The Health and Safety (Consultation with Employees) Regulations 1996

Regulation 7(3)

SCHEDULE 1 E+W+S PAY FOR TIME OFF

1.  Subject to paragraph 3 below, where a person is permitted to take time off in accordance with regulation 7(1)(b) or 7(2), his employer shall pay him— E+W+S

(a) where the person’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, as if he had worked at that work for the whole of that time;

(b) where the person’s remuneration for that work varies with the amount of work done, an amount calculated by reference to the average hourly earnings for that work (ascertained in accordance with paragraph 2).

Commencement Information

I1 Sch. 1 para. 1 in force at 1.10.1996, see reg. 1

2.  The average hourly earnings referred to in paragraph 1(b) are the average hourly earnings of the person concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in all the circumstances. E+W+S

Commencement Information

I2 Sch. 1 para. 2 in force at 1.10.1996, see reg. 1

3.  Any payment to a person by an employer in respect of a period of time off— E+W+S

(a) if it is a payment which discharges any liability which the employer may have under sections 168 or 169 of the Trade Union and Labour Relations (Consolidation) Act 1992(1), in respect of that period, shall also discharge his liability in respect of the same period under regulation 7(1)(b) or 7(2);

(b) if it is a payment under any contractual obligation, shall go towards discharging the employer’s liability in respect of the same period under regulation 7(1)(b) or 7(2);

(c) if it is a payment under regulation 7(1)(b) or 7(2), shall go towards discharging any liability of the employer to pay contractual remuneration in respect of the same period.

Commencement Information

I3 Sch. 1 para. 3 in force at 1.10.1996, see reg. 1

Regulation 7(3)

SCHEDULE 2 E+W+S PROVISIONS AS TO [F1 EMPLOYMENT TRIBUNALS]

Textual Amendments

F1 Words in Regulations substituted (1.8.1998) by Employment Rights (Dispute Resolution) Act 1998 (c. 8), ss. 1(2), 17(1); S.I. 1998/1658, art. 2(1), Sch. 1

1.  An [F2 employment tribunal] shall have jurisdiction to determine complaints in accordance with the following provisions of this Schedule. E+W+S

Textual Amendments

F2 Words in Regulations substituted (1.8.1998) by Employment Rights (Dispute Resolution) Act 1998 (c. 8), ss. 1(2), 17(1); S.I. 1998/1658, art. 2(1), Sch. 1

Commencement Information

I4 Sch. 2 para. 1 in force at 1.10.1996, see reg. 1

2.  A person (referred to in this Schedule as the “complainant”) may present a complaint to an [F3 employment tribunal] that— E+W+S

(a) his employer has failed to permit him to take time off in accordance with regulation 7(1)(b) or 7(2); or

(b) his employer has failed to pay him in accordance with regulation 7(1)(b) or 7(2) and Schedule 1.

Textual Amendments

F3 Words in Regulations substituted (1.8.1998) by Employment Rights (Dispute Resolution) Act 1998 (c. 8), ss. 1(2), 17(1); S.I. 1998/1658, art. 2(1), Sch. 1

Commencement Information

I5 Sch. 2 para. 2 in force at 1.10.1996, see reg. 1

3.   [F4 Subject to paragraph 3A an employment tribunal] shall not consider a complaint under paragraph 2 unless it is presented within three months of the date when the failure occurred or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

Textual Amendments

F4 Words in Sch. 2 para. 3 substituted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 17

Commencement Information

I6 Sch. 2 para. 3 in force at 1.10.1996, see reg. 1

[F5 3A.— (1) In this paragraph— E+W+S

(a) Day A is the day on which the worker concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b) Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

(2) In working out when the three month time limit set by paragraph 3 expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(3) If the three month time limit set by paragraph 3 would (if not extended by this sub-paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(4) The power conferred on the employment tribunal by paragraph 3 to extend the three month time limit set by that paragraph is exercisable in relation to that time limit as extended by this paragraph.]

Textual Amendments

F5 Sch. 2 para. 3A inserted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 18

4.  Where an [F6 employment tribunal] finds a complaint under paragraph 2(a) well-founded the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the complainant and to any loss sustained by the complainant which is attributable to the matters complained of. E+W+S

Textual Amendments

F6 Words in Regulations substituted (1.8.1998) by Employment Rights (Dispute Resolution) Act 1998 (c. 8), ss. 1(2), 17(1); S.I. 1998/1658, art. 2(1), Sch. 1

Commencement Information

I7 Sch. 2 para. 4 in force at 1.10.1996, see reg. 1

5.  Where on a complaint under paragraph 2(b) an [F7 employment tribunal] finds that the employer has failed to pay the complainant the whole or part of the amount required to be paid in accordance with regulation 7(1)(b) or 7(2) and Schedule 1, the tribunal shall order the employer to pay the complainant the amount which it finds due to him. E+W+S

Textual Amendments

F7 Words in Regulations substituted (1.8.1998) by Employment Rights (Dispute Resolution) Act 1998 (c. 8), ss. 1(2), 17(1); S.I. 1998/1658, art. 2(1), Sch. 1

Commencement Information

I8 Sch. 2 para. 5 in force at 1.10.1996, see reg. 1

(1)

1992 c. 52.