Employment Act 1990

Access to employment

Refusal of employment on grounds related to union membership

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• (1) It is unlawful to refuse a person employment—

• (a) because he is, or is not, a member of a trade union, or

• (b) because he is unwilling to accept a requirement—

• (i) to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

• (ii) to make payments or suffer deductions in the event of his not being a member of a trade union.

• (2) A person who is thus unlawfully refused employment has a right of complaint to an industrial tribunal.

• (3) Where an advertisement is published which indicates, or might reasonably be understood as indicating—

• (a) that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or

• (b) that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to employment to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.

• (4) Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.

• (5) A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—

• (a) refuses or deliberately omits to entertain and process his application or enquiry, or

• (b) causes him to withdraw or cease to pursue his application or enquiry, or

• (c) refuses or deliberately omits to offer him employment of that description, or

• (d) makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or

• (e) makes him an offer of such employment but withdraws it or causes him not to accept it.

• (6) Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.

• (7) The provisions of this section apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

Refusal of service of employment agency on grounds related to union membership

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• (1) It is unlawful for an employment agency to refuse a person any of its services—

• (a) because he is, or is not, a member of a trade union, or

• (b) because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.

• (2) A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an industrial tribunal.

• (3) Where an advertisement is published which indicates, or might reasonably be understood as indicating—

• (a) that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or

• (b) that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to a service to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.

• (4) A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—

• (a) refuses or deliberately omits to make the service available to him, or

• (b) causes him not to avail himself of the service or to cease to avail himself of it, or

• (c) does not provide the same service, on the same terms, as is provided to others.

• (5) Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

Interpretation and other supplementary provisions

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• (1) In sections 1 and 2—

• “advertisement” includes every form of advertisement or notice, whether to the public or not, and references to publishing an advertisement shall be construed accordingly;

• “employment” means employment under a contract of service or apprenticeship, and related expressions shall be construed accordingly;

• “employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers, but subject to subsection (3) below;

• “member of a trade union” shall be construed in accordance with subsection (4) below;

• “trade union” has the meaning given by section 28 of the Trade Union and Labour Relations Act 1974.

• (2) Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in section 1 applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union.

For this purpose an “office” means any position—

• (a) by virtue of which the holder is an “official” within the meaning of section 30(1) of the Trade Union and Labour Relations Act 1974, or

• (b) in relation to which the duty in section 1 of the Trade Union Act 1984 (duty to hold elections) applies.

• (3) For the purposes of sections 1 and 2 as they apply to employment agencies—

• (a) services other than those mentioned in the definition of “employment agency” above shall be disregarded, and

• (b) a trade union shall not be regarded as an employment agency by reason of services provided by it only for, or in relation to, its members.

• (4) References in sections 1 and 2 to being or not being a member of a trade union are to being or not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.

Any such reference includes a reference to being or not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.

• (5) Further provisions supplementing sections 1 and 2 are contained in Schedule 1, where—

• Part I deals with proceedings, remedies and related matters, and

• Part II deals with the scope of application of those sections.

Expressions which are defined above for the purposes of those sections have the same meanings in that Schedule.

Industrial action and ballots

Secondary action

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• (1) Nothing in section 13 of the Trade Union and Labour Relations Act 1974 (acts in contemplation or furtherance of trade disputes) prevents an act from being actionable in tort on a ground specified in subsection (1)(a) or (b) of that section where one of the facts relied on for the purpose of establishing liability is that there has been secondary action which does not satisfy the requirements of this section.

• (2) There is secondary action in relation to a trade dispute when, and only when, a person—

• (a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or

• (b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,

and the employer under the contract of employment is not the employer party to the dispute.

• (3) Secondary action satisfies the requirements of this section only if it is done in the course of such attendance as is declared lawful by section 15 of the Trade Union and Labour Relations Act 1974 (peaceful picketing)—

• (a) by a worker employed (or, in the case of a worker not in employment, last employed) by the employer party to the dispute, or

• (b) by a trade union official whose attendance is lawful by virtue of subsection (1)(b) of that section.

• (4) For the purposes of this section an employer shall not be treated as party to a dispute between another employer and workers of that employer; and where more than one employer is in dispute with his workers, the dispute between each employer and his workers shall be treated as a separate dispute.

In this subsection “worker” has the same meaning as in section 29 of the Trade Union and Labour Relations Act 1974 (meaning of trade dispute).

• (5) An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute.

Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute.

• (6) In this section “contract of employment” includes any contract under which one person personally does work or performs services for another, and related expressions shall be construed accordingly.

• (7) Other expressions used in this section and the Trade Union and Labour Relations Act 1974 have the same meanings in this section as in that Act.

Minor amendments relating to ballots

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• (1) In Part II of the Trade Union Act 1984 and section 1 of the Employment Act 1988 (ballots about industrial action) references to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.

• (2) For the purposes of section 11 of the Trade Union Act 1984 (requirements to be satisfied in relation to ballots) a member of a trade union who throughout the period during which votes may be cast is in Northern Ireland shall not be treated as an overseas member—

• (a) where the ballot is one to which subsection (1A) or (1B)(a) of that section applies (workplace ballots) and his place of work is in Great Britain, or

• (b) where the ballot is one to which subsection (1B)(b) or (c) of that section applies (general ballots) and relates to a strike or other industrial action involving members both in Great Britain and in Northern Ireland.

• (3) In relation to employment to which section 127 of the Employment Protection Act 1975 (offshore workers) applies, the references in subsection (2) above to Northern Ireland include any area where the law of Northern Ireland applies and the references to Great Britain include any area where the law of England and Wales or Scotland applies.

• (4) In section 4(1B) of the Trade Union Act 1913 and section 2(5) of the Trade Union Act 1984 (requirements with respect to voting papers in political fund ballot or ballot for union office), in paragraph (a) after “must” insert “state the name of the independent scrutineer and”.

• (5) In section 15(2) of the Employment Act 1988 (duties of trade union with respect to independent scrutineer in case of political fund ballot or ballot for union office), after paragraph (b) insert—

(bb) must, before the scrutineer begins to carry out his functions, either— (i) send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or (ii) take all such other steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention;

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Responsibility of trade union for acts of officials, &c

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• (1) Section 15 of the Employment Act 1982 (liability of trade unions in certain actions in tort) is amended as follows.

• (2) In subsection (2) (acts for which the union is responsible) for “it was authorised or endorsed by a responsible person” substitute “it is to be taken, in accordance with the following provisions, to have been authorised or endorsed by the union”.

• (3) For subsection (3) substitute—

(3) An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed— (a) by any person empowered by the rules to do, authorise or endorse acts of the kind in question, or (b) by the principal executive committee or the president or general secretary, or (c) by any other committee of the union or any other official of the union (whether employed by it or not). (3A) For the purposes of paragraph (c) of subsection (3)— (a) any group of persons constituted in accordance with the rules of the union is a committee of the union; and (b) an act shall be taken to have been done, authorised or endorsed by an official if it was done, authorised or endorsed by, or by any member of, any group of persons of which he was at the material time a member, the purposes of which included organising or co-ordinating industrial action. (3B) The provisions of paragraphs (b) and (c) of subsection (3) apply notwithstanding anything in the rules of the union, or in any contract or rule of law, but subject as follows.

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• (4) For subsection (4) substitute—

(4) An act shall not be taken to have been authorised or endorsed by the union by virtue only of paragraph (c) of subsection (3) if it was repudiated by the principal executive committee or the president or general secretary as soon as reasonably practicable after coming to the knowledge of any of them.

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• (5) For subsection (5) substitute—

(5) Where an act is repudiated— (a) written notice of the repudiation must be given to the committee or official in question, without delay, and (b) the union must do its best to give individual written notice of the fact and date of repudiation, without delay— (i) to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act, and (ii) to the employer of every such member. (5A) The notice given to members in accordance with paragraph (b)(i) of subsection (5) must contain the following statement— “Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal.” (5B) If subsection (5) or (5A) is not complied with, the repudiation shall be treated as ineffective.

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• (6) After subsection (6) (no repudiation if subsequent behaviour inconsistent with purported repudiation) insert—

(6A) The principal executive committee, president or general secretary shall be treated as so behaving if, on a request made to any of them within three months of the purported repudiation by a person who— (a) is a party to a commercial contract whose performance has been or may be interfered with as a result of the act in question, and (b) has not been given written notice by the union of the repudiation, it is not forthwith confirmed in writing that the act has been repudiated.

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• (7) In subsection (7) (interpretation), at the appropriate place insert—

“commercial contract” means any contract other than— (a) a contract of service or apprenticeship, or (b) any other contract under which a person agrees personally to do work or perform services for another;

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and omit the definition of “official” and “employed official”.

• (8) After subsection (8) add—

(9) In proceedings arising out of an act which is by virtue of this section taken to have been done by a trade union, the power of the court to grant an injunction or interdict includes power to require the union to take such steps as the court considers appropriate for ensuring— (a) that there is no, or no further, inducement of persons to take part or to continue to take part in industrial action, and (b) that no person engages in any conduct after the granting of the injunction or interdict by virtue of having been induced before it was granted to take part or to continue to take part in industrial action; and the provisions of this section apply in relation to proceedings for failure to comply with any such injunction or interdict as they apply in relation to the original proceedings.

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Calling of industrial action with support of ballot

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• (1) In section 11 of the Trade Union Act 1984 (requirements for ballots on industrial action), after subsection (4) insert—

(4A) The voting paper must specify who, in the event of a vote in favour of industrial action, is authorised for the purposes of section 7 of the Employment Act 1990 to call upon members to take part or continue to take part in the industrial action. The person or description of persons so specified need not be authorised under the rules of the union but must be within section 15(3) of the Employment Act 1982.

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• (2) Industrial action shall not be regarded for the purposes of section 10 of the Trade Union Act 1984 or section 1 of the Employment Act 1988 as having the support of a ballot unless it is called by a specified person and the following conditions are satisfied.

• (3) The conditions are that—

• (a) there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot;