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HMRC internal manual

National Insurance Manual

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HM Revenue & Customs
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NIM07040 - Class 1 NICs: Payments made under employment legislation: Unfair dismissal: Pay under an order for the continuation of a contract of employment: General

Sections 128-130 Employment Rights Act 1996

Sections 152, 163-164 and paragraph 161(2) of Schedule A1 Trade Union and LabourRelations (Consolidation) Act 1992

An employee who has been dismissed unfairly by their employer may, pending a fullhearing of their case by an employment tribunal (ET) (in Northern Ireland, an industrialtribunal), apply to an ET for an interim decision if they have been dismissed for any ofthe following reasons:

  • although appointed as a workplace representative for the purposes of health and safety, the employee was dismissed for carrying, or proposing to carry out, such duties (section 100(1) Employment Rights Act 1996 (“ERA 1996”)
  • although appointed as a workplace representative for the purposes of working time rights, the employee was dismissed for carrying out, or proposing to carry out, such duties (section 101A ERA 1996)
  • although a trustee of their employer’s occupational pension scheme, the employee was dismissed for carrying out, or proposing to carry out, the duties of such a trustee (section 102(1) ERA 1996)
  • although elected, or standing for election, as a workplace representative for the purposes of collective redundancies or the transfer of an undertaking, the employee was dismissed for carrying out, or proposing to carry out, such duties (section 103 ERA 1996)
  • the employee was dismissed for making a disclosure which, by law, they are entitled to make (for instance, disclosing information about the commitment of a criminal offence or that the health or safety of an individual is endangered) (section 103A ERA 1996)
  • the employee was dismissed for reasons relating to:
  • membership or non-membership of a union (section 152 Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A 1992”)); or
  • for taking part in specified union activities (paragraph 161(2) of Schedule A1 to TULR(C)A1992).

If, on hearing the employee’s application, it appears to the ET that:

  • it is likely to find that the employee was unfairly dismissed when it determines the full unfair dismissal complaint, and
  • the employer refuses to reinstate or re-engage the employee,

the ET will make an order that the employee’s contract of employment shallcontinue in force as if the employer had never ended it.

Where such an order is made, it will also specify in it the amount that the employer mustpay the employee by way of pay for each normal full or part pay period falling between:

  • the date of dismissal; and
  • the determination or settlement of the employee’s complaint.

For details about:

  • the assessment by the ET of the amount payable by the employer to the employee, see NIM07041
  • the NICs treatment of payments made under an order for the continuation of a contract of employment, NIM07042.