Employment Rights Act 1996, section 122

Basic award: reductions

Part X Unfair dismissal

(1)Where the tribunal finds that the complainant has unreasonably refused an offer by the employer which (if accepted) would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that finding.

(2)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

(3)Subsection (2) does not apply in a redundancy case unless the reason for selecting the employee for dismissal was one of those specified in section 100(1)(a) and (b), [F812101A(d),F812] 102(1) or 103; and in such a case subsection (2) applies only to so much of the basic award as is payable because of section 120.

[F813 (3A)Where the complainant has been awarded any amount in respect of the dismissal under a designated dismissal procedures agreement, the tribunal shall reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that award.F813]

(4)The amount of the basic award shall be reduced or further reduced by the amount of—

(a)any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or

(b)any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise).

[F814 (5)Where a dismissal is regarded as unfair by virtue of section 104F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award in respect of the same dismissal under section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992 (minimum basic award in case of dismissal on grounds related to trade union membership or activities).F814]

Definitions used in section 122 6

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
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
redundancy case

(9) In this Part “redundancy case” means a case where paragraphs (a) and (b) of subsection (1) of this section are satisfied.

Defined in s.105(7N) · 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
dismissal procedures agreement

“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,

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

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

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

Cases considering section 122 74

NSL Ltd v Dean Bean

[2026] EAT 132 · 15 September 2026

Applies the just-and-equitable test for reducing the basic award by reason of the claimant’s pre-dismissal conduct. Misconduct does not require a reduction; the tribunal must exercise its broad discretion judicially and focus on the claimant’s conduct. (see paras [57]; [77]-[79])

M Jarosinski v Nestle UK Ltd

[2026] EAT 129 · 28 August 2026

Applies: a tribunal may reduce the basic award where pre-dismissal conduct makes a reduction just and equitable. The Tribunal had considered the basic award and could adopt the same percentage reduction as for the compensatory award. (see paras [78]-[80]; [112]-[114])

University of Bristol v Dr David Miller

[2026] EAT 84 · 4 August 2026

Permits a basic-award reduction for pre-dismissal conduct where just and equitable. The EAT upheld the Tribunal’s 50 per cent reduction for the claimant’s blameworthy comments about students. (see paras [125]; [168]-[169]; [178])

54 more judgments, and what each says about section 122, are in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F812Words in s. 122(3) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(5)
  2. F813S. 122(3A) inserted (1.8.1998) by 1998 c. 8, s. 15, Sch.1 para. 22; S.I. 1998/1658, art. 2(1), Sch. 1
  3. F814S. 122(5) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(7)

Modifications

  1. C142Ss. 117-127A applied (with modifications) (2.7.1999) by S.I. 1999/1548, reg. 3