Section 27BY: Supplementary provision, Employment Rights Act 1996

For the purposes of sections 27BW and 27BX, it does not matter whether—

terms in a collective agreement that expressly replace a duty or right relate to the same subject matter as the duty or right, or

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.

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.

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),

a guaranteed hours offer has already been made in compliance with the duty, and

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.

The notice must include a statement to the effect that the offer is withdrawn in consequence of the exclusion of the duty to make a guaranteed hours offer as a result of the incorporation into the worker's or agency worker's contract, as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.

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.

Where a complaint is presented under subsection (5)—

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);

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.

Subsection (8) applies where—

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).

In applying Chapter 2 or 5 for the purposes of the duty after it has ceased to be excluded—

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;

in relation to a worker and the worker's employer—

section 27BA(5)(a) has effect as if for sub-paragraphs (i) and (ii) there were substituted—iwhere 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, oriiwhere the worker is not so employed, the first day after the effective day on which the worker is employed by the employer, and;

section 27BF(3) has effect as if for paragraphs (a) and (b) there were substituted—awhere 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, orbwhere the worker is not so employed, the first day after the effective day on which the worker is employed by the employer.;

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—iwhere 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, oriiwhere 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;

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—awhere 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, orbwhere it is not in force on the effective day, the first day after the effective day on which it is in force.

Section 27BY: Supplementary provision

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