Employment Rights Act 1996, section 117

Enforcement of order and compensation

Part X Unfair dismissal

(1)An [F792employment tribunalF792] shall make an award of compensation, to be paid by the employer to the employee, if—

(a)an order under section 113 is made and the complainant is reinstated or re-engaged, but

(b)the terms of the order are not fully complied with.

(2)F793Subject to section 124 . . ., the amount of the compensation shall be such as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order.

[F794 (2A)There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113.F794]

(3)F793Subject to subsections (1) and (2) . . ., if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make—

(a)an award of compensation for unfair dismissal (calculated in accordance with sections 118 to [F795126F795] ), and

(b)except where this paragraph does not apply, an additional award of compensation of [F796an amount not less than twenty-six nor more than fifty-two weeks’ payF796] ,

to be paid by the employer to the employee.

(4)Subsection (3)(b) does not apply where—

(a)F797the employer satisfies the tribunal that it was not practicable to comply with the order, . . .

F797 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F798 (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F798 (6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining for the purposes of subsection (4)(a) whether it was practicable to comply with the order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement.

(8)F800Where in any case an [F799employment tribunalF799] finds that the complainant has unreasonably prevented an order under section 113 from being complied with, in making an award of compensation for unfair dismissal . . . it shall take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Definitions used in section 117 4

employment

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

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

Defined in s.230(5) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employer

(4) In this Act “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.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employee

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

Defined in s.230(1) · see it in the full Act
week

“week”—

(a)

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

(b)

otherwise, except in sections 27C, 75F, 75H, 80A, 80B , 80EA , 80EF , 80J and 86 and paragraph 11 of Schedule A1 , 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.

Defined in s.235(1) · see it in the full Act

Cases considering section 117 21

McBride v Scottish Police Authority

[2016] UKSC 27 · 15 June 2016Interprets

Following non-compliance with reinstatement, practicability is determined conclusively and the employer bears the burden of proving that compliance was impracticable. Compensation and an additional award may otherwise follow. (see para [37])

Relaxion Group plc (Respondents) v. Rhys-Harper (FC) (Appellant) D'Souza (Appellant) v. London Borough of Lambeth (Respondents) Jones (Appellant) v. 3M Healthcare Limited (Respondents) and three other actions

[2003] UKHL 33 · 19 June 2003

Provides statutory consequences where a reinstatement order is not obeyed. Those compensation remedies weighed strongly against treating non-compliance as a separate discriminatory detriment or refusal to employ. (see paras [50]-[53]; [125]; [177])

MacKenzie v The University of Cambridge (Rev 1)

[2019] EWCA Civ 1060 · 20 June 2019Limits

Interprets section 117 as supplying the statutory consequences of partial or complete non-compliance with a section 113 order. Those consequences are the only remedies intended for non-compliance. (see paras [13]-[14], [20]-[25], [31]-[33]) Confirms that the tribunal must make compensation where an order is made and the employee is reinstated or re-engaged but the terms are not fully complied with. (see paras [13]-[14], [23]) Cited as part of the condition for compensation following incomplete compliance with an order. The appeal concerned complete non-compliance under subsection (3). (see para [13]) Cited as part of the condition for compensation where the terms of an order are not fully complied with. The court did not otherwise construe the paragraph. (see para [13]) Cited to identify compensation having regard to loss caused by failure fully to comply with an order. The court’s main construction concerned subsection (3). (see paras [13]-[14]) Interprets the mandatory compensation and additional award for complete non-compliance as alternatives to actual reinstatement or re-engagement, not remedies available alongside specific enforcement. (see paras [13]-[14], [20], [23]-[24]) Applies to require an ordinary compensatory award, calculated under sections 118 to 126, where the employee is not reinstated or re-engaged in accordance with the order. (see paras [13]-[14]) Applies to provide an additional award of between 26 and 52 weeks’ pay where the employer does not show that compliance was impracticable. (see paras [13]-[14], [23], [26]) Limits the additional award mechanism where the employer satisfies the tribunal that compliance with the order was not practicable. (see paras [13]-[14], [25]) Confirms that the employer’s practicability case is a statutory qualification to the additional award, distinct from practicability considered when the original order was made. (see paras [13]-[14])

3 more judgments, and what each says about section 117, are in the case-law panel in the full Act.

Amendments and notes

11 notes from legislation.gov.uk

Amendments

  1. F792Words in s. 117(1)(8) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1
  2. F793Words in s. 117(2)(3) repealed (25.10.1999) by 1999 c. 26, s. 44, Sch. 9(11); S.I. 1999/2830, art. 2(3), Sch. 2 Pt. I
  3. F794S. 117(2A) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 34(4), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)
  4. F795Word in s. 117(3)(a) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 37; S.I. 2004/2185, art. 2
  5. F796Words in s. 117(3)(b) substituted (25.10.1999) by 1999 c. 26, s. 33(2); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 8)
  6. F797S. 117(4)(b) and the preceding word “or” repealed (25.10.1999) by 1999 c. 26, ss. 33(1)(a), 44, Sch. 9(10); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 8)
  7. F798S. 117(5)(6) repealed (25.10.1999) by 1999 c. 26, ss. 33(2), 44, Sch. 9(10); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 8)
  8. F800Words in s. 117(8) repealed (1.8.1998) by 1998 c. 8, s. 15, Sch. 2; S.I. 1998/1658, art. 2(1), Sch. 1
  9. F799S. 117(6)(c) and preceding word “and” inserted (1.8.1998) by 1998 c. 8, s. 14(1); S.I. 1998/1658, art. 2(1), Sch. 1 (with art. 3(7))

Modifications

  1. C135S. 117: power to modify conferred (1.8.1998) by 1992 c. 52, s. 212A(8)(a) (as inserted (1.8.1998) by 1998 c. 8, s. 7; S.I. 1998/1658, art. 2(1), Sch. 1)
  2. C136S. 117 applied (6.4.2004) by The ACAS Arbitration Scheme (Great Britain) Order 2004 (S.I. 2004/753), arts. 1(1), 2, 3, Sch. para. 185