viscount Ullswater

Parliamentary Under Secretary of State,

Department of Employment

3rd September 1993

Explanatory Note

(This note is not part of the Regulations)

These Regulations replace with additional provisions the Labour Relations Continuity of Employment) Regulations 1976 (“the 1976 Regulations”). The 1976 Regulations provided for the preservation of continuity of employment for the purposes of the employment protection rights (previously contained in enactments which have since been repealed) now contained in the Employment Protection (Consolidation) Act 1978 (“the 1978 Act”) and the Trade Union and Labour Relations (Consolidation) Act 1992 “the 1992 Act”), where a dismissed employee was reinstated or re–engaged in consequence of–

(a) the presentation of a complaint of unfair dismissal,

(b) the making of a claim in accordance with a dismissal procedures agreement designated by an order under section 65 of the 1978 Act, or

(c) action taken by a conciliation officer in a dispute relating to an unfair dismissal claim.

The 1976 Regulations also provided that continuity of employment was not broken in redundancy cases where any such employee repaid a redundancy payment or an equivalent payment.

The additional provisions in these Regulations provide for the preservation of continuity of employment for the purposes of the employment protection rights contained in the 1978 Act and the 1992 Act where a dismissed employee is reinstated or re–engaged in consequence of the following action–

(a) the making of a compromise contract authorised by–

(i) section 140(2)(fb) of the 1978 Act and relating to a complaint of unfair dismissal,

(ii) section 77(4)(aa) of the Sex Discrimination Act 1975 (“the 1975 Act”) and relating to a complaint arising out of a dismissal, or

(iii) section 72(4)(aa) of the Race Relations Act 1976 (“the 1976 Act”) and relating to a complaint arising out of a dismissal,

(b) the presentation of a complaint under section 63 of the 1975 Act arising out of a dismissal or the presentation of a complaint under section 54 of the 1976 Act arising out of a dismissal, or

(c) action taken by a conciliation officer under section 64(2) of the 1975 Act or section 55(2) of the 1976 Act.

(1)

1978 c. 44; paragraph 20 of Schedule 13 was amended by the Trade Union Reform and Employment Rights Act 1993 (c. 19), Schedule 7, paragraph 14.

(2)

S.I. 1976/660.

(3)

Section 65 was amended by the Trade Union Reform and Employment Rights Act 1993 (c. 19), Schedule 8, paragraph 16.

(4)

Section 67 was amended by the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), Schedule 1, and section 67 was modified by section 239 of that Act which also provides that sections 237 and 238 shall be construed as one with Part V of the Employment Protection (Consolidation) Act 1978 (c. 44).

(5)

1975 c. 65.

(6)

1976 c. 74.

(7)

Section 140(2)(fb) was inserted by the Trade Union Reform and Employment Rights Act 1993 (c. 19), section 39(1)(a).

(8)

Section 77(4)(aa) was inserted by the Trade Union Reform and Employment Rights Act 1993 (c. 19), Schedule 6, paragraph 1(a).

(9)

Section 72(4)(aa) was inserted by the Trade Union Reform and Employment Rights Act 1993 (c. 19), Schedule 6, paragraph 2(a).

(10)

Section 134(3) was amended by the Employment Act 1980 (c. 42), Schedule 1, paragraph 18.

(11)

1992 c. 52.