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Trade Union and Labour Relations (Consolidation) Act 1992

77 versions · 1992-07-16

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@@ -3525,2943 +3525,2991 @@

- (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.

### Action short of dismissal

### Detriment

#### Action short of dismissal on grounds related to union membership or activities

##### 146

- (1) An employee 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 purpose of—

- (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, or

- (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)(b) “*an appropriate time*” means—

- (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.

#### 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

#### Dismissal on grounds related to union membership or activities

##### 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

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.

- (3) An employee 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 purpose of enforcing 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.

- (4) For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to an employee 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 purpose of enforcing a requirement of a kind mentioned in that subsection.

- (5) An employee 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.

- (6) For the purposes of this section detriment is detriment short of dismissal.

- (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).

#### Selection for redundancy on grounds related to union membership or activities

##### 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

[(1)] Sections 108 and 109 of the Employment Rights Act 1996 (qualifying period and upper age limit for unfair dismissal protection) do not apply to the dismissal of an employee if it is shown that the reason or principal reason for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.

- (2) For the purposes of this section—

- “*inadmissible*”, in relation to a reason, means that it is one of those specified in section 152(1); and

- “*a redundancy case*” means a case where the reason or principal reason for the dismissal was that the employee was redundant but the equal application of the circumstances to non-dismissed employees required by section 153(a) is also shown.

#### 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 £3,600.

- (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

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#### 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.

- (3) 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 continuation of a contract of employment, the following provisions apply.

- (4) If the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the tribunal shall determine the amount owed by the employer on the date of the determination.

If on that date the tribunal also determines the employee’s complaint that he has been unfairly dismissed, it shall specify that amount separately from any other sum awarded to the employee.

- (5) In any other case, the tribunal shall order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance.

#### Interpretation and other supplementary provisions

##### 167

- (1) Part X of the Employment Rights Act 1996 (unfair dismissal) has effect subject to the provisions of sections 152 to 166 above.

- (2) Those sections shall be construed as one with that Part; and in those sections—

- “*complaint of unfair dismissal*” means a complaint under section 111 of the Employment Rights Act 1996;

- “*award of compensation for unfair dismissal*” means an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) of that Act; and

- “*order for reinstatement or re-engagement*” means an order for reinstatement or re-engagement under section 113 of that Act.

- (3) Nothing in those sections shall be construed as conferring a right to complain of unfair dismissal from employment of a description to which that Part does not otherwise apply.

### Time off for trade union duties and activities

#### Time off for carrying out trade union duties

##### 168

- (1) An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out any duties of his, as such an official, concerned with—

- (a) negotiations with the employer related to or connected with matters falling within section 178(2) (collective bargaining) in relation to which the trade union is recognised by the employer, or

- (b) the performance on behalf of employees of the employer of functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union, or

- (c) receipt of information from the employer and consultation by the employer under section 188 (redundancies) or under the Transfer of Undertakings (Protection of Employment) Regulations 1981.

- (2) He shall also permit such an employee to take time off during his working hours for the purpose of undergoing training in aspects of industrial relations—

- (a) relevant to the carrying out of such duties as are mentioned in subsection (1), and

- (b) approved by the Trades Union Congress or by the independent trade union of which he is an official.

- (3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.

- (4) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.

#### Payment for time off under section 168

##### 169

- (1) An employer who permits an employee to take time off under section 168 or 168A shall pay him for the time taken off pursuant to the permission.

- (2) Where the employee’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he shall be paid as if he had worked at that work for the whole of that time.

- (3) Where the employee’s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he shall be paid an amount calculated by reference to the average hourly earnings for that work.

The average hourly earnings shall be those of the employee concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.

- (4) A right to be paid an amount under this section does not affect any right of an employee in relation to remuneration under his contract of employment, but—

- (a) any contractual remuneration paid to an employee in respect of a period of time off to which this section applies shall go towards discharging any liability of the employer under this section in respect of that period, and

- (b) any payment under this section in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

- (5) An employee may present a complaint to an employment tribunal that his employer has failed to pay him in accordance with this section.

#### Time off for trade union activities

##### 170

- (1) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of taking part in—

- (a) any activities of the union, and

- (b) any activities in relation to which the employee is acting as a representative of the union.

- (2) The right conferred by subsection (1) does not extend to activities which themselves consist of industrial action, whether or not in contemplation or furtherance of a trade dispute.

- (2A) The right conferred by subsection (1) does not extend to time off for the purpose of acting as, or having access to services provided by, a learning representative of a trade union.

- (2B) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of having access to services provided by a person in his capacity as a learning representative of the trade union.

- (2C) Subsection (2B) only applies if the learning representative would be entitled to time off under subsection (1) of section 168A for the purpose of carrying on in relation to the employee activities of the kind mentioned in subsection (2) of that section.

- (4) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section.

- (5) For the purposes of this section—

- (a) a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules, and

- (b) a person who is a learning representative of a trade union acts as such if he carries on the activities mentioned in section 168A(2) in that capacity.

#### Time limit for proceedings

##### 147

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

- (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.

#### Consideration of complaint

##### 148

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

- (3) In determining what was the purpose for which the employer acted or failed to act in a case where—

- (a) there is evidence that the employer’s purpose was to further a change in his relationship with all or any class of his employees, and

- (b) there is also evidence that his purpose was one falling within section 146,

the tribunal shall regard the purpose mentioned in paragraph (a) (and not the purpose mentioned in paragraph (b)) as the purpose for which the employer acted or failed to act, unless it considers that no reasonable employer would act or fail to act in the way concerned having regard to the purpose mentioned in paragraph (a).

- (4) Where the tribunal determines that—

- (a) the complainant has been subjected to a detriment by an act or deliberate failure to act by his employer, and

- (b) the act or failure took place in consequence of a previous act or deliberate failure to act by the employer,

paragraph (a) of subsection (3) is satisfied if the purpose mentioned in that paragraph was the purpose of the previous act or failure.

- (5) In subsection (3) “*class*”, in relation to an employer and his employees, means those employed at a particular place of work, those employees of a particular grade, category or description or those of a particular grade, category or description employed at a particular place of work.

##### 171

An employment tribunal shall not consider a complaint under section 168, 168A, 169 or 170 unless it is presented to the tribunal—

- (a) within three months of the date when the failure occurred, or

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

#### Remedies

##### 149

- (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.

#### 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 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

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.

- (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,

##### 172

- (1) Where the tribunal finds a complaint under section 168 , 168A or 170 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 employee.

- (2) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.

- (3) Where on a complaint under section 169 the tribunal finds that the employer has failed to pay the employee in accordance with that section, it shall order him to pay the amount which it finds to be due.

#### Intepretation and other supplementary provisions

##### 173

- (1) For the purposes of sections 168 , 168A and 170 the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work.

- (2) The remedy of an employee for infringement of the rights conferred on him by section 168, 168A, 169 or 170 is by way of complaint to an employment tribunal in accordance with this Part, and not otherwise.

- (3) The Secretary of State may by order made by statutory instrument amend section 168A for the purpose of changing the purposes for which an employee may take time off under that section.

- (4) No order may be made under subsection (3) unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

### Right to membership of trade union

#### Right not to be unreasonably excluded or expelled from union

##### 174

- (1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.

- (2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if)—

- (a) he does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union,

- (b) he does not qualify, or no longer qualifies, for membership of the union by reason of the union operating only in a particular part or particular parts of Great Britain,

- (c) in the case of a union whose purpose is the regulation of relations between its members and one particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers, or

- (d) the exclusion or expulsion is entirely attributable to his conduct.

- (3) A requirement in relation to membership of a union is “*enforceable*” for the purposes of subsection (2)(a) if it restricts membership solely by reference to one or more of the following criteria—

- (a) employment in a specified trade, industry or profession,

- (b) occupational description (including grade, level or category of appointment), and

- (c) possession of specified trade, industrial or professional qualifications or work experience.

- (4) For the purposes of subsection (2)(d) “*conduct*”, in relation to an individual, does not include—

- (a) his being or ceasing to be, or having been or ceased to be—

- (i) a member of another trade union,

- (ii) employed by a particular employer or at a particular place, or

- (iii) a member of a political party, or

- (b) conduct to which section 65 (conduct for which an individual may not be disciplined by a trade union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union.

- (5) An individual who claims that he has been excluded or expelled from a trade union in contravention of this section may present a complaint to an employment tribunal.

#### Time limit for proceedings

##### 175

An employment tribunal shall not entertain a complaint under section 174 unless it is presented—

- (a) before the end of the period of six months beginning with the date of the exclusion or expulsion, 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.

#### Remedies

##### 176

- (1) Where the employment tribunal finds a complaint under section 174 is well-founded, it shall make a declaration to that effect.

- (2) An individual whose complaint has been declared to be well-founded may make an application for an award of compensation to be paid to him by the union.

The application shall be made to an employment tribunal if when it is made the applicant has been admitted or re-admitted to the union, and otherwise to the Employment Appeal Tribunal.

- (3) The application shall not be entertained if made—

- (a) before the end of the period of four weeks beginning with the date of the declaration, or

- (b) after the end of the period of six months beginning with that date.

- (4) The amount of compensation awarded shall, subject to the following provisions, be such as the employment tribunal or the Employment Appeal Tribunal considers just and equitable in all the circumstances.

- (5) Where the employment tribunal or Employment Appeal Tribunal finds that the exclusion or expulsion complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

- (6) The amount of compensation calculated in accordance with subsections (4) and (5) shall not exceed the aggregate of—

- (a) an amount equal to thirty times the limit for the time being imposed by section 227(1)(a) of the Employment Rights Act 1996 (maximum amount of a week’s pay for basic award in unfair dismissal cases), and

- (b) an amount equal to the limit for the time being imposed by section 124(1) of that Act (maximum compensatory award in such cases);

and, in the case of an award by the Employment Appeal Tribunal, shall not be less than £5,900.

- (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

- (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

#### Interpretation and other supplementary provisions

##### 151

- (2) The remedy of an employee 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

#### Dismissal on grounds related to union membership or activities

##### 152

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

- (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, 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)(b) “*an appropriate time*” means—

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

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.

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

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

#### Selection for redundancy on grounds related to union membership or activities

##### 153

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

- (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

- (2) For the purposes of this section—

- “*inadmissible*”, in relation to a reason, means that it is one of those specified in section 152(1); and

#### Matters to be disregarded in assessing contributory fault

##### 155

- (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, or

- (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.

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.

#### Minimum basic award

##### 156

#### Special award of compensation

##### 157

##### 177

- (1) For the purposes of section 174—

- (a) “*trade union*” does not include an organisation falling within paragraph (b) of section 1,

- (b) “*conduct*” includes statements, acts and omissions, and

- (c) “*employment*” includes any relationship whereby an individual personally does work or performs services for another person (related expressions being construed accordingly).

- (2) For the purposes of sections 174 to 176—

- (a) if an individual’s application for membership of a trade union is neither granted nor rejected before the end of the period within which it might reasonably have been expected to be granted if it was to be granted, he shall be treated as having been excluded from the union on the last day of that period, and

- (b) an individual who under the rules of a trade union ceases to be a member of the union on the happening of an event specified in the rules shall be treated as having been expelled from the union.

- (3) The remedy of an individual for infringement of the rights conferred by section 174 is by way of a complaint to an employment tribunal in accordance with that section, sections 175 and 176 and this section, and not otherwise.

- (4) Where a complaint relating to an expulsion which is presented under section 174 is declared to be well-founded, no complaint in respect of the expulsion shall be presented or proceeded with under section 66 (complaint of infringement of right not to be unjustifiably disciplined).

- (5) The rights conferred by section 174 are in addition to, and not in substitution for, any right which exists apart from that section; and, subject to subsection (4), nothing in that section, section 175 or 176 or this section affects any remedy for infringement of any such right.

## Part IV — Industrial Relations

### Chapter I — Collective bargaining

### Introductory

#### Collective agreements and collective bargaining

##### 178

- (1) In this Act “*collective agreement*” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified below; and “*collective bargaining*” means negotiations relating to or connected with one or more of those matters.

- (2) The matters referred to above are—

- (a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

- (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

- (c) allocation of work or the duties of employment between workers or groups of workers;

- (d) matters of discipline;

- (e) a worker’s membership or non-membership of a trade union;

- (f) facilities for officials of trade unions; and

- (g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

- (3) In this Act “*recognition*”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “*recognised*” and other related expressions shall be construed accordingly.

### Enforceability of collective agreements

#### Whether agreement intended to be a legally enforceable contract

##### 179

- (1) A collective agreement shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement—

- (a) is in writing, and

- (b) contains a provision which (however expressed) states that the parties intend that the agreement shall be a legally enforceable contract.

- (2) A collective agreement which does satisfy those conditions shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract.

- (3) If a collective agreement is in writing and contains a provision which (however expressed) states that the parties intend that one or more parts of the agreement specified in that provision, but not the whole of the agreement, shall be a legally enforceable contract, then—

- (a) the specified part or parts shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract, and

- (b) the remainder of the agreement shall be conclusively presumed not to have been intended by the parties to be such a contract.

- (4) A part of a collective agreement which by virtue of subsection (3)(b) is not a legally enforceable contract may be referred to for the purpose of interpreting a party of the agreement which is such a contract.

#### Effect of provisions restricting right to take industrial action

##### 180

- (1) Any terms of a collective agreement which prohibit or restrict the right of workers to engage in a strike or other industrial action, or have the effect of prohibiting or restricting that right, shall not form part of any contract between a worker and the person for whom he works unless the following conditions are met.

- (2) The conditions are that the collective agreement—

- (a) is in writing,

- (b) contains a provision expressly stating that those terms shall or may be incorporated in such a contract,

- (c) is reasonably accessible at his place of work to the worker to whom it applies and is available for him to consult during working hours, and

- (d) is one where each trade union which is a party to the agreement is an independent trade union;

and that the contract with the worker expressly or impliedly incorporates those terms in the contract.

- (3) The above provisions have effect notwithstanding anything in section 179 and notwithstanding any provision to the contrary in any agreement (including a collective agreement or a contract with any worker).

### Disclosure of information for purposes of collective bargaining

#### General duty of employers to disclose information

##### 181

- (1) An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.

In this section and sections 182 to 185 “*representative*”, in relation to a trade union, means an official or other person authorised by the union to carry on such collective bargaining.

- (2) The information to be disclosed is all information relating to the employer’s undertaking which is in his possession, or that of an associated employer, and is information—

- (a) without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and

- (b) which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.

- (3) A request by trade union representatives for information under this section shall, if the employer so requests, be in writing or be confirmed in writing.

- (4) In determining what would be in accordance with good industrial relations practice, regard shall be had to the relevant provisions of any Code of Practice issued by ACAS, but not so as to exclude any other evidence of what that practice is.

- (5) Information which an employer is required by virtue of this section to disclose to trade union representatives shall, if they so request, be disclosed or confirmed in writing.

#### Restrictions on general duty

##### 182

- (1) An employer is not required by section 181 to disclose information—

- (a) the disclosure of which would be against the interests of national security, or

- (b) which he could not disclose without contravening a prohibition imposed by or under an enactment, or

- (c) which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

- (d) which relates specifically to an individual (unless that individual has consented to its being disclosed), or

- (e) the disclosure of which would cause substantial injury to his undertaking for reasons other than its effect on collective bargaining, or

- (f) obtained by him for the purpose of bringing, prosecuting or defending any legal proceedings.

In formulating the provisions of any Code of Practice relating to the disclosure of information, ACAS shall have regard to the provisions of this subsection.

- (2) In the performance of his duty under section 181 an employer is not required—

- (a) to produce, or allow inspection of, any document (other than a document prepared for the purpose of conveying or confirming the information) or to make a copy of or extracts from any document, or

- (b) to compile or assemble any information where the compilation or assembly would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

#### Complaint of failure to disclose information

##### 183

- (1) A trade union may present a complaint to the Central Arbitration Committee that an employer has failed—

- (a) to disclose to representatives of the union information which he was required to disclose to them by section 181, or

- (b) to confirm such information in writing in accordance with that section.

The complaint must be in writing and in such form as the Committee may require.

- (2) If on receipt of a complaint the Committee is of the opinion that it is reasonably likely to be settled by conciliation, it shall refer the complaint to ACAS and shall notify the trade union and employer accordingly, whereupon ACAS shall seek to promote a settlement of the matter.

If a complaint so referred is not settled or withdrawn and ACAS is of the opinion that further attempts at conciliation are unlikely to result in a settlement, it shall inform the Committee of its opinion.

- (3) If the complaint is not referred to ACAS or, if it is so referred, on ACAS informing the Committee of its opinion that further attempts at conciliation are unlikely to result in a settlement, the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether it finds the complaint well-founded, wholly or in part, and stating the reasons for its findings.

- (4) On the hearing of a complaint any person who the Committee considers has a proper interest in the complaint is entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned does not affect the validity of any decision of the Committee in those proceedings.

- (5) If the Committee finds the complaint wholly or partly well-founded, the declaration shall specify—

- (a) the information in respect of which the Committee finds that the complaint is well founded,

- (b) the date (or, if more than one, the earliest date) on which the employer refused or failed to disclose or, as the case may be, to confirm in writing, any of the information in question, and

- (c) a period (not being less than one week from the date of the declaration) within which the employer ought to disclose that information, or, as the case may be, to confirm it in writing.

- (6) On a hearing of a complaint under this section a certificate signed by or on behalf of a Minister of the Crown and certifying that a particular request for information could not be complied with except by disclosing information the disclosure of which would have been against the interests of national security shall be conclusive evidence of that fact.

A document which purports to be such a certificate shall be taken to be such a certificate unless the contrary is proved.

#### Further complaint of failure to comply with declaration

##### 184

- (1) After the expiration of the period specified in a declaration under section 183(5)(c) the trade union may present a further complaint to the Central Arbitration Committee that the employer has failed to disclose or, as the case may be, to confirm in writing to representatives of the union information specified in the declaration.

The complaint must be in writing and in such form as the Committee may require.

- (2) On receipt of a further complaint the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether they find the complaint well-founded, wholly or in part, and stating the reasons for their finding.

- (3) On the hearing of a further complaint any person who the Committee consider has a proper interest in that complaint shall be entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned shall not affect the validity of any decision of the Committee in those proceedings.

- (4) If the Committee find the further complaint wholly or partly well-founded the declaration shall specify the information in respect of which the Committee find that that complaint is well-founded.

#### Determination of claim and award

##### 185

- (1) On or after presenting a further complaint under section 184 the trade union may present to the Central Arbitration Committee a claim, in writing, in respect of one or more descriptions of employees (but not workers who are not employees) specified in the claim that their contracts should include the terms and conditions specified in the claim.

- (2) The right to present a claim expires if the employer discloses or, as the case may be, confirms in writing, to representatives of the trade union the information specified in the declaration under section 183(5) or 184(4); and a claim presented shall be treated as withdrawn if the employer does so before the Committee make an award on the claim.

- (3) If the Committee find, or have found, the further complaint wholly or partly well-founded, they may, after hearing the parties, make an award that in respect of any description of employees specified in the claim the employer shall, from a specified date, observe either—

- (a) the terms and conditions specified in the claim; or

- (b) other terms and conditions which the Committee consider appropriate.

The date specified may be earlier than that on which the award is made but not earlier than the date specified in accordance with section 183(5)(b) in the declaration made by the Committee on the original complaint.

- (4) An award shall be made only in respect of a description of employees, and shall comprise only terms and conditions relating to matters in respect of which the trade union making the claim is recognised by the employer.

- (5) Terms and conditions which by an award under this section an employer is required to observe in respect of an employee have effect as part of the employee’s contract of employment as from the date specified in the award, except in so far as they are superseded or varied—

- (a) by a subsequent award under this section,

- (b) by a collective agreement between the employer and the union for the time being representing that employee, or

- (c) by express or implied agreement between the employee and the employer so far as that agreement effects an improvement in terms and conditions having effect by virtue of the award.

- (6) Where—

- (a) by virtue of any enactment, other than one contained in this section, providing for minimum remuneration or terms and conditions, a contract of employment is to have effect as modified by an award, order or other instrument under that enactment, and

- (b) by virtue of an award under this section any terms and conditions are to have effect as part of that contract,

that contract shall have effect in accordance with that award, order or other instrument or in accordance with the award under this section, whichever is the more favourable, in respect of any terms and conditions of that contract, to the employee.

- (7) No award may be made under this section in respect of terms and conditions of employment which are fixed by virtue of any enactment.

### Prohibition of union recognition requirements

#### Recognition requirement in contract for goods or services void

##### 186

A term or condition of a contract for the supply of goods or services is void in so far as it purports to require a party to the contract—

- (a) to recognise one or more trade unions (whether or not named in the contract) for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

- (b) to negotiate or consult with, or with an official of, one or more trade unions (whether or not so named).

#### Refusal to deal on grounds of union exclusion prohibited

##### 187

- (1) A person shall not refuse to deal with a supplier or prospective supplier of goods or services if the ground or one of the grounds for his action is that the person against whom it is taken does not, or is not likely to—

- (a) recognise one or more trade unions for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

- (b) negotiate or consult with, or with an official of, one or more trade unions.

- (2) A person refuses to deal with a person if—

- (a) 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; or

- (b) in relation to a proposed contract for the supply of goods or services—

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

- (ii) he fails to permit that person to submit such a tender; or

- (iii) he otherwise determines not to enter into acontract with that person for the supply of the goods or services. or

- (c) he terminates a contract with that person for the supply of goods or services.

- (3) 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).

### Chapter II — Procedure for Handling Redundancies

### Duty of employer to consult . . . representatives

#### Duty of employer to consult trade union representatives

##### 188

- (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

- (1A) The consultation shall begin in good time and in any event—

- (a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

- (b) otherwise, at least 30 days,

before the first of the dismissals takes effect.

- (1B) For the purposes of this section the appropriate representatives of any affected employees are–

- (a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or

- (b) in any other case, whichever of the following employee representatives the employer chooses:–

- (i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf;

- (ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1).

- (2) The consultation shall include consultation about ways of—

- (a) avoiding the dismissals,

- (b) reducing the numbers of employees to be dismissed, and

- (c) mitigating the consequences of the dismissals,

and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

- (3) In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

- (4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives—

- (a) the reasons for his proposals,

- (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

- (c) the total number of employees of any such description employed by the employer at the establishment in question,

- (d) the proposed method of selecting the employees who may be dismissed, . . .

- (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect. and

- (f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed.

- (5) That information shall be given to each of the appropriate representatives by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the union at the address of its head or main office.

- (5A) The employer shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.

- (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

- (7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (1A), (2) or (4), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement.

- (7A) Where—

- (a) the employer has invited any of the affected employees to elect employee representatives, and

- (b) the invitation was issued long enough before the time when the consultation is required by subsection (1A)(a) or (b) to begin to allow them to elect representatives by that time,

the employer shall be treated as complying with the requirements of this section in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.

- (7B) If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable time, he shall give to each affected employee the information set out in subsection (4).

- (8) This section does not confer any rights on a trade union , a representative or an employee except as provided by sections 189 to 192 below.

#### Complaint by trade union and protective award

##### 189

- (1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground–

- (a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant;

- (b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related,

- (c) in the case of failure relating to representatives of a trade union, by the trade union, and

- (d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.

- (1A) If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.

- (1B) On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied.

- (2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

- (3) A protective award is an award in respect of one or more descriptions of employees—

- (a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

- (b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

- (4) The protected period—

- (a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

- (b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;

but shall not exceed 90 days . . . .

- (5) An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

- (a) before the date on which the last of the dismissals to which the complaint relates takes effect, or

- (b) during the period of three months beginning with that date, or

- (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented during the period of three months, within such further period as it considers reasonable.

- (6) If on a complaint under this section a question arises—

- (a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or

- (b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

it is for the employer to show that there were and that he did.

#### Entitlement under protective award

##### 190

- (1) Where an employment tribunal has made a protective award, every employee of a description to which the award relates is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period.

- (2) The rate of remuneration payable is a week’s pay for each week of the period; and remuneration in respect of a period less than one week shall be calculated by reducing proportionately the amount of a week’s pay.

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

- (4) An employee is not entitled to remuneration under a protective award in respect of a period during which he is employed by the employer unless he would be entitled to be paid by the employer in respect of that period—

- (a) by virtue of his contract of employment, or

- (b) by virtue of sections 87 to 91 of the Employment Rights Act 1996 (rights of employee in period of notice),

if that period fell within the period of notice required to be given by section 86(1) of that Act.

- (5) Chapter II of Part XIV of the Employment Rights Act 1996 applies with respect to the calculation of a week’s pay for the purposes of this section.

The calculation date for the purposes of that Chapter is the date on which the protective award was made or, in the case of an employee who was dismissed before the date on which the protective award was made, the date which by virtue of section 226(5) is the calculation date for the purpose of computing the amount of a redundancy payment in relation to that dismissal (whether or not the employee concerned is entitled to any such payment).

- (6) If an employee of a description to which a protective award relates dies during the protected period, the award has effect in his case as if the protected period ended on his death.

#### Termination of employment during protected period

##### 191

- (1) Where the employee is employed by the employer during the protected period and—

- (a) he is fairly dismissed by his employer otherwise than as redundant, or

- (b) he unreasonably terminates the contract of employment,

then, subject to the following provisions, he is not entitled to remuneration under the protective award in respect of any period during which but for that dismissal or termination he would have been employed.

- (2) If an employer makes an employee an offer (whether in writing or not and whether before or after the ending of his employment under the previous contract) to renew his contract of employment, or to re-engage him under a new contract, so that the renewal or re-engagement would take effect before or during the protected period, and either—

- (a) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract, or

- (b) the offer constitutes an offer of suitable employment in relation to the employee,

the following subsections have effect.

- (3) If the employee unreasonably refuses the offer, he is not entitled to remuneration under the protective award in respect of a period during which but for that refusal he would have been employed.

- (4) If the employee’s contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of such an offer as is referred to in subsection (2)(b), there shall be a trial period in relation to the contract as renewed, or the new contract (whether or not there has been a previous trial period under this section).

- (5) The trial period begins with the ending of his employment under the previous contract and ends with the expiration of the period of four weeks beginning with the date on which the he starts work under the contract as renewed, or the new contract, or such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract.

- (6) Any such agreement—

- (a) shall be made between the employer and the employee or his representative before the employee starts work under the contract as renewed or, as the case may be, the new contract,

- (b) shall be in writing,

- (c) shall specify the date of the end of the trial period, and

- (d) shall specify the terms and conditions of employment which will apply in the employee’s case after the end of that period.

- (7) If during the trial period—

- (a) the employee, for whatever reason, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated, or

- (b) the employer, for a reason connected with or arising out of the change to the renewed, or new, employment, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated,

the employee remains entitled under the protective award unless, in a case falling within paragraph (a), he acted unreasonably in terminating or giving notice to terminate the contract.

#### Complaint by employee to industrial tribunal

##### 192

- (1) An employee may present a complaint to an employment tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award.

- (2) An employment tribunal shall not entertain a complaint under this section unless it is presented to the tribunal—

- (a) before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or

- (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it may consider reasonable.

- (3) Where the tribunal finds a complaint under this section well-founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

- (4) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise.

### Duty of employer to notify Secretary of State

#### Duty of employer to notify Secretary of State of certain redundancies

##### 193

- (1) An employer proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days or less shall notify the Secretary of State, in writing, of his proposal at least 90 days before the first of those dismissals takes effect.

- (2) An employer proposing to dismiss as redundant 20 or more employees at one establishment within such a period shall notify the Secretary of State, in writing, of his proposal at least 30 days before the first of those dismissals takes effect.

- (3) In determining how many employees an employer is proposing to dismiss as redundant within the period mentioned in subsection (1) or (2), no account shall be taken of employees in respect of whose proposed dismissal notice has already been given to the Secretary of State.

- (4) A notice under this section shall—

- (a) be given to the Secretary of State by delivery to him or by sending it by post to him, at such address as the Secretary of State may direct in relation to the establishment where the employees proposed to be dismissed are employed,

- (b) where there are representatives to be consulted under section 188, identify them and state the date when consultation with them under that section began,

- (c) be in such form and contain such particulars, in addition to those required by paragraph (b), as the Secretary of State may direct.

- (5) After receiving a notice under this section from an employer the Secretary of State may by written notice require the employer to give him such further information as may be specified in the notice.

- (6) Where there are representatives to be consulted under section 188 the employer shall give to each of them a copy of any notice given under subsection (1) or (2).

The copy shall be delivered to them or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the union at the address of its head or main office.

- (7) If in any case there are special circumstances rendering it not reasonably practicable for the employer to comply with any of the requirements of subsections (1) to (6), he shall take all such steps towards compliance with that requirement as are reasonably practicable in the circumstances Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with any of those requirements..

#### Offence of failure to notify

##### 194

- (1) An employer who fails to give notice to the Secretary of State in accordance with section 193 commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

- (2) Proceedings in England or Wales for such an offence shall be instituted only by or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State.

An officer so authorised may, although not of counsel or a solicitor, prosecute or conduct proceedings for such an offence before a magistrates’ court.

- (3) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

- (4) Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

### Supplementary provisions

#### Meaning of “redundancy”

##### 195

- (1) In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.

- (2) For the purposes of any proceedings under this Chapter, where an employee is or is proposed to be dismissed it shall be presumed, unless the contrary is proved, that he is or is proposed to be dismissed as redundant.

#### Meaning of “trade union representative”

##### 196

- (1) For the purposes of this Chapter persons are employee representatives if—

- (a) they have been elected by employees for the specific purpose of being consulted by their employer about dismissals proposed by him, or

- (b) having been elected or appointedby employees (whether before or after dismissals have been proposed by their employer) otherwise than for that specific purpose, it is appropriate (having regard to the purposes for which they were elected) for the employer to consult them about dismissals proposed by him,

and (in either case) they are employed by the employer at the time when they are elected or appointed.

- (2) References in this Chapter to representatives of a trade union, in relation to an employer, are to officials or other persons authorised by the trade union to carry on collective bargaining with the employer.

- (3) References in this Chapter to affected employees are to employees who may be affected by the proposed dismissals or who may be affected by measures taken in connection with such dismissals.

#### Power to vary provisions

##### 197

- (1) The Secretary of State may by order made by statutory instrument vary—

- (a) the provisions of sections 188(2) and 193(1) (requirements as to consultation and notification), and

- (b) the periods referred to at the end of section 189(4) (maximum protected period);

but no such order shall be made which has the effect of reducing to less than 30 days the periods referred to in sections 188(2) and 193(1) as the periods which must elapse before the first of the dismissals takes effect.

- (2) No such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

#### Power to adapt provisions in case of collective agreement

##### 198

- (1) This section applies where there is in force a collective agreement which establishes—

- (a) arrangements for providing alternative employment for employees to whom the agreement relates if they are dismissed as redundant by an employer to whom it relates, or

- (b) arrangements for handling the dismissal of employees as redundant.

- (2) On the application of all the parties to the agreement the Secretary of State may, if he is satisfied having regard to the provisions of the agreement that the arrangements are on the whole at least as favourable to those employees as the foregoing provisions of this Chapter, by order made by statutory instrument adapt, modify or exclude any of those provisions both in their application to all or any of those employees and in their application to any other employees of any such employer.

- (3) The Secretary of State shall not make such an order unless the agreement—

- (a) provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee to whom the agreement relates claims that any employer or other person to whom it relates has not complied with the provisions of the agreement, and

- (b) provides that those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached,

or indicates that any such employee may present a complaint to an employment tribunal that any such employer or other person has not complied with those provisions.

- (4) An order under this section may confer on an industrial tribunal to whom a complaint is presented as mentioned in subsection (3) such powers and duties as the Secretary of State considers appropriate.

- (5) An order under this section may be varied or revoked by a subsequent order thereunder either in pursuance of an application made by all or any of the parties to the agreement in question or without any such application.

### Chapter III — Codes of Practice

### Codes of Practice issued by ACAS

#### Issue of Codes of Practice by ACAS

##### 199

- (1) ACAS may issue Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations or for purposes connected with trade union learning representatives.

- (2) In particular, ACAS shall in one or more Codes of Practice provide practical guidance on the following matters—

- (a) the time off to be permitted by an employer to a trade union official in accordance with section 168 (time off for carrying out trade union duties);

- (b) the time off to be permitted by an employer to a trade union member in accordance with section 170 (time off for trade union activities); and

- (c) the information to be disclosed by employers to trade union representatives in accordance with sections 181 and 182 (disclosure of information for purposes of collective bargaining).

- (3) The guidance mentioned in subsection (2)(a) shall include guidance on the circumstances in which a trade union official is to be permitted to take time off under section 168 in respect of duties connected with industrial action; and the guidance mentioned in subsection (2)(b) shall include guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action.

- (4) ACAS may from time to time revise the whole or any part of a Code of Practice issued by it and issue that revised Code.

#### Procedure for issue of Code by ACAS

##### 200

- (1) Where ACAS proposes to issue a Code of Practice, or a revised Code, it shall prepare and publish a draft of the Code, shall consider any representations made to it about the draft and may modify the draft accordingly.

- (2) If ACAS determines to proceed with the draft, it shall transmit the draft to the Secretary of State who—

- (a) if he approves of it, shall lay it before both Houses of Parliament, and

- (b) if he does not approve of it, shall publish details of his reasons for withholding approval.

- (3) A Code containing practical guidance—

- (a) on the time off to be permitted to a trade union learning representative in accordance with section 168A (time off for training and carrying out functions as a learning representative),

- (b) on the training that is sufficient to enable a trade union learning representative to carry on the activities mentioned in section 168A(2) (activities for which time off is to be permitted), or

- (c) on any of the matters referred to in section 199(2),

shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft.

- (4) In any other case the following procedure applies—

- (a) if, within the period of 40 days beginning with the day on which the draft is laid before Parliament, (or, if copies are laid before the two Houses on different days, with the later of the two days) either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft;

- (b) if no such resolution is passed, ACAS shall issue the Code in the form of the draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

- (5) A Code issued in accordance with this section shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.

The order may contain such transitional provisions or savings as appear to him to be necessary or expedient.

#### Consequential revision of Code issued by ACAS

##### 201

- (1) A Code of Practice issued by ACAS may be revised by it in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

“*Subsequent statutory provisions*” means provisions made by or under an Act of Parliament and coming into force after the Code was issued (whether before or after the commencement of this Act).

- (2) Where ACAS proposes to revise a Code under this section, it shall transmit a draft of the revised Code to the Secretary of State who—

- (a) if he approves of it, shall lay the draft before each House of Parliament, and

- (b) if he does not approve of it, shall publish details of his reasons for withholding approval.

- (3) If, within the period of 40 days beginning with the day on which the draft is laid before Parliament, (or, if copies are laid before the two Houses on different days, with the later of the two days) either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

- (4) If no such resolution is passed ACAS shall issue the Code in the form of the draft and it shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.

The order may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient.

#### Revocation of Code issued by ACAS

##### 202

- (1) A Code of Practice issued by ACAS may, at the request of ACAS, be revoked by the Secretary of State by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

- (2) If ACAS requests the Secretary of State to revoke a Code and he decides not to do so, he shall publish details of his reasons for his decision.

- (3) An order shall not be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.

### Codes of Practice issued by the Secretary of State

#### Issue of Codes of Practice by the Secretary of State

##### 203

- (1) The Secretary of State may issue Codes of Practice containing such practical guidance as he thinks fit for the purpose—

- (a) of promoting the improvement of industrial relations, or

- (b) of promoting what appear to him to be to be desirable practices in relation to the conduct by trade unions of ballots and elections or for purposes connected with trade union learning representatives.

- (2) The Secretary of State may from time to time revise the whole or any part of a Code of Practice issued by him and issue that revised Code.

#### Procedure for issue of Code by Secretary of State

##### 204

- (1) When the Secretary of State proposes to issue a Code of Practice, or a revised Code, he shall after consultation with ACAS prepare and publish a draft of the Code, shall consider any representations made to him about the draft and may modify the draft accordingly.

- (2) If he determines to proceed with the draft, he shall lay it before both Houses of Parliament and, if it is approved by resolution of each House, shall issue the Code in the form of the draft.

- (3) A Code issued under this section shall come into effect on such day as the Secretary of State may by order appoint.

The order may contain such transitional provisions or savings as appear to him to be necessary or expedient.

- (4) An order under subsection (3) shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

#### Consequential revision of Code issued by Secretary of State

##### 205

- (1) A Code of Practice issued by the Secretary of State may be revised by him in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

“*Subsequent statutory provisions*” means provisions made by or under an Act of Parliament and coming into force after the Code was issued (whether before or after the commencement of this Act).

- (2) Where the Secretary of State proposes to revise a Code under this section, he shall lay a draft of the revised Code before each House of Parliament.

- (3) If within the period of 40 days beginning with the day on which the draft is laid before Parliament, or, if copies are laid before the two Houses on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

- (4) If no such resolution is passed the Secretary of State shall issue the Code in the form of the draft and it shall come into effect on such day as he may appoint by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

#### Revocation of Code issued by Secretary of State

##### 206

- (1) A Code of Practice issued by the Secretary of State may be revoked by him by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

- (2) An order shall not be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.

### Supplementary provisions

#### Effect of failure to comply with Code

##### 207

- (1) A failure on the part of any person to observe any provision of a Code of Practice issued under this Chapter shall not of itself render him liable to any proceedings.

- (2) In any proceedings before an employment tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

- (3) In any proceedings before a court or employment tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by the Secretary of State shall be admissible in evidence, and any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

#### Provisions of earlier Code superseded by later

##### 208

- (1) If ACAS is of the opinion that the provisions of a Code of Practice to be issued by it under this Chapter will supersede the whole or part of a Code previously issued under this Chapter, by it or by the Secretary of State, it shall in the new Code state that on the day on which the new Code comes into effect the old Code or a specified part of it shall cease to have effect.

- (2) If the Secretary of State is of the opinion that the provisions of a Code of Practice to be issued by him under this Chapter will supersede the whole or part of a Code previously issued under this Chapter by him or by ACAS, he shall in the new Code state that on the day on which the new Code comes into effect the old Code or a specified part of it shall cease to have effect.

- (3) The above provisions do not affect any transitional provisions or savings made by the order bringing the new Code into effect.

### Chapter IV — General

### Functions of ACAS

#### General duty to promote improvement of industrial relations

##### 209

It is the general duty of ACAS to promote the improvement of industrial relations . . . . . .

#### Conciliation

##### 210

- (1) Where a trade dispute exists or is apprehended ACAS may, at the request of one or more parties to the dispute or otherwise, offer the parties to the dispute its assistance with a view to bringing about a settlement.

- (2) The assistance may be by way of conciliation or by other means, and may include the appointment of a person other than an officer or servant of ACAS to offer assistance to the parties to the dispute with a view to bringing about a settlement.

- (3) In exercising its functions under this section ACAS shall have regard to the desirability of encouraging the parties to a dispute to use any appropriate agreed procedures for negotiation or the settlement of disputes.

#### Conciliation officers

##### 211

- (1) ACAS shall designate some of its officers to perform the functions of conciliation officers under any enactment (whenever passed) relating to matters which are or could be the subject of proceedings before an employment tribunal.

- (2) References in any such enactment to a conciliation officer are to an officer designated under this section.

#### Arbitration

##### 212

- (1) Where a trade dispute exists or is apprehended ACAS may, at the request of one or more of the parties to the dispute and with the consent of all the parties to the dispute, refer all or any of the matters to which the dispute relates for settlement to the arbitration of—

- (a) one or more persons appointed by ACAS for that purpose (not being officers or employees of ACAS), or

- (b) the Central Arbitration Committee.

- (2) In exercising its functions under this section ACAS shall consider the likelihood of the dispute being settled by conciliation.

- (3) Where there exist appropriate agreed procedures for negotiation or the settlement of disputes, ACAS shall not refer a matter for settlement to arbitration under this section unless—

- (a) those procedures have been used and have failed to result in a settlement, or

- (b) there is, in ACAS’s opinion, a special reason which justifies arbitration under this section as an alternative to those procedures.

- (4) Where a matter is referred to arbitration under subsection (1)(a)—

- (a) if more than one arbitrator or arbiter is appointed, ACAS shall appoint one of them to act as chairman; and

- (b) the award may be published if ACAS so decides and all the parties consent.

- (5) Part I of the Arbitration Act 1996 (general provisions as to arbitration) does not apply to an arbitration under this section.

#### Advice

##### 213

- (1) ACAS may, on request or otherwise, give employers, employers’ associations, workers and trade unions such advice as it thinks appropriate on matters concerned with or affecting or likely to affect industrial relations.

- (2) ACAS may also publish general advice on matters concerned with or affecting or likely to affect industrial relations.

#### Inquiry

##### 214

- (1) ACAS may, if it thinks fit, inquire into any question relating to industrial relations generally or to industrial relations in any particular industry or in any particular undertaking or part of an undertaking.

- (2) The findings of an inquiry under this section, together with any advice given by ACAS in connection with those findings, may be published by ACAS if—

- (a) it appears to ACAS that publication is desirable for the improvement of industrial relations, either generally or in relation to the specific question inquired into, and

- (b) after sending a draft of the findings to all parties appearing to to be concerned and taking account of their views, it thinks fit.

### Courts of inquiry

#### Inquiry and report by court of inquiry

##### 215

- (1) Where a trade dispute exists or is apprehended, the Secretary of State may inquire into the causes and circumstances of the dispute, and, if he thinks fit, appoint a court of inquiry and refer to it any matters appearing to him to be connected with or relevant to the dispute.

- (2) The court shall inquire into the matters referred to it and report on them to the Secretary of State; and it may make interim reports if it thinks fit.

- (3) Any report of the court, and any minority report, shall be laid before both Houses of Parliament as soon as possible.

- (4) The Secretary of State may, before or after the report has been laid before Parliament, publish or cause to be published from time to time, in such manner as he thinks fit, any information obtained or conclusions arrived at by the court as the result or in the course of its inquiry.

- (5) No report or publication made or authorised by the court or the Secretary of State shall include any information obtained by the court of inquiry in the course of its inquiry—

- (a) as to any trade union, or

- (b) as to any individual business (whether carried on by a person, firm, or company),

which is not available otherwise than through evidence given at the inquiry, except with the consent of the secretary of the trade union or of the person, firm, or company in question.

Nor shall any individual member of the court or any person concerned in the inquiry disclose such information without such consent.

- (6) The Secretary of State shall from time to time present to Parliament a report of his proceedings under this section.

#### Constitution and proceedings of court of inquiry

##### 216

- (1) A court of inquiry shall consist of—

- (a) a chairman and such other persons as the Secretary of State thinks fit to appoint, or

- (b) one person appointed by the Secretary of State,

as the Secretary of State thinks fit.

- (2) A court may act notwithstanding any vacancy in its number.

- (3) A court may conduct its inquiry in public or in private, at its discretion.

- (4) The Secretary of State may make rules regulating the procedure of a court of inquiry, including rules as to summoning of witnesses, quorum, and the appointment of committees and enabling the court to call for such documents as the court may determine to be relevant to the subject-matter of the inquiry.

- (5) A court of inquiry may, if and to such extent as may be authorised by rules under this section, by order require any person who appears to the court to have knowledge of the subject-matter of the inquiry—

- (a) to supply (in writing or otherwise) such particulars in relation thereto as the court may require, and

- (b) where necessary, to attend before the court and give evidence on oath;

and the court may administer or authorise any person to administer an oath for that purpose.

- (6) Provision shall be made by rules under this section with respect to the cases in which persons may appear by counsel or solicitor in proceedings before a court of inquiry, and except as provided by those rules no person shall be entitled to appear in any such proceedings by counsel or solicitor.

### Supplementary provisions

#### Exclusion of power of arbiter to state case to Court of Session

##### 217

Section 3 of the Administration of Justice (Scotland) Act 1972 (power of arbiter to state case for opinion of Court of Session) does not apply to—

- (a) any form of arbitration relating to a trade dispute, or

- (b) any other arbitration arising from a collective agreement.

#### Meaning of “trade dispute” in Part IV

##### 218

- (1) In this Part “*trade dispute*” means a dispute between employers and workers, or between workers and workers, which is connected with one or more of the following matters—

- (a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

- (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

- (c) allocation of work or the duties of employment as between workers or groups of workers;

- (d) matters of discipline;

- (e) the membership or non-membership of a trade union on the part of a worker;

- (f) facilities for officials of trade unions; and

- (g) machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures.

- (2) A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated for the purposes of this Part as a dispute between an employer and those workers if the dispute relates—

- (a) to matters which have been referred for consideration by a joint body on which, by virtue of any provision made by or under any enactment, that Minister is represented, or

- (b) to matters which cannot be settled without that Minister exercising a power conferred on him by or under an enactment.

- (3) There is a trade dispute for the purpose of this Part even though it relates to matters occurring outside Great Britain.

- (4) A dispute to which a trade union or employer’s association is a party shall be treated for the purposes of this Part as a dispute to which workers or, as the case may be, employers are parties.

- (5) In this section—

- “*employment*” includes any relationship whereby one person personally does work or performs services for another; and

- “*worker*”, in relation to a dispute to which an employer is a party, includes any worker even if not employed by that employer.

## Part V — Industrial action

### Protection of acts in contemplation or furtherance of trade dispute

#### Protection from certain tort liabilities

##### 219

- (1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—

- (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or

- (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.

- (2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort.

- (3) Nothing in subsections (1) and (2) prevents an act done in the course of picketing from being actionable in tort unless it is done in the course of attendance declared lawful by section 220 (peaceful picketing)

- (4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections “*not protected*” means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person.

#### Peaceful picketing

##### 220

- (1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend—

- (a) at or near his own place of work, or

- (b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,

for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.

- (2) If a person works or normally works—

- (a) otherwise than at any one place, or

- (b) at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable,

his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.

- (3) In the case of a worker not in employment where—

- (a) his last employment was terminated in connection with a trade dispute, or

- (b) the termination of his employment was one of the circumstances giving rise to a trade dispute,

in relation to that dispute his former place of work shall be treated for the purposes of subsection (1) as being his place of work.

- (4) A person who is an official of a trade union by virtue only of having been elected or appointed to be a representative of some of the members of the union shall be regarded for the purposes of subsection (1) as representing only those members; but otherwise an official of a union shall be regarded for those purposes as representing all its members.

#### Restrictions on grant of injunctions and interdicts

##### 221

- (1) Where—

- (a) an application for an injunction or interdict is made to a court in the absence of the party against whom it is sought or any representative of his, and

- (b) he claims, or in the opinion of the court would be likely to claim, that he acted in contemplation or furtherance of a trade dispute,

the court shall not grant the injunction or interdict unless satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the application and an opportunity of being heard with respect to the application have been given to him.

- (2) Where—

- (a) an application for an interlocutory injunction is made to a court pending the trial of an action, and

- (b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute,

the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party’s succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) or section 220 (peaceful picketing).

This subsection does not extend to Scotland.

### Action excluded from protection

#### Action to enforce trade union membership

##### 222

- (1) An act is not protected if the reason, or one of the reasons, for which it is done is the fact or belief that a particular employer—

- (a) is employing, has employed or might employ a person who is not a member of a trade union, or

- (b) is failing, has failed or might fail to discriminate against such a person.

- (2) For the purposes of subsection (1)(b) an employer discriminates against a person if, but only if, he ensures that his conduct in relation to—

- (a) persons, or persons of any description, employed by him, or who apply to be, or are, considered by him for employment, or

- (b) the provision of employment for such persons,

is different, in some or all cases, according to whether or not they are members of a trade union, and is more favourable to those who are.

- (3) An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person—

- (a) to incorporate in a contract to which that person is a party, or a proposed contract to which he intends to be a party, a term or condition which is or would be void by virtue of section 144 (union membership requirement in contract for goods or services), or

- (b) to contravene section 145 (refusal to deal with person on grounds relating to union membership).

- (4) References in this section to an employer employing a person are to a person acting in the capacity of the person for whom a worker works or normally works.

- (5) References in this section to not being a member of a trade union are to 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 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.

#### Action taken because of dismissal for taking unofficial action

##### 223

An act is not protected if the reason, or one of the reasons, for doing it is the fact or belief that an employer has dismissed one or more employees in circumstances such that by virtue of section 237 (dismissal in connection with unofficial action) they have no right to complain of unfair dismissal.

#### Secondary action

##### 224

- (1) An act is not protected if one of the facts relied on for the purpose of establishing liability is that there has been secondary action which is not lawful picketing.

- (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) Lawful picketing means acts done in the course of such attendance as is declared lawful by section 220 (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 244 (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.

#### Pressure to impose union recognition requirement

##### 225

- (1) An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person—

- (a) to incorporate in a contract to which that person is a party, or a proposed contract to which he intends to be a party, a term or condition which is or would be void by virtue of section 186 (recognition requirement in contract for goods or services), or

- (b) to contravene section 187 (refusal to deal with person on grounds of union exclusion).

- (2) An act is not protected if—

- (a) it interferes with the supply (whether or not under a contract) of goods or services, or can reasonably be expected to have that effect, and

- (b) one of the facts relied upon for the purpose of establishing liability is that a person has—

- (i) induced another to break a contract of employment or interfered or induced another to interfere with its performance, or

- (ii) threatened 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

- (c) the reason, or one of the reasons, for doing the act is the fact or belief that the supplier (not being the employer under the contract of employment mentioned in paragraph (b)) does not, or might not—

- (i) recognise one or more trade unions for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

- (ii) negotiate or consult with, or with an official of, one or more trade unions.

### Requirement of ballot before action by trade union

#### Requirement of ballot before action by trade union

##### 226

- (1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action -

- (a) is not protected unless the industrial action has the support of a ballot, and

- (b) where section 226A falls to be complied with in relation to the person’s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.

- In this section “*the relevant time*”, in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.

- (2) Industrial action shall be regarded as having the support of a ballot only if—

- (a) the union has held a ballot in respect of the action—

- (i) in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,

- (ii) in relation to which the requirements of sections 227 to 231 were satisfied, and

- (iii) in which the majority voting in the ballot answered “Yes" to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;

- (b) such of the requirements of the following sections as have fallen to be satisfied at the relevant time have been satisfied, namely—

- (i) section 226B so far as applicable after the holding of the ballot, and

- (ii) section 231B; . . .

- (bb) section 232A does not prevent the industrial action from being regarded as having the support of the ballot; and

- (c) the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.

Any reference in this subsection to a requirement of a provision which is disapplied or modified by section 232 has effect subject to that section.

- (3) Where separate workplace ballots are held by virtue of section 228(1)—

- (a) industrial action shall be regarded as having the support of a ballot if the conditions specified in subsection (2) are satisfied, and

- (b) the trade union shall be taken to have complied with the requirements relating to a ballot imposed by section 226A if those requirements are complied with,

in relation to the ballot for the place of work of the person induced to take part, or continue to take part, in the industrial action.

- (3A) If the requirements of section 231A fall to be satisfied in relation to an employer, as respects that employer industrial action shall not be regarded as having the support of a ballot unless those requirements are satisfied in relation to that employer.

- (4) For the purposes of this section an inducement, in relation to a person, includes an inducement which is or would be ineffective, whether because of his unwillingness to be influenced by it or for any other reason.

#### Entitlement to vote in ballot

##### 227

- (1) Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others.

- (2) The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held and was denied entitlement to vote in the ballot is induced by the union to take part or, as the case may be, to continue to take part in the industrial action.

#### Separate workplace ballots

##### 228

- (1) Subject to subsection (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace.

- (2) This section does not apply if the union reasonably believes that all those members have the same workplace.

- (3) Subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who—

- (a) are entitled to vote by virtue of section 227, and

- (b) have that workplace.

- (4) In this section and section 228A “*workplace*” in relation to a person who is employed means—

- (a) if the person works at or from a single set of premises, those premises, and

- (b) in any other case, the premises with which the person’s employment has the closest connection.

#### Voting paper

##### 229

- (1) The method of voting in a ballot must be by the marking of a voting paper by the person voting.

- (1A) Each voting paper must—

- (a) state the name of the independent scrutineer,

- (b) clearly specify the address to which, and the date by which, it is to be returned,

- (c) be given one of a series of consecutive whole numbers every one of which is used in giving a different number in that series to each voting paper printed or otherwise produced for the purposes of the ballot, and

- (d) be marked with its number.

This subsection, in its application to a ballot in which merchant seamen to whom section 230(2A) applies are entitled to vote, shall have effect with the substitution, for the reference to the address to which the voting paper is to be returned, of a reference to the ship to which the seamen belong.

- (2) The voting paper must contain at least one of the following questions—

- (a) a question (however framed) which requires the person answering it to say, by answering “Yes" or “No", whether he is prepared to take part or, as the case may be, to continue to take part in a strike;

- (b) a question (however framed) which requires the person answering it to say, by answering “Yes" or “No", whether he is prepared to take part or, as the case may be, to continue to take part in industrial action short of a strike.

- (2A) For the purposes of subsection (2) an overtime ban and a call-out ban constitute industrial action short of a strike.

- (3) The voting paper must specify who, in the event of a vote in favour of industrial action, is authorised for the purposes of section 233 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 20(2) (persons for whose acts the union is taken to be responsible).

- (4) The following statement must (without being qualified or commented upon by anything else on the voting paper) appear on every voting paper—

“If you take part in a strike or other industrial action, you may be in breach of your contract of employment."

#### Conduct of ballot

##### 230

- (1) Every person who is entitled to vote in the ballot must—

- (a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and

- (b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.

- (2) Except as regards persons falling within subsection (2A), so far as is reasonably practicable, every person who is entitled to vote in the ballot must—

- (a) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; and

- (b) be given a convenient opportunity to vote by post.

- (2A) Subsection (2B) applies to a merchant seaman if the trade union reasonably believes that—

- (a) he will be employed in a ship either at sea or at a place outside Great Britain at some time in the period during which votes may be cast, and

- (b) it will be convenient for him to receive a voting paper and to vote while on the ship or while at a place where the ship is rather than in accordance with subsection (2).

- (2B) Where this subsection applies to a merchant seaman he shall, if it is reasonably practicable—

- (a) have a voting paper made available to him while on the ship or while at a place where the ship is, and

- (b) be given an opportunity to vote while on the ship or while at a place where the ship is.

- (2C) In subsections (2A) and (2B) “*merchant seaman*” means a person whose employment, or the greater part of it, is carried out on board sea-going ships.

- (4) A ballot shall be conducted so as to secure that—

- (a) so far as is reasonably practicable, those voting do so in secret, and

- (b) the votes given in the ballot are fairly and accurately counted.

For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot.

#### Information as to result of ballot

##### 231

As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of—

- (a) votes cast in the ballot,

- (b) individuals answering “Yes" to the question, or as the case may be, to each question,

- (c) individuals answering “No" to the question, or, as the case may be, to each question, and

- (d) spoiled voting papers.

#### Balloting of overseas members

##### 232

- (1) A trade union which has overseas members may choose whether or not to accord any of those members entitlement to vote in a ballot; and nothing in section 226B to 230 and 231B applies in relation to an overseas member or a vote cast by such a member.

- (2) Where overseas members have voted in the ballot—

- (a) the references in sections 231 and 231A to persons entitled to vote in the ballot do not include overseas members, and

- (b) those sections shall be read as requiring the information mentioned in section 231 to distinguish between overseas members and other members.

- (3) An “*overseas member*” of a trade union means a member (other than a merchant seaman or offshore worker) who is outside Great Britain throughout the period during which votes may be cast.

For this purpose—

- “*merchant seaman*” means a person whose employment, or the greater part of it, is carried out on board sea-going ships; and

- “*offshore worker*” means a person in offshore employment, other than one who is in such employment in an area where the law of Northern Ireland applies.

- (4) A member 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 section 228(1) or (2) applies (workplace ballots) and his place of work is in Great Britain, or

- (b) where the ballot is one to which section 228(3) applies (general ballots) and relates to industrial action involving members both in Great Britain and in Northern Ireland.

- (5) In relation to offshore employment the references in subsection (4) 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.

#### Calling of industrial action with support of ballot

##### 233

- (1) Industrial action shall not be regarded as having the support of a ballot unless it is called by a specified person and the conditions specified below are satisfied.

- (2) A “*specified person*” means a person specified or of a description specified in the voting paper for the ballot in accordance with section 229(3).

- (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;

- (b) there must be a call for industrial action by a specified person, and industrial action to which it relates must take place, before the ballot ceases to be effective in accordance with section 234.

- (4) For the purposes of this section a call shall be taken to have been made by a trade union if it was authorised or endorsed by the union; and the provisions of section 20(2) to (4) apply for the purpose of determining whether a call, or industrial action, is to be taken to have been so authorised or endorsed.

#### Period after which ballot ceases to be effective

##### 234

- (1) Subject to the following provisions, a ballot ceases to be effective for the purposes of section 233(3)(b) in relation to industrial action by members of a trade union at the end of the period, beginning with the date of the ballot—

- (a) of four weeks, or

- (b) of such longer duration not exceeding eight weeks as is agreed between the union and the members’ employer.

- (2) Where for the whole or part of that period the calling or organising of industrial action is prohibited—

- (a) by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or

- (b) by virtue of an undertaking given to a court by any person from which he is subsequently released or by which he ceases to be bound,

the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).

- (3) The application must be made forthwith upon the prohibition ceasing to have effect—

- (a) to the court by virtue of whose decision it ceases to have effect, or

- (b) where an order lapses or an undertaking ceases to bind without any such decision, to the court by which the order was made or to which the undertaking was given;

and no application may be made after the end of the period of eight weeks beginning with the date of the ballot.

- (4) The court shall not make an order if it appears to the court—

- (a) that the result of the ballot no longer represents the views of the union members concerned, or

- (b) that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.

- (5) No appeal lies from the decision of the court to make or refuse an order under this section.

- (6) The period between the making of an application under this section and its determination does not count towards the period referred to in subsection (1).

But a ballot shall not by virtue of this subsection (together with any order of the court) be regarded as effective for the purposes of section 233(3)(b) after the end of the period of twelve weeks beginning with the date of the ballot.

#### Construction of references to contract of employment

##### 235

In sections 226 to 234A (requirement of ballot before action by trade union) references to a contract of employment include any contract under which one person personally does work or performs services for another; and “employer" and other related expressions shall be construed accordingly.

### No compulsion to work

#### No compulsion to work

##### 236

No court shall, whether by way of—

- (a) an order for specific performance or specific implement of a contract of employment, or

- (b) an injunction or interdict restraining a breach or threatened breach of such a contract,

compel an employee to do any work or attend at any place for the doing of any work.

### Loss of unfair dismissal protection

#### Dismissal of those taking part in unofficial industrial action

##### 237

- (1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

- (1A) Subsection (1) does not apply to the dismissal of the employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal was one of those specified in or under—.

- (a) section 99, 100, 101A(d), 103 or 103A of the Employment Rights Act 1996 (dismissal in family, health and safety, working time, employee representative and protected disclosure cases),

- (b) section 104 of that Act in its application in relation to time off under section 57A of that Act (dependants);; and a reference to a specified reason for dismissal includes a reference to specified circumstances of dismissal

- (2) A strike or other industrial action is unofficial in relation to an employee unless—

- (a) he is a member of a trade union and the action is authorised or endorsed by that union, or

- (b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

- (3) The provisions of section 20(2) apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

- (4) The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal.

- (5) In this section the “*time of dismissal*” means—

- (a) where the employee’s contract of employment is terminated by notice, when the notice is given,

- (b) where the employee’s contract of employment is terminated without notice, when the termination takes effect, and

- (c) where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires;

and a “*working day*” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971.

- (6) For the purposes of this section membership of a trade union for purposes unconnected with the employment in question shall be disregarded; but an employee who was a member of a trade union when he began to take part in industrial action shall continue to be treated as a member for the purpose of determining whether that action is unofficial in relation to him or another notwithstanding that he may in fact have ceased to be a member.

#### Dismissals in connection with other industrial action

##### 238

- (1) This section applies in relation to an employee who has a right to complain of unfair dismissal (the “*complainant*”) and who claims to have been unfairly dismissed, where at the date of the dismissal—

- (a) the employer was conducting or instituting a lock-out, or

- (b) the complainant was taking part in a strike or other industrial action.

- (2) In such a case an employment tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

- (a) that one or more relevant employees of the same employer have not been dismissed, or

- (b) that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement.

- (2A) Subsection (2) does not apply to the dismissal of the employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal was one of those specified in or under—.

- (a) section 99, 100, 101A(d) or 103 of the Employment Rights Act 1996 (dismissal in family, health and safety, working time and employee representative cases),

- (2B) Subsection (2) does not apply in relation to an employee who is regarded as unfairly dismissed by virtue of section 238A below.

- (3) For this purpose “*relevant employees*” means—

- (a) in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and

- (b) in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action.

Nothing in section 237 (dismissal of those taking part in unofficial industrial action) affects the question who are relevant employees for the purposes of this section.

- (4) An offer of re-engagement means an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

- (5) In this section “*date of dismissal*” means—

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

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

#### Supplementary provisions relating to unfair dismissal

##### 239

- (1) Sections 237 to 238A(loss of unfair dismissal protection in connection with industrial action) shall be construed as one with Part X of the Employment Rights Act 1996 (unfair dismissal) ; but sections 108 and 109 of that Act (qualifying period and age limit) shall not apply in relation to section 238A of this Act..

- (2) In relation to a complaint to which section 238 or 238A applies, section 111(2) of that Act (time limit for complaint) does not apply, but an employment tribunal shall not consider the complaint unless it is presented to the tribunal—

- (a) before the end of the period of six months beginning with the date of the complainant’s dismissal (as defined by section 238(5)), or

- (3) Where it is shown that the condition referred to in section 238(2)(b) is fulfilled (discriminatory re-engagement), the references in—

- (a) sections 98 to 106 of the Employment Rights Act 1996, and

- (b) sections 152 and 153 of this Act,

to the reason or principal reason for which the complainant was dismissed shall be read as references to the reason or principal reason he has not been offered re-engagement.

- (4) In relation to a complaint under section 111 of the 1996 Act (unfair dismissal: complaint to employment tribunal) that a dismissal was unfair by virtue of section 238A of this Act—

- (a) no order shall be made under section 113 of the 1996 Act (reinstatement or re-engagement) until after the conclusion of protected industrial action by any employee in relation to the relevant dispute,

- (b) regulations under section 7 of the Employment Tribunals Act 1996 may make provision about the adjournment and renewal of applications (including provision requiring adjournment in specified circumstances), and

- (c) regulations under section 9 of that Act may require a pre-hearing review to be carried out in specified circumstances.

### Criminal offences

#### Breach of contract involving injury to persons or property

##### 240

- (1) A person commits an offence who wilfully and maliciously breaks a contract of service or hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be—

- (a) to endanger human life or cause serious bodily injury, or

- (b) to expose valuable property, whether real or personal, to destruction or serious injury.

- (2) Subsection (1) applies equally whether the offence is committed from malice conceived against the person endangered or injured or, as the case may be, the owner of the property destroyed or injured, or otherwise.

- (3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 2 on the standard scale or both.

- (4) This section does not apply to seamen.

#### Intimidation or annoyance by violence or otherwise

##### 241

- (1) A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority—

- (a) uses violence to or intimidates that person or his wife or children, or injures his property,

- (b) persistently follows that person about from place to place,

- (c) hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,

- (d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or

- (e) follows that person with two or more other persons in a disorderly manner in or through any street or road.

- (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.

- (3) A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.

#### Restriction of offence of conspiracy: England and Wales

##### 242

- (1) Where in pursuance of any such agreement as is mentioned in section 1(1) of the Criminal Law Act 1977 (which provides for the offence of conspiracy) the acts in question in relation to an offence are to be done in contemplation or furtherance of a trade dispute, the offence shall be disregarded for the purposes of that subsection if it is a summary offence which is not punishable with imprisonment.

- (2) This section extends to England and Wales only.

#### Restriction of offence of conspiracy: Scotland

##### 243

- (1) An agreement or combination by two or more persons to do or procure to be done an act in contemplation or furtherance of a trade dispute is not indictable as a conspiracy if that act committed by one person would not be punishable as a crime.

- (2) A crime for this purpose means an offence punishable on indictment, or an offence punishable on summary conviction, and for the commission of which the offender is liable under the statute making the offence punishable to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment.

- (3) Where a person is convicted of any such agreement or combination as is mentioned above to do or procure to be done an act which is punishable only on summary conviction, and is sentenced to imprisonment, the imprisonment shall not exceed three months or such longer time as may be prescribed by the statute for the punishment of the act when committed by one person.

- (4) Nothing in this section—

- (a) exempts from punishment a person guilty of a conspiracy for which a punishment is awarded by an Act of Parliament, or

- (b) affects the law relating to riot, unlawful assembly, breach of the peace, or sedition or any offence against the State or the Sovereign.

- (5) This section extends to Scotland only.

### Supplementary

#### Meaning of “trade dispute” in Part V

##### 244

- (1) In this Part a “*trade dispute*” means a dispute between workers and their employer which relates wholly or mainly to one or more of the following—

- (a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

- (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

- (c) allocation of work or the duties of employment between workers or groups of workers;

- (d) matters of discipline;

- (e) a worker’s membership or non-membership of a trade union;

- (f) facilities for officials of trade unions; and

- (2) A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between those workers and their employer if the dispute relates to matters which—

- (a) have been referred for consideration by a joint body on which, by virtue of provision made by or under any enactment, he is represented, or

- (b) cannot be settled without him exercising a power conferred on him by or under an enactment.

- (3) There is a trade dispute even though it relates to matters occurring outside the United Kingdom, so long as the person or persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely to be affected in respect of one or more of the matters specified in subsection (1) by the outcome of the dispute.

- (4) An act, threat or demand done or made by one person or organisation against another which, if resisted, would have led to a trade dispute with that other, shall be treated as being done or made in contemplation of a trade dispute with that other, notwithstanding that because that other submits to the act or threat or accedes to the demand no dispute arises.

- (5) In this section—

- “*employment*” includes any relationship whereby one person personally does work or performs services for another; and

- “*worker*”, in relation to a dispute with an employer, means—a worker employed by that employer; ora person who has ceased to be so employed if his employment was terminated in connection with the dispute or if the termination of his employment was one of the circumstances giving rise to the dispute.

#### Crown employees and contracts

##### 245

Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between that person and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of—

- (a) the law relating to liability in tort of a person who commits an act which—

- (i) induces another person to break a contract, interferes with the performance of a contract or induces another person to interfere with its performance, or

- (ii) consists in a threat that a contract will be broken or its performance interfered with, or that any person will be induced to break a contract or interfere with its performance, and

- (b) the provisions of this or any other Act which refer (whether in relation to contracts generally or only in relation to contracts of employment) to such an act.

#### Minor definitions

##### 246

In this Part—

- “*date of the ballot*” means, in the case of a ballot in which votes may be cast on more than one day, the last of those days;

- . . .

- “*strike*” means (except for the purposes of section 229(2)) any concerted stoppage of work;

- “*working hours*”, in relation to a person, means any time when under his contract of employment, or other contract personally to do work or perform services, he is required to be at work.

## Part VI — Administrative provisions

### ACAS

#### ACAS

##### 247

- (1) There shall continue to be a body called the Advisory, Conciliation and Arbitration Service (referred to in this Act as ACAS).

- (2) ACAS is a body corporate of which the corporators are the members of its Council.

- (3) Its functions, and those of its officers and servants, shall be performed on behalf of the Crown, but not so as to make it subject to directions of any kind from any Minister of the Crown as to the manner in which it is to exercise its functions under any enactment.

- (4) For the purposes of civil proceedings arising out of those functions the Crown Proceedings Act 1947 applies to ACAS as if it were a government department and the Crown Suits (Scotland) Act 1857 applies to it as if it were a public department.

- (5) Nothing in section 9 of the Statistics of Trade Act 1947 (restriction on disclosure of information obtained under that Act) shall prevent or penalise the disclosure to ACAS, for the purposes of the exercise of any of its functions, of information obtained under that Act by a government department.

- (6) ACAS shall maintain offices in such of the major centres of employment in Great Britain as it thinks fit for the purposes of discharging its functions under any enactment.

#### The Council of ACAS

##### 248

- (1) ACAS shall be directed by a Council which, subject to the following provisions, shall consist of a chairman and nine ordinary members appointed by the Secretary of State.

- (2) Before appointing those ordinary members of the Council, the Secretary of State shall—

- (a) as to three of them, consult such organisations representing employers as he considers appropriate, and

- (b) as to three of them, consult such organisations representing workers as he considers appropriate.

- (3) The Secretary of State may, if he thinks fit, appoint a further two ordinary members of the Council (who shall be appointed so as to take office at the same time); and before making those appointments he shall—

- (a) as to one of them, consult such organisations representing employers as he considers appropriate, and

- (b) as to one of them, consult such organisations representing workers as he considers appropriate.

- (4) The Secretary of State may appoint up to three deputy chairman who may be appointed from the ordinary members, or in addition to those members.

- (5) The Council shall determine its own procedure, including the quorum necessary for its meetings.

- (6) If the Secretary of State has not appointed a deputy chairman, the Council may choose a member to act as chairman in the absence or incapacity of the chairman.

- (7) The validity of proceedings of the Council is not affected by any vacancy among the members of the Council or by any defect in the appointment of any of them.

#### Terms of appointment of members of Council

##### 249

- (1) The members of the Council shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

- (2) . . .

Appointment as chairman, or as deputy chairman, or as an ordinary member of the Council, may be a full-time or part-time appointment; and the Secretary of State may, with the consent of the member concerned, vary the terms of his appointment as to whether his appointment is full-time or part-time.

- (3) A person shall not be appointed to the Council for a term exceeding five years, but previous membership does not affect eligibility for re-appointment.

- (4) A member may at any time resign his membership, and the chairman or a deputy chairman may at any time resign his office as such, by notice in writing to the Secretary of State.

A deputy chairman appointed in addition to the ordinary members of the Council shall on resigning his office as deputy chairman cease to be a member of the Council.

- (5) If the Secretary of State is satisfied that a member—

- (a) has been absent from meetings of the Council for a period longer than six consecutive months without the permission of the Council, or

- (b) has become bankrupt or made an arrangement with his creditors (or, in Scotland, has had his estate sequestrated or has made a trust deed for his creditors or has made and had accepted a composition contract), or

- (c) is incapacitated by physical or mental illness, or

- (d) is otherwise unable or unfit to discharge the functions of a member,

the Secretary of State may declare his office as a member to be vacant and shall notify the declaration in such manner as he thinks fit, whereupon the office shall become vacant.

If the chairman or a deputy chairman ceases to be a member of the Council, he shall also cease to be chairman or, as the case may be, a deputy chairman.

#### Remuneration, &c. of members of Council

##### 250

- (1) ACAS shall pay to the members of its Council such remuneration and travelling and other allowances as may be determined by the Secretary of State.

- (2) The Secretary of State may pay, or make provision for payment, to or in respect of a member of the Council such pension, allowance or gratuity on death or retirement as he may determine.

- (3) Where a person ceases to be the holder of the Council otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, he may make him a payment of such amount he may determine.

- (4) The approval of the Treasury is required for any determination by the Secretary of State under this section.

#### Secretary, officers and staff of ACAS

##### 251

- (1) ACAS may, with the approval of the Secretary of State, appoint a secretary.

The consent of the Secretary of State is required as to his terms and conditions of service.

- (2) ACAS may appoint such other officers and staff as it may determine.

The consent of the Secretary of State is required as to their numbers, manner of appointment and terms and conditions of service.

- (3) The Secretary of State shall not give his consent under subsection (1) or (2) without the approval of the Treasury.

- (4) ACAS shall pay to the Treasury, at such times in each accounting year as may be determined by the Treasury, sums of such amounts as may be so determined as being equivalent to the increase in that year of such liabilities of his as are attributable to the provision of pensions, allowances or gratuities to or in respect of persons who are or have been in the service of ACAS in so far as that increase results from the service of those persons during that accounting year and to the expense to be incurred in administering those pensions, allowances or gratuities.

- (5) The fixing of the common seal of ACAS shall be authenticated by the signature of the secretary of ACAS or some other person authorised by ACAS to act for that purpose.

A document purporting to be duly executed under the seal of ACAS shall be received in evidence and shall, unless the contrary is proved, be deemed to be so executed.

#### General financial provisions

##### 252

- (1) The Secretary of State shall pay to ACAS such sums as are approved by the Treasury and as he considers appropriate for the purpose of enabling ACAS to perform its functions.

- (2) ACAS may pay to—

- (a) persons appointed under section 210(2) (conciliation) who are not officers or servants of ACAS, and

- (b) arbitrators or arbiters appointed by ACAS under any enactment,

such fees and travelling and other allowances as may be determined by the Secretary of State with the approval of the Treasury.

#### Annual report and accounts

##### 253

- (1) ACAS shall as soon as practicable after the end of each financial year make a report to the Secretary of State on its activities during that year.

The Secretary of State shall lay a copy of the report before each House of Parliament and arrange for it to be published.

- (2) ACAS shall keep proper accounts and proper records in relation to the accounts and shall prepare in respect of each financial year a statement of accounts, in such form as the Secretary of State may, with the approval of the Treasury, direct.

- (3) ACAS shall not later than 30th November following the end of the financial year to which the statement relates, send copies of the statement to the Secretary of State and to the Comptroller and Auditor General.

- (4) The Comptroller and Auditor General shall examine, certify and report on each such statement and shall lay a copy of the statement and of his report before each House of Parliament.

### The Certification Officer

#### The Certification Officer

##### 254

- (1) There shall continue to be an officer called the Certification Officer.

- (2) The Certification Officer shall be appointed by the Secretary of State after consultation with ACAS.

- (3) The Certification Officer may appoint one or more assistant certification officers and shall appoint an assistant certification officer for Scotland.

- (4) The Certification Officer may delegate to an assistant certification officer such functions as he thinks appropriate, and in particular may delegate to the assistant certification officer for Scotland such functions as he thinks appropriate in relation to organisations whose principal office is in Scotland.

References to the Certification Officer in enactments relating to his functions shall be construed accordingly.

- (5) ACAS shall provide for the Certification Officer the requisite staff (from among the officers and servants of ACAS) and the requisite accommodation, equipment and other facilities.

- (5A) Subject to subsection (6), ACAS shall pay to the Certification Officer such sums as he may require for the performance of any of his functions.

- (6) The Secretary of State shall pay to the Certification Officer such sums as he may require for making payments under the scheme under section 115 (payments towards expenditure in connection with secret ballots).

#### Remuneration, &c. of Certification Officer and assistants

##### 255

- (1) ACAS shall pay to the Certification Officer and any assistant certification officer such remuneration and travelling and other allowances as may be determined by the Secretary of State.

- (2) The Secretary of State may pay, or make provision for payment, to or in respect of the Certification Officer and any assistant certification officer such pension, allowance or gratuity on death or retirement as he may determine.

- (3) Where a person ceases to be the Certification Officer or an assistant certification officer otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, he may make him a payment of such amount he may determine.

- (4) The approval of the Treasury is required for any determination by the Secretary of State under this section.

#### Procedure before the Certification Officer

##### 256

- (1) Except in relation to matters as to which express provision is made by or under an enactment, the Certification Officer may regulate the procedure to be followed—

- (a) on any application or complaint made to him, or

- (b) where his approval is sought with respect to any matter.

- (2) He shall in particular make provision about the disclosure, and restriction of the disclosure, of the identity of an individual who has made or is proposing to make any such application or complaint.

- (2A) Provision under subsection (2) shall be such that if the application or complaint relates to a trade union—

- (a) the individual’s identity is disclosed to the union unless the Certification Officer thinks the circumstances are such that it should not be so disclosed;

- (b) the individual’s identity is disclosed to such other persons (if any) as the Certification Officer thinks fit.

- (3) The Secretary of State may, with the consent of the Treasury, make a scheme providing for the payment by the Certification Officer to persons of such sums as may be specified in or determined under the scheme in respect of expenses incurred by them for the purposes of, or in connection with, their attendance at hearings held by him in the course of carrying out his functions.

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

#### Custody of documents submitted under earlier legislation

##### 257

- (1) The Certification Officer shall continue to have custody of the annual returns, accounts, copies of rules and other documents submitted for the purposes of—

- (a) the Trade Union Acts 1871 to 1964,

- (b) the Industrial Relations Act 1971, or

- (c) the Trade Union and Labour Relations Act 1974,

of which he took custody under section 9 of the Employment Protection Act 1975.

- (2) He shall keep available for public inspection (either free of charge or on payment of a reasonable charge) at all reasonable hours such of those documents as were available for public inspection in pursuance of any of those Acts.

#### Annual report and accounts

##### 258

- (1) The Certification Officer shall, as soon as practicable after the end of each financial year, make a report of his activities during that year to ACAS and to the Secretary of State.

The Secretary of State shall lay a copy of the report before each House of Parliament and arrange for it to be published.

- (2) The accounts prepared by ACAS in respect of any financial year shall show separately any sums disbursed to or on behalf of the Certification Officer in consequence of the provisions of this Part.

### Central Arbitration Committee

#### The Central Arbitration Committee

##### 259

- (1) There shall continue to be a body called the Central Arbitration Committee.

- (2) The functions of the Committee shall be performed on behalf of the Crown, but not so as to make it subject to directions of any kind from any Minister of the Crown as to the manner in which it is to exercise its functions.

- (3) ACAS shall provide for the Committee the requisite staff (from among the officers and servants of ACAS) and the requisite accommodation, equipment and other facilities.

#### The members of the Committee

##### 260

- (1) The Central Arbitration Committee shall consist of members appointed by the Secretary of State.

- (2) The Secretary of State shall appoint a member as chairman, and may appoint a member as deputy chairman or members as deputy chairmen.

- (3) The Secretary of State may appoint as members only persons experienced in industrial relations, and they shall include some persons whose experience is as representatives of employers and some whose experience is as representatives of workers.

- (3A) Before making an appointment under subsection (1) or (2) the Secretary of State shall consult ACAS and may consult other persons.

- (4) At any time when the chairman of the Committee is absent or otherwise incapable of acting, or there is a vacancy in the office of chairman, and the Committee has a deputy chairman or deputy chairmen—

- (a) the deputy chairman, if there is only one, or

- (b) if there is more than one, such of the deputy chairmen as they may agree or in default of agreement as the Secretary of State may direct,

may perform any of the functions of chairman of the Committee.

- (5) At any time when every person who is chairman or deputy chairman is absent or otherwise incapable of acting, or there is no such person, such member of the Committee as the Secretary of State may direct may perform any of the functions of the chairman of the Committee.

- (6) The validity of any proceedings of the Committee shall not be affected by any vacancy among the members of the Committee or by any defect in the appointment of a member of the Committee.

#### Terms of appointment of members of Committee

##### 261

- (1) The members of the Central Arbitration Committee shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

- (2) A person shall not be appointed to the Committee for a term exceeding five years, but previous membership does not affect eligibility for re-appointment.

- (3) The Secretary of State may, with the consent of the member concerned, vary the terms of his appointment as to whether he is a full-time or part-time member.

- (4) A member may at any time resign his membership, and the chairman or a deputy chairman may at any time resign his office as such, by notice in writing to the Secretary of State.

- (5) If the Secretary of State is satisfied that a member—

- (a) has become bankrupt or made an arrangement with his creditors (or, in Scotland, has had his estate sequestrated or has made a trust deed for his creditors or has made and had accepted a composition contract), or

- (b) is incapacitated by physical or mental illness, or

- (c) is otherwise unable or unfit to discharge the functions of a member,

the Secretary of State may declare his office as a member to be vacant and shall notify the declaration in such manner as he thinks fit, whereupon the office shall become vacant.

- (6) If the chairman or a deputy chairman ceases to be a member of the Committee, he shall also cease to be chairman or, as the case may be, a deputy chairman.

#### Remuneration, &c. of members of Committee

##### 262

- (1) ACAS shall pay to the members of the Central Arbitration Committee such remuneration and travelling and other allowances as may be determined by the Secretary of State.

- (2) The Secretary of State may pay, or make provision for payment, to or in respect of a member of the Committee such pension, allowance or gratuity on death or retirement as he may determine.

- (3) Where a person ceases to be the holder of the Committee otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, he may make him a payment of such amount he may determine.

- (4) The approval of the Treasury is required for any determination by the Secretary of State under this section.

#### Proceedings of the Committee

##### 263

- (1) For the purpose of discharging its functions in any particular case the Central Arbitration Committee shall consist of the chairman and such other members as the chairman may direct:

- (2) The Committee may, at the discretion of the chairman, where it appears expedient to do so, call in the aid of one or more assessors, and may settle the matter wholly or partly with their assistance.

- (3) The Committee may at the discretion of the chairman sit in private where it appears expedient to do so.

- (4) If in any case the Committee cannot reach a unanimous decision on its award, the chairman shall decide the matter acting with the full powers of an umpire or, in Scotland, an oversman.

- (5) Subject to the above provisions, the Committee shall determine its own procedure.

- (6) Part I of the Arbitration Act 1996 (general provisions as to arbitration) and section 3 of the Administration of Justice (Scotland) Act 1972 (power of arbiter to state case to Court of Session) do not apply to proceedings before the Committee.

- (7) In relation to the discharge of the Committee’s functions under Schedule A1—

- (a) section 263A and subsection (6) above shall apply, and

- (b) subsections (1) to (5) above shall not apply.

#### Awards of the Committee

##### 264

- (1) The Central Arbitration Committee may correct in any award ,or in any decision or declaration of the Committee under Schedule A1, any clerical mistake or error arising from an accidental slip or omission.

- (2) If a question arises as to the interpretation of an award of the Committee or of a decision or declaration of the Committee under Schedule A1,, any party may apply to the Committee for a decision; and the Committee shall decide the question after hearing the parties or, if the parties consent, without a hearing, and shall notify the parties.

- (3) Decisions of the Committee in the exercise of any of its functions shall be published.

#### Annual report and accounts

##### 265

- (1) ACAS shall, as soon as practicable after the end of each financialyear, make a report to the Secretary of State on the activities of the Central Arbitration Committee during that year.

For that purpose the Committee shall, as soon as practicable after the end of each calendar year, transmit to ACAS an account of its activities during that year.

- (2) The accounts prepared by ACAS in respect of any financial year shall show separately any sums disbursed to or on behalf of the Committee in consequence of the provisions of this Part.

### . . .

#### The Commissioner

##### 266

#### Terms of appointment of Commissioner

##### 267

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

#### Amount of special award

##### 158

#### Remuneration, pension, &c

##### 268

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

#### Power to increase sums by order

##### 159

- (1) . . .

#### Staff of the Commissioner

##### 269

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

#### Financial provisions

##### 270

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

#### Annual report and accounts

##### 271

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

### Supplementary

#### Meaning of “financial year”

##### 272

In this Part financial year means the twelve months ending with 31st March.

## Part VII — Miscellaneous and general

### Crown employment, etc.

#### Crown employment

##### 273

- (1) The provisions of this Act have effect (except as mentioned below) in relation to Crown employment and persons in Crown employment as in relation to other employment and other workers or employees.

- (2) The following provisions are excepted from subsection (1)—

- (3) In this section Crown employment means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by an enactment.

- (4) For the purposes of the provisions of this Act as they apply in relation to Crown employment or persons in Crown employment—

- (a) employee and contract of employment mean a person in Crown employment and the terms of employment of such a person (but subject to subsection (5) below);

- (b) dismissal means the termination of Crown employment;

- (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

- (d) the reference in 182(1)(e) (disclosure of information for collective bargaining: restrictions on general duty) to the employer’s undertaking shall be construed as a reference to the national interest; and

- (e) any other reference to an undertaking shall be construed, in relation to a Minister of the Crown, as a reference to his functions or (as the context may require) to the department of which he is in charge, and in relation to a government department, officer or body shall be construed as a reference to the functions of the department, officer or body or (as the context may require) to the department, officer or body.

- (5) Sections 137 to 143 (rights in relation to trade union membership: access to employment) apply in relation to Crown employment otherwise than under a contract only where the terms of employment correspond to those of a contract of employment.

- (6) This section has effect subject to section 274 (armed forces) and section 275 (exemption on grounds of national security).

#### Armed forces

##### 274

- (1) Section 273 (application of Act to Crown employment) does not apply to service as a member of the naval, military or air forces of the Crown.

- (2) But that section applies to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996 (territorial, auxiliary and reserve forces associations) as it applies to employment for the purposes of a government department.

#### Exemption on grounds of national security

##### 275

- (1) Section 273 (application of Act to Crown employment) does not apply to employment in respect of which there is in force a certificate issued by or on behalf of a Minister of the Crown certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or, at a time specified in the certificate, was) required to be excepted from that section for the purpose of safeguarding national security.

- (2) A document purporting to be such a certificate shall, unless the contrary is proved, be deemed to be such a certificate.

#### Further provision as to Crown application

##### 276

- (1) Section 138 (refusal of service of employment agency on grounds related to union membership), and the other provisions of Part III applying in relation to that section, bind the Crown so far as they relate to the activities of an employment agency in relation to employment to which those provisions apply.

This does not affect the operation of those provisions in relation to Crown employment by virtue of section 273.

- (2) Sections 144 and 145 (prohibition of union membership requirements) and sections 186 and 187 (prohibition of union recognition requirements) bind the Crown.

### House of Lords and House of Commons staff

#### House of Lords staff

##### 277

- (1) The provisions of this Act (except those specified below) apply in relation to employment as a relevant member of the House of Lords staff as in relation to other employment.

- (1A) The following provisions are excepted from subsection (1)—

#### House of Commons staff

##### 278

- (1) The provisions of this Act (except those specified below) apply in relation to employment as a relevant member of the House of Commons staff as in relation to other employment.

- (2) The following provisions are excepted from subsection (1)—

- (2A) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Commons staff from bringing a civil employment claim before the court or from bringing before an employment tribunal proceedings of any description which could be brought before such a tribunal by any person who is not such a member.

- (3) In this section relevant member of the House of Commons staff has the same meaning as in section 139 of the Employment Protection (Consolidation) Act 1978.

- civil employment claim means a claim arising out of or relating to a contract of employment or any other contract connected with employment, or a claim in tort arising in connection with a person’s employment; and

- the court means the High Court or the county court.

- (4) For the purposes of the other provisions of this Act as they apply by virtue of this section—

- (a) employee and contract of employment include a relevant member of the House of Commons staff and the terms of employment of any such member (but subject to subsection (5) below);

- (b) dismissal includes the termination of any such member’s employment;

- (c) the reference in section 182(1)(e) (disclosure of information for collective bargaining: restrictions on general duty) to the employer’s undertaking shall be construed as a reference to the national interest or, if the case so requires, the interests of the House of Commons; and

- (d) any other reference to an undertaking shall be construed as a reference to the House of Commons.

- (5) Sections 137 to 143 (access to employment) apply by virtue of this section in relation to employment otherwise than under a contract only where the terms of employment correspond to those of a contract of employment.

- (6) Subsections (6) to (12) of section 195 of the Employment Rights Act 1996 (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of this section.

### Health service practitioners

#### Health service practitioners

##### 279

- (1) In this Act worker includes an individual regarded in his capacity as one who works or normally works or seeks to work as a person performing . . . personal dental services or providing . . . general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made—

- (a) by a Strategic Health AuthorityPrimary Care Trust orHealth Authority under section . . . 38 or 41 of the National Heath Service Act 1977, or

- (b) by a Health Board under section 17C,. . . 25, 26, or 27 of the National Health Service (Scotland) Act 1978 or as a person providing local pharmaceutical services under a pilot scheme established by a Primary Care Trust or Health Authority under section 28 of the Health and Social Care Act 2001 or under an LPS scheme established by a Primary Care Trust or Health Authority under Schedule 8A to the National Health Service Act 1977 (c. 49);

and employer, in relation to such an individual, regarded in that capacity, means that authority or board.

- (2) In this Act “*worker*” also includes an individual regarded in his capacity as one who works or normally works or seeks to work as a person performing primary medical services or primary dental services—

- (a) in accordance with arrangements made by a Primary Care Trust, Strategic Health Authority or Local Health Board under section 28C of the National Health Service Act 1977; or

- (b) under a contract under section 28K or 28Q of that Act entered into by him with a Primary Care Trust or Local Health Board,

and “*employer*” in relation to such an individual, regarded in that capacity, means that Trust, Authority or Board.

- (3) In this Act “*worker*” also includes an individual regarded in his capacity as one who works or normally works or seeks to work as a person performing primary medical services–

- (a) in accordance with arrangements made by a Health Board under section 17C of the National Health Service (Scotland) Act 1978; or

- (b) under a contract under section 17J of that Act entered into by him with a Health Board,

and “*employer*” in relation to such an individual, regarded in that capacity, means that Health Board.

### Police service

#### Police service

##### 280

- (1) In this Act employee or worker does not include a person in police service; and the provisions of sections 137 and 138 (rights in relation to trade union membership: access to employment) do not apply in relation to police service.

- (2) Police service means service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable.

### Excluded classes of employment

#### Part-time employment

##### 281

#### Short-term employment

##### 282

- (1) The provisions of Chapter II of Part IV (procedure for handling redundancies) do not apply to employment—

- (a) under a contract for a fixed term of three months or less, or

- (b) under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

where the employee has not been continuously employed for a period of more than three months.

- (2) Chapter I of Part XIV of the Employment Rights Act 1996 (computation of period of continuous employment), and any provision modifying or supplementing that Chapter for the purposes of that Act, apply for the purposes of this section.

#### Mariners

##### 283

#### Share fishermen

##### 284

The following provisions of this Act do not apply to employment as master or as member of the crew of a fishing vessel where the employee (or, in the case of sections 145A to 151, the worker) is remunerated only by a share in the profits or gross earnings of the vessel—

#### Employment outside Great Britain

##### 285

- (1) The following provisions of this Act do not apply to employment where under his contract of employment an employee works, or in the case of a prospective employee would ordinarily work, outside Great Britain—

- (1A) Sections 145A to 151 do not apply to employment where under his contract personally to do work or perform services a worker who is not an employee works outside Great Britain.

- (2) For the purposes of subsections (1) and (1A) employment on board a ship registered in the United Kingdom shall be treated as employment where under his contract a person ordinarily works in Great Britain unless—

- (a) the ship is registered at a port outside Great Britain, or

- (b) the employment is wholly outside Great Britain, or

- (c) the employee or, as the case may be, the worker or the person seeking employment or seeking to avail himself of a service of an employment agency, is not ordinarily resident in Great Britain.

#### Power to make further provision as to excluded classes of employment

##### 286

- (1) This section applies in relation to the following provisions—

- (2) The Secretary of State may by order made by statutory instrument provide that any of those provisions—

- (a) shall not apply to persons or to employment of such classes as may be prescribed by the order, or

- (b) shall apply to persons or employments of such classes as may be prescribed by the order subject to such exceptions and modifications as may be so prescribed,

and may vary or revoke any of the provisions of sections 281 to 285 above (excluded classes of employment) so far as they relate to any such provision.

- (3) Any such order shall be made by statutory instrument and may contains such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.

- (4) No such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

### Offshore employment

#### Offshore employment

##### 287

- (1) In this Act offshore employment means employment for the purposes of activities—

- (a) in the territorial waters of the United Kingdom, or

- (b) connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or

- (c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.

- (2) Her Majesty may by Order in Council provide that—

- (a) the provisions of this Act, and

- (b) any Northern Ireland legislation making provision for purposes corresponding to any of the purposes of this Act,

apply, to such extent and for such purposes as may be specified in the Order and with or without modification, to or in relation to a person in offshore employment or, in relation to sections 137 to 143 (access to employment), a person seeking such employment.

- (3) An Order in Council under this section—

- (a) may make different provision for different cases;

- (b) may provide that the enactments to which this section applies, as applied, apply—

- (i) to individuals whether or not they are British subjects, and

- (ii) to bodies corporate whether or not they are incorporated under the law of a part of the United Kingdom,

and apply notwithstanding that the application may affect the activities of such an individual or body outside the United Kingdom;

- (c) may make provision for conferring jurisdiction on any court or class of court specified in the Order, or on employment tribunals, in respect of offences, causes of action or other matters arising in connection with offshore employment;

- (d) may provide that the enactments to which this section applies apply in relation to a person in offshore employment in a part of the areas referred to in subsection (1)(a) and (b);

- (e) may exclude from the operation of section 3 of the Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under the enactments to which this section applies in connection with offshore employment;

- (f) may provide that such proceedings shall not be brought without such consent as may be required by the Order;

- (g) may modify or exclude any of sections 281 to 285 (excluded classes of employment) or any corresponding provision of Northern Ireland legislation.

- (3A) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

- (4) Any jurisdiction conferred on a court or tribunal under this section is without prejudice to jurisdiction exercisable apart from this section, by that or any other court or tribunal.

- (5) In this section—

- cross-boundary petroleum field means a petroleum field that extends across the boundary between the United Kingdom sector of the continental shelf and a foreign sector;

- foreign sector of the continental shelf means an area outside the territorial waters of any state, within which rights with respect to the sea-bed and subsoil and their natural resources are exercisable by a state other than the United Kingdom;

- petroleum field means a geological structure identified as an oil or gas field by the Order in Council concerned; and

- United Kingdom sector of the continental shelf means the areas designated under section 1(7) of the Continental Shelf Act 1964.

### Contracting out, &c.

#### Restriction on contracting out

##### 288

- (1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

- (a) to exclude or limit the operation of any provision of this Act, or

- (b) to preclude a person from bringing—

- (i) proceedings before an employment tribunal or the Central Arbitration Committee under any provision of this Act, or

- (ii) an application to the Employment Appeal Tribunal under section 67 (remedy for infringement of right not to be unjustifiably disciplined) or section 176 (compensation for . . . exclusion or expulsion).

- (2) Subsection (1) does not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under— section 18 of the Employment Tribunals Act 1996 (conciliation)

- (2A) Subsection (1) does not apply to an agreement to refrain from instituting or continuing any proceedings, other than excepted proceedings, specified in subsection (1)(b) of that section before an employment tribunal if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement.

- (2B) The conditions regulating compromise agreements under this Act are that—

- (a) the agreement must be in writing;

- (b) the agreement must relate to the particular proceedings;

- (c) the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an employment tribunal;

- (d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

- (e) the agreement must identify the adviser; and

- (f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

- (2C) The proceedings excepted from subsection (2A) are proceedings on a complaint of non-compliance with section 188.

- (3) Subsection (1) does not apply—

- (a) to such an agreement as is referred to in section 185(5)(b) or (c) to the extent that it varies or supersedes an award under that section;

- (b) to any provision in a collective agreement excluding rights under Chapter II of Part IV (procedure for handling redundancies), if an order under section 198 is in force in respect of it.

- (4) A person is a relevant independent adviser for the purposes of subsection (2B)(c)—

- (a) if he is a qualified lawyer,

- (b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

- (c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

- (d) if he is a person of a description specified in an order made by the Secretary of State.

- (4A) But a person is not a relevant independent adviser for the purposes of subsection (2B)(c) in relation to the complainant—

- (a) if he is, is employed by or is acting in the matter for the other party or a person who is connected with the other party,

- (b) in the case of a person within subsection (4)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,

- (c) in the case of a person within subsection (4)(c), if the complainant makes a payment for the advice received from him, or

- (d) in the case of a person of a description specified in an order under subsection (4)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

- (4B) In subsection (4)(a) qualified lawyer means—

- (a) as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), a solicitor who holds a practising certificate, or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990), and

- (b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

- (4C) An order under subsection (4)(d) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

- (5) For the purposes of subsection (4A) any two persons are to be treated as connected—

- (a) if one is a company of which the other (directly or indirectly) has control, or

- (b) if both are companies of which a third person (directly or indirectly) has control.

- (6) An agreement under which the parties agree to submit a dispute to arbitration—

- (a) shall be regarded for the purposes of subsections (2) and (2A) as being an agreement to refrain from instituting or continuing proceedings if—

- (i) the dispute is covered by a scheme having effect by virtue of an order under section 212A, and

- (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

- (b) shall be regarded for those purposes as neither being nor including such an agreement in any other case.

#### Employment governed by foreign law

##### 289

For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

### Employment tribunal proceedings

#### General provisions as to conciliation

##### 290

#### Right of appeal from industrial tribunal

##### 291

- (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

### Other supplementary provisions

#### Death of employee or employer

##### 292

- (1) This section has effect in relation to the following provisions so far as they confer rights on employees or make provision in connection therewith—

- (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—

- (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.

- (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,

#### 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.

- (3) In a case where the employee relies on section 152(1)(a) or (b) 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—