Employment Rights Act 1996, section 35

Exemption orders

Part III Guarantee payments

(1)Where—

(a)at any time there is in force a collective agreement, or an agricultural wages order, under which employees to whom the agreement or order relates have a right to guaranteed remuneration, and

(b)on the application of all the parties to the agreement, or of the Board making the order, the appropriate Minister (having regard to the provisions of the agreement or order) is satisfied that section 28 should not apply to those employees,

he may make an order under this section excluding those employees from the operation of that section.

(2) In subsection (1) “agricultural wages order” means an order made under—

F150 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)M4section 3 of the Agricultural Wages (Scotland) Act 1949.

(3) In subsection (1) “the appropriate Minister” means—

(a)F151in relation to a collective agreement or to an order such as is referred to in subsection (2)(b), the Secretary of State, ...

F151 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The Secretary of State shall not make an order under this section in respect of an agreement unless—

(a)the agreement provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee claims that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement and those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached, or

(b)the agreement indicates that an employee to whom the agreement relates may present a complaint to an [F152employment tribunalF152] that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement.

(5)Where an order under this section is in force in respect of an agreement indicating as described in paragraph (b) of subsection (4) an [F152employment tribunalF152] shall have jurisdiction over a complaint such as is mentioned in that paragraph as if it were a complaint falling within section 34.

(6)An order varying or revoking an earlier order under this section may be made in pursuance of an application by all or any of the parties to the agreement in question, or the Board which made the order in question, or in the absence of such an application.

Definitions used in section 35 4

collective agreement

“collective agreement” has the meaning given by section 178(1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992 ,

Defined in s.235(1) · 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
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

Cases considering section 35 3

Olsten (UK) Holdings Limited v Adecco Group European Works Council

[2022] EAT 183 · 13 December 2022

The provision was identified as the source of the EAT's usual power to exercise the CAC's powers or remit a case. A remittal was unnecessary because the appeal failed. (see paras [24]; [125])

Tamang & Anor v ACT Security Ltd & Anor (Practice And Procedure : Compromise)

[2012] UKEAT 0046_12_3108 · 31 August 2012

The court relied on its Employment Tribunal powers to restore ACT and Euro as respondents and accept their draft responses on remittal. (see para [15])

Korashi v Abertawe Bro Morgannwg University Local Health Board

[2011] UKEAT 0424_09_1208 · 12 September 2011

The court noted that section 35 may confer relevant EAT jurisdiction where a new-evidence point forms part of an appeal proceeding on other grounds, without needing to decide the issue in this case (see para [116]).

What each judgment says about section 35 is in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F150S. 35(2)(a) repealed (1.10.2013 for E.) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 20 para. 2; S.I. 2013/1455, art. 3(b), Sch. 2 (with art. 4(2)(4)) (as amended (7.9.2013) by S.I. 2013/2271, art. 2)
  2. F151S. 35(3)(b) and word in s. 35(3)(a) repealed (1.10.2013 for E.) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 20 para. 2; S.I. 2013/1455, art. 3(b), Sch. 2 (with art. 4(2)(4)) (as amended (7.9.2013) by S.I. 2013/2271, art. 2)
  3. F152Words in s. 35(5) 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

Marginal citations

  1. M41949 c. 30.