Employment Rights Act 1996

(excerpts)

Ante-natal care

Right to time off for ante-natal care.

55.(1) An employee who-

(a) is pregnant, and

(b) has, on the advice of a registered medical practitioner, registered midwife or registered health visitor, made an appointment to attend at any place for the purpose of receiving ante-natal care, is entitled to be permitted by her employer to take time off during the employee's working hours in order to enable her to keep the appointment.

(2) An employee is not entitled to take time off under this section to keep an appointment unless, if her employer requests her to do so, she produces for his inspection-

(a) a certificate from a registered medical practitioner, registered midwife or registered health visitor stating that the employee is pregnant, and

(b) an appointment card or some other document showing that the appointment has been made.

(3) Subsection (2) does not apply where the employee's appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).

(4) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with her contract of employment, the employee is required to be at work.

Right to remuneration for time off under section 55.

56.- (1) An employee who is permitted to take time off under section 55 is entitled to be paid remuneration by her employer for the period of absence at the appropriate hourly rate.

(2) The appropriate hourly rate, in relation to an employee, is the amount of one week's pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off is taken.

(3) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by-

(a) the average number of normal working hours calculated by dividing by twelve the total number of the employee's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken, or

(b) where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4) The considerations referred to in subsection (3)(b) are-

(a) the average number of normal working hours in a week which the employee could expect in accordance with the terms of her contract, and

(b) the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5) A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under her contract of employment ("contractual remuneration").

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 55 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection(1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Complaints to industrial tribunals.

57.- (1) An employee may present a complaint to an industrial tribunal that her employer-

(a) has unreasonably refused to permit her to take time off as required by section 55, or

(b) has failed to pay the whole or any part of any amount to which the employee is entitled under section 56.

(2) An industrial tribunal shall not consider a complaint under this section unless it is presented-

(a) before the end of the period of three months beginning with the date of the appointment concerned, 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) Where an industrial tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4) If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which she would have been entitled under section 56 if the employer had not refused.

(5) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which she is entitled under section 56, the tribunal shall also order the employer to pay to the employee the amount which it finds due to her.

Occupational pension scheme trustees

Right to time off for pension scheme trustees.

58.- (1) The employer in relation to a relevant occupational pension scheme shall permit an employee of his who is a trustee of the scheme to take time off during the employee's working hours for the purpose of-

(a) performing any of his duties as such a trustee, or

(b) undergoing training relevant to the performance of those duties.

(2) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard, in particular, to-

(a) how much time off is required for the performance of the duties of a trustee of the scheme and the undergoing of relevant training, and how much time off is required for performing the particular duty or for undergoing the particular training, and

(b) the circumstances of the employer's business and the effect of the employee's absence on the running of that business.

(3) In this section-

(a) "relevant occupational pension scheme" means an occupational pension scheme (as defined in section 1 of the Pension Schemes Act 1993) established under a trust, and

(b) references to the employer, in relation to such a scheme, are to an employer of persons in the description or category of employment to which the scheme relates.

(4) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

Right to payment for time off under section 58.

59.- (1) An employer who permits an employee to take time off under section 58 shall pay him for the time taken off pursuant to the permission.

(2) Where the employee's remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he must be paid as if he had worked at that work for the whole of that time.

(3) Where the employee's remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he must be paid an amount calculated by reference to the average hourly earnings for that work.

(4) The average hourly earnings mentioned in subsection (3) are-

(a) those of the employee concerned, or

(b) 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 the circumstances.

(5) A right to be paid an amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment ("contractual remuneration").

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 58 goes towards discharging any liability of the employer under subsection (1) in respect of that period; and, conversely, any payment under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Complaints to industrial tribunals.

60.(1) An employee may present a complaint to an industrial tribunal that his employer-

(a) has failed to permit him to take time off as required by section 58, or

(b) has failed to pay him in accordance with section 59.

(2) An industrial tribunal shall not consider a complaint under this section unless it is presented-

(a) before the end of the period of three months beginning with the date when the failure occurred, or

(3) Where an industrial tribunal finds a complaint under subsection (1)(a) well-founded, the tribunal-

(a) shall make a declaration to that effect, and

(b) may make an award of compensation to be paid by the employer to the employee.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to-

(a) the employer's default in failing to permit time off to be taken by the employee, and

(b) any loss sustained by the employee which is attributable to the matters complained of.

(5) Where on a complaint under subsection (1)(b) an industrial tribunal finds that an employer has failed to pay an employee in accordance with section 59, it shall order the employer to pay the amount which it finds to be due.

Employee representatives

Right to time off for employee representatives.

61.- (1) An employee who is-

(a) an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, or

(b) a candidate in an election in which any person elected will, on being elected, be such an employee representative, is entitled to be permitted by his employer to take reasonable time off during the employee's working hours in order to perform his functions as such an employee representative or candidate.

(2) For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

Right to remuneration for time off under section 61.

62.- (1) An employee who is permitted to take time off under section 61 is entitled to be paid remuneration by his employer for the time taken off at the appropriate hourly rate.

(3) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by-

(4) The considerations referred to in subsection (3)(b) are-

(a) the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract, and

(b) the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5) A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment ("contractual remuneration").

(6) Any contractual remuneration paid to an employee in respect of a period of time off under section 61 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Complaints to industrial tribunals.

63.(1) An employee may present a complaint to an industrial tribunal that his employer-

(a) has unreasonably refused to permit him to take time off as required by section 61, or

(b) has failed to pay the whole or any part of any amount to which the employee is entitled under section 62.

(2) An industrial tribunal shall not consider a complaint under this section unless it is presented-

(a) before the end of the period of three months beginning with the day on which the time off was taken or on which it is alleged the time off should have been permitted, or

(3) Where an industrial tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4) If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which he would have been entitled under section 62 if the employer had not refused.

(5) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which he is entitled under section 62, the tribunal shall also order the employer to pay to the employee the amount which it finds due to him.

PART VII

SUSPENSION FROM WORK

Suspension on medical grounds

Right to remuneration on suspension on medical grounds.

64.(1) An employee who is suspended from work by his employer on medical grounds is entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks.

(2) For the purposes of this Part an employee is suspended from work on medical grounds if he is suspended from work in consequence of-

(a) a requirement imposed by or under a provision of an enactment or of an instrument made under an enactment, or

(b) a recommendation in a provision of a code of practice issued or approved under section 16 of the Health and Safety at Work etc. Act 1974, and the provision is for the time being specified in subsection (3).

(3) The provisions referred to in subsection (2) are- Regulation 16 of the Control of Lead at Work Regulations 1980, Regulation 16 of the Ionising Radiations Regulations 1985, and Regulation 11 of the Control of Substances Hazardous to Health Regulations 1988.

(4) The Secretary of State may by order add provisions to or remove provisions from the list of provisions specified in subsection (3).

(5) For the purposes of this Part an employee shall be regarded as suspended from work on medical grounds only if and for so long as he-

(a) continues to be employed by his employer, but

(b) is not provided with work or does not perform the work he normally performed before the suspension.

Exclusions from right to remuneration.

65.(1) An employee is not

(2) An employee who is employed- entitled to remuneration under section 64 unless he has been continuously employed for a period of not less than one month ending with the day before that on which the suspension begins.

(a) under a contract for a fixed term of three months or less, or

(b) under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months, is not entitled to remuneration under section 64 unless he has been continuously employed for a period of more than three months ending with the day before that on which the suspension begins.

(3) An employee is not entitled to remuneration under section 64 in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

(4) An employee is not entitled to remuneration under section 64 in respect of any period if-

(a) his employer has offered to provide him with suitable alternative work during the period (whether or not it is work which the employee is under his contract, or was under the contract in force before the suspension, employed to perform) and the employee has unreasonably refused to perform that work, or

(b) he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

Suspension on maternity grounds

Meaning of suspension on maternity grounds.

66.- (1) For the purposes of this Part an employee is suspended from work on maternity grounds, in consequence of any relevant requirement or relevant recommendation, she is suspended from work by her employer on the ground that she is pregnant, has recently given birth or is breastfeeding a child.

(2) In subsection (1)-

"relevant requirement" means a requirement imposed by or under a specified provision of an enactment or of an instrument made under an enactment, and

"relevant recommendation" means a recommendation in a specified provision of a code of practice issued or approved under section 16 of the Health and Safety at Work etc. Act 1974; and in this subsection "specified provision" means a provision for the time being specified in an order made by the Secretary of State under this subsection.

(3) For the purposes of this Part an employee shall be regarded as suspended from work on maternity grounds only if and for so long as she-

(a) continues to be employed by her employer, but

(b) is not provided with work or (disregarding alternative work for the purposes of section 67) does not perform the work she normally performed before the suspension.

Right to offer of alternative work.

67.- (1) Where an employer has available suitable alternative work for an employee, the employee has a right to be offered to be provided with the alternative work before suspended from work on maternity grounds.

(2) For alternative work to be suitable for an employee for the purposes of this section-

(a) the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances, and

(b) the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less avourable to her than those corresponding terms and conditions.

Right to remuneration.

68.- (1) An employee who is suspended from work on maternity grounds is entitled to be paid remuneration by her employer while she is so suspended.

(2) an employee is not entitled to remuneration under this section in respect of any period if-

(a) her employer has offered to provide her during the period with work which is suitable alternative work for her for the purposes of section 67, and

(b) the employee has unreasonably refused to perform that work.

General

Calculation of remuneration.

69.- (1) The amount of remuneration payable by an employer to an employee under section 64 or 68 is a week's pay in respect of each week of the period of suspension; and if in any week remuneration is payable in respect of only part of that week the amount of a week's pay shall be reduced proportionately.

(2) A right to remuneration under section 64 or 68 does not affect any right of an employee in relation to remuneration under the employee's contract of employment ("contractual remuneration").

(3) Any contractual remuneration paid by an employer to an employee in respect of any period goes towards discharging the employer's liability under section 64 or 68 in respect of that period; and, conversely, any payment of remuneration in discharge of an employer's liability under section 64 or 68 in respect of any period goes towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

Complaints to industrial tribunals.

70.- (1) An employee may present a complaint to an industrial tribunal that his or her employer has failed to pay the whole or any part of remuneration to which the employee is entitled under section 64 or 68.

(2) An industrial tribunal shall not consider a complaint under subsection (1) relating to remuneration in respect of any day unless it is presented-

(a) before the end of the period of three months beginning with that day, 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 within that period of three months.

(3) Where an industrial tribunal finds a complaint under subsection (1) well-founded, the tribunal shall order the employer to pay the employee the amount of remuneration which it finds is due to him or her.

(4) An employee may present a complaint to an industrial tribunal that in contravention of section 67 her employer has failed to offer to provide her with work.

(5) An industrial tribunal shall not consider a complaint under subsection (4) unless it is presented-

(a) before the end of the period of three months beginning with the first day of the suspension, or

(6) Where an industrial tribunal finds a complaint under subsection

(4) well-founded, the tribunal may make an award of compensation to be paid by the employer to the employee.

(7) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to-

(a) the infringement of the employee's right under section 67 by the failure on the part of the employer to which the complaint relates, and

(b) any loss sustained by the employee which is attributable to that failure.

PART VIII

MATERNITY RIGHTS

General right to maternity leave.

71.- (1) An employee who is absent from work at any time during her maternity leave period is (subject to sections 74 and 75) entitled to the benefit of the terms and conditions of employment which would have been applicable to her if she had not been absent (and had not been pregnant or given birth to a child).

(2) Subsection (1) does not confer any entitlement to remuneration.

Commencement of maternity leave period.

72.- (1) Subject to subsection (2), an employee's maternity leave period commences with the earlier of-

(a) the date which, in accordance with section 74(1) to (3), she notifies to her employer as the date on which she intends her period of absence from work in exercise of the right conferred by section 71 to commence, and

(b) the first day after the beginning of the sixth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy.

(2) Where the employee's maternity leave period has not commenced by virtue of subsection (1) when childbirth occurs, her maternity leave period commences with the day on which childbirth occurs.

(3) The Secretary of State may by order vary subsections (1) and (2).

Duration of maternity leave period.

73.(1) Subject to subsections (2) and (3), an employee's maternity leave period continues for the period of fourteen weeks from its commencement or until the birth of the child, if later.

(2) Subject to subsection (3), where any requirement imposed by or under any relevant statutory provision prohibits the employee from working for any period after the end of the period mentioned in subsection (1) by reason of her having recently given birth, her maternity leave period continues until the end of that later period.

(3) Where the employee is dismissed after the commencement of her maternity leave period but before the time when (apart from this subsection) that period would end, the period ends at the time of the dismissal.

(4) In subsection (2) "relevant statutory provision" means a provision of-

(a) an enactment, or

(b) an instrument made under an enactment, other than a provision for the time being specified in an order made under section 66(2).

(5) The Secretary of State may by order vary subsections (1) to (4).

Requirement to notify commencement of leave.

74.(1) Subject to subsections (4) and (5), an employee does not have the right conferred by section 71 unless she notifies her employer of the date on which she intends her period of absence from work in exercise of the right to commence.

(2) No date occurring before the beginning of the eleventh week before the expected week of childbirth may be notified under subsection (1).

(3) Notification under subsection (1) shall be given by an employee-

(a) not less than twenty-one days before the date on which she intends her period of absence from work in exercise of the right conferred by section 71 to commence, or

(b) if that is not reasonably practicable, as soon as is reasonably practicable.

(4) Where an employee's maternity leave period commences with the first day after the beginning of the sixth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy-

(a) subsection (1) does not require her to notify her employer of the date specified in that subsection, but

(b) (whether or not she has notified him of that date) she does not have the right conferred by section 71 unless she notifies him as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy.

(5) Where an employee's maternity leave period commences with the day on which childbirth occurs-

(a) subsection (1) does not require her to notify her employer of the date specified in that subsection, but

(b) (whether or not she has notified him of that date) she does not have the right conferred by section 71 unless she notifies him as soon as is reasonably practicable after the birth that she has given birth.

(6) Any notification required by this section shall, if the employer so requests, be given in writing.

Requirement to notify pregnancy etc.

75.- (1) An employee does not have the right conferred by section 71 unless at least twenty-one days before her maternity leave period commences or, if that is not reasonably practicable, as soon as is reasonably practicable, she informs her employer in writing of-

(a) her pregnancy, and

(b) the expected week of childbirth, or, if childbirth has occurred, of the date on which it occurred.

(2) An employee does not have the right conferred by section 71 unless, if requested to do so by her employer, she produces for his inspection a certificate from-

(a) a registered medical practitioner, or

(b) a registered midwife, stating the expected week of childbirth.

Requirement to notify return during maternity leave period.

76.(1) An employee who intends to return to work earlier than the end of her maternity leave period shall give to her employer not less than seven days' notice of the date on which she intends to return.

(2) If an employee attempts to return to work earlier than the end of her maternity leave period without complying with subsection (1), her employer shall be entitled to postpone her return to a date such as will secure, subject to subsection (3), that he has seven days' notice of her return.

(3) An employer is not entitled under subsection (2) to postpone an employee's return to work to a date after the end of her maternity leave period.

(4) If an employee whose return to work has been postponed under subsection (2) has been notified that she is not to return to work before the date to which her return was postponed, the employer is under no contractual obligation to pay her remuneration until the date to which her return was postponed if she returns to work before that date.

Redundancy during maternity leave period.

77.- (1) This section applies where during an employee's maternity leave period it is not practicable by reason of redundancy for the employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the ending of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with subsection (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that-

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Contractual rights to maternity leave.

78.(1) An employee who has both the right to maternity leave under section 71 and another right to maternity leave (under a contract of employment or otherwise) may not exercise the two rights separately but may, in taking maternity leave, take advantage of whichever right is, in any particular respect, the more favourable.

(2) The provisions of sections 72 to 77 apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right under section 71.

Right to return to work.

79.(1) An employee who-

(a) has the right conferred by section 71, and

(b) has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than two years, also has the right to return to work at any time during the period beginning at the end of her maternity leave period and ending twenty-nine weeks after the beginning of the week in which childbirth occurs.

(2) An employee's right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed-

(a) on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since the commencement of her maternity leave period,

(b) with her seniority, pension rights and similar rights as they would have been if the period or periods of her employment prior to the end of her maternity leave period were continuous with her employment following her return to work (but subject to the requirements of paragraph 5 of Schedule 5 to the Social Security Act 1989 (credit for the period of absence in certain cases)), and

(c) otherwise on terms and conditions not less favourable than those which would have been applicable to her had she not been absent from work after the end of her maternity leave period.

(3) The Secretary of State may by order vary the period of two years specified in subsection (1) or that period as varied by an order under this subsection.

Requirement to notify return.

80.(1) An employee does not have the right conferred by section 79 unless she includes with the information required by section 75(1) the information that she intends to exercise the right.

(2) Where, not earlier than twenty-one days before the end of her maternity leave period, an employee is requested in accordance with subsection (3) by her employer, or a successor of his, to give him written confirmation that she intends to exercise the right conferred by section 79, the employee is not entitled to that right unless she gives the requested confirmation-

(a) within fourteen days of receiving the request, or

(b) if that is not reasonably practicable, as soon as is reasonably practicable.

(3) A request under subsection (2) shall be-

(a) made in writing, and

(b) accompanied by a written statement of the effect of that subsection.

Redundancy before return.

81.- (1)This section applies where an employee has the right conferred by section 79 but it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with subsection (3).

(3) The new contract of employment must be such that-

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had returned to work pursuant to the right conferred by section 79.

Exercise of right to return.

82.- (1) An employee shall exercise the right conferred by section 79 by giving written notice to the employer (who may be her employer before the end of her maternity leave period or a successor of his) at least twenty-one days before the day on which she proposes to return of her proposal to return on that day (the "notified day of return").

(2) An employer may postpone an employee's return to work until a date not more than four weeks after the notified day of return if he notifies her before that day that for specified reasons he is postponing her return until that date; and, accordingly, she will be entitled to return to work with him on that date.

(3) An employee to whom subsection (4) applies may-

(a) postpone her return to work until a date not more than four weeks after the notified day of return (even if that date falls after the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred), and

(b) where no day of return has been notified to the employer, extend the time during which she may exercise her right to return in accordance with subsection (1), so that she returns to work not more than four weeks after the end of that period of twenty-nine weeks.

(4) This subsection applies to an employee if she gives to her employer, before the notified day of return (or the end of the period of twenty-nine weeks), a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return (or at the end of that period).

(5) Where an employee has once exercised a right of postponement or extension under subsection (3), she is not entitled again to exercise a right of postponement or extension under that subsection in connection with the same return to work.

(6) If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable afterwards.

(7) Where in the case of an employee who has not already notified a day of return-

(a) there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred, or which appears likely to have that effect, and

(b) in consequence, the employee does not notify a day of return, the employee may exercise her right to return in accordance with subsection (1) so that she returns to work at any time before the end of the period of twenty-eight days after the end of the interruption even though that means that she returns to work outside the period of twenty-nine weeks.

(8) Where an employee has exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return, subsection (7) applies as if for the reference to the end of the period of twenty-nine weeks there were substituted a reference to the end of the further period of four weeks after the end of that period.

(9) Where in the case of an interruption of work an employee has refrained from notifying the day of return in the circumstances described in subsection (7), subsection (3)(b) applies as if for the reference to the end of the period of twenty-nine weeks there were substituted a reference to the end of the period of twenty-eight days after the end of the interruption of work.

Notified day of return.

83.(1) Subject to subsection (2), in this Act "notified day of return" shall be construed in accordance with section 82(1).

(2) Where-

(a) an employee's return is postponed under subsection (2) or (3)(a) of section 82, or

(b) the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (6) of that section, then, subject to subsection (5) of that section, references in subsections (2), (3)(a) and (6) of that section and the following provisions of this Act to the notified day of return shall be construed as references to the day to which the return is postponed or that later day.

Employee dismissed at or after end of maternity leave period.

84.- (1) This section applies where an employee has the right to return to work conferred by section 79 and either-

(a) her maternity leave period ends by reason of dismissal, or

(b) she is dismissed after the end of her maternity leave period, otherwise than in the course of attempting to return to work in accordance with her contract in circumstances in which section 85 applies.

(2) Where this section applies, the right conferred by section 79 is exercisable only on the employee repaying any compensation for unfair dismissal, or redundancy payment, paid in respect of the dismissal if the employer requests repayment.

Contractual rights to return.

85.- (1) An employee who has both the right to return to work conferred by section 79 and another right to return to work after absence because of pregnancy or childbirth (under a contract of employment or otherwise) may not exercise the two rights separately but may, in returning to work, take advantage of whichever right is, in any particular respect, the more favourable.

(2) Sections 79 and 81 to 84, and the provisions of the following Parts of this Act relating to the right conferred by section 79 (other than section 137(2)), apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right conferred by section 79.

CHAPTER II

RIGHT ON DISMISSAL BY REASON OF REDUNDANCY

Dismissal by reason of redundancy

Circumstances in which an employee is dismissed.

136.- (1) Subject to the provisions of this section and sections 137 and 138, for the purposes of this Part an employee is dismissed by his employer if (and only if)-

(a) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice),

(b) he is employed under a contract for a fixed term and that term expires without being renewed under the same contract, or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

(2) Subsection (1)(c) does not apply if the employee terminates the contract without notice in circumstances in which he is entitled to do so by reason of a lock-out by the employer.

(3) An employee shall be taken to be dismissed by his employer for the purposes of this Part if-

(a) the employer gives notice to the employee to terminate his contract of employment, and

(b) at a time within the obligatory period of notice the employee gives notice in writing to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire.

(4) In this Part the "obligatory period of notice", in relation to notice given by an employer to terminate an employee's contract of employment, means-

(a) the actual period of the notice in a case where the period beginning at the time when the notice is given and ending at the time when it expires is equal to the minimum period which (by virtue of any enactment or otherwise) is required to be given by the employer to terminate the contract of employment, and

(b) the period which-

(i) is equal to the minimum period referred to in paragraph (a), and

(ii) ends at the time when the notice expires, in any other case.

(5) Where in accordance with any enactment or rule of law-

(a) an act on the part of an employer, or

(b) an event affecting an employer (including, in the case of an individual, his death), operates to terminate a contract under which an employee is employed by him, the act or event shall be taken for the purposes of this Part to be a termination of the contract by the employer.

Failure to permit return after childbirth treated as dismissal.

137.(1) Subject to subsection (2) and section 138, where an employee who-

(a) has the right conferred by section 79, and

(b) has exercised it in accordance with section 82, is not permitted to return to work, she shall be taken for the purposes of this Part to be dismissed for the reason for which she was not permitted to return with effect from the notified day of return (being deemed to have been continuously employed until that day).

(2) Where in proceedings arising out of a failure to permit an employee to return to work pursuant to the right conferred by section 79 the employer shows-

(a) that the reason for the failure is that the employee is redundant, and

(b) that the employee was, or (had she continued to be employed by him) would have been, dismissed by reason of redundancy on a day falling after the commencement of her maternity leave period and before the notified day of return, for the purposes of this Part the employee shall not be taken to be dismissed with effect from the notified day of return but shall be taken to be dismissed by reason of redundancy with effect from that earlier day (being deemed to have been continuously employed until that earlier day).

No dismissal in cases of renewal of contract or re-engagement.

138.- (1) Where-

(a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and

(b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment, the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.

(2) Subsection (1) does not apply if-

(a) the provisions of the contract as renewed, or of the new contract, as to-

(i) the capacity and place in which the employee is employed, and

(ii) the other terms and conditions of his employment, differ (wholly or in part) from the corresponding provisions of the previous contract, and

(b) during the period specified in subsection (3)-

(i) the employee (for whatever reason) terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated, or

(ii) the employer, for a reason connected with or arising out of any difference between the renewed or new contract and the previous contract, terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated.

(3) The period referred to in subsection (2)(b) is the period-

(a) beginning at the end of the employee's employment under the previous contract, and

(b) ending with-

(i) the period of four weeks beginning with the date on which the employee starts work under the renewed or new contract, or

(ii) such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract; and is in this Part referred to as the "trial period".

(4) Where subsection (2) applies, for the purposes of this Part-

(a) the employee shall be regarded as dismissed on the date on which his employment under the previous contract (or, if there has been more than one trial period, the original contract) ended, and

(b) the reason for the dismissal shall be taken to be the reason for which the employee was then dismissed, or would have been dismissed had the offer (or original offer) of renewed or new employment not been made, or the reason which resulted in that offer being made.

(5) Subsection (2) does not apply if the employee's contract of employment is again renewed, or he is again re-engaged under a new contract of employment, in circumstances such that subsection (1) again applies.

(6) For the purposes of subsection (3)(b)(ii) a period of retraining is agreed in accordance with this subsection only if the agreement-

(a) is made between the employer and the employee or his representative before the employee starts work under the contract as renewed, or the new contract,

(b) is in writing,

(d) specifies the terms and conditions of employment which will apply in the employee's case after the end of that period.

Redundancy

39.- (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-

(a) the fact that his employer has ceased or intends to cease-

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business-

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

(2) For the purposes of subsection (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs(a) and (b) of that subsection would be satisfied without so treating them).

(3) For the purposes of subsection (1) the activities carried on by a local education authority with respect to the schools maintained by it, and the activities carried on by the governors of those schools, shall be treated as one business (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them).

(4) Where-

(a) the contract under which a person is employed is treated by section 136(5) as terminated by his employer by reason of an act or event, and

(b) the employee's contract is not renewed and he is not re-engaged under a new contract of employment, he shall be taken for the purposes of this Act to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in paragraphs (a) and (b) of subsection (1).

(5) In its application to a case within subsection (4), paragraph (a)(i) of subsection (1) has effect as if the reference in that subsection to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.

(6) In subsection (1) "cease" and "diminish" mean cease and diminish either permanently or temporarily and for whatever reason.