the tribunal can award compensation. The maximum
award of compensation is, as for unfair dismissal, cur-
rently £63,000.
The compensation will generally be paid by the employer
or employment agency concerned but in cases where a
trade union is joined as a party and the tribunal decides
that the unlawful refusal resulted from pressure applied
by the union where the employee refused to join the
union it may order the union to pay some or all of the
compensation. The tribunal can also recommend that
the prospective employer or employment agency should
take action to remedy the adverse effect of their unlaw-
ful action on the complainant.
In Harrisonv Kent County Council(1995) it was
held that an employer’s refusal to employ an applicant
because of his previous activities in another post could
amount to an unlawful refusal of employment on grounds
of union membership.
Time off work without pay
Under the ERA 1996 employees have a right to time off
work in certain circumstances. Sometimes they are also
entitled to pay, as in the case of trade union officials and
of redundant employees who are looking for work or
wanting to arrange training for another job. These and
other cases have already been looked at as part of the law
relating to pay. However, there are other cases in which
employees are entitled to time off but the employer is
not under a duty to pay wages or salary for it. These are
as follows:
1 Trade union activities. An employee who is a mem-
ber of an independent trade union which the employer
recognises is entitled to reasonable time off for trade union
activities. The employee is not entitled to pay unless he
is a trade union official and the time off is taken under
provisions previously considered. The Advisory, Con-
ciliation and Arbitration Service (ACAS), a statutory
body set up by the Employment Protection Act 1975 to
promote, for example, the improvement of industrial
relations, has published a Code of Practice 3 which gives
guidance on the time off which an employer should allow.
Paid time offfor union officialsfor union duties has
already been considered.
2 Public duties. Employers also have a duty to allow
employees who hold certain public positions and offices
reasonable time off to carry out the duties which go along
with them. Details are given in the ERA 1996 which covers
such offices as magistrate, member of a local authority,
member of an employment tribunal, and member of
certain health and education authorities. There has more
recently been an extension made by statutory instrument
to cover members of boards of visitors and visiting com-
mittees for prisons, remand centres and young offender
institutions.
Complaints in regard to failure to give time off under
1 and 2 above may be taken to an employment tribunal.
In general the complaint must be made within three
months of the date when the failure to give time off
occurred. An employment tribunal may make an order
declaring the rights of the employee so that these can be
observed by the employer and may also award money
compensation to be paid by the employer where there is
injury to the employee, e.g. hurt feelings.
3 Family emergency. We have already considered this
particular time off at p 476.Testimonials and references
There is no law which requires an employer to give a
reference or testimonial to an employee or to answer
questions or enquiries which a prospective employer may
ask him. This was decided in Carrollv Bird(1800). An
exception occurs where a reference is required by a regu-
latory body, such as the Financial Services Authority as
part of its duty to ensure that financial services are handled
only by authorised and competent persons.
However, if an employer does give a reference or
testimonial, either orally or in writing, which is false, he
commits a criminal offence under the Servants’ Charac-
ters Act 1792. The employer may also be liable in civil
law to pay damages to certain persons as follows:
1 To a subsequent employer, who suffers loss because
of a false statement known to the former employer to be
untrue (Fosterv Charles(1830)), or made negligently
without reasonable grounds for believing the statement
to be true, because it was decided in Lawtonv BOC
Transhield Ltd(1987) that an employer who gives another
employer a reference concerning an employee owes a
duty of care in negligence to the recipient employer.
It should be noted that if words of disclaimer such as
‘This reference is given in good faith. No responsibility
is accepted for any errors or omissions which it contains
or for any loss or damage resulting from reliance on it’
are used they will have to satisfy the test of ‘reasonable-
ness’ under the Unfair Contract Terms Act 1977. A
court might think such a clause reasonable in regard to
a reference given to an employee expressing a view uponPart 4Business resources