The Employment Rights (Northern Ireland) Order 1996

• Citation: S.I. 1996/1919 (N.I.)
• Sections: 378

Section 1 Citation and commencement

(1) This Order may be cited as the Employment Rights (Northern Ireland) Order 1996.

(2) This Order shall come into operation on the expiration of 2 months from the day on which it is made.

Section 2 Interpretation – general

(1) Subject to paragraph (2), the Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) For the purposes of this Order, section 20(2) of the Interpretation Act (Northern Ireland) 1954 applies with the omission of the words “the liability of whose members is limited” and, where the affairs of a body corporate are managed by its members, applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3) In this Order—

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly,

“the Agency” means the Labour Relations Agency,

“basic award of compensation for unfair dismissal” shall be construed in accordance with Article 152,

“business” includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated),

“childbirth” means the birth of a living child or the birth of a child whether living or dead after twenty-four weeks of pregnancy,

“collective agreement” has the meaning given by Article 2(2) of the 1992 Order,

“ the Contributions and Benefits Act 1992 ” means the Social Security Contributions and Benefits (Northern Ireland) Act 1992,

“the Department” means the Department of Economic Development,

“dismissal procedures agreement” means an agreement in writing with respect to procedures relating to dismissal made by or on behalf of one or more independent trade unions and one or more employers or employers' associations,

“employers' association” has the meaning given by Article 4(1) and (2) of the 1992 Order,

“expected week of childbirth” means the week, beginning with midnight between Saturday and Sunday, in which it is expected that childbirth will occur,

“guarantee payment” has the meaning given by Article 60,

“independent trade union” means a trade union which—

is not under the domination or control of an employer or a group of employers or of one or more employers' associations, and

is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatever) tending towards such control,

“job”, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed,

“limited-term contract” means a contract of employment whereby—

the employment under the contract is not intended to be permanent, and

provision is accordingly made in the contract for it to terminate by virtue of a limiting event.

“limiting event”, in relation to a contract of employment means—

in the case of a contract for a fixed-term, the expiry of the term,

in the case of a contract made in contemplation of the performance of a specific task, the performance of the task, and

in the case of a contract which provides for its termination on the occurrence of an event (or the failure of an event to occur), the occurrence of the event (or the failure of the event to occur).

Definitions rep. by 1999 NI 9

“officer” and “official”, in relation to a trade union, have the same meaning as in the Trade Union and Labour Relations Order,

“ parental bereavement leave ” means leave under Article 112EA,

“paternity leave” means leave under Article 112A or 112B,

“position”, in relation to an employee, means the following matters taken as a whole—

his status as an employee,

the nature of his work, and

his terms and conditions of employment,

“protected disclosure” has the meaning given by Article 67A,

“recognised”, in relation to a trade union, has the same meaning as in Part V of the 1992 Order,

“redundancy payment” has the meaning given by Part XII,

“relevant date” has the meaning given by Articles 180 and 188,

“renewal” includes extension, and any reference to renewing a contract or a fixed term shall be construed accordingly,

"shared parental leave” means leave under Article 107E or 107G,

“statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954,

“successor”, in relation to the employer of an employee, means (subject to paragraph (4)) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of the part of the undertaking, for the purposes of which the employee was employed, has become the owner of the undertaking or part,

“trade union” has the meaning given by Article 3(1) of the 1992 Order,

“the Trade Union and Labour Relations Order” means the Trade Union and Labour Relations (Northern Ireland) Order 1995,

“the 1992 Order” means the Industrial Relations (Northern Ireland) Order 1992,

“week”

in Chapter III of this Part means a week ending with Saturday, and

otherwise, except in Articles 107F, 107I, 112A, 112B , 112EA and 118 , means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other employee, a week ending with Saturday.

(4) The definition of “successor” in paragraph (3) has effect (subject to the necessary modifications) in relation to a case where—

(a) the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

(b) the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as it has effect where the previous owner and the new owner are wholly different persons.

(5) References in this Order (except Part XIII) to redundancy, dismissal by reason of redundancy and similar expressions shall be construed in accordance with Article 174.

(6) In Articles 12(3), 171(2) and 189 “lock-out” means—

(a) the closing of a place of employment,

(b) the suspension of work, or

(c) the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute,

done with a view to compelling persons employed by the employer, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment. n

(7) In Articles 12(1) and (2), 123(2), 175(2) and (3), 178(1), 179(2) and (3) and 189 “strike” means—

(a) the cessation of work by a body of employed persons acting in combination, or

(b) a concerted refusal, or a refusal under a common understanding, of any number of employed persons to continue to work for an employer in consequence of a dispute,

done as a means of compelling their employer or any employed person or body of employed persons, or to aid other employees in compelling their employer or any employed person or body of employed persons, to accept or not to accept terms or conditions of or affecting employment.

Section 3 Employees, workers

(1) In this Order “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Order “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Order “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker's contract shall be construed accordingly.

(4) In this Order “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Order “employment”

(a) in relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

(6) This Article has effect subject to Articles 67K and 70B(3); and for the purposes of Part XV so far as relating to Part VA or Article 70B, “worker”, “worker's contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by Article 67K.

(7) This Article has effect subject to Article 107M(3) and (5).

Section 4 Associated employers

For the purposes of this Order any two employers shall be treated as associated if—

(a) one is a company of which the other (directly or indirectly) has control, or

(b) both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

Section 5 Normal working hours

(1) Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Order normal working hours in his case.

(2) Subject to paragraph (3), the normal working hours in such a case are the fixed number of hours.

(3) Where in such a case—

(a) the contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

(b) that number or minimum number of hours exceeds the number of hours without overtime,

the normal working hours are that number or minimum number of hours (and not the number of hours without overtime).

Section 6 Introductory

(1) References in any provision of this Order to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter.

(2) In computing an employee's period of continuous employment for the purposes of any provision of this Order, any question—

(a) whether the employee's employment is of a kind counting towards a period of continuous employment, or

(b) whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,

shall be determined week by week; but where it is necessary to compute the length of an employee's period of employment it shall be computed in months and years of twelve months in accordance with Article 7.

(3) Subject to Articles 11 to 13, a week which does not count in computing the length of a period of continuous employment breaks continuity of employment.

(4) A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous.

Section 7 Period of continuous employment

(1) An employee's period of continuous employment for the purposes of any provision of this Order—

(a) (subject to paragraph (3)) begins with the day on which the employee starts work, and

(b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision.

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

(3) If an employee's period of continuous employment includes one or more periods which (by virtue of Article 11, 12 or 13) while not counting in computing the length of the period do not break continuity of employment, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period, or the aggregate number of days falling within those periods, calculated in accordance with the Article in question.

Section 8 Weeks counting in computing period

(1) Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment.

Para. (2) rep. by 1999 NI 9

(3) Subject to paragraph (4), any week (not within paragraph (1)) during the whole or part of which an employee is—

(a) incapable of work in consequence of sickness or injury,

(b) absent from work on account of a temporary cessation of work, or

(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, . . .

Sub‐para. (d) rep. by 1999 NI 9

counts in computing the employee's period of employment.

(4) Not more than twenty-six weeks count under paragraph (3)(a) . . . between any periods falling under paragraph (1).

Section 9 Intervals in employment

(1) Where in the case of an employee a date later than the date which would be the effective date of termination by virtue of paragraph (1) of Article 129 is treated for certain purposes as the effective date of termination by virtue of paragraph (2) or (4) of that Article the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of Article 140(1) or 153(1) the period for which the employee has been continuously employed.

(2) Where an employee is by virtue of Article 173(1) regarded for the purposes of Part XII as not having been dismissed by reason of a renewal or re-engagement taking effect after an interval, the period of the interval counts as a period of employment in ascertaining for the purposes of Article 190 or 197(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under Article 10 or 11).

(3) Where in the case of an employee a date later than the date which would be the relevant date by virtue of paragraphs (2) to (4) of Article 180 is treated for certain purposes as the relevant date by virtue of paragraph (5) of that Article, the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of Article 190 or 197(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under Article 10 or 11).

Section 10 Special provisions for redundancy payments

(1) This Article applies where a period of continuous employment has to be determined in relation to an employee for the purposes of the application of Article 190 or 197(1).

(2) The continuity of a period of employment is broken where—

(a) a redundancy payment has previously been paid to the employee (whether in respect of dismissal or in respect of lay-off or short-time), and

(b) the contract of employment under which the employee was employed was renewed (whether by the same or another employer) or the employee was re-engaged under a new contract of employment (whether by the same or another employer).

(3) The continuity of a period of employment is also broken where—

(a) a payment has been made to the employee (whether in respect of the termination of his employment or lay-off or short-time) in accordance with a scheme under Article 3 of the Superannuation (Northern Ireland) Order 1972 or arrangements falling within Article 212(3) or (4), and

(b) he commenced new, or renewed, employment.

(4) The date on which the person's continuity of employment is broken by virtue of this Article—

(a) if the employment was under a contract of employment, is the date which was the relevant date in relation to the payment mentioned in paragraph (2)(a) or (3)(a), and

(b) if the employment was otherwise than under a contract of employment, is the date which would have been the relevant date in relation to the payment mentioned in paragraph (2)(a) or (3)(a) had the employment been under a contract of employment.

(5) For the purposes of this Article a redundancy payment shall be treated as having been paid if—

(a) the whole of the payment has been paid to the employee by the employer,

(b) a tribunal has determined liability and found that the employer must pay part (but not all) of the redundancy payment and the employer has paid that part, or

(c) the Department has paid a sum to the employee in respect of the redundancy payment under Article 202.

Section 11 Employment abroad etc.

(1) This Chapter applies to a period of employment—

(a) (subject to the following provisions of this Article) even where during the period the employee was engaged in work wholly or mainly outside Northern Ireland, and

(b) even where the employee was excluded by or under this Order from any right conferred by this Order.

(2) For the purposes of Articles 190 and 197(1) a week of employment does not count in computing a period of employment if the employee—

(a) was employed outside Northern Ireland during the whole or part of the week, and

(b) was not during that week an employed earner for the purposes of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in respect of whom a secondary Class 1 contribution was payable under that Act (whether or not the contribution was in fact paid).

(3) Where by virtue of paragraph (2) a week of employment does not count in computing a period of employment, the continuity of the period is not broken by reason only that the week does not count in computing the period; and the number of days which, for the purposes of Article 7(3), fall within the intervening period is seven for each week within this paragraph.

(4) Any question arising under paragraph (2) whether—

(a) a person was an employed earner for the purposes of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, or

(b) if so, whether a secondary Class 1 contribution was payable in respect of him under that Act,

shall be determined by an officer of the Commissioners of Inland Revenue .

(5) Part III of the Social Security Contributions (Transfer of Functions etc.) (Northern Ireland) Order 1999 (decisions and appeals) shall apply in relation to the determination of any issue by the Commissioners of Inland Revenue under paragraph (4) as if it were a decision falling within Article 7(1) of that Order.

(6) Paragraph (2) does not apply in relation to a person who is—

(a) employed as a master or seaman in a British ship, and

(b) ordinarily resident in Northern Ireland.

Section 12 Industrial disputes

(1) A week does not count under Article 8 if during the week, or any part of the week, the employee takes part in a strike.

(2) The continuity of an employee's period of employment is not broken by a week which does not count under this Chapter (whether or not by virtue only of paragraph (1)) if during the week, or any part of the week, the employee takes part in a strike; and the number of days which, for the purposes of Article 7(3), fall within the intervening period is the number of days between the last working day before the strike and the day on which work was resumed.

(3) The continuity of an employee's period of employment is not broken by a week if during the week, or any part of the week, the employee is absent from work because of a lock-out by the employer; and the number of days which, for the purposes of Article 7(3), fall within the intervening period is the number of days between the last working day before the lock-out and the day on which work was resumed.

Section 13 Reinstatement after military service

(1) If a person who is entitled to apply to his former employer under the Reserve Forces (Safeguard of Employment) Act 1985 enters the employment of the employer not later than the end of the six month period mentioned in section 1(4)(b) of that Act, his period of service in the armed forces of the Crown in the circumstances specified in section 1(1) of that Act does not break his continuity of employment,

(2) In the case of such a person the number of days which, for the purposes of Article 7(3), fall within the intervening period is the number of days between the last day of his previous period of employment with the employer (or, if there was more than one such period, the last of them) and the first day of the period of employment beginning in the six month period.

Section 14 Change of employer

(1) Subject to the provisions of this Article, this Chapter relates only to employment by the one employer.

(2) If a trade or business, or an undertaking (whether or not established by or under a statutory provision), is transferred from one person to another—

(a) the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the transferee, and

(b) the transfer does not break the continuity of the period of employment.

(3) If by or under any statutory provision a contract of employment between any body corporate and an employee is modified and some other body corporate is substituted as the employer—

(a) the employee's period of employment at the time when the modification takes effect counts as a period of employment with the second body corporate, and

(b) the change of employer does not break the continuity of the period of employment.

(4) If on the death of an employer the employee is taken into the employment of the personal representatives or trustees of the deceased—

(a) the employee's period of employment at the time of the death counts as a period of employment with the employer's personal representatives or trustees, and

(b) the death does not break the continuity of the period of employment.

(5) If there is a change in the partners, personal representatives or trustees who employ any person—

(a) the employee's period of employment at the time of the change counts as a period of employment with the partners, personal representatives or trustees after the change, and

(b) the change does not break the continuity of the period of employment.

(6) If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters the second employer's employment, is an associated employer of the first employer—

(a) the employee's period of employment at that time counts as a period of employment with the second employer, and

(b) the change of employer does not break the continuity of the period of employment.

(7) If a person employed in relevant employment by a health service employer is taken into relevant employment by another such employer, his period of employment at the time of the change of employer counts as a period of employment with the second employer and the change does not break the continuity of the period of employment.

(8) For the purposes of paragraph (7) employment is relevant employment if it is employment of a description—

(a) in which persons are engaged while undergoing professional training which involves their being employed successively by a number of different health service employers, and

(b) which is specified in an order made by the Department.

(9) The following are health service employers for the purposes of paragraphs (7) and (8)—

(a) Health and Social Services Boards;

(b) Special Health and Social Services Agencies;

(c) Health and Social Care Trusts .

(d) the Regional Health and Social Care Board;

(e) the Regional Agency for Public Health and Social Well-being;

(f) the Regional Business Services Organisation.

Section 15 Reinstatement or re-engagement of dismissed employee

(1) Regulations made by the Department may make provision—

(a) for preserving the continuity of a person's period of employment for the purposes of this Chapter or for the purposes of this Chapter as applied by or under any other statutory provision specified in the regulations, or

(b) for modifying or excluding the operation of Article 10 subject to the recovery of any such payment as is mentioned in that Article,

in cases where . . . a dismissed employee is reinstated , re‐engaged or otherwise re‐employed by his employer or by a successor or associated employer of that employer in any circumstances prescribed by the regulations.

Paras. (2)‐(4) rep. by 1998 NI 8

Section 16 Introductory

The amount of a week's pay of an employee shall be calculated for the purposes of this Order in accordance with this Chapter.

Section 17 General

(1) This Article and Articles 18 and 19 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) Subject to Article 18, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

(3) Subject to Article 18, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week's pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(4) In this Article references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount.

(5) This Article is subject to Articles 23 and 24.

Section 18 Remuneration varying according to time of work

(1) This Article applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

(2) The amount of a week's pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

(3) For the purposes of paragraph (2)—

(a) the average number of weekly hours is calculated by dividing by twelve the total number of the employee's normal working hours during the relevant period of twelve weeks, and

(b) the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.

(4) In paragraph (3) “the relevant period of twelve weeks” means the period of twelve weeks ending—

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(5) This Article is subject to Articles 23 and 24.

Section 19 Supplementary

(1) For the purposes of Articles 17 and 18, in arriving at the average hourly rate of remuneration, only—

(a) the hours when the employee was working, and

(b) the remuneration payable for, or apportionable to, those hours,

shall be brought in.

(2) If for any of the twelve weeks mentioned in Articles 17 and 18 no remuneration within paragraph (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

(3) Where—

(a) in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours, and

(b) the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within Article 1(3), in normal working hours falling within the number of hours without overtime),

account shall be taken of that remuneration as if the work had been done in such hours and the amount of that remuneration had been reduced accordingly.

Section 20 Employments with no normal working hours

(1) This Article applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) The amount of a week's pay is the amount of the employee's average weekly remuneration in the period of twelve weeks ending—

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(3) In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.

(4) This Article is subject to Articles 23 and 24.

Section 21 Rights during employment

(1) Where the calculation is for the purposes of Article 62, the calculation date is—

(a) where the employee's contract has been varied, or a new contract entered into, in connection with a period of short-time working, the last day on which the original contract was in force, and

(b) otherwise, the day in respect of which the guarantee payment is payable.

(2) Where the calculation is for the purposes of Article 81 or 82, the calculation date is the day on which the employer's notice was given.

(3) Where the calculation is for the purposes of Article 84, the calculation date is the day of the appointment.

(3A) Where the calculation is for the purposes of Article 85ZF, the calculation date is the day of the appointment.

(3B) Where the calculation is for the purposes of Article 85ZK or 85ZM, the calculation date is the day of the appointment.

(4) Where the calculation is for the purposes of Article 90, the calculation date is the day on which the time off was taken or on which it is alleged the time off should have been permitted.

(4A) Where the calculation is for the purposes of Article 91B, the calculation date is the day on which the time off was taken or on which it is alleged the time off should have been permitted.

(5) Where the calculation is for the purposes of Article 101—

(a) in the case of an employee suspended on medical grounds, the calculation date is the day before that on which the suspension begins, and

(b) in the case of an employee suspended on maternity grounds, the calculation date is—

(i) where the day before that on which the suspension begins falls during a period of ordinary or additional maternity leave, the day before the beginning of that period, and

(ii) otherwise, the day before that on which the suspension begins.

(6) Where the calculation is for the purposes of Article 112I, the calculation date is the day on which the application under Article 112F was made.

Section 22 Rights on termination

(1) Where the calculation is for the purposes of Article 120 or 121, the calculation date is the day immediately preceding the first day of the period of notice required by Article 118(1) or (2).

(2) Where the calculation is for the purposes of Article 125, 151 or 159, the calculation date is—

(a) if the dismissal was with notice, the date on which the employer's notice was given, and

(b) otherwise, the effective date of termination.

(3) Where the calculation is for the purposes of Article 146, 153, 154 or 155 the calculation date is—

Sub‐para. (a) rep. by 1999 NI 9

(b) if by virtue of paragraph (2) or (4) of Article 129 a date later than the effective date of termination as defined in paragraph (1) of that Article is to be treated for certain purposes as the effective date of termination, the effective date of termination as so defined, and

(c) otherwise, the date specified in paragraph (6).

(4) Where the calculation is for the purposes of Article 182(2), the calculation date is the day immediately preceding the first of the four, or six, weeks referred to in Article 183(2).

(5) Where the calculation is for the purposes of Article 197, the calculation date is—

Sub‐para. (a) rep. by 1999 NI 9

(b) if by virtue of paragraph (5) of Article 180 a date is to be treated for certain purposes as the relevant date which is later than the relevant date as defined by the previous provisions of that Article, the relevant date as so defined, and

(c) otherwise, the date specified in paragraph (6).

(6) The date referred to in paragraphs (3)(c) and (5)(c) is the date on which notice would have been given had—

(a) the contract been terminable by notice and been terminated by the employer giving such notice as is required by Article 118 to terminate the contract, and

(b) the notice expired on the effective date of termination, or the relevant date,

(whether or not those conditions were in fact fulfilled).

(7) Where the calculation is for the purposes of Article 218, the calculation date is the date on which the protective award was made or, in the case of an employee who was dismissed before the date on which the protective award was made, the date which by virtue of paragraph (5) is the calculation date for the purpose of computing the amount of a redundancy payment in relation to that dismissal (whether or not the employee concerned is entitled to any such payment).

Section 23 Maximum amount

(1) For the purpose of calculating—

(za) an award of compensation under Article 112I(1)(b),

(a) a basic award of compensation for unfair dismissal,

(b) an additional award of compensation for unfair dismissal,

(ba) an award under Article 146(5); or

(c) a redundancy payment,

the amount of a week's pay shall not exceed £749 .

Paras. (2)‐(4) rep. by 1999 NI 9

Section 24 New employments and other special cases

(1) In any case in which the employee has not been employed for a sufficient period to enable a calculation to be made under the preceding provisions of this Chapter, the amount of a week's pay is the amount which fairly represents a week's pay.

(2) In determining that amount the industrial tribunal—

(a) shall apply as nearly as may be such of the preceding provisions of this Chapter as it considers appropriate, and

(b) may have regard to such of the considerations specified in paragraph (3) as it thinks fit.

(3) The considerations referred to in paragraph (2)(b) are—

(a) any remuneration received by the employee in respect of the employment in question,

(b) the amount offered to the employee as remuneration in respect of the employment in question,

(c) the remuneration received by other persons engaged in relevant comparable employment with the same employer, and

(d) the remuneration received by other persons engaged in relevant comparable employment with other employers.

(4) The Department may by regulations provide that in cases prescribed by the regulations the amount of a week's pay shall be calculated in such manner as may be so prescribed.

Section 25 Supplementary

(1) In arriving at—

(a) an average hourly rate of remuneration, or

(b) average weekly remuneration,

under this Chapter, account shall be taken of work for a former employer within the period for which the average is to be taken if, by virtue of Chapter III of this Part, a period of employment with the former employer counts as part of the employee's continuous period of employment.

(2) Where under this Chapter account is to be taken of remuneration or other payments for a period which does not coincide with the periods for which the remuneration or other payments are calculated, the remuneration or other payments shall be apportioned in such manner as may be just.

Section 26 Refusal of employment on grounds related to union membership

(1) It is unlawful to refuse a person employment—

(a) because he is, or is not, a member of a trade union, or

(b) because he is unwilling to accept a requirement—

(i) to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

(ii) to make payments or suffer deductions in the event of his not being a member of a trade union.

(2) Where an advertisement is published which indicates, or might reasonably be understood as indicating—

(a) that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or

(b) that any such requirement as is mentioned in paragraph (1)(b) will be imposed in relation to employment to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.

(3) Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.

(4) A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—

(a) refuses or deliberately omits to entertain and process his application or enquiry, or

(b) causes him to withdraw or cease to pursue his application or enquiry, or

(c) refuses or deliberately omits to offer him employment of that description, or

(d) makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or

(e) makes him an offer of such employment but withdraws it or causes him not to accept it.

(5) Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in paragraph (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.

(6) Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in this Article applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union.

For this purpose an ““office” means any position—

by virtue of which the holder is an official of the union, or

to which Part III of the Trade Union and Labour Relations Order applies (duty to hold elections).

(7) The provisions of this Article apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

Section 27 Refusal of service of employment agency on grounds related to union membership

(1) It is unlawful for an employment agency to refuse a person any of its services—

(a) because he is, or is not, a member of a trade union, or

(b) because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.

(2) Where an advertisement is published which indicates, or might reasonably be understood as indicating—

(a) that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or

(b) that any such requirement as is mentioned in paragraph (1)(b) will be imposed in relation to a service to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.

(3) A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—

(a) refuses or deliberately omits to make the service available to him, or

(b) causes him not to avail himself of the service or to cease to avail himself of it, or

(c) does not provide the same service, on the same terms, as is provided to others.

(4) Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in paragraph (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

Section 28 Complaints to industrial tribunal

(1) A person may present a complaint to an industrial tribunal—

(a) that he has been unlawfully refused employment in contravention of Article 26(1); or

(b) that he has been unlawfully refused any service of an employment agency in contravention of Article 27(1).

(2) An industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the date of the conduct to which the complaint relates, or

(b) 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 before the end of that period of three months.

(3) The date of the conduct to which a complaint under paragraph (1)(a) relates shall be taken to be—

(a) in the case of an actual refusal, the date of the refusal;

(b) in the case of a deliberate omission—

(i) to entertain and process the complainant's application or enquiry, or

(ii) to offer employment, the end of the period within which it was reasonable to expect the employer to act;

(c) in the case of conduct causing the complainant to withdraw or cease to pursue his application or enquiry, the date of that conduct;

(d) in a case where an offer was made but withdrawn, the date when it was withdrawn;

(e) in any other case where an offer was made but not accepted, the date on which it was made.

(4) The date of the conduct to which a complaint under paragraph (1)(b) relates shall be taken to be—

(a) in the case of an actual refusal, the date of the refusal;

(b) in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect the employment agency to act;

(c) in the case of conduct causing the complainant not to avail himself of a service or to cease to avail himself of it, the date of that conduct;

(d) in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact provided was provided.

(5) Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

Section 29 Determination of complaints

(1) Where the industrial tribunal finds that a complaint under Article 28 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable—

(a) an order requiring the respondent to pay compensation to the complainant of such amount as the tribunal may determine;

(b) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.

(2) Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.

(3) If the respondent fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one.

(4) The total amount of compensation shall not exceed the limit for the time being imposed by Article 158(1).

Section 30 Complaint against employer and employment agency

(1) Where a person has a right of complaint against a prospective employer and against an employment agency arising out of the same facts, he may present a complaint against either of them or against them jointly.

(2) If a complaint is brought against one only, he or the complainant may request the tribunal to join the other as a party to the proceedings.

(3) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.

(4) Where a complaint is brought against an employer and an employment agency jointly, or where it is brought against one and the other is joined as a party to the proceedings, and the tribunal—

(a) finds that the complaint is well-founded as against the employer and the agency, and

(b) makes an award of compensation,

it may order that the compensation shall be paid by the one or the other, or partly by one and partly by the other, as the tribunal may consider just and equitable in the circumstances.

Section 31 Awards against third parties

(1) If in proceedings on a complaint under Article 28 either the complainant or the respondent claims that the respondent was induced to act in the manner complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, the complainant or the respondent may request the industrial tribunal to direct that the person who he claims exercised the pressure be joined as a party to the proceedings.

(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.

(3) Where a person has been so joined as a party to the proceedings and the tribunal—

(a) finds that the complaint is well-founded,

(b) makes an award of compensation, and

(c) also finds that the claim in paragraph (1) is well-founded,

it may order that the compensation shall be paid by the person joined instead of by the respondent, or partly by that person and partly by the respondent, as the tribunal may consider just and equitable in the circumstances.

(4) Where by virtue of Article 30 there is more than one respondent, the above provisions apply to either or both of them.

Section 32 Interpretation and other supplementary provisions

(1) In this Part—

““advertisement” includes every form of advertisement or notice, whether to the public or not, and references to publishing an advertisement shall be construed accordingly:

““employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers, but subject to paragraph (2).

(2) For the purposes of this Part as it applies to employment agencies—

(a) services other than those mentioned in the definition of ““employment agency” above shall be disregarded, and

(b) a trade union shall not be regarded as an employment agency by reason of services provided by it only for, or in relation to, its members.

(3) References in this Part to being or not being a member of a trade union are to being or not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.

Any such reference includes a reference to being or not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.

Section 33 Statement of initial employment particulars

(1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

(2) The statement may (subject to Article 34(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.

(3) The statement shall contain particulars of—

(a) the names of the employer and employee,

(b) the date when the employment began, and

(c) the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

(4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment containing them) is given, of—

(a) the scale or rate of remuneration or the method of calculating remuneration,

(b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

(d) any terms and conditions relating to any of the following—

(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

(ii) incapacity for work due to sickness or injury, including any provision for sick pay, and

(iii) pensions and pension schemes,

(e) the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

(f) the title of the job which the employee is employed to do or a brief description of the work for which he is employed,

(g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

(h) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

(j) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and

(k) where the employee is required to work outside the United Kingdom for a period of more than one month—

(i) the period for which he is to work outside the United Kingdom,

(ii) the currency in which remuneration is to be paid while he is working outside the United Kingdom,

(iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

(iv) any terms and conditions relating to his return to the United Kingdom.

(5) Paragraph (4)(d)(iii) does not apply to an employee of a body or authority if—

(a) the employee's pension rights depend on the terms of a pension scheme established under any statutory provision, and

(b) any such provision requires the body or authority to give to a new employee information concerning the employee's pension rights or the determination of questions affecting those rights.

Section 34 Statement of initial particulars: supplementary

(1) If, in the case of a statement under Article 33, there are no particulars to be entered under any of the heads of sub-paragraph (d) or (k) of paragraph (4) of that Article, or under any of the other sub-paragraphs of paragraph (3) or (4) of that Article, that fact shall be stated.

(2) A statement under Article 33 may refer the employee for particulars of any of the matters specified in paragraph (4)(d)(ii) and (iii) of that Article to the provisions of some other document which is reasonably accessible to the employee.

(3) A statement under Article 33 may refer the employee for particulars of either of the matters specified in paragraph (4)(e) of that Article to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

(4) The particulars required by Article 33(3) and (4)(a) to (c), (d)(i), (f) and (h) shall be included in a single document.

(5) Where before the end of the period of two months after the beginning of an employee's employment the employee is to begin to work outside the United Kingdom for a period of more than one month, the statement under Article 33 shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

(6) A statement shall be given to a person under Article 33 even if his employment ends before the end of the period within which the statement is required to be given.

Section 35 Note about disciplinary procedures and pensions

(1) A statement under Article 33 shall include a note—

(a) specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee,

(aa) specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee,

(b) specifying (by description or otherwise)—

(i) a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him or any decision to dismiss him , and

(ii) a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment,

and the manner in which any such application should be made, and

(c) where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document explaining them which is reasonably accessible to the employee.

(2) Paragraph (1) does not apply to rules, disciplinary decisions, decisions to dismiss grievances or procedures relating to health or safety at work.

Paras.(3)‐(4) rep. by 2003 NI 15

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 36 Statement of changes

(1) If, after the material date, there is a change in any of the matters particulars of which are required by Articles 33 to 35 to be included or referred to in a statement under Article 33, the employer shall give to the employee a written statement containing particulars of the change.

(2) For the purposes of paragraph (1)—

(a) in relation to a matter particulars of which are included or referred to in a statement given under Article 33 otherwise than in instalments, the material date is the date to which the statement relates,

(b) in relation to a matter particulars of which—

(i) are included or referred to in an instalment of a statement given under Article 33, or

(ii) are required by Article 34(4) to be included in a single document but are not included in an instalment of a statement given under Article 33 which does include other particulars to which that provision applies,

the material date is the date to which the instalment relates, and

(c) in relation to any other matter, the material date is the date by which a statement under Article 33 is required to be given.

(3) A statement under paragraph (1) shall be given at the earliest opportunity and, in any event, not later than—

(a) one month after the change in question, or

(b) where that change results from the employee being required to work outside the United Kingdom for a period of more than one month, the time when he leaves the United Kingdom in order to begin so to work, if that is earlier.

(4) A statement under paragraph (1) may refer the employee to the provisions of some other document which is reasonably accessible to the employee for a change in any of the matters specified in Articles 33(4)(d)(ii) and (iii) and 35(1)(a) and (c).

(5) A statement under paragraph (1) may refer the employee for a change in either of the matters specified in Article 33(4)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

(6) Where, after an employer has given to an employee a statement under Article 33, either—

(a) the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

(b) the identity of the employer is changed in circumstances in which the continuity of the employee's period of employment is not broken,

and paragraph (7) applies in relation to the change, the person who is the employer immediately after the change is not required to give to the employee a statement under Article 33; but the change shall be treated as a change falling within paragraph (1) of this Article.

(7) This paragraph applies in relation to a change if it does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by Articles 33 to 35 to be included or referred to in the statement under Article 33.

(8) A statement under paragraph (1) which informs an employee of a change such as is referred to in paragraph (6)(b) shall specify the date on which the employee's period of continuous employment began.

Section 37 Exclusion from rights to statements

(1) Articles 33 to 36 apply to an employee who at any time comes or ceases to come within the exceptions from those Articles provided by Articles 239 and 242, and under Article 250, as if his employment with his employer terminated or began at that time.

(2) The fact that Article 33 is directed by paragraph (1) to apply to an employee as if his employment began on his ceasing to come within the exceptions referred to in that paragraph does not affect the obligation under Article 33(3)(b) to specify the date on which his employment actually began.

Section 38 Reasonably accessible document or collective agreement

In Articles 34 to 36 references to a document or collective agreement which is reasonably accessible to an employee are references to a document or collective agreement which—

(a) the employee has reasonable opportunities of reading in the course of his employment, or

(b) is made reasonably accessible to the employee in some other way.

Section 39 Power of Department to require particulars of further matters

The Department may by order provide that Article 33 shall have effect as if particulars of such further matters as may be specified in the order were included in the particulars required by that Article; and, for that purpose, the order may include such provisions amending that Article as appear to the Department to be expedient.

Section 39A Use of alternative documents to give particulars

(1) Paragraphs (2) and (3) apply where—

(a) an employer gives an employee a document in writing in the form of a contract of employment or letter of engagement,

(b) the document contains information which, were the document in the form of a statement under Article 33, would meet the employer's obligation under that Article in relation to the matters mentioned in paragraphs (3) and (4)(a) to (c), (d)(i), (f) and (h) of that Article, and

(c) the document is given after the beginning of the employment and before the end of the period for giving a statement under that Article.

(2) The employer's duty under Article 33 in relation to any matter shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under that Article, would meet the employer's obligation under that Article in relation to that matter.

(3) The employer's duty under Article 35 shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under Article 33 and the information included in the form of a note, would meet the employer's obligation under Article 35.

(4) For the purposes of this Article a document to which paragraph (1)(a) applies shall be treated, in relation to information in respect of any of the matters mentioned in Article 33(4), as specifying the date on which the document is given to the employee as the date as at which the information applies.

(5) Where paragraph (2) applies in relation to any matter, the date on which the document by virtue of which that paragraph applies is given to the employee shall be the material date in relation to that matter for the purposes of Article 36(1).

(6) Where paragraph (3) applies, the date on which the document by virtue of which that paragraph applies is given to the employee shall be the material date for the purposes of Article 36(1) in relation to the matters of which particulars are required to be given under Article 35.

(7) The reference in Article 36(6) to an employer having given a statement under Article 33 shall be treated as including his having given a document by virtue of which his duty to give such a statement is treated as met.

Section 39B Giving of alternative documents before start of employment

A document in the form of a contract of employment or letter of engagement given by an employer to an employee before the beginning of the employee's employment with the employer shall, when the employment begins, be treated for the purposes of Article 39A as having been given at that time.

Section 40 Itemised pay statement

(1) An employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.

(2) The statement shall contain particulars of—

(a) the gross amount of the wages or salary,

(b) the amounts of any variable, and (subject to Article (1) any fixed, deductions from that gross amount and the purposes for which they are made,

(c) the net amount of wages or salary payable, and

(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

Section 41 Standing statement of fixed deductions

(1) A pay statement given in accordance with Article 40 need not contain separate particulars of a fixed deduction if—

(a) it contains instead an aggregate amount of fixed deductions, including that deduction, and

(b) the employer has given to the employee, at or before the time at which the pay statement is given, a standing statement of fixed deductions which satisfies paragraph (2).

(2) A standing statement of fixed deductions satisfies this paragraph if—

(a) it is in writing,

(b) it contains, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

(i) the amount of the deduction,

(ii) the intervals at which the deduction is to be made, and

(iii) the purpose for which it is made, and

(c) it is (in accordance with paragraph (5)) effective at the date on which the pay statement is given.

(3) A standing statement of fixed deductions may be amended, whether by—

(a) addition of a new deduction,

(b) a change in the particulars, or

(c) cancellation of an existing deduction,

by notice in writing, containing particulars of the amendment, given by the employer to the employee.

(4) An employer who has given to an employee a standing statement of fixed deductions shall—

(a) within the period of twelve months beginning with the date on which the first standing statement was given, and

(b) at intervals of not more than twelve months afterwards,

re-issue it in a consolidated form incorporating any amendments notified in accordance with paragraph (3).

(5) For the purposes of paragraph (2)(c) a standing statement of fixed deductions—

(a) becomes effective on the date on which it is given to the employee, and

(b) ceases to be effective at the end of the period of twelve months beginning with that date or, where it is re-issued in accordance with paragraph (4), with the end of the period of twelve months beginning with the date of the last re-issue.

Section 42 Power to amend provisions about pay and standing statements

The Department may by order—

(a) vary the provisions of Articles 40 and 41 as to the particulars which must be included in a pay statement or a standing statement of fixed deductions by adding items to, or removing items from, the particulars listed in those Articles or by amending any such particulars, and

(b) vary the provisions of paragraphs (4) and (5) of Article 41 so as to shorten or extend the periods of twelve months referred to in those paragraphs, or those periods as varied from time to time under this Article.

Section 43 References to industrial tribunals

(1) Where an employer does not give an employee a statement as required by Article 33, 36 or 40 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.

(2) Where—

(a) a statement purporting to be a statement under Article 33 or 36, or a pay statement or a standing statement of fixed deductions purporting to comply with Article 40 or 41, has been given to an employee, and

(b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,

either the employer or the employee may require the question to be referred to and determined by an industrial tribunal.

(3) For the purposes of this Article—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) a question as to the particulars which ought to have been included in a pay statement or standing statement of fixed deductions does not include a question solely as to the accuracy of an amount stated in any such particulars.

(4) An industrial tribunal shall not consider a reference under this Article in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made—

(a) before the end of the period of three months beginning with the date on which the employment ceased, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months.

(5) Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (4)(a).

Section 44 Determination of references

(1) Where, on a reference under Article 43(1), an industrial tribunal determines particulars as being those which ought to have been included or referred to in a statement given under Article 33 or 36, the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.

(2) On determining a reference under Article 43(2) relating to a m statement purporting to be a statement under Article 33 or 36, an industrial tribunal may—

(a) confirm the particulars as included or referred to in the statement given by the employer,

(b) amend those particulars, or

(c) substitute other particulars for them,

as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the tribunal.

(3) Where on a reference under Article 43 an industrial tribunal finds—

(a) that an employer has failed to give an employee any pay statement in accordance with Article 40, or

(b) that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that Article or Article 41,

the tribunal shall make a declaration to that effect.

(4) Where on a reference in the case of which paragraph (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.

(5) For the purposes of paragraph (4) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by Article 40 or 41.

Section 45 Right not to suffer unauthorised deductions

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

Section 46 Excepted deductions

(1) Article 45 does not apply to a deduction from a worker's wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

(a) an overpayment of wages, or

(b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2) Article 45 does not apply to a deduction from a worker's wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3) Article 45 does not apply to a deduction from a worker's wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

(4) Article 45 does not apply to a deduction from a worker's wages made by his employer in pursuance of any arrangements which have been established—

(a) in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b) otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

(5) Article 45 does not apply to a deduction from a worker's wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker's having taken part in that strike or other action.

(6) Article 45 does not apply to a deduction from a worker's wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer:

Section 47 Right not to have to make payments to employer

(1) An employer shall not receive a payment from a worker employed by him unless—

(a) the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the payment.

(2) In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(4) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(5) Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker's employer.

Section 48 Excepted payments

(1) Article 47 does not apply to a payment received from a worker by his employer where the purpose of the payment is the reimbursement of the employer in respect of—

(a) an overpayment of wages, or

(b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2) Article 47 does not apply to a payment received from a worker by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3) Article 47 does not apply to a payment received from a worker by his employer where the worker has taken part in a strike or other industrial action and the payment has been required by the employer on account of the worker's having taken part in that strike or other action.

(4) Article 47 does not apply to a payment received from a worker by his employer where the purpose of the payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.