basic award - see compensation - n. Monetary payment to compensate for loss or damage. When someone has committed a criminal offence that caused personal injury, loss, or damage, and he has been convicted for this offence or it was taken into account when sentencing for another offence, the court may make a compensation order requiring the offender to pay compensation to the person suffering the loss (with interest, if need be). Magistrates' courts may make orders in respect of compensation. The court must take into account the offender's means and should avoid making excessively high orders or orders to be paid in long-term instalments. If the offender cannot afford to pay both a fine and compensation, priority should be given to payment of compensation. A compensation order may be made for funeral expenses or bereavement in respect of death resulting from an offence other than a death due to a motor-vehicle accident. Potential claimants and maximum compensation for bereavement are the same as those under the Fatal Accidents Act 1976 (see fatal accidents). An order may only be made in respect of injury, loss, or damage (other than loss suffered by a person's dependants in consequence of his death) due to a motor-vehicle accident if (1) it is for damage to property occurring while it was outside the owner's possession in the case of offences under the Theft Act 1968, or (2) the offender was uninsured to use the vehicle and compensation is not payable under the Motor Insurers' Bureau agreement. A court that does not award compensation must give reasons. Victims of criminal injury may apply for compensation under the Criminal Injuries Compensation Scheme. Under the Theft Act 1968, a restitution order in monetary terms may be made when the stolen goods are no longer in existence; this kind of order is equivalent to a compensation order. Compensation orders may be made in addition to, or instead of, other sentences. A court must order a parent or guardian of an offender under the age of 17 to pay a compensation order on behalf of the offender unless the parent or guardian cannot be found or it would be unreasonable to order him to pay it.

A person who has been wrongfully convicted of a criminal offence may apply to the Home Secretary for compensation, which is awarded upon the assessment of an independent assessor.

An employment tribunal may order an employer to pay compensation to an employee who has been unfairly dismissed (see unfair dismissal). The compensation comprises a basic award of a sum equivalent to the redundancy payment to which a redundant employee would be entitled (with a minimum of £3300 when dismissal is for trade union activity), and a compensatory award representing the loss that the employee suffers because of the dismissal (the compensatory award is subject to an upper limit of £51,700). This will include compensation for the loss of his earnings and other benefits of the former employment, and for the loss of his statutory rights in respect of unfair dismissal and redundancy in the initial period of any new employment he obtains (see continuous employment). Additional compensation may be awarded if the employer does not comply with an order by the tribunal to re-employ the employee; the additional award will be between 26 and 52 weeks' pay. Limits on the amount of weekly pay that can be used in these calculations are set by regulations made by the Secretary of State for Work and Pensions and reviewed annually. The tribunal may reduce any compensation by an appropriate proportion when the employee's conduct has contributed to his dismissal. The employee is under the same duty to mitigate his loss as someone claiming damages in the courts. Thus if he unreasonably refuses an offer of a new job he will not be compensated for his continued unemployment thereafter. If the employee was dismissed for his failure to enter into a closed-shop agreement, following pressure by a trade union for his dismissal, the employer can pass on to the trade union the liability to pay compensation. Compensation may also be awarded by an employment tribunal when there is a finding of sexual or racial discrimination. In such cases the upper limit or financial cap on unfair dismissal damages has been removed, as the European Court of Justice has ruled that the cap is discriminatory and contrary to equal treatment laws. This award can also include an amount for hurt feelings.

compensatory award - see entry for Compensation above

constructive dismissal - Termination of a contract of employment by an employee because his employer has shown that he does not intend to be bound by some essential term of the contract. Although the employee has resigned, he has the same right to apply to an employment tribunal as one who has been unfairly dismissed by his employer. See also unfair dismissal.

continuity of employment - The period for which a person's employment in the same business has subsisted. Under the Employment Rights Act 1996, employees have the right to claim certain statutory remedies only if they have been continuously employed for certain minimum periods. The required period of continuous employment necessary to bring an unfair dismissal action is currently one year. The right of employees to statutory redundancy payments and to guarantee payments arises after two years' and one month's continuous employment, respectively. The minimum period of notice to terminate an employee's contract also depends on his period of continuous employment in the business. When a business changes ownership as a going concern, the employee's period of continuous employment under both the old and the new employer counts in calculating the total (see also relevant transfer). When an employee is dismissed without notice, the minimum notice to which he was entitled is added to the actual period of employment in calculating whether or not he has served the minimum continuous period. Part-time employees (i.e. those whose normal working week is less than 16 hours) formerly had few statutory rights until they had completed five years' continuous employment in the business. However, the Employment Protection (Part-time Employees) Regulations 1995 now provide that part-timers, no matter what hours they work, will benefit in the same way as those who are employed full time.

Periods during which an employee was on strike do not break the continuity, but are excluded from his total period of continuous employment. Continuity is not broken when a woman is absent due to pregnancy or confinement, provided she takes up her right to return to work (see maternity rights).

trade union - An organization whose members are wholly or mainly workers and whose principal purposes include the regulation of relations between workers and employers or employers' associations. Unions' affairs are regulated by the Trade Union and Labour Relations (Consolidation) Act 1992. This provides that: secret ballots must be held for election of unions' executive committees and before any industrial action backed by the union (see strike); union funds cannot be used to indemnify individuals for fines imposed by a court for a criminal offence or contempt of court; and unions' accounting records must be open to inspection by their members, who can challenge any unlawful use of the funds through the courts. There is a right for trade union members not to be unjustifiably disciplined by their union (for example for failing to take industrial action). A member can apply to an employment tribunal for a declaration that he has been unjustifiably disciplined. The employment tribunal can award compensation if the claim is upheld. Trade-union members seeking to enforce their union membership rights can obtain advice and financial and legal assistance from the Certification Officer, as the successor of the now abolished position of Commissioner for the Rights of Trade Union Members.

re-engagement order - An order made by an employment tribunal directing an employer who has been found to have unfairly dismissed an employee (see unfair dismissal) to provide him with comparable or other suitable employment in a post different from that from which he was dismissed (compare reinstatement order). A re-engagement order might be made, for example, when the employee's former job no longer exists following a reorganization, but he could be similarly employed in a different post. The order is accompanied by the tribunal's directions specifying the nature and remuneration for the new employment, benefits that must be restored to the employee, and the date by which he is to be re-engaged. An employer cannot be forced to comply with the order; if he fails to do so the tribunal will award compensation on the usual principles together with an additional sum.

reinstatement order - An order made by an employment tribunal directing an employer who has been found to have unfairly dismissed an employee (see unfair dismissal) to restore him to his former job (compare re-engagement order). The employee is to be treated as if he had not been dismissed and is therefore entitled to recover any benefits (such as arrears of pay) that he has lost during his period of unemployment. However, pay in lieu of notice, ex gratia payments by the employer, state unemployment or supplementary benefits, and other sums he has received because of his dismissal or any subsequent unemployment will be taken into account. An employer cannot be forced to comply with an order for reinstatement; if he fails to do so, compensation will be awarded to the employee on the usual principles together with an additional sum.

transfer of undertakings = see relevant transfer. A situation that may arise when a business or part of a business (the transferor) changes ownership and staff transfer to the new owner (the transferee). If the change of ownership falls within the scope of the Transfer of Undertakings Protection of Employment Regulations 1981 (TUPE), then there is an automatic transfer of an employee's contract of employment. TUPE was the UK government's response to EC Directive 77/187, known as the Acquired Rights Directive, the main objective of which was to safeguard employees' rights in the event of a change of employer. Employees are protected via TUPE where there is a relevant transfer. This, however, is not always a straightforward issue to determine. Because the Acquired Rights Directive is very wide in its scope, both the European Court and national courts have taken a wide view of what situations amount to a relevant transfer. The situations in which a relevant transfer has been held to operate are numerous. The simplest situation is where one company acquires another and staff transfer. More complex situations include contracting out services, the transfer of contracts and franchises, and the transfer of leases. TUPE operates in each of these situations if staff have followed the transfer or have lost employment as a consequence.

There are a number of important issues to note where a relevant transfer occurs. First there is an automatic transfer of the transferor's rights and obligations arising from the employment relationship they have with their staff. Because of this the employee's terms and conditions (with very limited exceptions in the area of pension rights) must be maintained by the new employer (the transferee). Secondly, a relevant transfer cannot be the basis for dismissal unless an employee can be shown to have been dismissed for economic reasons or as a result of technical reorganization. Where an employee, being aware of a proposed transfer, informs either the transferor or the transferee that he objects to the transfer, his transfer does not take effect and his contract of employment is terminated, but he has no claim for unfair dismissal. If a dismissal occurs as a direct result of the transfer this is automatically unfair. If an employer seeks to argue a dismissal was for an economic, technical, or organizational reason, it is not automatically unfair but it can be depending on the employer's procedure.

Finally, TUPE puts in place the need for a consultative process to ensure the free exchange of information between the transferee, the transferor, and the staff who may be affected. The transferor has a duty to inform and consult with a recognized independent trade union when any of its members may be affected by the transfer. The employer must inform union representatives in writing, long enough before the relevant transfer to enable consultations to take place, of the fact that a transfer is to take place; when this is to occur and the reasons for it; the legal, economic, and social implications of the transfer for the affected employees; and the measures the employer is to take (if any) in relation to those employees. If there are no employee representatives, information must be given to all employees. The transferee has a duty to provide the transferor with sufficient information to enable him to give these facts. During consultations the employer has a duty to consider any representations made by trade union or staff representatives and reply to them; if he rejects them he is obliged to give his reasons for doing so. If any employer fails to inform or consult, a complaint may be presented to an employment tribunal within three months of the completion of the relevant transfer. The employer can argue that his failure to perform a particular duty was due to special circumstances but that he took all reasonably practicable steps to inform and consult. Although this is a potential defence, tribunals interpret it very narrowly. Insolvency does not amount to special circumstances. If the complaint is upheld, the tribunal can order the employer to pay appropriate compensation not exceeding 13 weeks' pay for the employee(s) in question.

wrongful dismissal - The termination of an employee's contract of employment in a manner that is not in accordance with that contract. Thus when an employee is dismissed without the notice to which he is entitled (in circumstances that do not justify summary dismissal) or when the employer prematurely terminates the employee's fixed-term contract, the employee is entitled to claim damages in the courts or an employment tribunal at common law for wrongful dismissal. The court's jurisdiction concerns only the parties' contractual rights and not their statutory rights under the employment protection legislation (compare unfair dismissal). If a breach of statutory rights arises, an employee may also bring a claim for unfair dismissal. However, this must be done before an employment tribunal.

Source: A Dictionary of Law. Ed. Elizabeth A. Martin. Oxford University Press, 2002. Oxford Reference Online. Oxford University Press. 26 January 2005 www.oxfordreference.com