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Trade Union and Labour Relations (Consolidation) Act 1992

Type Public General Act

Publication 1992-07-16

Last updated 2026-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

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(6) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination ... notwithstanding that the information has not been furnished to him by the specified date.

(7) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(8) Where an order has been made under this section, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made a complaint under this section.

(9) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court.

Appeal from decision of Certification Officer

104

An appeal lies to the Employment Appeal Tribunal, at the instance of the complainant or the trade union, on any question of law arising in any proceedings before, or arising from any decision of, the Certification Officer under section 103.

Transfer of property on amalgamation or transfer

105

(1) Where an instrument of amalgamation or transfer takes effect, the property held—

(a) for the benefit of any of the amalgamating unions, or for the benefit of a branch of any of those unions, by the trustees of the union or branch, or

(b) for the benefit of the transferor trade union, or for the benefit of a branch of the transferor trade union, by the trustees of the union or branch,

shall without any conveyance, assignment or assignation vest, on the instrument taking effect, or on the appointment of the appropriate trustees, whichever is the later, in the appropriate trustees.

(2) In the case of property to be held for the benefit of a branch of the amalgamated union, or of the transferee union, “the appropriate trustees” means the trustees of that branch, unless the rules of the amalgamated or transferee union provide that the property to be so held is to be held by the trustees of the union.

(3) In any other case “the appropriate trustees” means the trustees of the amalgamated or transferee union.

(4) This section does not apply—

(a) to property excepted from the operation of this section by the instrument of amalgamation or transfer, or

(b) to stocks and securities in the public funds of the United Kingdom or Northern Ireland.

Amalgamation or transfer involving Northern Ireland union

106

(1) This Chapter has effect subject to the following modifications in the case of an amalgamation or transfer of engagements to which a trade union and a Northern Ireland union are party.

(2) The requirements of sections 98 to 100E and 101(3) (approval of instrument, notice to members and ballot on resolution) do not apply in relation to the Northern Ireland union; but the Certification Officer shall not register the instrument under section 101 unless he is satisfied that it will be effective under the law of Northern Ireland.

(3) The instrument of amalgamation or transfer submitted to the Certification Officer for his approval under section 98 shall state which of the bodies concerned is a Northern Ireland union and, in the case of an amalgamation, whether the amalgamated body is to be a Northern Ireland union; and the Certification Officer shall withhold his approval if the instrument does not contain that information.

(4) Nothing in section 102 (alteration of rules) or sections 103 and 104 (complaint as to passing of resolution) applies in relation to the Northern Ireland union.

(5) Subject to the exceptions specified above, the provisions of this Chapter as to amalgamations or transfers of engagements apply in relation to the Northern Ireland union.

Change of name

Change of name of trade union

107

(1) A trade union may change its name by any method expressly provided for by its rules or, if its rules do not expressly provide for a method of doing so, by adopting in accordance with its rules an alteration of the provision in them which gives the union its name.

(2) If the name of the trade union is entered in the list of trade unions a change of name shall not take effect until approved by the Certification Officer.

(3) The Certification Officer shall not approve a change of name if it appears to him that the proposed new name—

(a) is the same as one entered in the list as the name of another trade union, or

(b) is the same as one entered in the list of employers’ associations kept under Part II of this Act,

or is a name so nearly resembling such a name as to be likely to deceive the public.

(4) A change of name by a trade union does not affect any right or obligation of the union or any of its members; and any pending legal proceedings may be continued by or against the union, the trustees of the union or any other officer of the union who can sue or be sued on its behalf notwithstanding its change of name.

Supplementary

General power to make regulations

108

(1) The Secretary of State may make regulations as respects—

(a) applications to the Certification Officer under this Chapter,

(b) the registration under this Chapter of any document or matter,

(d) the charging of fees in respect of such matters, and of such amounts, as may with the approval of the Treasury be prescribed by the regulations,

and generally for carrying this Chapter into effect.

(2) Provision may in particular be made—

(a) requiring an application for the registration of an instrument of amalgamation or transfer, or of a change of name, to be accompanied by such statutory declarations or other documents as may be specified in the regulations;

(b) as to the form or content of any document required by this Chapter, or by the regulations, to be sent or submitted to the Certification Officer and as to the manner in which any such document is to be signed or authenticated;

(c) authorising the Certification Officer to require notice to be given or published in such manner as he may direct of the fact that an application for registration of an instrument of amalgamation or transfer has been or is to be made to him.

(3) Regulations under this section may make different provision for different circumstances.

(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Chapter VIII — . . .

Proceedings in relation to which assistance may be provided

109

(1) This Chapter applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of—

(a) an application to the court under section 15(3) (application for order authorising member to take or continue proceedings on behalf of trade union) or any other proceedings brought by virtue of that section;

(b) an application to the court under section 16 (remedy against trustees for unlawful use of trade union property);

(c) an application to the court under section 26 (remedy for failure to maintain register of members or secure confidentiality);

(d) an application to the court under section 31 (remedy for failure to comply with request for access to trade union’s accounting records);

(da) an application to the court under section 45C (remedy for failure to comply with duty to secure positions not held by certain offenders);

(e) an application to the court under section 56 (remedy for failure to comply with requirements as to election for office);

(f) an application to the court under section 62 (application for order where industrial action does not have support of ballot);

(g) proceedings brought by virtue of section 71 (restriction on use of funds for political objects) with respect to the unlawful application of the funds of a trade union;

(h) an application to the court under section 81 (remedy for failure to comply with requirements as to political ballot).

(2) This Chapter applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of, proceedings in the High Court or the Court of Session with respect to an alleged breach or threatened breach of the rules of a trade union relating to any of the following matters—

(a) the appointment or election of a person to, or the removal of a person from, any office;

(b) disciplinary proceedings by the union (including expulsion);

(d) the balloting of members;

(e) the application of the union’s funds or property;

(f) the imposition, collection or distribution of any levy for the purposes of industrial action;

(g) the constitution or proceedings of any committee, conference or other body.

The reference above to the rules of a trade union includes the rules of any branch or section of the trade union; and in paragraph (a) “office” includes any position by virtue of which a person is an official in relation to the trade union or is entitled to attend as a representative any meeting concerned with union business.

(3) This Chapter also applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of such other proceedings against a trade union, an official of a trade union or the trustees of the property of a trade union as may be specified in an order made by the Secretary of State.

Any order shall be made by statutory instrument; and no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Application for assistance: its consideration

110

(1) An individual who is an actual or prospective party to proceedings to which this Chapter applies may apply to the Commissioner for the Rights of Trade Union Members (in this Chapter referred to as “the Commissioner”) for assistance in relation to the proceedings, and the Commissioner shall, as soon as reasonably practicable after receiving the application, consider it and decide whether and to what extent to grant it.

(2) The matters to which the Commissioner may have regard in determining whether, and to what extent, to grant an application include—

(a) whether the case raises a question of principle,

(b) whether it is unreasonable, having regard to the complexity of the case, to expect the applicant to deal with it unaided, and

(3) In the case of an application made by virtue of section 109(1)(c), (e) or (h) (failure to maintain register of members or to comply with requirements as to election or political ballot), if—

(a) the Certification Officer has already made a declaration with respect to the subject-matter of the proceedings or prospective proceedings, and

(b) it appears to the Commissioner that the applicant would (if assisted) have a reasonable prospect of securing the making of an enforcement order in the proceedings,

the Commissioner shall grant the application to the extent he considers necessary for securing that, so far as reasonably practicable, all the steps he considers appropriate (including, where appropriate, the holding of another ballot or election) are taken by the trade union for the purpose of remedying the declared failure and of ensuring that a failure of the same or a similar kind does not occur in future.

(4) The Commissioner shall not grant an application made by virtue of section 109(2) (proceedings arising out of breach of rules) unless it appears to him—

(a) that the breach of rules in question affects, or may affect, members of the union other than the applicant, or

(b) that similar breaches of the rules have been or may be committed in relation to other members of the union.

(5) If the Commissioner decides not to provide assistance, he shall, as soon as reasonably practicable after making the decision, notify the applicant of his decision and, if he thinks fit, of the reasons for it.

Provision of assistance

111

(1) If the Commissioner decides to provide assistance, he shall, as soon as reasonably practicable after making the decision—

(a) notify the applicant, stating the extent of the assistance to be provided, and

(b) give him a choice, subject to any restrictions specified in the notification, as to the financial arrangements to be made in connection with the provision of the assistance.

(2) The assistance provided may include the making of arrangements for, or for the Commissioner to bear the costs of—

(a) the giving of advice or assistance by a solicitor or counsel, and

(b) the representation of the applicant, or the provision to him of such assistance as is usually given by a solicitor or counsel—

(i) in steps preliminary or incidental to the proceedings, or

(ii) in arriving at or giving effect to a compromise to avoid or bring an end to the proceedings.

(3) Where assistance is provided with respect to the conduct of proceedings—

(a) it shall include an agreement by the Commissioner to indemnify the applicant (subject only to any exceptions specified in the notification) in respect of any liability to pay costs or expenses arising by virtue of any judgment or order of the court in the proceedings,

(b) it may include an agreement by the Commissioner to indemnify the applicant in respect of any liability to pay costs or expenses arising by virtue of any compromise or settlement arrived at in order to avoid the proceedings or bring the proceedings to an end, and

(c) it may include an agreement by the Commissioner to indemnify the applicant in respect of any liability to pay damages pursuant to an undertaking given on the grant of interlocutory relief (in Scotland, an interim order) to the applicant.

(4) Where the Commissioner provides assistance in relation to any proceedings, he shall do so on such terms, or make such other arrangements, as will secure that a person against whom the proceedings have been or are commenced is informed that assistance has been or is being provided by the Commissioner in relation to them.

(5) In England and Wales, the recovery of expenses incurred by the Commissioner in providing an applicant with assistance (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Commissioner—

(a) on any costs which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and

(b) on any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring proceedings to an end.

(6) In Scotland, the recovery of such expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall be paid to the Commissioner, in priority to other debts—

(a) out of any expenses which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and

(b) out of any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring proceedings to an end.

Title of proceedings where assistance provided

112

(1) Where a person is receiving assistance in relation to proceedings, there shall, if he so wishes, be added after his name in the title of the proceedings the words “(assisted by the Commissioner for the Rights of Trade Union Members)".

(2) The addition of those words shall not be construed as making the Commissioner a party to the proceedings or as liable to be treated as a party for any purpose; and the omission of those words shall be treated as an irregularity only and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.

Recovery of sums paid in case of fraud

113

(1) Where the Commissioner grants an application to a person who for the purposes of the application—

(a) has made a statement which he knew to be false in a material particular, or

(b) has recklessly made a statement which was false in a material particular,

he is entitled to recover from that person any sums paid by him to that person, or to any other person, by way of assistance.

(2) This does not affect the power of the Commissioner to enter into any agreement he thinks fit as to the terms on which assistance is provided.

Supplementary provisions

114

(1) Nothing in this Chapter affects the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings.

(2) The power of the Commissioner to provide assistance to a prospective applicant to the court under section 26, 56 or 81 (under which applications may be made either to the court or to the Certification Officer, and in certain cases to both) does not entitle the Commissioner to provide assistance with the making of an application to the Certification Officer.

(3) In this Chapter “applicant”, in relation to assistance under this Chapter, means the individual on whose application the assistance is provided.

Chapter IX — Miscellaneous and general provisions

Further provisions with respect to ballots

Payments towards expenditure in connection with secret ballots

115

Use of employer’s premises for secret ballot

116

Exceptions and adaptations for certain bodies

Special register bodies

117

(1) In this section a “special register body” means an organisation whose name appeared in the special register maintained under section 84 of the Industrial Relations Act 1971 immediately before 16 September 1974, and which is a company registered under the Companies Act 2006 or is incorporated by charter or letters patent.

(2) The provisions of this Part apply to special register bodies as to other trade unions, subject to the following exceptions and adaptations.

(3) In Chapter II (status and property of trade unions)—

(a) in section 10 (quasi-corporate status of trade unions)—

(i) subsections (1) and (2) (prohibition on trade union being incorporated) do not apply, and

(ii) subsection (3) (prohibition on registration under certain Acts) does not apply so far as it relates to registration as a company under the Companies Act 2006;

(b) section 11 (exclusion of common law rules as to restraint of trade) applies to the purposes or rules of a special register body only so far as they relate to the regulation of relations between employers or employers’ associations and workers;

(d) in section 20 (liability of trade union in certain proceedings in tort) in subsection (7) the reference to the contract between a member and the other members shall be construed as a reference to the contract between a member and the body.

(4) Sections 33 to 35 (appointment and removal of auditors) do not apply to a special register body which is registered as a company under the Companies Act 2006; and sections 36 and 37 (rights and duties of auditors) apply to the auditors appointed by such a body under Chapter 2 of Part 16 of that Act.

(5) Sections 45B and 45C (disqualification) and Chapter IV (elections) apply only to—

(a) the position of voting member of the executive, and

(b) any position by virtue of which a person is a voting member of the executive.

In this subsection “voting member of the executive” has the meaning given by section 46(5).

Federated trade unions

118

(1) In this section a “federated trade union” means a trade union which consists wholly or mainly of constituent or affiliated organisations, or representatives or such organisations, as described in paragraph (b) of the definition of “trade union” in section 1.

(2) The provisions of this Part apply to federated trade unions subject to the following exceptions and adaptations.

(3) For the purposes of section 22 (limit on amount of damages) as it applies to a federated trade union, the members of such of its constituent or affiliated organisations as have their head or main office in Great Britain shall be treated as members of the union.

(4) The following provisions of Chapter III (trade union administration) do not apply to a federated trade union which consists wholly or mainly of representatives of constituent or affiliated organisations—

(a) section 27 (duty to supply copy of rules),

(b) section 28 (duty to keep accounting records),

(ca) sections 37A to 37E (investigation of financial affairs), and

(d) sections 38 to 42 (members’ superannuation schemes).

(4A) In the case of a federated trade union which, by virtue of subsection (4), is not required to send an annual return to the Certification Officer under section 32, section 24ZA (duty to provide membership audit certificate) applies as if section 32 does apply to the union.

(5) Sections 29 to 31 (right of member to access to accounting records) do not apply to a federated trade union which has no members other than constituent or affiliated organisations or representatives of such organisations.

(6) Sections 24 to 26 (register of members’ names and addresses) and Chapter IV (elections for certain trade union positions) do not apply to a federated trade union—

(a) if it has no individual members other than representatives of constituent or affiliated organisations, or

(b) if its individual members (other than such representatives) are all merchant seamen and a majority of them are ordinarily resident outside the United Kingdom.

For this purpose “merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships.

(7) The provisions of Chapter VI (application of funds for political objects) apply to a trade union which is in whole or part an association or combination of other unions as if the individual members of the component unions were members of that union and not of the component unions.

But nothing in that Chapter prevents a component union from collecting contributions on behalf of the association or combination from such of its members as are contributors to the political fund of the association or combination.

(8) In the application of section 116A to a federated trade union, subsection (2) of that section shall be omitted.

Interpretation

Expressions relating to trade unions

119

In this Act, in relation to a trade union—

“agent” means a banker or solicitor of, or any person employed as an auditor by, the union or any branch or section of the union;

“branch or section”, except where the context otherwise requires, includes a branch or section which is itself a trade union;

“executive” means the principal committee of the union exercising executive functions, by whatever name it is called;

“financial affairs” means affairs of the union relating to any fund which is applicable for the purposes of the union (including any fund of a branch or section of the union which is so applicable);

“general secretary” means the official of the union who holds the office of general secretary or, where there is no such office, holds an office which is equivalent, or (except in section 14(4)) the nearest equivalent, to that of general secretary;

“officer” includes—any member of the governing body of the union, andany trustee of any fund applicable for the purposes of the union;

“official” means—an officer of the union or of a branch or section of the union, ora person elected or appointed in accordance with the rules of the union to be a representative of its members or of some of them,and includes a person so elected or appointed who is an employee of the same employer as the members or one or more of the members whom he is to represent;

“president” means the official of the union who holds the office of president or, where there is no such office, who holds an office which is equivalent, or (except in section 14(4) or Chapter IV) the nearest equivalent, to that of president; and

“rules”, except where the context otherwise requires, includes the rules of any branch or section of the union.

Northern Ireland unions

120

In this Part a “Northern Ireland union” means a trade union whose principal office is situated in Northern Ireland.

Meaning of “the court”

121

In this Part “the court” (except where the reference is expressed to be to the county court or sheriff court) means the High Court or the Court of Session.

Part II — Employers’ Associations

Introductory

Meaning of “employers' association”

122

(1) In this Act an “employers’ association” means an organisation (whether temporary or permanent)—

(a) which consists wholly or mainly of employers or individual owners of undertakings of one or more descriptions and whose principal purposes include the regulation of relations between employers of that description or those descriptions and workers or trade unions; or

(b) which consists wholly or mainly of—

(i) constituent or affiliated organisations which fulfil the conditions in paragraph (a) (or themselves consist wholly or mainly of constituent or affiliated organisations which fulfil those conditions), or

(ii) representatives of such constituent or affiliated organisations,

and whose principal purposes include the regulation of relations between employers and workers or between employers and trade unions, or the regulation of relations between its constituent or affiliated organisations.

(2) References in this Act to employers’ associations include combinations of employers and employers’ associations.

The list of employers’ associations

The list of employers' associations

123

(1) The Certification Officer shall keep a list of employers’ associations containing the names of—

(a) the organisations whose names were, immediately before the commencement of this Act, duly entered in the list of employers’ associations kept by him under section 8 of the Trade Union and Labour Relations Act 1974, and

(b) the names of the organisations entitled to have their names entered in the list in accordance with this Part.

(2) The Certification Officer shall keep copies of the list of employers’ associations, as for the time being in force, available for public inspection at all reasonable hours free of charge.

(3) A copy of the list shall be included in his annual report.

(4) The fact that the name of an organisation is included in the list of employers’ associations is evidence (in Scotland, sufficient evidence) that the organisation is an employers’ association.

(5) On the application of an organisation whose name is included in the list, the Certification Officer shall issue it with a certificate to that effect.

(6) A document purporting to be such a certificate is evidence (in Scotland, sufficient evidence) that the name of the organisation is entered in the list.

Application to have name entered in the list

124

(1) An organisation of employers, whenever formed, whose name is not entered in the list of employers’ associations may apply to the Certification Officer to have its name entered in the list.

(2) The application shall be made in such form and manner as the Certification Officer may require and shall be accompanied by—

(a) a copy of the rules of the organisation,

(b) a list of its officers,

(d) the name under which it is or is to be known,

and by the prescribed fee.

(3) If the Certification Officer is satisfied—

(a) that the organisation is an employers’ association,

(b) that subsection (2) has been complied with, and

he shall enter the name of the organisation in the list of employers’ associations.

(4) The Certification Officer shall not enter the name of an organisation in the list of employers’ associations if the name is the same as that under which another organisation—

(a) was on 30th September 1971 registered as a trade union under the Trade Union Acts 1871 to 1964,

(b) was at any time registered as an employers’ association or trade union under the Industrial Relations Act 1971, or

(c) is for the time being entered in the list of employers’ associations or in the list of trade unions kept under Chapter I of Part I of this Act,

or if the name is one so nearly resembling any such name as to be likely to deceive the public.

Removal of name from the list

125

(1) If it appears to the Certification Officer, on application made to him or otherwise, that an organisation whose name is entered in the list of employers’ associations is not an employers’ association, he may remove its name from the list.

(2) He shall not do so without giving the organisation notice of his intention and considering any representations made to him by the organisation within such period (of not less than 28 days beginning with the date of the notice) as may be specified in the notice.

(3) The Certification Officer shall remove the name of an organisation from the list of employers’ associations if—

(a) he is requested by the organisation to do so, or

(b) he is satisfied that the organisation has ceased to exist.

Appeal against decision of Certification Officer

126

(1) An organisation aggrieved by the refusal of the Certification Officer to enter its name in the list of employers’ associations, or by a decision of his to remove its name from the list, may appeal to the Employment Appeal Tribunal on any appealable question.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) For the purposes of this section, an appealable question is any question of law arising in the proceedings before, or arising from the decision of, the Certification Officer.

Status and property of employers’ associations

Corporate or quasi-corporate status of employers' associations

127

(1) An employers’ association may be either a body corporate or an unincorporated association.

(2) Where an employers’ association is unincorporated—

(a) it is capable of making contracts;

(b) it is capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action; and

(c) proceedings for an offence alleged to have been committed by it or on its behalf may be brought against it in its own name.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exclusion of common law rules as to restraint of trade

128

(1) The purposes of an unincorporated employers’ association and, so far as they relate to the regulation of relations between employers and workers or trade unions, the purposes of an employers’ association which is a body corporate are not, by reason only that they are in restraint of trade, unlawful so as—

(a) to make any member of the association liable to criminal proceedings for conspiracy or otherwise, or

(b) to make any agreement or trust void or voidable.

(2) No rule of an unincorporated employers’ association or, so far as it relates to the regulation of relations between employers and workers or trade unions, of an employers’ association which is a body corporate, is unlawful or unenforceable by reason only that it is in restraint of trade.

Property of unincorporated employers' associations, &c

129

(1) The following provisions of Chapter II of Part I of this Act apply to an unincorporated employers’ association as in relation to a trade union—

(a) section 12(1) and (2) (property to be vested in trustees),

(b) section 13 (vesting of property in new trustees), and

(2) In sections 13 and 14 as they apply by virtue of subsection (1) the reference to entry in the list of trade unions shall be construed as a reference to entry in the list of employers’ associations.

(3) Section 19 (application of certain provisions relating to . . . friendly societies) applies to any employers’ association as in relation to a trade union.

Restriction on enforcement of awards against certain property

130

(1) Where in any proceedings an amount is awarded by way of damages, costs or expenses—

(a) against an employers’ association,

(b) against trustees in whom property is vested in trust for an employers’ association, in their capacity as such (and otherwise than in respect of a breach of trust on their part), or

(c) against members or officials of an employers’ association on behalf of themselves and all of the members of the association,

no part of that amount is recoverable by enforcement against any protected property.

(2) The following is protected property—

(a) property belonging to the trustees otherwise than in their capacity as such;

(b) property belonging to any member of the association otherwise than jointly or in common with the other members;

Administration of employers’ associations

Administrative provisions applying to employers' associations

131

(1) The following provisions of Chapter III of Part I of this Act apply to an employers’ association as in relation to a trade union—

section 27 (duty to supply copy of rules),section 28 (duty to keep accounting records),section 32(1), (2), (3)(a), (b) and (c) and (4) to (6) ... and sections 33 to 37 (annual return, accounts and audit),

sections 37A to 37E (investigation of financial affairs),

sections 38 to 42 (members’ superannuation schemes),section 43(1) (exemption for newly-formed organisations),section 44(1),(2) and (4) (discharge of duties in case of organisation having branches or sections), andsections 45 and 45A (offences).

(2) Sections 33 to 35 (appointment and removal of auditors) do not apply to an employers’ association which is registered as a company under the Companies Act 2006; and sections 36 and 37 (rights and duties of auditors) apply to the auditors appointed by such an association under . . . Chapter 2 of Part 16 of that Act.

Application of funds for political objects

132

(1) Subject to subsections (2) to (5), theprovisions of Chapter VI of Part I of this Act (application of funds for political objects) apply to an unincorporated employers’ association as in relation to a trade union.

(2) Subsection (1) does not apply to these provisions—

(a) section 72A;

(b) in section 80, subsections (5A) to (5C) and (8) to (10);

(3) In its application to an unincorporated employers’ association, section 79 shall have effect as if at the end of subsection (1) there were inserted—

The making of an application to the Certification Officer does not prevent the applicant, or any other person, from making an application to the court in respect of the same matter.

(4) In its application to an unincorporated employers’ association, section 80(2)(b) shall have effect as if the words “where he considers it appropriate," were inserted at the beginning.

(5) In its application to an unincorporated employers’ association, section 81 shall have effect as if after subsection (1) there were inserted—

(2) If an application in respect of the same matter has been made to the Certification Officer, the court shall have due regard to any declaration, reasons or observations of his which are brought to its notice.

Amalgamations and similar matters

Amalgamations and transfers of engagements

133

(1) Subject to subsection (2), the provisions of Chapter VII of Part I of this Act (amalgamations and similar matters) apply to unincorporated employers’ associations as in relation to trade unions.

(2) In its application to such associations that Chapter shall have effect—

(a) as if in section 99(1) for the words from “that every" to “accompanied by" there were substituted the words “that, not less than seven days before the ballot on the resolution to approve the instrument of amalgamation or transfer is held, every member is supplied with",

(b) as if the requirements imposed by sections 100A to 100E consisted only of those specified in sections 100B and 100C(1) and (3)(a) together with the requirement that every member must, so far as is reasonably possible, be given a fair opportunity of voting, . . .

(ba) as if the references in sections 101A and 101B to the list of trade unions were to the list of employers' associations, and

Change of name of employers' association

134

(1) An unincorporated employers’ association may change its name by any method expressly provided for by its rules or, if its rules do not expressly provide for a method of doing so, by adopting in accordance with its rules an alteration of the provision in them which gives the association its name.

(2) If the name of an employers’ association, whether incorporated or unincorporated, is entered in the list of employers’ associations a change of name shall not take effect until approved by the Certification Officer.

(3) The Certification Officer shall not approve a change of name if it appears to him that the proposed new name—

(a) is the same as one entered in the list as the name of another employers’ association, or

(b) is the same as one entered in the list of trade unions kept under Part I of this Act,

or is a name so nearly resembling such a name as to be likely to deceive the public.

(4) A change of name by an unincorporated employers’ association does not affect any right or obligation of the association or any of its members; and any pending legal proceedings may be continued by or against the association, the trustees of the association or any other officer of the association who can sue or be sued on its behalf notwithstanding its change of name.

(5) The power conferred by section 108 (power to make regulations for carrying provisions into effect) applies in relation to this section as in relation to a provision of Chapter VII of Part I.

General

Federated employers' associations

135

(1) In this section a “federated employers’ association” means a employers’ association which consists wholly or mainly of constituent or affiliated organisations, or representatives or such organisations, as described in paragraph (b) of the definition of “employers’ association” in section 122.

(2) The provisions of Part I applied by this Part to employers’ associations apply to federated employers’ associations subject to the following exceptions and adaptations.

(3) The following provisions of Chapter III of Part I (administration) do not apply to a federated employers’ association which consists wholly or mainly of representatives of constituent or affiliated organisations—

(a) section 27 (duty to supply copy of rules),

(b) section 28 (duty to keep accounting records),

(c) section 32(1), (2), (3)(a), (b) and (c) and (4) to (6) ... and sections 33 to 37 (annual return, accounts and audit), . . .

(ca) sections 37A to 37E (investigation of financial affairs), and

(d) sections 38 to 42 (members’ superannuation schemes).

(4) The provisions of Chapter VI of Part I (application of funds for political objects) apply to a employers’ association which is in whole or part an association or combination of other associations as if the individual members of the component associations were members of that association and not of the component associations.

But nothing in that Chapter prevents a component association from collecting contributions on behalf of the association or combination from such of its members as are contributors to the political fund of the association or combination.

Meaning of “officer” of employers' association

136

In this Act “officer”, in relation to an employers’ association, includes—

(a) any member of the governing body of the association, and

(b) any trustee of any fund applicable for the purposes of the association.

Part III — Rights in relation to union membership and activities

Access to employment

137

(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 employment 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

(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) 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 this section 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 of the union, or

(b) to which Chapter IV of Part I applies (duty to hold elections).

(8) 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.

138

(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 employment tribunal.

(2A) Section 12A of the Employment Tribunals Act 1996 (financial penalties) applies in relation to a complaint under this section as it applies in relation to a claim involving an employer and a worker (reading references to an employer as references to the employment agency and references to a worker as references to the complainant).

(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

(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.

Time limit for proceedings

139

(1) An employment tribunal shall not consider a complaint under section 137 or 138 unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the date of the conduct to which the complaint relates, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the tribunal considers reasonable.

(2) The date of the conduct to which a complaint under section 137 relates shall be taken to be—

(a) in the case of an actual refusal, the date of the refusal;

(b) in the case of a deliberate omission—

(i) to entertain and process the complainant’s application or enquiry, or

(ii) to offer employment,

the end of the period within which it was reasonable to expect the employer to act;

(c) in the case of conduct causing the complainant to withdraw or cease to pursue his application or enquiry, the date of that conduct;

(d) in a case where an offer was made but withdrawn, the date when it was withdrawn;

(e) in any other case where an offer was made but not accepted, the date on which it was made.

(3) The date of the conduct to which a complaint under section 138 relates shall be taken to be—

(a) in the case of an actual refusal, the date of the refusal;

(b) in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect the employment agency to act;

(c) in the case of conduct causing the complainant not to avail himself of a service or to cease to avail himself of it, the date of that conduct;

(d) in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact provided was provided.

(4) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).

Remedies

140

(1) Where the employment tribunal finds that a complaint under section 137 or 138 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable—

(a) an order requiring the respondent to pay compensation to the complainant of such amount as the tribunal may determine;

(b) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.

(2) Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.

(3) If the respondent fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one.

(4) The total amount of compensation shall not exceed the limit for the time being imposed by section 124(1) of the Employment Rights Act 1996 (limit on compensation for unfair dismissal).

Complaint against employer and employment agency

141

(1) Where a person has a right of complaint against a prospective employer and against an employment agency arising out of the same facts, he may present a complaint against either of them or against them jointly.

(2) If a complaint is brought against one only, he or the complainant may request the tribunal to join or sist the other as a party to the proceedings.

The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.

(3) Where a complaint is brought against an employer and an employment agency jointly, or where it is brought against one and the other is joined or sisted as a party to the proceedings, and the tribunal—

(a) finds that the complaint is well-founded as against the employer and the agency, and

(b) makes an award of compensation,

it may order that the compensation shall be paid by the one or the other, or partly by one and partly by the other, as the tribunal may consider just and equitable in the circumstances.

Awards against third parties

142

(1) If in proceedings on a complaint under section 137 or 138 either the complainant or the respondent claims that the respondent was induced to act in the manner complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, the complainant or the respondent may request the employment tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings.

(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.

(3) Where a person has been so joined or sisted as a party to the proceedings and the tribunal—

(a) finds that the complaint is well-founded,

(b) makes an award of compensation, and

it may order that the compensation shall be paid by the person joined instead of by the respondent, or partly by that person and partly by the respondent, as the tribunal may consider just and equitable in the circumstances.

(4) Where by virtue of section 141 (complaint against employer and employment agency) there is more than one respondent, the above provisions apply to either or both of them.

Interpretation and other supplementary provisions

143

(1) In sections 137 to 143—

“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 employment, and related expressions shall be construed accordingly; and

“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 (2) below.

(2) For the purposes of sections 137 to 143 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.

(3) References in sections 137 to 143 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.

(4) The remedy of a person for conduct which is unlawful by virtue of section 137 or 138 is by way of a complaint to an employment tribunal in accordance with this Part, and not otherwise.

No other legal liability arises by reason that conduct is unlawful by virtue of either of those sections.

Contracts for supply of goods or services

Union membership requirement in contract for goods or services void

144

A term or condition of a contract for the supply of goods or services is void in so far as it purports to require that the whole, or some part, of the work done for the purposes of the contract is done only by persons who are, or are not, members of trade unions or of a particular trade union.

Refusal to deal on union membership grounds prohibited

145

(1) A person shall not refuse to deal with a supplier or prospective supplier of goods or services on union membership grounds.“Refuse to deal” and “union membership grounds” shall be construed as follows.

(2) A person refuses to deal with a person if, where he maintains (in whatever form) a list of approved suppliers of goods or services, or of persons from whom tenders for the supply of goods or services may be invited, he fails to include the name of that person in that list.

He does so on union membership grounds if the ground, or one of the grounds, for failing to include his name is that if that person were to enter into a contract with him for the supply of goods or services, work to be done for the purposes of the contract would, or would be likely to, be done by persons who were, or who were not, members of trade unions or of a particular trade union.

(3) A person refuses to deal with a person if, in relation to a proposed contract for the supply of goods or services—

(a) he excludes that person from the group of persons from whom tenders for the supply of the goods or services are invited, or

(b) he fails to permit that person to submit such a tender, or

He does so on union membership grounds if the ground, or one of the grounds, on which he does so is that if the proposed contract were entered into with that person, work to be done for the purposes of the contract would, or would be likely to, be done by persons who were, or who were not, members of trade unions or of a particular trade union.

(4) A person refuses to deal with a person if he terminates a contract with him for the supply of goods or services.

He does so on union membership grounds if the ground, or one of the grounds, on which he does so is that work done, or to be done, for the purposes of the contract has been, or is likely to be, done by persons who are or are not members of trade unions or of a particular trade union.

(5) The obligation to comply with this section is a duty owed to the person with whom there is a refusal to deal and to any other person who may be adversely affected by its contravention; and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty.

Detriment

146

(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, . . .

(ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or

(c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In subsection (1)“an appropriate time” means—

(a) a time outside the worker's working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services;

and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.

(2A) In this section—

(a) “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and

(b) references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

(2B) If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba).

(2C) A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B.

(2D) For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).

(3) A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of enforcing a requirement (whether or not imposed by a contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(4) For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to a worker in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as a detriment to which he has been subjected as an individual by an act of his employer taking place for the sole or main purpose of enforcing a requirement of a kind mentioned in that subsection.

(5) A worker or former worker may present a complaint to an industrial tribunal on the ground that he has been subjected to a detrimentby his employer in contravention of this section.

(5A) This section does not apply where—

(a) the worker is an employee; and

(b) the detriment in question amounts to dismissal.

Time limit for proceedings

147

(1)An employment tribunal shall not consider a complaint under section 146 unless it is presented—

(a) before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them , or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.

(2) For the purposes of subsection (1)—

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

(b) a failure to act shall be treated as done when it was decided on.

(3) For the purposes of subsection (2), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

(4) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).

Consideration of complaint

148

(1) On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act

(2) In determining any question whether the employer acted or failed to act, or the purpose for which he did so, no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remedies

149

(1) Where the employment tribunal finds that a complaint under section 146 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure complained of.

(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the act or failure which infringed his right.

(3) The loss shall be taken to include—

(a) any expenses reasonably incurred by the complainant in consequence of the act or failurecomplained of, and

(b) loss of any benefit which he might reasonably be expected to have had but for that act or failure.

(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.

(5) In determining the amount of compensation to be awarded no account shall be taken of any pressure which was exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(6) Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

Awards against third parties

150

(1) If in proceedings on a complaint under section 146—

(a) the complaint is made on the ground that the complainant has been subjected to detriment by an act or failure by his employer taking place for the sole or main purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and

(b) either the complainant or the employer claims in proceedings before the tribunal that the employer was induced to act or fail to act in the waycomplained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so,

the complainant or the employer may request the tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings.

(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration that the complaint is well-founded.

(3) Where a person has been so joined or sisted as a party to proceedings and the tribunal—

(a) makes an award of compensation, and

(b) finds that the claim mentioned in subsection (1)(b) is well-founded,

it may order that the compensation shall be paid by the person joined instead of by the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable in the circumstances.

Interpretation and other supplementary provisions

151

(1) References in sections 146 to 150 to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union and to being, becoming or ceasing to remain a member of one of a number of particular branches or sections of that union . . . .

(1A) References in those sections—

(a) to taking part in the activities of a trade union, and

(b) to services made available by a trade union by virtue of membership of the union,

shall be construed in accordance with subsection (1).

(1B) In sections 146 to 150—

“worker” means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and

“employer” means—in relation to a worker, the person for whom he works;in relation to a former worker, the person for whom he worked.

(2) The remedy of a person for infringement of the right conferred on him by section 146 is by way of a complaint to an employment tribunal in accordance with this Part, and not otherwise.

Dismissal of employee

152

(1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

(a) was, or proposed to become, a member of an independent trade union, . . .

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, . . .

(ba) had made use, or proposed to make use, of trade union services at an appropriate time,

(bb) had failed to accept an offer made in contravention of section 145A or 145B, or

(c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member.

(2) In subsection (1)“an appropriate time” means—

(a) a time outside the employee’s working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services;

and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(2A) In this section—

(a) “trade union services” means services made available to the employee by an independent trade union by virtue of his membership of the union, and

(b) references to an employee’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

(2B) Where the reason or one of the reasons for the dismissal was that an independent trade union (with or without the employee’s consent) raised a matter on behalf of the employee as one of its members, the reason shall be treated as falling within subsection (1)(ba).

(3) Where the reason, or one of the reasons, for the dismissal was—

(a) the employee’s refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, he must make one or more payments, or

(b) his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment,

the reason shall be treated as falling within subsection (1)(c).

(4) References in this section to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union or of one of a number of particular branches or sections of that trade union . . . .

(5) References in this section—

(a) to taking part in the activities of a trade union, and

(b) to services made available by a trade union by virtue of membership of the union,

shall be construed in accordance with subsection (4).

153

Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown—

(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and

(b) that the reason (or, if more than one, the principal reason) why he was selected for dismissal was one of those specified in section 152(1),

the dismissal shall be regarded as unfair for the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal).

Exclusion of requirement as to qualifying period, &c

154

Sections 108(1) and 109(1) of the Employment Rights Act 1996 (qualifying period and upper age limit for unfair dismissal protection) do not apply to a dismissal which by virtue of section 152 or 153 is regarded as unfair for the purposes of Part 10 of that Act.

Matters to be disregarded in assessing contributory fault

155

(1) Where an employment tribunal makes an award of compensation for unfair dismissal in a case where the dismissal is unfair by virtue of section 152 or 153, the tribunal shall disregard, in considering whether it would be just and equitable to reduce, or further reduce, the amount of any part of the award, any such conduct or action of the complainant as is specified below.

(2) Conduct or action of the complainant shall be disregarded in so far as it constitutes a breach or proposed breach of a requirement—

(a) to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions,

(b) to cease to be, or refrain from becoming, a member of any trade union or of a particular trade union or of one of a number of particular trade unions,. . .

(c) not to take part in the activities of any trade union or of a particular trade union or of one of a number of particular trade unions , or

(d) not to make use of services made available by any trade union or by a particular trade union or by one of a number of particular trade unions.

For the purposes of this subsection a requirement means a requirement imposed on the complainant by or under an arrangement or contract of employment or other agreement.

(2A) Conduct or action of the complainant shall be disregarded in so far as it constitutes acceptance of or failure to accept an offer made in contravention of section 145A or 145B.

(3) Conduct or action of the complainant shall be disregarded in so far as it constitutes a refusal, or proposed refusal, to comply with a requirement of a kind mentioned in section 152(3)(a) (payments in lieu of membership) or an objection, or proposed, objection, (however expressed) to the operation of a provision of a kind mentioned in section 152(3)(b) (deductions in lieu of membership).

Minimum basic award

156

(1) Where a dismissal is unfair by virtue of section 152(1) or 153, the amount of the basic award of compensation, before any reduction is made under section 122 of the Employment Rights Act 1996, shall be not less than £9,157.

(2) But where the dismissal is unfair by virtue of section 153, subsection (2) of that section (reduction for contributory fault) applies in relation to so much of the basic award as is payable because of subsection (1) above.

Special award of compensation

157

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amount of special award

158

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to increase sums by order

159

(1) . . .

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Awards against third parties

160

(1) If in proceedings before an employment tribunal on a complaint of unfair dismissal either the employer or the complainant claims—

(a) that the employer was induced to dismiss the complainant by pressure which a trade union or other person exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, and

(b) that the pressure was exercised because the complainant was not a member of any trade union or of a particular trade union or of one of a number of particular trade unions,

the employer or the complainant may request the tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings.

(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused after that time; and no such request may be made after the tribunal has made an award of compensation for unfair dismissal or an order for reinstatement or re-engagement.

(3) Where a person has been so joined or sisted as a party to the proceedings and the tribunal—

(a) makes an award of compensation for unfair dismissal, and

(b) finds that the claim mentioned in subsection (1) is well-founded,

the tribunal may order that the compensation shall be paid by that person instead of the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable.

Application for interim relief

161

(1) An employee who presents a complaint of unfair dismissal alleging that the dismissal is unfair by virtue of section 152 may apply to the tribunal for interim relief.

(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).

(3) In a case where the employee relies on section 152(1)(a), (b) or (ba), or on section 152(1)(bb) otherwise than in relation to an offer made in contravention of section 145A(1)(d), the tribunal shall not entertain an application for interim relief unless before the end of that period there is also so presented a certificate in writing signed by an authorised official of the independent trade union of which the employee was or proposed to become a member stating—

(a) that on the date of the dismissal the employee was or proposed to become a member of the union, and

(b) that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.

(4) An “authorised official” means an official of the trade union authorised by it to act for the purposes of this section.

(5) A document purporting to be an authorisation of an official by a trade union to act for the purposes of this section and to be signed on behalf of the union shall be taken to be such an authorisation unless the contrary is proved; and a document purporting to be a certificate signed by such an official shall be taken to be signed by him unless the contrary is proved.

(6) For the purposes of subsection (3) the date of dismissal shall be taken to be—

(a) where the employee’s contract of employment was terminated by notice (whether given by his employer or by him), the date on which the employer’s notice was given, and

(b) in any other case, the effective date of termination.

Application to be promptly determined

162

(1) An employment tribunal shall determine an application for interim relief as soon as practicable after receiving the application and, where appropriate, the requisite certificate.

(2) The tribunal shall give to the employer, not later than seven days before the hearing, a copy of the application and of any certificate, together with notice of the date, time and place of the hearing.

(3) If a request under section 160 (awards against third parties) is made three days or more before the date of the hearing, the tribunal shall also give to the person to whom the request relates, as soon as reasonably practicable, a copy of the application and of any certificate, together with notice of the date, time and place of the hearing.

(4) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

Procedure on hearing of application and making of order

163

(1) If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply.

(2) The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—

(a) to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or

(b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

(3) For this purpose “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means as regards seniority, pension rights and other similar rights that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.

(4) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.

(5) If the employer states that he is willing to re-engage the employee in another job, and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions; and—

(a) if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect, and

(b) if he is not, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and otherwise the tribunal shall make no order.

(6) If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee’s contract of employment.

Order for continuation of contract of employment

164

(1) An order under section 163 for the continuation of a contract of employment is an order that the contract of employment continue in force—

(a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and

(b) for the purpose of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.

(2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.

(3) Subject as follows, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—

(a) in the case of payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and

(b) in the case of a payment for any past period, within such time as may be specified in the order.

(4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.

(5) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period or part of any such period shall go towards discharging the employer’s liability in respect of that period under subsection (2); and conversely any payment under that subsection in respect of a period shall go towards discharging any liability of the employer under, or in respect of the breach of, the contract of employment in respect of that period.

(6) If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.

(7) For the purposes of this section the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed.

Application for variation or revocation of order

165

(1) At any time between the making of an order under section 163 and the determination or settlement of the complaint, the employer or the employee may apply to an employment tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.

(2) Sections 161 to 163 apply in relation to such an application as in relation to an original application for interim relief, except that—

(a) no certificate need be presented to the tribunal under section 161(3), and

(b) in the case of an application by the employer, section 162(2) (service of copy of application and notice of hearing) has effect with the substitution of a reference to the employee for the reference to the employer.

Consequences of failure to comply with order

166

(1) If on the application of an employee an employment tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under section 163(4) or (5), the tribunal shall—

(a) make an order for the continuation of the employee’s contract of employment, and

(b) order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard—

(i) to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and

(ii) to any loss suffered by the employee in consequence of the non-compliance.

(2) Section 164 applies to an order under subsection (1)(a) as in relation to an order under section 163.

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