5.—F31[(1) For the purposes of this Act (other than section 2 (4)), the lock-out of an employee shall be deemed to be a dismissal and the dismissal shall be deemed to be an unfair dismissal if, after the termination of the lock-out—

(a) the employee was not permitted to resume his employment on terms and conditions at least as favourable to the employee as those specified in paragraph (a) or (b) of subsection (1) of section 7 of this Act, and

(b) one or more other employees in the same employment were so permitted.

(2) The dismissal of an employee for taking part in a strike or other industrial action shall be deemed for the purposes of this Act to be an unfair dismissal if—

(a) one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part, or

(b) one or more of such employees who were dismissed for so taking part were subsequently permitted to resume their employment on terms and conditions at least as favourable to the employees as those specified in the said paragraph (a) or (b) and the employee was not.

F32[(2A) Without prejudice to the applicability of any of the provisions of section 6 to the case, where—

(a) an employee—

(i) is deemed by subsection (1) to have been dismissed by reason of a lock-out, or

(ii) is dismissed for taking part in a strike or other industrial action,

and

(b) none of those who were locked out, or took part in the strike or industrial action, were re-engaged,

in determining whether, in those circumstances, the dismissal is an unfair dismissal, F33[the adjudication officer or the Labour Court], as the case may be, shall have regard, for that purpose only, to—

(i) the reasonableness or otherwise of the conduct (whether by act or omission) of the employer or employee in relation to the dismissal,

(ii) the extent (if any) of the compliance or failure to comply by the employer with the procedure referred to in section 14(1),

(iii) the extent (if any) of the compliance or failure to comply by the employer or the employee with provisions of any code of practice referred to in section 7(2)(d), and

(iv) whether the parties have adhered to any agreed grievance procedures applicable to the employment in question at the time of the lock-out, strike or industrial action. ]

(3) The said section 7 shall be construed in relation to an unfair dismissal specified in subsection (1) or (2) of this section as if it contained a requirement that the terms or conditions on which the person the subject of the unfair dismissal is, if appropriate, to be re-instated under paragraph (a) of subsection (1) of that section or re-engaged under paragraph (b) of that subsection included a term that the re-instatement or re-engagement should be deemed to have commenced on such day as is agreed upon by the employer concerned and by or on behalf of the employees or, in the absence of such agreement, on the earliest date from which re-instatement or re-engagement, as the case may be, was offered to a majority of the other employees of the same employer who were the subject of the lock-out concerned or took part in the strike or other industrial action concerned.]

(4) In this section a reference to an offer of re-instatement or re-engagement, in relation to an employee, is a reference to an offer (made either by the original employer or by a successor of that employer or by an associated employer) to re-instate that employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or to re-engage him, either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him, on such terms and conditions as are reasonable having regard to all the circumstances.

(5) In this section—

“lock-out” means an action which, in contemplation or furtherance of a trade dispute (within the meaning of the Industrial Relations Act, 1946), is taken by one or more employers, whether parties to the dispute or not, and which consists of the exclusion of one or more employees from one or more factories, offices or other places of work or of the suspension of work in one or more such places or of the collective, simultaneous or otherwise connected termination or suspension of employment of a group of employees;

“the original employer” means, in relation to the employee, the employer who dismissed the employee.