Employment Rights Act 1996, section 205

Remedy for infringement of certain rights

Part XIII Miscellaneous

(1)The remedy of an employee for infringement of any of the rights conferred by section 8, Part III, Parts V to VIII, [F1047Part 8B,F1047] section 92, Part X and Part XII is, where provision is made for a complaint or the reference of a question to an [F1048employment tribunalF1048] , by way of such a complaint or reference and not otherwise.

[F1049 (1YA)In relation to the right conferred by section 44(1A), the reference in subsection (1) to an employee has effect as a reference to a worker.F1049]

[F1050 (1A)In relation to the right conferred by section 47B, the reference in subsection (1) to an employee has effect as a reference to a worker.F1050]

[F1051 (1ZA)In relation to the right conferred by section 45A, the reference in subsection (1) to an employee has effect as a reference to a worker.F1051]

(2)The remedy of a worker in respect of any contravention of section 13, 15, 18(1) or 21(1) is by way of a complaint under section 23 and not otherwise.

Definitions used in section 205 3

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
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
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

Cases considering section 205 8

Her Majesty's Revenue and Customs (Respondents) v Stringer and others (Appellants)

[2009] UKHL 31 · 10 June 2009Interprets

The provision means that a section 13 contravention must be pursued by a section 23 tribunal complaint rather than ordinary civil proceedings. It does not prevent a worker from bringing a Working Time Regulations complaint under regulation 30.

Inland Revenue v Ainsworth & Ors

[2005] EWCA Civ 441 · 22 April 2005

Section 205(2), providing that the remedy for contravention of section 13 is by complaint under section 23 and not otherwise, supported the conclusion that Part II did not create a parallel route for statutory holiday pay. Regulation 30 governed instead. (see para [24])

Dunnachie v Kingston Upon Hull City Council

[2004] EWCA Civ 84 · 11 February 2004

Section 205 was treated as making the employment tribunal jurisdiction expressly exclusive. The court identified the remedial gap that would arise if section 123 were read as excluding general damage (see paras [67]; [78]).

1 more judgment, and what each says about section 205, are in the case-law panel in the full Act.

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F1047Words in s. 205(1) inserted (4.12.2023) by Carer’s Leave Act 2023 (c. 18), s. 3(3), Sch. para. 15; S.I. 2023/1283, reg. 2
  2. F1048Words in s. 205(1) 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
  3. F1049S. 205(1YA) inserted (31.5.2021) by The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (S.I. 2021/618), arts. 1, 6
  4. F1050S. 205(1A) inserted (2.7.1999) by 1998 c. 23, s. 14; S.I. 1999/1547, art. 2
  5. F1051S. 205(1ZA) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(7)

Modifications

  1. C208S. 205(1) applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(1)