(1) Where an employment tribunal finds a complaint under section 27BG well-founded, the tribunal—
(a) must make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the worker.
(2) The amount of compensation under subsection (1)(b) is to be such amount, not exceeding the permitted maximum, as the tribunal considers just and equitable in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of.
(3) In ascertaining the financial loss sustained, the tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.
(4) For the purposes of subsection (2), “the permitted maximum” is—
(a) where the complaint is under section 27BG(1), (2), (3), (7) or (8), such number of weeks’ pay as the Secretary of State may specify in regulations;
(b) where the complaint is under section 27BG(4) or (5), such amount as the Secretary of State may specify in regulations.
(5) In calculating a week’s pay for the purposes of determining the permitted maximum for an award of compensation to a worker who is not an employee, Chapter 2 of Part 14 is to apply as if—
(a) references in that Chapter and in section 234 (normal working hours) to an employee were references to a worker;
(b) references in that Chapter and in section 234 to a contract of employment were references to a worker’s contract;
(c) “week” meant—
(i) in relation to a worker whose remuneration is calculated weekly by a week ending with a day other than a Saturday, a week ending with that other day, and
(ii) in relation to any other worker, a week ending with Saturday.
(1) An employer must give to a worker reasonable notice of a shift that the employer requests or requires the worker to work if—
(a) the worker is (or is to be) employed by the employer under a zero hours contract, or
(b) the worker is (or is to be) employed by the employer under a worker’s contract of a specified description that requires the employer to make some work available to the worker but does not provide on what days and at what times, or in accordance with what pattern of days and times, that work is to be done by the worker,
and the shift is to be worked under the contract referred to in paragraph (a) or (b).
(2) An employer must give to a worker reasonable notice of a shift that the employer requests or requires the worker to work if—
(a) the worker is (or is to be) employed by the employer under a worker’s contract of a specified description that requires the employer to make some work available to the worker,
(b) the contract provides on what days and at what times, or in accordance with what pattern of days and times, that work, or some of that work, is to be done by the worker, and
(c) the shift is to be worked under that contract but no part of it corresponds to the time of a shift provided for by the contract as described in paragraph (b).
(3) An employer must give to an individual reasonable notice of a shift that the employer requests the individual to work if—
(a) the individual would, if they worked the shift, be employed by the employer under a worker’s contract, and
(b) the worker’s contract would be entered into in accordance with a zero hours arrangement that is in place between the employer and the individual.
(4) It is to be presumed, unless the contrary is shown, that notice of a shift is not reasonable notice for the purposes of subsections (1) to (3) if it is given less than a specified amount of time before the shift is due to start.
(5) Regulations under subsection (1)(b) or (2)(a)may, in particular, specify a description of worker’s contract by reference to—
(a) it being a worker’s contract that entitles a worker to be paid no more than a specified amount;
(b) it being a worker’s contract that requires an employer to make work available to a worker for no more than a specified number of hours.
(6) Where—
(a) the conditions in subsection (2)(a) and (b) are met in relation to a worker and a worker’s contract,
(b) the worker is to work (or is working) a shift under that contract all or part of which corresponds to the time of a shift (a “guaranteed shift”) provided for by the contract as described in subsection (2)(b),
(c) the employer requests or requires the worker to start earlier, or end later, than is provided for by the contract (as described in subsection (2)(b)) in relation to the guaranteed shift, and
(d) the earlier start or later end is to result in an additional number of hours being worked above the number of hours to be worked in the guaranteed shift,
the additional hours are to be treated for the purposes of this Chapter as a separate shift (and accordingly as one that meets the condition in subsection (2)(c)).
(7) For the purposes of this Chapter—
“employer”, in relation to an individual and a shift, includes a person by whom the individual would be (or would have been) employed if the individual worked the shift;
“worker”, in relation to a shift, includes an individual who would be (or would have been) a worker if the individual worked the shift.
(8) In this section, “notice of a shift” means notice of how many hours are to be worked and when the shift is to start and end.
27BK Right to reasonable notice of cancellation of or change to a shift
(1) Subsection (2) applies in relation to an employer and a worker where—
(a) the employer has given notice of a shift to the worker,
(b) the shift is one that the worker was entitled to reasonable notice of under section 27BJ(1), (2) or (3), and
(c) where the shift is one that the employer has requested (rather than required) the worker to work, the worker has agreed to work it.
(2) The employer must give reasonable notice to the worker of—
(a) the cancellation of the shift by the employer;
(b) any change requested or required by the employer consisting of—
(i) a change to when the shift is to start or end;
(ii) a reduction in the number of hours to be worked during the shift because of a break in the shift;
(but this is subject to section 27BM).
(3) It is to be presumed, unless the contrary is shown, that—
(a) notice of the cancellation of a shift is not reasonable notice for the purposes of subsection (2) if it is given less than a specified amount of time before the shift would have started (if the shift had not been cancelled);
(b) notice of a change to when a shift is to start is not reasonable notice for the purposes of subsection (2) if it is given less than a specified amount of time before the earlier of—
(i) when the shift would have started (if the shift had not been changed), and
(ii) when the shift is due to start (having been changed);
(c) notice of any other change to a shift is not reasonable notice for the purposes of subsection (2) if it is given—
(i) less than a specified amount of time before the shift is due to start;
(ii) on or after the start of the shift.
(4) In this section, “notice of a shift” has the same meaning as in section 27BJ.
(1) None of the duties imposed by sections 27BJ and 27BK applies in relation to a shift that would be (or would have been) worked, or is being worked, by a worker as an agency worker (but see Part 2 of Schedule A1 for provision about rights of agency workers to reasonable notice in relation to shifts).
(2) Where a worker suggests working a shift and the employer agrees to the suggestion—
(a) the duties imposed by section 27BJ(1), (2) and (3) do not apply in relation to the shift as suggested by the worker, but
(b) the duty imposed by section 27BK(2) applies (even though the conditions in section 27BK(1) have not been met).
(3) Section 27BJ(6) applies for the purposes of subsection (2) of this section as if section 27BJ(6)(c) referred to what the worker suggests rather than what the employer requests or requires.
(4) In sections 27BJ and 27BK, references to a request to work a shift made by an employer to a worker include a request (a “multi-worker request”) made by the employer to the worker and one or more others in circumstances where the employer does not need the shift to be worked by all of those to whom the request is made.
(5) For the purposes of section 27BK, where an employer has made a multi-worker request to a worker in relation to a shift, references to the cancellation of the shift include the worker not being needed to work the shift because one or more others have agreed to work it.
(6) The Secretary of State may by regulations make provision about—
(a) the form and manner in which notice under sections 27BJ and 27BK must be given;
(b) when notice under those sections is to be treated as having been given.
(1) Where an employer—
(a) is required to make a payment to a worker under section 27BP in relation to a shift that the employer cancels, moves or curtails at short notice, or
(b) would have been required to make such a payment in relation to the shift but for provision made under section 27BR(1)(c),
nothing in section 27BK(2) is to be taken to have applied in relation to the cancellation, movement or curtailment of the shift that gave rise to, or would have given rise to, the requirement to make the payment.
(2) Terms used in this section have the same meaning as in section 27BP.
(1) A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with a duty imposed by section 27BJ or 27BK.
(2) Where, in determining whether a complaint under this section is well-founded, the tribunal must determine whether reasonable notice has been given, the tribunal must have regard, in particular, to such of the specified matters as are appropriate in the circumstances.
(3) An employment tribunal must not consider a complaint under this section unless it is presented before the end of the period of six months beginning with—
(a) where the complaint is that the employer failed to comply with a duty imposed by section 27BJ(1), (2) or (3) in relation to a shift, the day on which the shift was due to start;
(b) where the complaint is that the employer failed to comply with the duty imposed by section 27BK(2) in relation to the cancellation of a shift, the day on which the shift would have started (if the shift had not been cancelled);
(c) where the complaint is that the employer failed to comply with the duty imposed by section 27BK(2) in relation to a change to a shift, the day on which the shift as changed was due to start or, where the shift was changed on or after its start, the day on which the shift started.
(4) But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
(5) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3).
(1) Where an employment tribunal finds a complaint under section 27BN well-founded, the tribunal—
(a) must make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the worker.
(2) The amount of compensation under subsection (1)(b) in relation to a complaint is to be such amount, not exceeding the specified amount, as the tribunal considers just and equitable in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of.
(3) In ascertaining the financial loss sustained, the tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.
27BP Right to payment for a cancelled, moved or curtailed shift
(1) An employer must make a payment of a specified amount to a worker each time that the employer cancels, moves or curtails at short notice a qualifying shift—
(a) that the employer has informed the worker they are required to work,
(b) that the employer has requested the worker to work and the worker has agreed to work, or
(c) that the worker has suggested working and the employer has agreed to the worker working,
(but see section 27BR for exceptions to this duty).
(2) A shift is a “qualifying shift”, in relation to a worker and an employer, if it would be (or would have been) worked, or is being worked, by the worker for the employer under—
(a) a zero hours contract,
(b) a worker’s contract entered into in accordance with a zero hours arrangement, or
(c) a worker’s contract of a specified description that requires the employer to make some work available to the worker but does not provide on what days and at what times, or in accordance with what pattern of days and times, that work is to be done by the worker.
(3) A shift is also a “qualifying shift”, in relation to a worker and an employer, if—
(a) it would be (or would have been) worked, or is being worked, by the worker for the employer under a worker’s contract of a specified description that requires the employer to make some work available to the worker,
(b) the contract provides on what days and at what times, or in accordance with what pattern of days and times, that work, or some of that work, is to be done by the worker, and
(c) no part of the shift corresponds to the time of a shift provided for by the contract as described in paragraph (b).
(4) Where—
(a) the conditions in subsection (3)(a) and (b) are met in relation to a shift,
(b) all or part of the shift corresponds to the time of a shift (a “guaranteed shift”) provided for by the contract as described in subsection (3)(b),
(c) the employer requests or requires, or the worker suggests, that the worker starts earlier, or ends later, than is provided for by the contract (as described in subsection (3)(b)) in relation to the guaranteed shift, and
(d) the earlier start or later end is to result in an additional number of hours being worked above the number of hours to be worked in the guaranteed shift,
the additional hours are to be treated for the purposes of this Chapter as a separate shift (and accordingly as a “qualifying shift”).
(5) A payment that an employer is required to make under subsection (1) must be made by no later than the specified day.
(6) For the purposes of this Chapter, “short notice” means—
(a) in relation to the cancellation of a shift, notice given less than a specified amount of time before the shift would have started (if the shift had not been cancelled);
(b) in relation to the movement of a shift, or the movement and curtailment (at the same time) of a shift, notice given—
(i) less than a specified amount of time before the earlier of when the shift would have started (if the shift had not been moved, or moved and curtailed) and when the shift is due to start (having been moved, or moved and curtailed);
(ii) on or after the start of the shift;
(c) in relation to the curtailment of a shift where there is a change to when the shift is to start (but there is no movement of the shift), notice given less than a specified amount of time before the earlier of—
(i) when the shift would have started (if there had not been the change), and
(ii) when the shift is due to start (the change having been made);
(d) in relation to the curtailment of a shift where there is no change to when the shift is to start, notice given—
(i) less than a specified amount of time before the shift is due to start;
(ii) on or after the start of the shift.
(7) The Secretary of State may by regulations make provision about when notice of the cancellation, movement or curtailment of a shift is to be treated as having been given by an employer to a worker.
(8) For the purposes of this Chapter—
“employer”, in relation to an individual and a shift, includes a person by whom the individual would be (or would have been) employed if the individual worked the shift;
“worker”, in relation to a shift, includes an individual who would be (or would have been) a worker if the individual worked the shift.
(9) For the purposes of this Chapter, references to the movement of a shift (however expressed)—
(a) are to any change to the time at which the shift is to start that is a change of more than a specified amount of time;
(b) include—
(i) where a shift is in two or more parts, a change of more than a specified amount of time to the time at which the second (or a subsequent) part is to start, and
(ii) a division of a shift into two or more parts where the time between the parts is more than a specified amount of time,
but only if the change or division (as the case may be) results in the shift ending later.
(10) In this Chapter, references to a request to work a shift made by an employer to a worker include a request (a “multi-worker request”) made by the employer to the worker and one or more others in circumstances where the employer does not need the shift to be worked by all of those to whom the request is made.
(11) For the purposes of this Chapter, where an employer has made a multi-worker request to a worker in relation to a shift, references to the cancellation of the shift (however expressed) include the worker not being needed to work the shift because one or more others have agreed to work it.
27BQ Regulations under section 27BP: supplementary
(1) Regulations under section 27BP(1) may not specify an amount to be paid to a worker in relation to the cancellation, movement or curtailment of a shift that exceeds—
(a) where the shift is cancelled, the amount of remuneration to which the worker would have been entitled had they worked the hours that will not be worked because of the cancellation;
(b) where the shift is moved, or moved and curtailed (at the same time), and no part of the shift as moved, or as moved and curtailed, corresponds to the time of the shift (“the original shift”) before it was moved, or moved and curtailed, the amount of remuneration to which the worker would have been entitled had they worked the original shift;
(c) where the shift is moved, or moved and curtailed (at the same time), and part of the shift as moved, or as moved and curtailed, corresponds to the time of the original shift (but part does not), the amount of remuneration to which the worker would have been entitled had they worked the part of the original shift that does not correspond to the shift as moved, or as moved and curtailed;
(d) where the shift is—
(i) curtailed but not moved, or
(ii) moved and curtailed (at the same time) and the shift as moved and curtailed is to start and end within the time of the original shift,
the amount of remuneration to which the worker would have been entitled had they worked the hours that will not be worked because of the curtailment, or the movement and curtailment.
(2) Regulations under section 27BP(1) may, in particular, include provision specifying different amounts depending on the amount of notice that was given of the cancellation, movement or curtailment.
(3) Regulations under section 27BP(2)(c) or (3)(a) may, in particular, specify a description of worker’s contract by reference to—
(a) it being a worker’s contract that entitles a worker to be paid no more than a specified amount;
(b) it being a worker’s contract that requires an employer to make work available to a worker for no more than a specified number of hours.
(4) Regulations under section 27BP(6) may not specify an amount of time that exceeds 7 days.
27BR Exceptions to duty to make payment for a cancelled, moved or curtailed shift
(1) The requirement to make a payment under section 27BP(1) does not apply—
(a) in relation to a shift that would be (or would have been) worked, or is being worked, by a worker as an agency worker (but see Part 3 of Schedule A1 for provision about rights of agency workers to payment for cancelled, moved and curtailed shifts);
(b) in relation to the cancellation, movement or curtailment of a shift that an employer has requested a worker to work, unless the worker reasonably believed, whether on agreeing to work the shift or at some later time before the cancellation, movement or curtailment, that they would be needed to work the shift;
(c) in other specified circumstances.
(2) Where, by virtue of regulations made under subsection (1)(c), an employer is not required to make a payment to a worker in relation to a shift under section 27BP(1), the employer must give a notice to the worker that—
(a) states which provision of the regulations has produced the effect that the employer is not required to make the payment, and
(b) explains why the employer was entitled to rely on that provision.
(3) But subsection (2)(b) does not require an employer to disclose—
(a) any information the disclosure of which by the employer would contravene the data protection legislation (but in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account);
(b) any information that is commercially sensitive;
(c) any information the disclosure of which by the employer would constitute a breach of a duty of confidentiality owed by the employer to any other person.
(4) In subsection (3)(a) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
(5) The Secretary of State may by regulations make provision about—
(a) the form and manner in which a notice under this section must be given;
(b) the day on or before which it must be given;
(c) when a notice under this section is to be treated as having been given.
(6) The duty in subsection (2) is to be taken not to have applied if—
(a) the employer pays to the worker an amount in relation to a number of hours that is at least equal to the amount of the payment that the employer would have been required to make to the worker under section 27BP(1) in relation to the same number of hours but for regulations made under subsection (1)(c), and
(b) the payment is made on or before the day on which the payment under section 27BP(1) would have had to be made if the employer had been required to make it.
(7) Subsection (4) of section 27BS applies for the purposes of subsection (6) of this section as it applies for the purposes of subsections (2) and (3) of that section.
(1) The right of a worker to receive a payment from an employer under section 27BP(1) does not affect any right of the worker in relation to remuneration under a worker’s contract entered into between the worker and the employer (“contractual remuneration”).
(2) Any contractual remuneration paid to a worker by an employer in relation to a number of hours goes towards discharging any liability of the employer to make a payment to the worker under section 27BP(1) in relation to the same hours.
(3) Any payment made by an employer to a worker under section 27BP(1) in relation to a number of hours goes towards discharging any liability of the employer to pay contractual remuneration to the worker in relation to the same hours.
(4) For the purposes of subsections (2) and (3), the hours to which a payment under section 27BP(1) relates are—
(a) where a shift has been cancelled, the hours that would have been worked if the shift had not been cancelled;
(b) where a shift has been moved, or moved and curtailed (at the same time), and no part of the shift as moved, or as moved and curtailed, corresponds to the time of the shift (“the original shift”) before it was moved, or moved and curtailed, the hours that would have been worked during the original shift;
(c) where a shift has been moved, or moved and curtailed (at the same time), and part of the shift as moved, or as moved and curtailed, corresponds to the time of the original shift (but part does not), the hours that would have been worked during the part of the original shift that does not correspond to the shift as moved, or as moved and curtailed;
(d) where a shift has been—
(i) curtailed but not moved, or
(ii) moved and curtailed (at the same time) and the shift as moved and curtailed is to start and end within the time of the original shift,
the hours that would have been worked if the shift had not been curtailed, or moved and curtailed.
(1) A worker may present a complaint to an employment tribunal that the worker’s employer—
(a) has failed to make the whole or any part of a payment that the employer is liable to make to the worker under section 27BP(1);
(b) has unreasonably failed to give to the worker a notice under section 27BR(2);
(c) has given to the worker a notice in purported compliance with section 27BR(2) that—
(i) does not refer to any provision of the regulations;
(ii) does not contain an explanation or contains an explanation that is inadequate or untrue.
(2) An employment tribunal must not consider a complaint under subsection (1)(a) relating to a payment unless it is presented before the end of the period of six months beginning with the day after the day on or before which the payment should have been made (see section 27BP(5)).
(3) An employment tribunal must not consider a complaint under subsection (1)(b) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on or before which the notice should have been given (see section 27BR(5)(b)).
(4) An employment tribunal must not consider a complaint under subsection (1)(c) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on which the notice is given.
(5) But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
(6) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsections (2) to (4).
(1) Where an employment tribunal finds a complaint under section 27BT(1)(a) well-founded, the tribunal must—
(a) make a declaration to that effect, and
(b) order the employer to pay to the worker the amount of the payment under section 27BP(1) which it finds is due to the worker.
(2) Where an employment tribunal finds a complaint under section 27BT(1)(b) or (c) well-founded, the tribunal—
(a) must make a declaration to that effect, and
(b) may order the employer to make a payment to the worker of such amount, not exceeding the specified amount, as the tribunal considers just and equitable in all the circumstances.
(3) But an employment tribunal may not make an order under subsection (2)(b) relating to a notice given in purported compliance with section 27BR(2) if the tribunal makes an order under subsection (1)(b) relating to the same payment to which the notice related.
(4) In determining—
(a) whether to make an order under subsection (2)(b), and
(b) if so, how much to order the employer to pay,
an employment tribunal must have regard, in particular, to the seriousness of the matter complained of.
(1) In this Part, “agency worker” means an individual—
(a) who has a worker’s contract or an arrangement with a work-finding agency by virtue of which the individual is (or is to be) supplied to work for and under the supervision and direction of another person,
(b) who does not do (or is not to do) the work under a worker’s contract with the other person, and
(c) who is not (or is not to be) a party to a contract under which the individual undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.
(2) In this Part—
(a) references to an agency worker include, where the context requires, a former agency worker, and
(b) where that is the case, references in relation to the agency worker to a work-finding agency, and references (however expressed) to a person for and under the supervision and direction of whom the agency worker works, are to be read accordingly.
(3) An individual is an “agency worker” for the purposes of this Part—
(a) whether the individual is (or is to be) supplied to work for and under the supervision and direction of another person—
(i) by the work-finding agency referred to in subsection (1)(a), or
(ii) by a person other than the work-finding agency;
(b) whether the individual is (or is to be) paid, for work done for and under the supervision and direction of another person—
(i) by the work-finding agency referred to in subsection (1)(a), or
(ii) by a person other than the work-finding agency.
(4) In this Part, “work-finding agency” means a person carrying on the business (whether or not with a view to profit and whether or not in conjunction with any other business) of finding, or seeking to find, work for individuals to do for and under the supervision and direction of other persons (but not in the employment of those other persons).
(5) Part 1 of Schedule A1 contains provision about guaranteed hours and agency workers.
(6) Part 2 of Schedule A1 contains provision about rights of agency workers to reasonable notice in relation to shifts.
(7) Part 3 of Schedule A1 contains provision about rights of agency workers to payment for shifts that are cancelled, moved or curtailed at short notice.
(1) This section applies in relation to—
(a) a duty imposed on an employer in respect of a worker, and
(b) a right conferred on a worker in respect of an employer,
by or under any provision of Chapter 2, 3 or 4.
(2) The duty or right is excluded if—
(a) the worker is employed by the employer under a worker’s contract (“the contract”),
(b) a relevant collective agreement contains—
(i) terms that expressly exclude the duty or right, and
(ii) terms that expressly replace the excluded duty or right,
(c) the terms within paragraph (b)(ii) are incorporated into the contract, and
(d) the employer notifies the worker in writing of the incorporation and effect of those terms.
(3) A relevant collective agreement is a collective agreement that is—
(a) in writing, and
(b) made by or on behalf of—
(i) one or more trade unions which each have a certificate of independence, and
(ii) the worker’s employer.
(1) This section applies in relation to—
(a) a duty imposed on a hirer or a work-finding agency in respect of an agency worker, and
(b) a right conferred on an agency worker in respect of a hirer or a work-finding agency,
by or under any provision of Chapter 5 (including Schedule A1).
(2) The duty or right is excluded if—
(a) the agency worker is supplied to work for and under the supervision and direction of the hirer by virtue of a worker’s contract (“the contract”) that the agency worker has with another person (“the other party”),
(b) a relevant collective agreement contains—
(i) terms that expressly exclude the duty or right, and
(ii) terms that expressly replace the excluded duty or right,
(c) the terms within paragraph (b)(ii) are incorporated into the contract, and
(d) the other party notifies the agency worker in writing of the incorporation and effect of those terms.
(3) A relevant collective agreement is a collective agreement that is—
(a) in writing, and
(b) made by or on behalf of—
(i) one or more trade unions which each have a certificate of independence, and
(ii) the other party.
(1) For the purposes of sections 27BW and 27BX, it does not matter whether—
(a) terms in a collective agreement that expressly replace a duty or right relate to the same subject matter as the duty or right, or
(b) a collective agreement ceases to be in force after the terms mentioned in section 27BW(2)(b)(ii) or 27BX(2)(b)(ii) are incorporated into the contract (within the meaning of section 27BW or 27BX, as the case may be), provided the terms continue to be incorporated.
(2) Where the duty to make a guaranteed hours offer under Chapter 2 or 5 is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BW(2)(c) or 27BX(2)(c), during the offer period, the duty ceases to apply.
(3) Where—
(a) the duty to make a guaranteed hours offer under Chapter 2 or 5 is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BW(2)(c) or 27BX(2)(c),
(b) a guaranteed hours offer has already been made in compliance with the duty, and
(c) the worker or agency worker has not accepted the offer,
the person who made the offer may withdraw it during the response period by giving a notice to the worker or agency worker.
(4) The notice must include a statement to the effect that the offer is withdrawn in consequence of the exclusion of the duty to make a guaranteed hours offer as a result of the incorporation into the worker’s or agency worker’s contract, as mentioned in section 27BW(2)(c) or 27BX(2)(c), of terms contained in a collective agreement that expressly replace that duty.
(5) A worker or an agency worker to whom a notice is given in reliance on subsection (3) may present a complaint to an employment tribunal that subsection (3) did not permit the notice to be given.
(6) Where a complaint is presented under subsection (5)—
(a) by a worker, sections 27BH and 27BI apply in relation to the complaint as they apply in relation to a complaint under section 27BG(7)(b);
(b) by an agency worker, paragraphs 10 and 11 of Schedule A1 apply in relation to the complaint as they apply in relation to a complaint under paragraph 8(7)(b) of that Schedule.
(7) Subsection (8) applies where—
(a) the duty to make a guaranteed hours offer under Chapter 2 or 5 is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BW(2)(c) or 27BX(2)(c), and
(b) the duty ceases to be excluded as a result of the terms ceasing to be incorporated into the contract (including where the contract ceases to be in force).
(8) In applying Chapter 2 or 5 for the purposes of the duty after it has ceased to be excluded—
(a) in any case where there was a reference period in relation to the duty as it had effect before being excluded, that reference period is to be disregarded;
(b) in relation to a worker and the worker’s employer—
(i) section 27BA(5)(a) has effect as if for sub-paragraphs (i) and (ii) there were substituted—
(i) where the worker is employed by the employer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or
(ii) where the worker is not so employed, the first day after the effective day on which the worker is employed by the employer, and
;
(ii) section 27BF(3) has effect as if for paragraphs (a) and (b) there were substituted—
(a) where the worker is employed by the employer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or
(b) where the worker is not so employed, the first day after the effective day on which the worker is employed by the employer.
;
(c) in relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, paragraph 1(5)(a) of Schedule A1 has effect as if for sub-paragraphs (i) and (ii) there were substituted—
(i) where the agency worker is working for and under the supervision and direction of the hirer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or
(ii) where the agency worker is not so working, the first day after the effective day on which the agency worker is working for and under the supervision and direction of the hirer, and
;
(d) in relation to an agency worker and the work-finding agency with which the agency worker has a worker’s contract or an arrangement by virtue of which the agency worker is (or is to be) supplied to work for and under the supervision and direction of a hirer, paragraph 7(3) of Schedule A1 has effect as if for paragraphs (a) and (b) there were substituted—
(a) where the worker’s contract or arrangement is in force on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or
(b) where it is not in force on the effective day, the first day after the effective day on which it is in force.
(1) The Secretary of State may by regulations make further provision for the purposes of section 27BW or 27BX.
(2) The regulations may, in particular, make provision about—
(a) the effect on a duty in Chapters 2 to 5 of terms being or ceasing to be incorporated as mentioned in section 27BW(2)(c) or 27BX(2)(c),
(b) the form and manner in which a notice under section 27BY(3) is to be given, and
(c) when a notice under section 27BY(3) is to be treated as having been given.
(1) Terms used in this Chapter that are used in—
(a) Chapters 2 to 4 (rights relating to zero hours workers, etc), or
(b) Chapter 5 (including Schedule A1) (rights relating to agency workers),
have the same meaning as in those Chapters or that Chapter (including that Schedule).
(2) In this Chapter, “certificate of independence” means a certificate issued under section 6 of the Trade Union and Labour Relations (Consolidation) Act 1992.
(1) In this Part—
“agency worker” has the meaning given by section 27BV;
“arrangement” (when used by itself and not as part of the expression “zero hours arrangement”) means an arrangement (whether contractual or non-contractual) other than a worker’s contract;
“specified” means specified in, or determined in accordance with, regulations made by the Secretary of State;
“work-finding agency” has the meaning given by section 27BV;
“zero hours arrangement” means an arrangement under which—
an employer and an individual agree terms on which the individual will do any work where the employer makes it available to the individual and the individual agrees to do it, but
the employer is not required to make any work available to the individual, nor the individual required to accept it,
and in this Part “employer”, in relation to a zero hours arrangement, is to be read accordingly;
“zero hours contract” means a contract of employment or other worker’s contract under which—
the undertaking to do work is an undertaking to do so conditionally on the employer making work available to the worker, and
there is no certainty that any such work will be made available to the worker.
(2) For the purposes of this Part—
(a) a person who is, or is treated as, an employer makes work available to a worker or other individual if they request or require the individual to do it;
(b) references to work and doing work include references to services and performing them.
(1) Regulations under this Part may—
(a) make different provision for different purposes;
(b) make provision subject to exceptions.
(2) Regulations under this Part may provide that a reference in the regulations to a provision of legislation is to be read as a reference to that provision as amended from time to time.
27C Qualifying tips, gratuities and service charges
(1) This Part makes provision for—
(a) how employers must deal with qualifying tips, gratuities and service charges, and
(b) the Secretary of State to issue a code of practice to promote fairness and transparency in relation to the distribution of qualifying tips, gratuities and service charges.
(2) In this Part “qualifying tips, gratuities and service charges” means—
(a) employer-received tips, and
(b) worker-received tips which—
(i) are subject to employer control, or
(ii) are connected with any other worker-received tips which are subject to employer control.
(3) An “employer-received tip” is an amount paid by a customer of an employer by way of a tip, gratuity or service charge (however described) which—
(a) is received upon its payment or subsequently by the employer or an associated person, or
(b) is received upon its payment by a person under a payment arrangement made between the employer and that person.
(4) A “worker-received tip” is an amount paid by a customer of an employer by way of a tip, gratuity or service charge (however described) which—
(a) is received upon its payment by a worker of the employer, and
(b) is not subsequently received by the employer or an associated person.
(5) For the purposes of subsection (2)(b)—
(a) a worker-received tip is subject to employer control if the employer or an associated person exercises control or significant influence over the allocation of the tip;
(b) a worker-received tip (“tip A”) is connected with another worker-received tip which is subject to employer control (“tip B”) if—
(i) both tips are paid at, or are otherwise attributable to, the same place of business, and
(ii) tip A is paid later in the week, or in the week following the week, in which tip B is paid.
(6) In this section the “amount paid by a customer of an employer by way of a tip, gratuity or service charge” means the actual amount paid by the customer (and accordingly any deductions from the amount paid, whether deducted by the employer or any other person, are to be disregarded when determining the amount paid by the customer).
(7) An amount paid by a customer of an employer is not paid by way of a tip, gratuity or service charge to the extent that the amount represents payment of value added tax.
(8) If an amount is not paid in money, it can be a qualifying tip, gratuity or service charge only if it is paid in the form of a voucher, stamp, token or similar item which is—
(a) of a fixed value expressed in monetary terms, and
(b) capable of being exchanged (whether on its own or together with other vouchers, stamps, tokens or items, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).
(9) In this section—
“payment arrangement” means an arrangement between an employer and another person under which payments made by customers of the employer are to be received by the other person instead of the employer;
“week” means any period of seven days beginning with a Monday (and ending with a Sunday).
(1) An employer must ensure that the total amount of the qualifying tips, gratuities and service charges paid at, or otherwise attributable to, a place of business of the employer is allocated fairly between workers of the employer at that place of business.
(2) Where a worker is allocated an amount of employer-received tips in accordance with subsection (1), that amount is payable to the worker by the employer.
(3) In determining what would be a fair allocation of qualifying tips, gratuities and service charges under this section or section 27E (non-public places of business), regard must be had to the relevant provisions of any code of practice issued under this Part.
(4) See also sections 27E (non-public places of business) and 27F (independent troncs).
(1) This section applies where—
(a) qualifying tips, gratuities and service charges are paid at, or are otherwise attributable to, a non-public place of business of an employer (the “non-public tips”), and
(b) the employer also has one or more public places of business.
(2) The employer may comply with the requirement in section 27D(1) to ensure that the total amount of the non-public tips is allocated fairly between workers of the employer at the non-public place of business by instead ensuring that the total amount of the non-public tips is allocated fairly between both—
(a) workers of the employer at the non-public place of business, and
(b) workers of the employer at one or more public places of business of the employer.
(3) In this section—
“non-public place of business” means a place of business that is not a public place of business;
“public place of business” means a place of business where interaction between—
customers of the employer, and
workers of the employer,
occurs wholly or mainly face-to-face.
(1) In this section “relevant tips” means the qualifying tips, gratuities and service charges that—
(a) are paid at, or are otherwise attributable to, a place of business of an employer, and
(b) are paid during a reference period.
(2) Where—
(a) the employer makes arrangements for the total amount of the relevant tips to be allocated between workers of the employer at the place of business by an independent tronc operator, and
(b) it is fair for the employer to make those arrangements,
the employer is to be treated as having ensured that the total amount of the relevant tips is allocated fairly between workers of the employer at the place of business in accordance with section 27D(1).
(3) Where—
(a) the employer makes arrangements for a part of the total amount of the relevant tips to be allocated between workers of the employer at the place of business by an independent tronc operator, and
(b) it is fair for the employer to make those arrangements,
the employer is to be treated as having ensured that that part of the total amount of the relevant tips is allocated fairly between workers of the employer at the place of business in accordance with section 27D(1).
(4) In determining whether it would be fair for an employer to make the arrangements mentioned in subsection (2) or (3), regard must be had to the relevant provisions of any code of practice issued under this Part.
(5) Section 27D(2) does not apply to an amount which—
(a) by virtue of subsection (2) or (3), is treated as having been allocated fairly between workers, and
(b) is payable to the worker by the independent tronc operator.
(6) For the purposes of this section “an independent tronc operator” is a person who the employer reasonably considers to be operating, or intending to operate, independently of the employer, arrangements under which—
(a) the total amount of qualifying tips, gratuities and service charges subject to the arrangements is allocated between workers of the employer at the relevant place of business by the person,
(b) such allocated qualifying tips, gratuities and service charges are payable to such workers by the person or by the employer (or partly by the person and partly by the employer),
(c) amounts payable to workers by the person in accordance with paragraph (b) are not subject to unauthorised deductions by the person, and
(d) all payments made to workers in accordance with paragraph (b) are payments to which paragraph 5(1) of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001 (S.I. 2001/1004) (payments disregarded in the calculation of earnings)—
(i) applies by virtue of the payments meeting the condition in paragraph 5(3) of that Part, or
(ii) would apply by virtue of the payments meeting the condition in paragraph 5(3) of that Part if the modifications in subsection (7) were made to paragraph 5 of that Part.
(7) The modifications are—
(a) each reference to a “secondary contributor” is to be read as a reference to an “employer”;
(b) each reference to an “earner” is to be read as a reference to a “worker”.
(8) The Secretary of State may by regulations—
(a) amend the definition of “independent tronc operator” in this section in consequence of the making of social security contributions regulations, and
(b) consequentially amend any other provision of this Part.
(9) In this section—
“reference period” means a period of at least one day, as determined by the employer from time to time;
“social security contributions regulations” means any regulations making provision related to social security contributions of employers or workers;
“unauthorised deduction” means a deduction that is not required or authorised to be made by virtue of a statutory provision.
The employer must—
(a) ensure that a qualifying tip, gratuity or service charge is allocated in accordance with section 27D(1), and
(b) make any payment that the employer is required to make to a worker under section 27D(2) as a result of that allocation,
no later than the end of the month following the month in which the tip, gratuity or service charge was paid by the customer.
(1) In this Part an “eligible agency worker” is an individual—
(a) who is supplied by a person (the “agent”) to do work for another person (the “principal”) under a contract or other arrangements made between the agent and the principal, but
(b) who is not, as respects that work, a worker of the principal because of the absence of a worker’s contract between the individual and the principal, and
(c) who is not a party to a contract under which the individual undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.
(2) Where an eligible agency worker does work for the principal at a place of business of the principal, this Part applies as if—
(a) the eligible agency worker were a worker of the principal, and
(b) the principal were the employer of the eligible agency worker.
(3) Where an amount is payable to an eligible agency worker under section 27D(2)—
(a) the amount may instead be paid to the agent (within the period specified in section 27G);
(b) the employer must not make any unauthorised deductions from the amount (whether or not the amount is paid to the agent under paragraph (a)).
(4) Where an amount is paid to the agent under subsection (3)—
(a) the amount becomes payable to the eligible agency worker by the agent before the end of the month after the month in which the agent is paid the amount under subsection (3), and
(b) the agent must not make any unauthorised deductions from the amount.
(5) In this section “unauthorised deduction” means a deduction that is not required or authorised to be made by virtue of a statutory provision.
(6) In this Part a reference to an eligible agency worker includes, where the context requires, a reference to a former eligible agency worker.
(1) Where qualifying tips, gratuities and service charges are paid at, or are otherwise attributable to, a place of business of an employer on more than an occasional and exceptional basis, the employer must have a written policy on dealing with qualifying tips, gratuities and service charges for the place of business.
(2) A written policy for a place of business must include the following information—
(a) whether the employer requires or encourages customers to pay tips, gratuities and service charges at the place of business;
(b) how the employer ensures that all qualifying tips, gratuities and service charges paid at, or otherwise attributable to, the place of business are dealt with in accordance with this Part, including how the employer allocates qualifying tips, gratuities and service charges between workers at the place of business.
(3) Where an employer is required by this section to have a written policy for a place of business, the employer must make the written policy available to all workers of the employer at the place of business.
(4) Subsection (5) applies in a case where—
(a) an employer is not required by this section to have a written policy for a place of business, but
(b) the employer would be required by this section to have such a written policy if worker-received tips paid at, or otherwise attributable to, the place of business were qualifying tips, gratuities and service charges.
(5) In that case, the employer must make the following information available to all workers of the employer at the place of business—
(a) the fact that the employer is not required by this section to have a written policy for the place of business, and
(b) the reasons why the employer is not required by this section to have such a written policy.
(6) Where—
(a) an employer makes a written policy available to workers at a place of business under this section, and
(b) the employer subsequently amends that policy,
the employer must make the amended version of the policy available to all workers of the employer at the place of business.
(1) Where qualifying tips, gratuities and service charges are paid at, or are otherwise attributable to, a place of business of an employer on more than an occasional and exceptional basis, the employer must—
(a) create a record of how every qualifying tip, gratuity and service charge paid at, or otherwise attributable to, the place of business has been dealt with in accordance with this Part, and
(b) maintain that record for a period of three years beginning with the date on which the qualifying tip, gratuity or service charge was paid.
(2) The record required by subsection (1) must include—
(a) the amount of qualifying tips, gratuities and service charges paid at, or otherwise attributable to, the place of business;
(b) the amount of those qualifying tips, gratuities and service charges—
(i) that the employer allocated to workers of the employer at the place of business;
(ii) that the employer arranged to be allocated to workers of the employer at the place of business by an independent tronc operator in accordance with section 27F.
(3) A worker of an employer may make a written request for the employer to provide the following records for a period specified in the request in relation to a place of business of the employer that the worker worked at—
(a) the amount of qualifying tips, gratuities and service charges paid at, or otherwise attributable to, the place of business;
(b) the amount of those qualifying tips, gratuities and service charges—
(i) that the employer allocated to the worker;
(ii) that the employer arranged to be allocated to workers of the employer at the place of business by an independent tronc operator in accordance with section 27F.
(4) Where—
(a) an employer receives a request from a worker under subsection (3) for records in relation to a place of business of the employer, and
(b) the employer is required by this section to maintain those records,
the employer must, within the response period, provide the worker with the requested records in respect of the period specified in the request or a substantially similar period.
(5) Subsection (6) applies in a case where—
(a) an employer receives a request from a worker under subsection (3) for records in relation to a place of business of the employer,
(b) the employer is not required by this section to maintain those records, but
(c) the employer would be required by this section to maintain those records if worker-received tips paid at, or otherwise attributable to, the place of business were qualifying tips, gratuities and service charges.
(6) In that case, the employer must, within the response period, notify the worker—
(a) that the employer is not required by this section to maintain the requested records, and
(b) of the reasons why the employer is not required by this section to maintain those records.
(7) A worker may request records under this section in respect of a period only if—
(a) the period is a period of one month or two or more consecutive months,
(b) the period begins no more than three years before the date of the request,
(c) the period ends before the date of the request, and
(d) the worker worked for the employer at any time during each month that forms part of the request.
(8) A worker may not make more than one request for records under this section in any three month period.
(9) Except as provided by subsection (10), a disclosure of information required by subsection (4) does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(10) Subsection (4) does not require a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account).
(11) In this section—
“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act);
“date of the request” means the date that the request is received by the employer;
“response period” means the period of four weeks beginning with the date of the request.
27K Complaints to employment tribunal about tips etc
(1) A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with—
(a) section 27D (how tips etc must be dealt with), or
(b) section 27G (when tips etc must be dealt with),
in relation to the worker.
(2) An eligible agency worker may also present a complaint to an employment tribunal that an agent has failed to comply with the requirement to make a payment to the eligible agency worker that the agent was required to make under section 27H(4).
(3) An employment tribunal must not consider a complaint under this section unless it is presented before the end of the period of twelve months beginning with the date of the failure to comply.
(4) But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of twelve months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
(5) If a complaint is presented under this section in respect of a series of failures to comply, the reference in subsection (3) to the date of the failure to comply is to the date of the last failure in the series.
(6) An eligible agency worker may present a complaint under subsection (2) whether or not the eligible agency worker also presents a complaint under subsection (1).
(7) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (3).
(1) If an employment tribunal finds a complaint under section 27K well founded—
(a) it must make a declaration to that effect, and
(b) it may—
(i) in the case of a complaint under section 27K(1), make an order requiring the employer to deal with qualifying tips, gratuities and service charges that were paid at, or were otherwise attributable to, a place of business of the employer in accordance with this Part;
(ii) in the case of a complaint under section 27K(2), make an order requiring the agent to make a payment to the eligible agency worker of the amount that the agent was required under section 27H to pay to the eligible agency worker.
(2) An order made under subsection (1)(b)(i) may in particular—
(a) require the employer to revise an allocation made by the employer under section 27D;
(b) make a recommendation to the employer regarding that allocation;
(c) require the employer to make a payment to one or more workers of the employer in accordance with this Part (including a worker who is not the complainant).
(3) A recommendation made under subsection (2)(b) is not binding on an employer, but is to be admissible in evidence in proceedings before an employment tribunal; and any provision of the recommendation which appears to the tribunal to be relevant to any question arising in the proceedings is to be taken into account in determining that question.
(4) An order made under subsection (1)(b)(i) following a complaint presented by a worker does not prevent a different worker from presenting a complaint under this Part in relation to the same employer or the same qualifying tips, gratuities and service charges.
(1) If an employment tribunal makes a declaration under section 27L(1)(a), it may order the employer or agent (as the case may be) to pay to the complainant such amount, not exceeding £5,366, as the tribunal considers appropriate in all the circumstances to compensate the complainant for any financial loss sustained by the complainant which is attributable to the matter complained of.
(2) The tribunal may make an order under this section whether or not an order under section 27L(1)(b) has been made.
27N Complaints to employment tribunal about information
(1) A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with a requirement in section 27I (written policy) or 27J (records).
(2) An employment tribunal must not consider a complaint under this section unless it is presented before the end of the period of six months beginning with the date of the failure to comply.
(3) But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
(4) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).
(1) If an employment tribunal finds a complaint under section 27N well founded—
(a) it must make a declaration to that effect, and
(b) it may make an order requiring the employer to comply with the requirement in accordance with section 27I or 27J.
(2) If an employment tribunal makes a declaration under subsection (1)(a), it may order the employer to pay to the worker such amount, not exceeding £5,366, as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of.
(3) The tribunal may make an order under subsection (2) whether or not an order referred to in subsection (1)(b) has been made.
(1) The Secretary of State may issue a code of practice under section 27Q for the purpose of promoting fairness and transparency in the distribution of qualifying tips, gratuities and service charges.
(2) The Secretary of State may from time to time revise the whole or any part of a code of practice and issue that revised code of practice under section 27Q.
(1) If the Secretary of State proposes to issue a code of practice under this section the Secretary of State must—
(a) consult ACAS;
(b) publish a draft of the code of practice;
(c) consider any representations made about the draft code of practice and modify the draft code of practice accordingly.
(2) If the Secretary of State decides to proceed with the draft code of practice, the Secretary of State must—
(a) lay it before both Houses of Parliament, and
(b) if it is approved by resolution of each House, issue the code of practice in the form of the draft.
(3) A code of practice issued under this section comes into effect on such day as the Secretary of State may by regulations appoint.
(1) A code of practice issued under section 27Q may be revised by the Secretary of State in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.
(2) In this section “subsequent statutory provisions” means provisions made by or under an Act of Parliament and coming into force after the code of practice was issued.
(3) If the Secretary of State proposes to revise a code of practice under this section, the Secretary of State must lay a draft of the revised code of practice before each House of Parliament.
(4) If within the period of 40 days beginning with the day on which the draft is laid before Parliament, or, if copies are laid before the two Houses on different days, with the later of the two days, either House so resolves, no further proceedings are to be taken thereon, but without prejudice to the laying before Parliament of a new draft.
(5) In reckoning the period of 40 days no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(6) If no such resolution is passed, the Secretary of State must issue the code of practice in the form of the draft and it comes into effect on such day as the Secretary of State may by regulations appoint.
(1) In proceedings before an employment tribunal, a code of practice issued under this Part is to be admissible in evidence, and any provision of the code of practice which appears to the tribunal to be relevant to any question arising in the proceedings is to be taken into account in determining that question.
(2) A failure on the part of an employer to observe any provision of a code of practice issued under this Part does not of itself render the employer liable to any proceedings.
(1) This section applies where—
(a) a worker is allocated an amount of qualifying tips, gratuities and service charges in accordance with section 27D(1) (the “original allocation”),
(b) the employment tribunal makes an order under section 27L(1)(b)(i) that has the effect of requiring the employer to revise that allocation,
(c) the employer subsequently revises the amount of qualifying tips, gratuities and service charges allocated to the worker (the “revised allocation”), and
(d) the amount of the revised allocation is less than the amount of the original allocation.
(2) The difference between the amount of the revised allocation and the amount of the original allocation is not payable by the worker to the employer (and accordingly the employer may not bring proceedings in a court or tribunal to recover from the worker or an agent (as the case may be) the difference between such amounts based wholly or partly on the employment tribunal order).
(3) For the meaning of “agent”, see section 27H.