Employment Rights Act 1996, section 49

Remedies

Part V Protection from suffering detriment in employment

(1)Where an [F289employment tribunalF289] finds a complaint [F290under section 48(1), [F291 (1XA),F291] (1ZA), (1A) or (1B)F290] well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

[F292 (1A)Where an employment tribunal finds a complaint under section 48(1AA) well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the temporary work agency or (as the case may be) the hirer to the complainant in respect of the act or failure to act to which the complaint relates.F292]

(2)Subject to subsections [F293(5ZA),F293] (5A) and (6) the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement to which the complaint relates, and

(b)any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3)The loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and

(b)loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.

(4)In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

(5)Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

[F294 (5ZA)Where—

(a)the complaint is made under section 48(1XA),

(b)the detriment to which the worker is subjected is the termination of his or her contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 100.F294]

[F295 (5A)Where—

(a)the complaint is made under section 48 (1ZA),

(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 101A. F295]

[F296 (6)Where—

(a)the complaint is made under section 48(1A),

(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A. F296]

[F297 (6A)Where—

(a)the complaint is made under section 48(1A), and

(b)it appears to the tribunal that the protected disclosure was not made in good faith,

the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%.F297]

[F298 (7)Where—

(a)the complaint is made under section 48(1B) by a person who is not an employee, and

(b)the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002,

any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the complainant had been an employee and had been dismissed for the reason specified in section 104B.F298]

Definitions used in section 49 11

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
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
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
temporary work agency

“temporary work agency”.

Defined in s.48(6) · see it in the full Act
hirer

“hirer”;

Defined in s.48(6) · see it in the full Act
action

“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
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
contract of employment

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Defined in s.230(2) · 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
worker’s contract

(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
protected disclosure

“protected disclosure” has the meaning given by section 43A,

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

In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

Defined in s.43A · see it in the full Act

Cases considering section 49 20

Ian Rice v Wicked Vision Limited

[2025] EWCA Civ 1466 · 14 November 2025Interprets

The court treated section 49 as part of the Part V remedial scheme and considered its compensation provisions when comparing Part V with Part X. (see paras [34]; [42]-[45]) The court considered the compensation provisions in section 49 when explaining why loss suffered before dismissal may remain within Part V even though consequential dismissal loss is dealt with under Part X. (see paras [42]-[45]; [69])

Timis & Anor v Osipov & Anor

[2018] EWCA Civ 2321 · 19 October 2018Limits

Compensation must be just and equitable having regard to the infringement and attributable loss. On the assumed state of the authorities, such loss may include injury to feelings (see paras [16]; [27]; [72]-[73]). The recoverable loss includes reasonably incurred expenses and lost benefits resulting from the unlawful act or omission (see para [16]). The common-law rule requiring mitigation applies when assessing compensation for whistleblowing detriment (see paras [16]; [84]). Compensation must be reduced where the complainant’s conduct caused or contributed to the unlawful act or omission (see para [16]). Where a non-employee worker’s contract is terminated, compensation is limited to that which would have been payable for a section 103A dismissal. The court considered the provision’s possible purposes but reached no concluded view (see para [26]).

Wilsons Solicitors Llp & Ors v Roberts (Rev 1)

[2018] EWCA Civ 52 · 26 January 2018Interprets

Section 49 governs compensation for a well-founded complaint and requires the Tribunal to assess what is just and equitable, subject to the statutory factors. (see paras [22]; [56]-[60]) Section 49(2) separates the just-and-equitable discretion from mandatory regard to the infringement and the loss attributable to it. (see paras [22]; [56]-[60]) Section 49(2)(a) requires regard to the infringement itself, including its nature and gravity, when assessing just-and-equitable compensation. (see paras [41]; [56]) Section 49(2)(b)’s reference to loss attributable to the unlawful act imports the common-law but-for concept of causation. It is a separate question from the Tribunal’s overall just-and-equitable discretion. (see paras [41]; [56]-[60])

3 more judgments, and what each says about section 49, are in the case-law panel in the full Act.

Amendments and notes

19 notes from legislation.gov.uk

Amendments

  1. F289Words in s. 49(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
  2. F290Words in s. 49(1) substituted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(3)(a), 139(6); S.I. 2014/1640, art. 4(b)
  3. F291Word in s. 49(1) 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, 5(a)
  4. F292S. 49(1A) inserted (1.10.2014) by Children and Families Act 2014 (c. 6), ss. 129(3)(b), 139(6); S.I. 2014/1640, art. 4(b)
  5. F293Word in s. 49(2) 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, 5(b)
  6. F294S. 49(5ZA) 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, 5(c)
  7. F295S. 49(5A) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(b)
  8. F296S. 49(6) inserted (2.7.1999) by 1998 c. 23, s. 4(3); S.I. 1999/1547, art. 2
  9. F297S. 49(6A) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(4), 103(2) (with s. 24(6))
  10. F298S. 49(7) inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(4); S.I. 2002/1727, art. 2 text inserted prospectively or the amendment may be in effect for limited purposes, see the commentary.

Modifications

  1. C43S. 49 applied (with modifications) (1.11.1998) by 1998 c. 39, s. 24(2)(a)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1
  2. C44S. 49 applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6))
  3. C45S. 49 applied (with modifications) (30.6.2012) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6)); S.I. 2012/1682, art. 2, Sch. 2
  4. C46S. 49(1)-(5) applied (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 45(3)
  5. C47S. 49(1)-(5) applied (with modifications) (6.4.2005) by The Information and Consultation of Employees Regulations 2004 (S.I. 2004/3426), regs.1(1), 33(2) (with reg. 3)
  6. C48S. 49(1)-(5) applied (6.4.2006) by The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (S.I. 2006/349), regs. 1(2)(3), 17, Sch. para. 8(2)
  7. C49S. 49(1)-(5) applied (18.8.2006) by The European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), regs. 1(2), 34(3)
  8. C50S. 49(1)-(5) applied (15.12.2007) by The Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), reg. 51(2)
  9. C51S. 49(1)-(5) applied (1.10.2009) by The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 32(3) (with reg. 41)