Employment Rights Act 1996, section 188

Complaints to employment tribunals

Part XII Insolvency of employers

(1)A person who has applied for a payment under section 182 may present a complaint to an [F924employment tribunalF924] —

(a)that the Secretary of State has failed to make any such payment, or

(b)that any such payment made by him is less than the amount which should have been paid.

(2)An [F924employment tribunalF924] shall not consider a complaint under subsection (1) unless it is presented—

(a)before the end of the period of [F925sixF925] months beginning with the date on which the decision of the Secretary of State on the application was communicated to the applicant, or

(b)within such further period as the tribunal considers reasonable in a case where it is not reasonably practicable for the complaint to be presented before the end of that period of [F926sixF926] months.

(3)Where an [F924employment tribunalF924] finds that the Secretary of State ought to make a payment under section 182, the tribunal shall—

(a)make a declaration to that effect, and

(b)declare the amount of any such payment which it finds the Secretary of State ought to make.

Definitions used in section 188 1

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

Cases considering section 188 5

The Secretary of State for Business Innovation & Skills v Studders & Ors

[2011] UKEAT 0571_10_1705 · 17 May 2011

The provision was relied upon as the statutory basis for the Secretary of State’s liability to make payments. That liability did not arise because the claimants lacked employee status. (see paras [1], [18], [39])

Secretary of State for Business, Enterprise & Regulatory Reform v Neufeld & Anor

[2009] EWCA Civ 280 · 2 April 2009

Section 188 provided the procedural route by which each claimant challenged the Secretary of State’s refusal or non-payment before an employment tribunal. (see paras [5]; [9]; [21])

Mohammed Shazan Chaudhry v Paperchase Products Limited & Anor

[2025] EAT 181 · 10 December 2025

The court treated section 188(3) as the mechanism by which a tribunal may declare that the Secretary of State ought to make a Part XII payment. It did not create entitlement where the conditions for payment were absent. (see paras [2]-[3]; [70])

2 more judgments, and what each says about section 188, are in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F924Words in s. 188(1)-(3) and sidenote to s. 1888 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1
  2. F925Word in s. 188(2)(a) substituted (1.10.2026) by Employment Rights Act 2025 (c. 36), s. 159(3), Sch. 12 para. 4(26)(a); S.I. 2026/954, reg. 3 (with reg. 4)
  3. F926Word in s. 188(2)(b) substituted (1.10.2026) by Employment Rights Act 2025 (c. 36), s. 159(3), Sch. 12 para. 4(26)(b); S.I. 2026/954, reg. 3 (with reg. 4)