Employment Rights Act 1996, section 12

Determination of references

Part I Employment particulars

(1)Where, on a reference under section 11(1), an [F89employment tribunalF89] determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4, the employer shall be deemed to have given to the [F90workerF90] 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 section 11(2) relating to a statement purporting to be a statement under section 1 or 4, an [F89employment tribunalF89] 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 [F91workerF91] in accordance with the decision of the tribunal.

(3)Where on a reference under section 11 an [F89employment tribunalF89] finds—

(a)that an employer has failed to give [F92a workerF92] any pay statement in accordance with section 8, 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 section or section 9,

the tribunal shall make a declaration to that effect.

(4)Where on a reference in the case of which subsection (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of [F93the workerF93] 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 [F93the workerF93] a sum not exceeding the aggregate of the unnotified deductions so made.

(5)For the purposes of subsection (4) a deduction is an unnotified deduction if it is made without the employer giving [F94the workerF94] , in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by section 8 or 9.

Definitions used in section 12 5

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
worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting 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;

Defined in s.230(3) · 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
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
contract of employment

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

Defined in s.230(2) · see it in the full Act

Cases considering section 12 13

Southern Cross Healthcare Co Ltd v Perkins & Ors

[2010] EWCA Civ 1442 · 16 December 2010Limits

The powers to confirm, amend or substitute particulars in a statutory statement do not extend the tribunal’s jurisdiction to construe disputed contractual terms. The ordinary civil courts alone could decide that issue (see [13]; [29]-[34]).

Norman & Anor v National Audit Office (Contract of Employment : Implied Term/Variation/Construction of Term)

[2014] UKEAT 276_14_1512 · 15 December 2014

The Employment Tribunal had determined the employees’ reference under this provision. On appeal, the declaration made under the statutory scheme was quashed because the employer had no established unilateral contractual power to make the changes. (see paras [5]; [58]-[60]) On determining a reference concerning a purported section 4 statement, the tribunal may substitute other particulars. The Appeal Tribunal exercised that power to replace the employer’s amended sick-pay and privilege-leave particulars with the prior particulars. (see paras [59]-[60])

Ridge v Her Majesty's Land Registry (Contract of Employment : Itemised pay statement)

[2014] UKEAT 0098_10_2309 · 23 September 2014

The missing identification of the purpose of the prior-overpayment deductions entitled the claimant to a declaration that the payslips did not contain the particulars required by section 8 (see para [26]). A payment order is discretionary. It was disproportionate where the deductions were apparent, their purpose was explained before proceedings, and their correctness was not challenged; the declaration was sufficient (see paras [27]-[29]).

3 more judgments, and what each says about section 12, are in the case-law panel in the full Act.

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F89Words in s. 12(1)(2)(3) 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. F90Word in s. 12(1) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 14 (with reg. 15)
  3. F91Word in s. 12(2) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 14 (with reg. 15)
  4. F92Words in s. 12(3) substituted (6.4.2019) by The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018 (S.I. 2018/529), arts. 1, 2(5)(a) (with art. 3)
  5. F93Words in s. 12(4) substituted (6.4.2019) by The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018 (S.I. 2018/529), arts. 1, 2(5)(b) (with art. 3)
  6. F94Words in s. 12(5) substituted (6.4.2019) by The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018 (S.I. 2018/529), arts. 1, 2(5)(b) (with art. 3)

Modifications

  1. C18S. 12: power to apply conferred (1.4.1999) by 1998 c. 39, s. 12(4)(a)(with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2