§ 20.—(1) An employee who presents a complaint of unfair dismissal alleging that the dismissal is unfair by virtue of paragraphs 7 or 8 above may apply to the industrial tribunal for interim relief.
360§ (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of seven days immediately following the effective date of termination (whether before, on or after that date).
§ 21.—(1) An industrial tribunal shall determine an application for interim relief as soon as practicable after receiving the application.
§ (2) The tribunal shall give to the employer, not later than seven days before the hearing, a copy of the application, together with notice of the date, time and place of hearing.
§ (3) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.
§ 22.—(1) If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of paragraph 7 or 8 above, the complainant has been unfairly dismissed, the following provisions apply.
§ (2) The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—
- (a) to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or
- (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.
§ (3) For this purpose "terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed" means as regards seniority, pension rights and other similar rights that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.
§ (4) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.
§ (5) If the employer states that he is willing to re-engage the employee in another job, and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions; and
- (a) if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect, and
- (b) if he is not, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and otherwise the tribunal shall make no order.
§ (6) If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in sub-paragraph (2), the tribunal shall make an order for the continuation of the employee's contract of employment.
§ 23.—(1) An order for the continuation of a contract of employment is an order that the contract of employment continue in force—
- (a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and
- (b) for the purpose of determining for any purpose the period for which the employee has been continuously employed,
§ from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.
§ (2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.
§ (3) Subject as follows, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—
- (a) in the case of payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and
- (b) in the case of a payment for any past period, within such time as may be specified in the order.
§ (4) If an amount is payable in respect of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.
§ (5) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period or part of any such period shall go towards discharging the employer's liability in respect of that period under sub-paragraph (2), and conversely any payment under that sub-paragraph in respect of a period shall go towards discharging any liability of the employer under, or in respect of the breach of, the contract of employment in respect of that period.
§ (6) If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referrable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.
§ (7) For the purposes of this paragraph the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed.
§ 24.—(1) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee, the tribunal shall-
- (a) make an order for the continuation of the employee's contract of employment, and
- (b) order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard-
- (i) to the infringement of the employee's right to to be reinstated or re-engaged in pursuance of the order, and
- (ii) to any loss suffered by the employee in consequence of the non-compliance.
§ (2) Paragraph 23 applies to an order under sub-paragraph (1)(a) as in relation to an order under paragraph 22.
§ (3) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment, the following provisions apply.
§ (4) If the non-compliance consists of a failure to pay an amount of pay specified in the order, the tribunal shall determine the amount owed by the employer on the date of the determination.
§ 25.—Where a dismissal is unfair by virtue of paragraph 7 or 8 above, the amount of the basic award of compensation shall be not less that £2,700.
§ 26.—(1) Where an industrial tribunal makes an award of compensation for unfair dismissal in a case where the dismissal is unfair by virtue of paragraphs 7 or 8 above then, unless
- (a) the complainant does not request the tribunal to make an order for reinstatement or re-engagement, or
- (b) the case falls within section 73(2) of the Employment Protection (Consolidation) Act 1978 (cases where employer takes requisite steps to renew employment or re-engage employee),
§ the award shall include a special award calculated in accordance with paragraph 27 below.
§ (2) Section 71(2)(b) of the Employment Protection (Consolidation) Act 1978 (additional award of compensation in case of failure to comply with an order for reinstatement or re-engagement) does not apply in a case where the dismissal is unfair by virtue of paragraphs 7 or 8 above.
§ 27.—(1) Subject to the following provisions of this section, the amount of the special award shall be one week's pay multiplied by 104, or £13,400, whichever is the greater, but shall not exceed £26,800.
§ (2) Where the award of compensation is made under section 71(2)(a) of the Employment Protection (Consolidation) Act 1978 (compensation where employee not reinstated or re-engaged in accordance with order) then, unless the employer satisfies the tribunal that it was not practicable to comply with the order for reinstatement or re-engagement, the amount of the special award shall be increased to one week's pay multiplied by 156, or £20,100, whichever is the greater.
362§ (3) Where the employer has engaged another worker who has agreed to do work on Sunday, the tribunal shall not take that fact into account in determining practicability nor shall the tribunal take into account the employee's refusal to work on Sunday.
§ (4) Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining for the purposes of sub-paragraph (2) whether it was practicable to comply with an order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the complainant's work to be done without engaging a permanent replacement.'.
§ Mr. BarronAs the Committee wants to come to a conclusion quickly on the subject of the previous debate, I shall be brief.
The Minister will be well aware by now that amendment No. 52 is a probing amendment. We wish to find out exactly how the protection of people who refuse to work on Sundays will be policed under the schedule, particularly under paragraph 7. Paragraph 7(3) clearly states that workers are protected from unfair dismissal
if the reason for it … was that the shop worker gave, or proposed to give, an opting-out notice to the employer.In the amendment we also want to insertor refused or proposed to refuse to give an opting-in notice".Amendment No. 61 proposes to insert into the policing arrangements in paragraph 7 the provisions in the Employment Act 1978 under which an employer has to prove that an employee was not unfairly dismissed as opposed to an employee having to prove that he was unfairly dismissed. The Minister may think that the schedule places the burden of proof on one group in a dispute under the Sunday Trading Bill as opposed to another—[Interruption.]
The Second Deputy ChairmanOrder. I am sorry to interrupt the hon. Gentleman. There are far too many private conversations going on. They are making it difficult for me to hear the hon. Gentleman, and that I wish to do.
§ Mr. BarronI hope that the Minister understands why we tabled amendment No. 61 and that he will respond. Is the test within the policing provisions of the Sunday Trading Bill that the employer—as in normal circumstances—has to prove that the employee has not been unfairly dismissed rather than the employee proving that he has been unfairly dismissed?
§ Mr. Peter LloydAs I said, the probe—if I had time to respond to it—would be satisfied in that the matters that worry those who tabled the amendment are taken care of by the Bill.
The hon. Gentleman particularly referred me to amendment No. 61. I understand his worry. I know that the Deakin Ewing report asserts that the burden will fall on the employee to prove that he has been dismissed. Paragraph 7 of schedule 4 provides protection by means of a cross-reference to the Employment Protection (Consolidation) Act 1978, which requires the employee to show that he has been dismissed. It is then for the employer to show the cause and that he acted reasonably in making it a ground for dismissal. That should satisfy the hon. Gentleman. If he would like, I will write to him on the matter so that he can discuss my reply with his hon. Friends well before Report stage and take counsel on whether to pursue the matter further.
§ Mr. BarronIn view of what the Minister has said, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
363§ Amendment proposed: No. 65, in page 19, line 29, at end insert—