Employment Rights Act 1996, section 47

Employee representatives

Part V Protection from suffering detriment in employment

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being—

(a)M7,M8an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F236regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006F236] , or

(b)a candidate in an election in which any person elected will, on being elected, be such an employee representative,

he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

[F237 (1A) An employee has the right not to be subjected to any detriment by any act, or by any deliberate failure to act, by his employer done on the ground of his participation in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F238 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 F238] . F237]

(2)F239. . . This section does not apply where the detriment in question amounts to a dismissal (within the meaning of [F240Part XF240] ).

Definitions used in section 47 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
act

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly,

Defined in s.235(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

Cases considering section 47 3

Clyde & Co LLP & Anor v Bates Van Winkelhof

[2012] EWCA Civ 1207 · 26 September 2012

The whistleblowing detriment claim depended on worker status. Because the respondent could not be a worker by reason of LLP membership, she could not pursue the claim. (see paras [11]; [67]; [103])

A v Carers Trust South East Wales

[2023] EAT 80 · 27 June 2023Limits

A complaint concerning dismissal for making a protected disclosure cannot be brought as a detriment claim under this provision; it must be pursued as unfair dismissal under section 103A. (see paras [94]-[96])

Davidson-Hogg v Davis Gregory Solicitors & Anor

[2010] UKEAT 0512_09_1511 · 15 November 2010

Applies to the statutory detriment claim arising from the protected disclosure. The judgment treats the detriment as one of the statutory wrongs requiring separate consideration in the remedy assessment.

What each judgment says about section 47 is in the case-law panel in the full Act.

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F236Words in s. 47(1)(a) substituted (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), 20, Sch. 2 para. 10(a)
  2. F237S. 47(1A) inserted (28.7.1999) by S.I. 1999/1925, reg. 12
  3. F238Words in s. 47(1A) substituted (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), 20, Sch. 2 para. 10(a)
  4. F239Words in s. 47(2) repealed (25.10.1999) by 1999 c. 26, ss. 18(2)(a), 44, Sch. 9(3); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. I, Sch. 2 Pt. I (with Sch. 3 para. 2)
  5. F240Words in s. 47(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

Marginal citations

  1. M7S.I. 1981/1794.
  2. M81992 c. 52.