Trade Union Reform and Employment Rights Act 1993

Abolition of right to statutory minimum remuneration

Repeal of Part II of Wages Act 1986

35

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

Constitution and jurisdiction of tribunals

Constitution of industrial tribunals

36

Constitution of Employment Appeal Tribunal

37

Extension of power to confer on industrial tribunals jurisdiction in respect of contracts of employment etc

38

Agreements not to take proceedings before industrial tribunal

39

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Schedule 6 to this Act shall have effect for making corresponding amendments in ... the Trade Union and Labour Relations (Consolidation) Act 1992.

Restriction of publicity in cases involving sexual misconduct: industrial tribunals

40

Restriction of publicity in cases involving sexual misconduct: Employment Appeal Tribunal

41

Restriction of vexatious proceedings

42

ACAS

Functions of ACAS

43

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) For section 213 of the 1992 Act (powers of ACAS to give advice) there shall be substituted—

(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.

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• (3) In section 249(2) of the 1992 Act (chairman to be full time, but other members full or part time), the first sentence shall be omitted, and, in the second sentence, after the word as, in the first place where it occurs, there shall be inserted the words “ chairman, or as ”.

Fees for exercise of functions by ACAS

44

After section 251 of the 1992 Act there shall be inserted the following section—

(251A) (1) ACAS may, in any case in which it thinks it appropriate to do so, but subject to any directions under subsection (2) below, charge a fee for exercising a function in relation to any person. (2) The Secretary of State may direct ACAS to charge fees, in accordance with the direction, for exercising any function specified in the direction, but the Secretary of State shall not give a direction under this subsection without consulting ACAS. (3) A direction under subsection (2) above may require ACAS to charge fees in respect of the exercise of a function only in specified descriptions of case. (4) A direction under subsection (2) above shall specify whether fees are to be charged in respect of the exercise of any specified function— (a) at the full economic cost level, or (b) at a level less than the full economic cost but not less than a specified proportion or percentage of the full economic cost. (5) Where a direction requires fees to be charged at the full economic cost level ACAS shall fix the fee for the case at an amount estimated to be sufficient to cover the administrative costs of ACAS of exercising the function including an appropriate sum in respect of general staff costs and overheads. (6) Where a direction requires fees to be charged at a level less than the full economic cost ACAS shall fix the fee for the case at such amount, not being less than the proportion or percentage of the full economic cost specified under subsection (4)(b) above, as it thinks appropriate (computing that cost in the same way as under subsection (5) above). (7) No liability to pay a fee charged under this section shall arise on the part of any person unless ACAS has notified that person that a fee may or will be charged. (8) For the purposes of this section— (a) a function is exercised “in relation to” a person who avails himself of the benefit of its exercise, whether or not he requested its exercise and whether the function is such as to be exercisable in relation to particular persons only or in relation to persons generally; and (b) where a function is exercised in relation to two or more persons the fee chargeable for its exercise shall be apportioned among them as ACAS thinks appropriate.

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Careers services

Careers services

45

For sections 8 to 10 of the Employment and Training Act 1973 (careers services of education authorities) and the heading immediately preceding them there shall be substituted—

(8) (1) It shall be the duty of the Secretary of State to secure the provision of relevant services for assisting persons undergoing relevant education to decide— (a) what employments, having regard to their capabilities, will be suitable for and available to them when they cease undergoing such education, and (b) what training or education is or will be required by and available to them in order to fit them for those employments, and for assisting persons ceasing to undergo relevant education to obtain such employments, training and education. (2) In subsection (1) of this section and section 9 of this Act “relevant services” means— (a) giving of assistance by collecting, or disseminating or otherwise providing, information about persons seeking, obtaining or offering employment, training and education, (b) offering advice and guidance, and (c) other services calculated to facilitate the provision of any services specified in paragraphs (a) and (b) of this subsection. (3) In this section and section 9 of this Act “relevant education” means— (a) education involving full-time attendance at any educational institution in Great Britain, other than an educational institution within the higher education sector, and (b) education involving part-time attendance at any educational institution in Great Britain, other than an educational institution within the higher education sector, which is education of a description commonly undergone by persons in order to fit them for employment. (4) The references in subsection (3) of this section to an educational institution within the higher education sector shall be construed— (a) as respects England and Wales, in accordance with section 91(5) of the Further and Higher Education Act 1992 or, if this section is in force at any time before section 65 of that Act comes into force, in accordance with section 61(3)(a) of that Act until that section comes into force, and (b) as respects Scotland, in accordance with section 56(2) of the Further and Higher Education (Scotland) Act 1992. (9) The Secretary of State shall have power to secure the provision of relevant services, or any description of relevant services, for assisting persons other than those undergoing relevant education, or any description of such persons, to decide— (a) what employments, having regard to their capabilities, are or will be suitable for and available to them, and (b) what training or education is or will be required by and available to them in order to fit them for those employments, and for assisting those persons to obtain such employments, training and education. (10) (1) The Secretary of State may perform the duty imposed on him by section 8 of this Act, and exercise the power conferred on him by section 9 of this Act, by making arrangements with— (a) local education authorities or (in Scotland) education authorities, (b) persons of any other description, or (c) local education authorities or education authorities and persons of any other description acting jointly, under which they undertake to provide, or arrange for the provision of, services in accordance with the arrangements; and in doing so the Secretary of State shall have regard to the requirements of disabled persons. (2) The Secretary of State may also perform the duty imposed on him by section 8 of this Act, and exercise the power conferred on him by section 9 of this Act, by giving directions to local education authorities or education authorities requiring them to provide, or arrange for the provision of, services in accordance with the directions; and in doing so the Secretary of State shall have regard to the requirements of disabled persons. (3) Directions given under this section may require local education authorities and education authorities— (a) to provide services themselves or jointly with other authorities or persons, (b) to arrange for the provision of services by other authorities or persons, or (c) to consult and co-ordinate in the provision, or in arranging for the provision, of services with other authorities or persons. (4) Arrangements made, and directions given, under this section may include provision for the making of payments by the Secretary of State, whether by way of grant or loan or otherwise, to the persons with whom they are made or to whom they are given. (5) Arrangements made, and directions given, under this section in exercise of the power conferred by section 9 of this Act may include provision permitting the making of charges for the provision of the services to which they relate. (6) Arrangements made, and directions given, under this section shall require the person with whom they are made or to whom they are given— (a) to provide, or arrange for the provision, of services in accordance with such guidance of a general character as the Secretary of State may give, and (b) to furnish the Secretary of State, in such manner and at such times as he may specify in the arrangements or directions or in guidance given under paragraph (a) of this subsection, with such information and facilities for obtaining information as he may so specify. (7) The Secretary of State may give directions to local education authorities and education authorities requiring them to transfer (on such terms as may be specified in the directions) to any persons who are providing, or are to provide, services in accordance with arrangements made, or directions given, under this section any records of the authorities which may be relevant in the provision of the services. (8) Local education authorities and education authorities shall have power— (a) to provide services or arrange for the provision of services in accordance with arrangements made, or directions given, under this section (including services provided outside their areas) by any such means (including by the formation of companies for the purpose) as they consider appropriate, and (b) to employ officers and provide facilities for and in connection with the provision of the services or arranging for the provision of the services; but, where directions are given to local education authorities and education authorities, the power conferred on them by this subsection shall be exercised in accordance with the directions. (9) Where services are being provided in pursuance of arrangements made, or directions given, under this section, the authority with whom the arrangements are made or to whom the directions have been given shall have power, with the consent of the Secretary of State, to provide, or arrange for the provision of, more extensive (relevant) services than the arrangements authorise or the directions require and to employ more officers and provide more facilities accordingly. (10) Nothing in sections 8 and 9 and this section shall make it unlawful for a local education authority or education authority to defray the cost of exercising their powers under this section from resources other than payments of the Secretary of State. (11) A direction given under this section may be revoked or varied by another direction so given. (12) Nothing in this section shall be taken to limit the arrangements which may be made under section 2 of this Act.

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Careers services: ancillary services

46

After section 10 of the Employment and Training Act 1973 (which is inserted by section 45 above) there shall be inserted—

(10A) (1) The functions of a local education authority or education authority shall include power to enter into agreements for the supply of goods or services authorised by this section with any person (other than an authority) who provides, or arranges for the provision of, relevant services and is a person with whom this section authorises such arrangements to be made. (2) This section authorises the making of such arrangements with any person— (a) who, under arrangements (or joint arrangements) made with that person under section 10(1) or (3) of this Act provides, or arranges for the provision of, the services; (b) who provides the services jointly with an authority under section 10(3) of this Act; (c) who is the means by which, under section 10(8), an authority provides, or arranges for the provision of, the services. (3) Subject to subsections (4), (5) and (6) below, this section authorises— (a) the supply by the authority to the person of any goods; (b) the provision by the authority for the person of any administrative, professional or technical services; (c) the use by the person of any vehicle, plant or apparatus belonging to the authority and, without prejudice to paragraph (b) above, the placing at the disposal of the person of the services of any person employed in connection with the vehicle or other property in question; (d) the carrying out by the authority of works of maintenance in connection with land or buildings for the maintenance of which the person is responsible; and the authority may purchase and store any goods which in their opinion they may require for the purposes of paragraph (a) above. (4) The supply by an authority of goods or services to any person is authorised by this section only for the purpose of the provision by that person of relevant services. (5) The supply by an authority of goods or services to any person is authorised by this section only during the period of two years beginning with the day on which that person first provides relevant services in the area of that authority. (6) Goods and services shall be supplied on such terms as can reasonably be expected to secure that the full cost of making the supply is recovered by the authority. (7) The supply by an authority of goods or services to any person is authorised outside as well as within the area of that authority. (8) This section is without prejudice to the generality of any other enactment conferring functions on local education authorities or education authorities. (9) In this section— - “goods” includes materials; and - “relevant services” has the meaning given in section 8(2) of this Act.

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Training etc. in Scotland

Employment and training functions of Scottish Enterprise and Highlands and Islands Enterprise

47

• (1) In section 2 of the Employment and Training Act 1973 (functions of the Secretary of State), after subsection (3) there shall be inserted—

(3A) Without prejudice to subsection (2)(f) of this section, the Secretary of State may wholly or partly perform his duty under subsection (1) of this section in relation to Scotland by authorising or directing Scottish Enterprise or Highlands and Islands Enterprise to act on his behalf— (a) in the making of arrangements under this section in such cases or for such purposes as may be specified in or determined under the authorisation or direction; (b) in the taking of such steps for the purposes of, or in connection with, the carrying out of any arrangements under this section (including any made otherwise than by Scottish Enterprise or Highlands and Islands Enterprise) as may be so specified or determined, and the power under this subsection to give authorisations or directions shall include power to revoke or vary any authorisation or direction so given. (3B) Where Scottish Enterprise or Highlands and Islands Enterprise make arrangements under this section in pursuance of an authorisation or direction made by the Secretary of State under subsection (3A)(a) above, they shall, at such times as the Secretary of State may require, report to him what provision, if any, they have included in those arrangements in relation to disabled persons.

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• (2) The Enterprise and New Towns (Scotland) Act 1990 shall be amended in accordance with the following provisions of this section.

• (3) In paragraphs (a)(ii) and (b)(ii) of section 1 (Scottish Enterprise and Highlands and Islands Enterprise), after the word Act, there shall be inserted the words “ maintaining and ”.

• (4) In section 2 (functions in relation to training for employment etc.)—

• (a) in subsection (3), after paragraph (c) there shall be inserted

; and (d) providing temporary employment for persons who are without employment.

, and

• (b) in subsection (4), for the word training, in both places where it occurs, there shall be substituted the words “ employment and training ”.

• (5) After section 14 there shall be inserted—

(14A) (1) Without prejudice to the foregoing provisions of this Act, the functions of each of Scottish Enterprise and Highlands and Islands Enterprise shall include— (a) a power to do anything in connection with unemployment, training for employment or employment which it is authorised to do by a Minister of the Crown; and (b) a duty to do anything in connection with unemployment, training for employment or employment which it is required to do by or under a direction given to it by a Minister of the Crown. (2) Scottish Enterprise and Highlands and Islands Enterprise shall each— (a) from time to time submit to the Secretary of State particulars of what it proposes to do for the purpose of carrying out the functions conferred or imposed upon it by or under subsection (1) above; and (b) ensure that all its activities in relation to those functions are in accordance with such proposals submitted by it to the Secretary of State as have been approved by him and with such modifications (if any) of those proposals as are notified to the body in question by him. (3) The power of a Minister of the Crown by virtue of subsection (1) above to authorise or direct Scottish Enterprise or Highlands and Islands Enterprise to do anything shall include the power to delegate powers conferred on him by any enactment; but nothing in this section shall authorise any Minister of the Crown to delegate a power to make subordinate legislation (within the meaning of the Interpretation Act 1978).

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Part IV — Supplementary

Interpretation

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In this Act—

• “the 1978 Act” means the Employment Protection (Consolidation) Act 1978, and

• “the 1992 Act” means the Trade Union and Labour Relations (Consolidation) Act 1992.

Miscellaneous and consequential amendments

49

• (1) The enactments specified in Schedule 7 to this Act shall have effect subject to the amendments there specified (which are miscellaneous amendments).

• (2) The enactments specified in Schedule 8 to this Act shall have effect subject to the amendments there specified (which are consequential amendments).

Transitional provisions and savings

50

The transitional provisions and savings set out in Schedule 9 to this Act shall have effect.

Repeals and revocations

51

The enactments mentioned in Schedule 10 to this Act (which include enactments which are unnecessary) are repealed, and the instruments mentioned in that Schedule are revoked, to the extent specified in the third column of that Schedule.

Commencement

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Subject to any other commencement provision, the preceding sections of, and the Schedules to, this Act shall not come into force until such day as the Secretary of State may appoint by order made by statutory instrument; and different days may be appointed for different provisions and different purposes.

Financial provision

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There shall be paid out of money provided by Parliament—

• (a) any expenditure of the Secretary of State under this Act, and

• (b) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

Northern Ireland

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• (1) An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which states that it is made only for purposes to which this subsection applies—

• (a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament), but

• (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (2) The purposes to which subsection (1) above applies are purposes corresponding to those of—

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

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

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) section 32,

• (g) section 34,

• (h) section 35,

• (i) sections 36, 38 and 39 and Schedule 6,

• (j) section 40, and

• (k) this Part (including Schedules 7, 8, 9 and 10).

• (3) The following provisions of this Act (and no others) extend to Northern Ireland—

• (a) section 3 and Schedule 1 (but only for the purposes of their application to trade unions and unincorporated employers’ associations having their head or main office outside Northern Ireland),

• (b) sections 33, 48, 49, 50, 51, 52 and 55 and this section,

• (c) paragraphs 2, 6 and 7 of Schedule 8,

• (d) paragraphs 1 and 4 of Schedule 9, and

• (e) Schedule 10 so far as it relates to enactments or instruments which extend there.

Short title

55

This Act may be cited as the Trade Union Reform and Employment Rights Act 1993.

SCHEDULE 1

1

In section 74(3) of the 1992 Act (requirements which Certification Officer must be satisfied would be met in relation to political fund ballot held by trade union in accordance with its rules), after the entry relating to section 77 there shall be inserted— “ section 77A (counting of votes etc. by independent person), and ”.

2

In section 75 of that Act (appointment of independent scrutineer for political fund ballot)—

• (a) in paragraph (a) (scrutineer to supervise certain matters) of subsection (3) (terms of appointment of scrutineer), for the words and distribution of the voting papers there shall be substituted the words “ of the voting papers and (unless he is appointed under section 77A to undertake the distribution of the voting papers) their distribution ”,

• (b) after that paragraph there shall be inserted—

(aa) to— (i) inspect the register of names and addresses of the members of the trade union, or (ii) examine the copy of the register as at the relevant date which is supplied to him in accordance with subsection (5A)(a), whenever it appears to him appropriate to do so and, in particular, when the conditions specified in subsection (3A) are satisfied;

,

• (c) in paragraph (d) (scrutineer to retain custody of voting papers) of that subsection—

• (i) after the words purposes of the ballot there shall be inserted the words “ and the copy of the register supplied to him in accordance with subsection (5A)(a) ”, and

• (ii) after the words of the papers there shall be inserted the words “ or copy ”,

• (d) after that subsection there shall be inserted—

(3A) The conditions referred to in subsection (3)(aa) are— (a) that a request that the scrutineer inspect the register or examine the copy is made to him during the appropriate period by a member of the trade union who suspects that the register is not, or at the relevant date was not, accurate and up-to-date, and (b) that the scrutineer does not consider that the member’s suspicion is ill-founded. (3B) In subsection (3A) “the appropriate period” means the period— (a) beginning with the day on which the scrutineer is appointed, and (b) ending with the day before the day on which the scrutineer makes his report to the trade union. (3C) The duty of confidentiality as respects the register is incorporated in the scrutineer’s appointment.

,

• (e) after subsection (5) there shall be inserted—

(5A) The trade union shall— (a) supply to the scrutineer as soon as is reasonably practicable after the relevant date a copy of the register of names and addresses of its members as at that date, and (b) comply with any request made by the scrutineer to inspect the register. (5B) Where the register is kept by means of a computer the duty imposed on the trade union by subsection (5A)(a) is either to supply a legible printed copy or (if the scrutineer prefers) to supply a copy of the computer data and allow the scrutineer use of the computer to read it at any time during the period when he is required to retain custody of the copy.

, and

• (f) after subsection (7) there shall be inserted—

(8) In this section “the relevant date” means— (a) where the trade union has rules determining who is entitled to vote in the ballot by reference to membership on a particular date, that date, and (b) otherwise, the date, or the last date, on which voting papers are distributed for the purposes of the ballot.

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3

After section 77 of that Act there shall be inserted—

(77A) (1) The trade union shall ensure that— (a) the storage and distribution of the voting papers for the purposes of the ballot, and (b) the counting of the votes cast in the ballot, are undertaken by one or more independent persons appointed by the union. (2) A person is an independent person in relation to a ballot if— (a) he is the scrutineer, or (b) he is a person other than the scrutineer and the trade union has no grounds for believing either that he will carry out any functions conferred on him in relation to the ballot otherwise than competently or that his independence in relation to the union, or in relation to the ballot, might reasonably be called into question. (3) An appointment under this section shall require the person appointed to carry out his functions so as to minimise the risk of any contravention of requirements imposed by or under any enactment or the occurrence of any unfairness or malpractice. (4) The duty of confidentiality as respects the register is incorporated in an appointment under this section. (5) Where the person appointed to undertake the counting of votes is not the scrutineer, his appointment shall require him to send the voting papers back to the scrutineer as soon as reasonably practicable after the counting has been completed. (6) The trade union— (a) shall ensure that nothing in the terms of an appointment under this section is such as to make it reasonable for any person to call into question the independence of the person appointed in relation to the union, (b) shall ensure that a person appointed under this section duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call into question the independence of the person appointed in relation to the union, and (c) shall comply with all reasonable requests made by a person appointed under this section for the purposes of, or in connection with, the carrying out of his functions.

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4

In section 78 of that Act (scrutineer’s report on ballot)—

• (a) in subsection (1), after paragraph (d) there shall be inserted

and (e) the name of the person (or of each of the persons) appointed under section 77A or, if no person was so appointed, that fact.

,

• (b) in subsection (2)(b), after the word made there shall be inserted “ (whether by him or any other person) ”, and

• (c) after that subsection there shall be inserted—

(2A) The report shall also state— (a) whether the scrutineer— (i) has inspected the register of names and addresses of the members of the trade union, or (ii) has examined the copy of the register as at the relevant date which is supplied to him in accordance with section 75(5A)(a), (b) if he has, whether in the case of each inspection or examination he was acting on a request by a member of the trade union or at his own instance, (c) whether he declined to act on any such request, and (d) whether any inspection of the register, or any examination of the copy of the register, has revealed any matter which he considers should be drawn to the attention of the trade union in order to assist it in securing that the register is accurate and up-to-date, but shall not state the name of any member who has requested such an inspection or examination. (2B) Where one or more persons other than the scrutineer are appointed under section 77A, the statement included in the scrutineer’s report in accordance with subsection (2)(b) shall also indicate— (a) whether he is satisfied with the performance of the person, or each of the persons, so appointed, and (b) if he is not satisfied with the performance of the person, or any of them, particulars of his reasons for not being so satisfied.

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SCHEDULE 2

Right to return to work

Right to return to work.

39

• (1) An employee who—

• (a) has the right conferred by section 33, and

• (b) has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than two years,

shall also have the right to return to work at any time during the period beginning at the end of her maternity leave period and ending twenty-nine weeks after the beginning of the week in which childbirth occurs.

• (2) An employee’s right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed—

• (a) on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since the commencement of her maternity leave period,

• (b) with her seniority, pension rights and similar rights as they would have been if the period or periods of her employment prior to the end of her maternity leave period were continuous with her employment following her return to work (but subject to the requirements of paragraph 5 of Schedule 5 to the Social Security Act 1989 (credit for the period of absence in certain cases)), and

• (c) otherwise on terms and conditions no less favourable than those which would have been applicable to her had she not been absent from work after the end of her maternity leave period.

• (3) The Secretary of State may by order vary the period of two years specified in subsection (1) or that period as so varied.

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

Requirement to give notice of return to employer.

40

• (1) An employee shall not have the right to return to work under section 39 unless she includes with the information required by section 37(1) the information that she intends to exercise the right.

• (2) Where, not earlier than twenty-one days before the end of her maternity leave period, an employee is requested in accordance with subsection (3) by her employer, or a successor of his, to give him written confirmation that she intends to exercise the right to return to work under section 39, the employee shall not be entitled to that right unless she gives the requested confirmation within fourteen days of receiving the request or, if that is not reasonably practicable, as soon as is reasonably practicable.

• (3) A request under subsection (2) shall be—

• (a) made in writing, and

• (b) accompanied by a written statement of the effect of that subsection.

Special provision where redundancies occur before return to work.

41

• (1) Where an employee has the right to return to work under section 39, but it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right, she shall be entitled, where there is a suitable available vacancy, to be offered alternative employment with her employer (or his successor), or an associated employer, under a new contract of employment complying with subsection (2).

• (2) The new contract of employment must be such that—

• (a) the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

• (b) the provisions of the new contract as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she had returned to work pursuant to her right to return.

Exercise of right to return to work.

42

• (1) An employee shall exercise the right to return to work under section 39 by giving written notice to the employer (who may be her employer before the end of her maternity leave period or a successor of his) at least twenty-one days before the day on which she proposes to return of her proposal to return on that day (the “notified day of return”).

• (2) An employer may postpone an employee’s return to work until a date not more than four weeks after the notified day of return if he notifies her before that day that for specified reasons he is postponing her return until that date, and accordingly she will be entitled to return to work with him on that date.

• (3) Subject to subsection (4), an employee may—

• (a) postpone her return to work until a date not exceeding four weeks from the notified day of return, notwithstanding that that date falls after the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred; and

• (b) where no day of return has been notified to the employer, extend the time during which she may exercise her right to return in accordance with subsection (1), so that she returns to work not later than four weeks from the end of that period of twenty-nine weeks;

if, before the notified day of return (or the end of the period of twenty-nine weeks), she gives the employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return (or the end of that period).

• (4) Where an employee has once exercised a right of postponement or extension under subsection (3)(a) or (b), she shall not again be entitled to exercise a right of postponement or extension under that subsection in connection with the same return to work.

• (5) If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable afterwards.

• (6) If—

• (a) no day of return has been notified,

• (b) there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred, or which appears likely to have that effect, and

• (c) in consequence, the employee does not notify a day of return,

the employee may exercise her right to return in accordance with subsection (1) so that she returns to work at any time before the end of the period of twenty-eight days from the end of the interruption notwithstanding that she returns to work outside the period of twenty-nine weeks.

• (7) Where the employee has either—

• (a) exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return; or

• (b) refrained from notifying the day of return in the circumstances described in subsection (6),

the other of those subsections shall apply as if for the reference to the end of the period of twenty-nine weeks there were substituted a reference to the end of the further period of four weeks or, as the case may be, of the period of twenty-eight days from the end of the interruption of work.

Supplementary.

43

• (1) Schedule 2 shall have effect for the purpose of supplementing the preceding sections in relation to an employee’s right to return to work under section 39.

• (2) Sections 56 and 86 also have effect for that purpose.

• (3) Subject to subsection (4), in sections 56 and 86 and Schedule 2 “notified day of return” has the same meaning as in section 42.

• (4) Where—

• (a) an employee’s return is postponed under subsection (2) or (3)(a) of section 42, or

• (b) the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (5) of that section,

then, subject to subsection (4) of that section, references in those subsections and in sections 56 and 86 and Schedule 2 to the notified day of return shall be construed as references to the day to which the return is postponed or that later day.

Contractual rights.

44

• (1) An employee who has the right to return to work under section 39 and a right to return to work after absence because of pregnancy or childbirth under a contract of employment or otherwise may not exercise the two rights separately but may, in returning to work, take advantage of whichever right is, in any particular respect, the more favourable.

• (2) The provisions of sections 39, 41 to 43, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return to work under section 39.

SCHEDULE 3

Suspension from work on maternity grounds

Suspension from work on maternity grounds

45

• (1) For the purposes of sections 46 and 47 an employee is suspended on maternity grounds where, in consequence of—

• (a) any requirement imposed by or under any relevant provision of any enactment or of any instrument made under any enactment, or

• (b) any recommendation in any relevant provision of a code of practice issued or approved under section 16 of the Health and Safety at Work etc. Act 1974,

she is suspended from work by her employer on the ground that she is pregnant, has recently given birth or is breastfeeding a child.

• (2) For the purposes of this section, sections 46 and 47 and section 61 an employee shall be regarded as suspended from work only if, and so long as, she continues to be employed by her employer, but is not provided with work or (disregarding alternative work for the purposes of section 46) does not perform the work she normally performed before the suspension.

• (3) For the purposes of subsection (1) a provision is a “relevant provision” if it is for the time being specified as a relevant provision in an order made by the Secretary of State under this subsection.

Right to offer of alternative work

46

• (1) Where an employer has available suitable alternative work for an employee the employee has a right to be offered to be provided with it before being suspended on maternity grounds.

• (2) For alternative work to be suitable for an employee for the purposes of this section—

• (a) the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances; and

• (b) the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions.

• (3) An employee may present a complaint to an industrial tribunal that her employer has failed to offer to provide her with work in contravention of subsection (1).

• (4) An industrial tribunal shall not entertain a complaint under subsection (3) unless it is presented to the tribunal before the end of the period of three months beginning with the first day of the suspension, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

• (5) Where the tribunal finds the complaint well-founded it may make an award of compensation to be paid by the employer to the employee.

• (6) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant’s right under subsection (1) by the employer’s failure complained of and to any loss sustained by the complainant which is attributable to that failure.

Right to remuneration on suspension

47

• (1) An employee who is suspended on maternity grounds shall be entitled to be paid remuneration by her employer while she is so suspended.

• (2) An employee shall not be entitled to remuneration under this section in respect of any period during which her employer has offered to provide her with work which is suitable alternative work for the purposes of section 46 and the employee has unreasonably refused to perform that work.

• (3) The amount of remuneration payable by an employer to an employee under this section shall be a week’s pay in respect of each week of the period of suspension; and if in any week remuneration is payable in respect only of part of that week the amount of a week’s pay shall be reduced proportionately.

• (4) Subject to subsection (5), a right to remuneration under this section shall not affect any right of an employee in relation to remuneration under her contract of employment (in subsection (5) referred to as “contractual remuneration”).

• (5) Any contractual remuneration paid by an employer to an employee in respect of any period shall go towards discharging the employer’s liability under this section in respect of that period; and, conversely, any payment of remuneration in discharge of an employer’s liability under this section in respect of any period shall go towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

• (6) An employee may present a complaint to an industrial tribunal that her employer has failed to pay the whole or any part of remuneration to which she is entitled under this section.

• (7) An industrial tribunal shall not entertain a complaint relating to remuneration under this section in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

• (8) Where an industrial tribunal finds a complaint under subsection (6) well-founded the tribunal shall order the employer to pay the complainant the amount of remuneration which it finds is due to her.

SCHEDULE 4

Part I — Employment Particulars

Written particulars of employment

Employer’s duty to give statement of employment particulars

1

• (1) Not later than two months after the beginning of an employee’s employment with an employer, the employer shall give to the employee a written statement which may, subject to subsection (3) of section 2, be given in instalments before the end of that period.

• (2) The statement shall contain particulars of—

• (a) the names of the employer and employee,

• (b) the date when the employment began, and

• (c) the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

• (3) The statement shall also contain particulars, as at a specified date not more than seven days before the statement or instalment of the statement containing them is given, of—

• (a) the scale or rate of remuneration or the method of calculating remuneration,

• (b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

• (c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

• (d) any terms and conditions relating to any of the following—

• (i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

• (ii) incapacity for work due to sickness or injury, including any provision for sick pay, and

• (iii) pensions and pension schemes,

• (e) the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

• (f) the title of the job which the employee is employed to do or a brief description of the work for which the employee is employed,

• (g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

• (h) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

• (j) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and

• (k) where the employee is required to work outside the United Kingdom for a period of more than one month—

• (i) the period for which he is to work outside the United Kingdom,

• (ii) the currency in which remuneration is to be paid while he is working outside the United Kingdom,

• (iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

• (iv) any terms and conditions relating to his return to the United Kingdom.

• (4) Subsection (3)(d)(iii) shall not apply to the employees of any body or authority if—

• (a) the employees' pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act of Parliament, and

• (b) the body or authority are required by any such provision to give to new employees information concerning their pension rights or the determination of questions affecting their pension rights.

Section 1: supplementary

2

• (1) If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (3) of that section, or under any of the other paragraphs of subsection (2) or (3) of that section, that fact shall be stated.

• (2) A statement under section 1—

• (a) may refer the employee to the provisions of some other document which—

• (i) the employee has reasonable opportunities of reading in the course of his employment, or

• (ii) is made reasonably accessible to him in some other way,

for particulars of any of the matters specified in heads (ii) and (iii) of paragraph (d) of subsection (3) of section 1, and

• (b) may refer the employee to the law, or, subject to subsection (3), to the provisions of any collective agreement which directly affects the terms and conditions of the employment, for particulars of either of the matters specified in paragraph (e) of that subsection.

• (3) A statement under section 1 may refer the employee to the provisions of a collective agreement under subsection (2)(b) if, and only if, it is an agreement which—

• (a) the employee has reasonable opportunities of reading in the course of his employment, or

• (b) is made reasonably accessible to him in some other way.

• (4) The particulars required by section 1(2) and the following provisions of subsection (3)—

• (a) paragraphs (a) to (c),

• (b) head (i) of paragraph (d),

• (c) paragraph (f), and

• (d) paragraph (h),

shall be included in a single document (in this Part referred to as the “principal statement”).

• (5) Where before the end of the period of two months after the beginning of his employment an employee is to begin to work outside the United Kingdom for a period of more than one month, the statement under section 1 shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

• (6) A statement shall be given to a person under section 1 notwithstanding that his employment ends before the end of the period within which the statement is required to be given.

Statement to include note about disciplinary procedures

3

• (1) A statement under section 1 shall include a note—

• (a) specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document which—

• (i) the employee has reasonable opportunities of reading in the course of his employment, or

• (ii) is made reasonably accessible to him in some other way,

and which specifies such rules,

• (b) specifying, by description or otherwise—

• (i) a person to whom the employee can apply if he is dissatisfied with any disciplinary decision relating to him, and

• (ii) a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment,

and the manner in which any such application should be made,

• (c) where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document which—

• (i) the employee has reasonable opportunities of reading in the course of his employment, or

• (ii) is made reasonably accessible to him in some other way,

and which explains them, and

• (d) stating whether a contracting-out certificate is in force for the employment.

• (2) Subsection (1)(a) to (c) shall not apply to rules, disciplinary decisions, grievances or procedures relating to health or safety at work.

• (3) The note need not comply with the following provisions of subsection (1)—

• (a) paragraph (a),

• (b) in paragraph (b), sub-paragraph (i) and the words following sub-paragraph (ii) so far as relating to sub-paragraph (i), and

• (c) paragraph (c),

if on the date when the employee’s employment began the relevant number of employees was less than twenty.

• (4) In subsection (3) “the relevant number of employees”, in relation to an employee, means the number of employees employed by his employer added to the number of employees employed by any associated employer.

Employer’s duty to give statement of changes

4

• (1) If, after the date to which a statement given under section 1 relates, or, where no such statement is given, after the end of the period within which a statement under section 1 is required to be given, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall at the earliest opportunity and, in any event, not later than—

• (a) one month after the change, or

• (b) where the change results from the employee being required to work outside the United Kingdom for a period of more than one month, the time when he leaves the United Kingdom in order to begin so to work, if that is earlier,

give to the employee a written statement containing particulars of the change.

• (2) In a case where the statement under section 1 is given in instalments, subsection (1) applies—

• (a) in relation to—

• (i) matters particulars of which are required to be (whether they are or not) included in the instalment comprising the principal statement, and

• (ii) other matters particulars of which are included or referred to in that instalment;

• (b) in relation to matters particulars of which are included or referred to in any other instalment; and

• (c) in relation to any change occurring after the end of the two-month period within which a statement under section 1 is required to be given in matters particulars of which were required to be included in the statement given under section 1 but which were not included in any instalment;

as it applies in relation to matters particulars of which are required to be included or referred to in a statement under section 1 not given in instalments.

• (3) A statement under subsection (1)—

• (a) may refer the employee to the provisions of some other document which—

• (i) the employee has reasonable opportunities of reading in the course of his employment, or

• (ii) is made reasonably accessible to him in some other way,

for a change in any of the matters specified in sections 1(3)(d) (ii) and (iii) and 3(1)(a) and (c), and

• (b) may refer the employee to the law, or, subject to subsection (4), to the provisions of any collective agreement which directly affects the terms and conditions of the employment, for a change in either of the matters specified in section 1(3)(e).

• (4) A statement under subsection (1) may refer the employee to the provisions of a collective agreement under subsection (3)(b) if, and only if, it is an agreement which—

• (a) the employee has reasonable opportunities of reading in the course of his employment, or

• (b) is made reasonably accessible to him in some other way.

• (5) Where after an employer has given to an employee a statement under section 1—

• (a) either—

• (i) the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

• (ii) the identity of the employer is changed in circumstances in which the continuity of the employee’s period of employment is not broken, and

• (b) the change does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by sections 1 to 3 to be included in the statement,

the person who immediately after the change is the employer shall not be required to give to the employee a statement under section 1 but the change shall be treated as a change falling within subsection (1) of this section.

• (6) A statement under subsection (1) which informs an employee of a change such as is referred to in subsection (5)(a)(ii) shall specify the date on which the employee’s period of continuous employment began.

Exclusion of sections 1 to 4 in case of certain employees

5

• (1) Sections 1 to 4 shall not apply to an employee if—

• (a) his employment continues for less than one month, or

• (b) he is employed under a contract which normally involves employment for less than eight hours weekly.

• (2) Sections 1 to 4 shall apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided for by subsection (1)(b) and sections 141 and 144, and under section 149, as if his employment with his employer terminated or began at that time.

• (3) The fact that section 1 is directed by subsection (2) to apply to an employee as if his employment began on his ceasing to come within the exceptions referred to in that subsection shall not affect the obligation under section 1(2)(b) to specify the date on which his employment actually began.

Power of Secretary of State to require particulars of further matters

6

The Secretary of State may by order provide that section 1 shall have effect as if particulars of such further matters as may be specified in the order were included in the particulars required by that section; and, for that purpose, the order may include such provisions amending that section as appear to the Secretary of State to be expedient.

SCHEDULE 5

1

After section 22 of the 1978 Act there shall be inserted—

(22A) (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out, or proposed to carry out, any such activities, (b) being a representative of workers on matters of health and safety at work, or a member of a safety committee— (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, he performed, or proposed to perform, any functions as such a representative or a member of such a committee, (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which he reasonably believed to be serious and imminent, he took, or proposed to take, appropriate steps to protect himself or other persons from the danger. (2) For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) An employee shall not be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have treated him as the employer did. (4) Except where an employee is dismissed in circumstances in which, by virtue of section 142, section 54 does not apply to the dismissal, this section shall not apply where the detriment in question amounts to dismissal. (22B) (1) An employee may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment in contravention of section 22A. (2) On such a complaint it shall be for the employer to show the ground on which any act, or deliberate failure to act, was done. (3) An industrial tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, 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. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the date of the act means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, 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. (22C) (1) Where the industrial tribunal finds that a complaint under section 22B is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid to the complainant in respect of the act or failure to act 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 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 failure complained 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) 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.

.

2

In subsection (3) of section 57 of that Act (general provisions as to fairness of dismissal), for the words sections 59 to 61 there shall be substituted the words “ sections 57A to 61 ”.

3

After that section there shall be inserted—

(57A) (1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, carried out, or proposed to carry out, any such activities, (b) being a representative of workers on matters of health and safety at work, or a member of a safety committee— (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, performed, or proposed to perform, any functions as such a representative or a member of such a committee, (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which he reasonably believed to be serious and imminent, took, or proposed to take, appropriate steps to protect himself or other persons from the danger. (2) For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee was that specified in subsection (1)(e), the dismissal shall not be regarded as having been unfair if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have dismissed him for taking, or proposing to take, them.

.

4

In section 59 of the 1978 Act (dismissal on ground of redundancy), in subsection (2) (inserted by section 24(2) of this Act), between the words section and 60 there shall be inserted the words “ 57A(1) (read with (2) and (3)) ”.

5

In section 64 of the 1978 Act (qualifying period etc for right not to be unfairly dismissed), in subsection (4) (inserted by section 24(3) of this Act), between the words section and 60 there shall be inserted the words “ 57A(1) (read with (2) and (3)) ”.

6

In section 71 of the 1978 Act (compensation for failure to comply with section 69)—

• (a) in subsection (2)(b) (additional award), after the word unless there shall be inserted the words “ the case is one where this paragraph is excluded or ”; and

• (b) after that subsection there shall be inserted—

(2A) Subsection (2)(b) is excluded where 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 an inadmissible reason. (2B) For the purposes of subsection (2A) a reason is inadmissible if it is one of those specified in section 57A(1)(a) and (b).

.

7

In section 72 of the 1978 Act (compensation for unfair dismissal) there shall be inserted at the end the following—

(2) Where 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 an inadmissible reason, then, unless— (a) the complainant does not request the tribunal to make an order under section 69, or (b) the case falls within section 73(2), the award shall include a special award calculated in accordance with section 75A. (3) For the purposes of subsection (2) a reason is inadmissible if it is one of those specified in section 57A(1)(a) and (b).

and the preceding words shall become subsection

(1)

of section 72.

8

In section 73 of the 1978 Act (calculation of basic award)—

• (a) in subsection (1), for (6) there shall be substituted “ (6A) ”;

• (b) after subsection (6) there shall be inserted—

(6A) Where 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 an inadmissible reason the amount of the basic award (before any reduction under the following provisions of this section) shall not be less than £2,700. (6B) For the purposes of this section a reason is inadmissible if it is one of those specified in section 57A(1)(a) and (b). (6C) The Secretary of State may by order increase the sum specified in subsection (6A). (6D) No order shall be made under subsection (6C) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

; and

• (c) in subsection (7C), for the words following apply there shall be substituted the words “ in a redundancy case unless the reason for selecting the employee for dismissal was an inadmissible reason; and, in that event, subsection (7B) shall apply only to so much of the basic award as is payable because of subsection (6A) ”.

9

After section 75 of that Act there shall be inserted—

(75A) (1) Subject to the following provisions of this section, the amount of the special award shall be— (a) one week’s pay multiplied by 104, or (b) £13,400, whichever is the greater, but shall not exceed £26,800. (2) Where the award of compensation is made under section 71(2)(a) then, unless the employer satisfies the tribunal that it was not practicable to comply with the preceding order under section 69, the amount of the special award shall be increased to— (a) one week’s pay multiplied by 156, or (b) £20,100, whichever is the greater, but subject to the following provisions of this section. (3) In a case where the amount of the basic award is reduced under section 73(5), the amount of the special award shall be reduced by the same fraction. (4) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly. (5) Where the tribunal finds that the complainant has unreasonably— (a) prevented an order under section 69 from being complied with, or (b) refused an offer by the employer (made otherwise than in compliance with such an order) which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the special award to such extent as it considers just and equitable having regard to that finding. (6) Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining for the purposes of subsection (2) whether it was practicable to comply with an order under section 69 unless the employer shows that it was not practicable for him to arrange for the complainant’s work to be done without engaging a permanent replacement. (7) The Secretary of State may by order increase any of the sums specified in subsections (1) and (2). (8) No order shall be made under subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

.

10

After section 76 of that Act there shall be inserted—

(77) (1) An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed by his employer and that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 57A(1)(a) and (b) 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) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4) The tribunal shall give to the employer (not later than seven days before the date of the hearing) a copy of the application together with notice of the date, time and place of the hearing. (5) 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. (77A) (1) If on hearing an employee’s application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal was one of those specified in section 57A(1)(a) and (b) the following provisions shall 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 should 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, but 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. (78) (1) An order under section 77A 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 of any other benefit derived from the employment, seniority, pension rights and other similar matters, and (b) for the purposes 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 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. (78A) (1) At any time between the making of an order under section 77A and the determination or settlement of the complaint, the employer or the employee may apply to an industrial 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 77 and 77A apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, section 77(4) has effect with the substitution of a reference to the employee for the reference to the employer. (79) (1) If on the application of an employee an industrial 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 77A(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 78 applies to an order under subsection (1)(a) as in relation to an order under section 77A. (3) If on the application of an employee an industrial 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. (5) 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. (6) 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.

.

SCHEDULE 6

Sex Discrimination Act 1975 (c. 65)

1

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

Race Relations Act 1976 (c. 74)

2

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

Wages Act 1986 (c. 48)

3

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

Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52)

4

In section 288 of the 1992 Act (restrictions on contracting out)—

• (a) after subsection (2) there shall be inserted—

(2A) Subsection (1) does not apply to an agreement to refrain from instituting or continuing any proceedings, other than excepted proceedings, specified in section 290 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 complaint; (c) the complainant must have received independent legal advice from a qualified lawyer 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 policy of insurance 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.

; . . .

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

SCHEDULE 7

Unfair selection for dismissal in redundancy cases:exclusion of qualifying conditions

1

In section 154 of the 1992 Act (exclusion of requirement for qualifying period of employment, etc where reason for dismissal related to trade union membership or activities)—

• (a) for the words was one of those specified in section 152(1) there shall be substituted the words “ or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason. ”, and

• (b) there shall be inserted after those words, as subsection (2), the following—

(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.

, and the words preceding that subsection (2) shall become subsection (1).

Qualifying period for unfair dismissal protection: small businesses

2

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

Application of 1978 Act to Crown Employment and House of Commons Staff

3

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

4

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

Restrictions on disclosure of information, etc on grounds of national security

5

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

6

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

7

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

Extension of employment protection provisions and related legislation to House of Lords Staff

8

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

9

After section 85A of the Sex Discrimination Act 1975 (application to House of Commons staff) there shall be inserted—

(85B) (1) Parts II and IV apply in relation to employment as a relevant member of the House of Lords staff as they apply in relation to other employment. (2) In this section “relevant member of the House of Lords staff” has the same meaning as in section 139A of the Employment Protection (Consolidation) Act 1978; and subsection (6) of that section applies for the purposes of this section.

.

10

After section 75A of the Race Relations Act 1976 (application to House of Commons staff) there shall be inserted—

(75B) (1) Parts II and IV apply in relation to employment as a relevant member of the House of Lords staff as they apply in relation to other employment. (2) In this section “relevant member of the House of Lords staff” has the same meaning as in section 139A of the Employment Protection (Consolidation) Act 1978; and subsection (6) of that section applies for the purposes of this section.

.

11

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

12

In section 277 of the 1992 Act (House of Lords staff)—

• (a) in subsection (1), for the words Sections 137 to 143 (rights in relation to trade union membership: access to employment) there shall be substituted the words “ The provisions of this Act (except those specified below) ”,

• (b) after that subsection there shall be inserted—

(1A) The following provisions are excepted from subsection (1)— - sections 184 and 185 (remedy for failure to comply with declaration as to disclosure of information), - Chapter II of Part IV (procedure for handling redundancies).

,

• (c) in subsection (2), after the word bringing there shall be inserted the words “ a civil employment claim before the court or from bringing ”,

• (d) after that subsection there shall be inserted—

(2A) For the purposes of the application of the other provisions of this Act as they apply by virtue of this section— (a) the reference in section 182(1)(e) (disclosure of information for collective bargaining: restrictions) to a person’s undertaking shall be construed as a reference to the national interest or, if the case so requires, the interests of the House of Lords; and (b) any other reference to an undertaking shall be construed as a reference to the House of Lords.

, and

• (e) for subsections (3) to (6) there shall be substituted—

(3) In this section— - “relevant member of the House of Lords staff” means any person who is employed under a contract of employment with the Corporate Officer of the House of Lords; - “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 a county court.

.

Power to extend 1978 Act in certain health and safety cases

13

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

Power to provide for continuity of employment following reinstatement or re-engagement

14

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

Codes of practice on employment : use in proceedings

15

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

Parliamentary procedure: orders modifying application of redundancy provisions

16

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

Miscellaneous minor corrections and amendments

17

In section 21(6) of the 1992 Act (repudiation by trade union of certain acts) for the words six months there shall be substituted the words “ three months ”.

18

In section 34(5) of the 1992 Act (eligibility for appointment as auditor), the second sentence shall be omitted.

19

In section 35(5) of the 1992 Act (appointment and removal of auditors)—

• (a) for the words subsections (1) to (6) there shall be substituted the words “ subsections (1) to (4) ”, and

• (b) for the words subsection (7) there shall be substituted the words “ subsection (5) ”.

20

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

21

In section 158 of the 1992 Act (special award in cases of dismissal on grounds related to union membership or activities) after subsection (6) there shall be inserted—

(7) Schedule 14 to the Employment Protection (Consolidation) Act 1978 (calculation of a week’s pay) shall apply for the purposes of this section with the substitution, for paragraph 7, of the following:— For the purposes of this Part in its application to section 158 of the Trade Union and Labour Relations (Consolidation) Act 1992, the calculation date is— (a) where the dismissal was with notice, the date on which the employer’s notice was given; (b) where paragraph (a) does not apply, the effective date of termination.

.

22

In section 166(1) of the 1992 Act (consequences of failure to comply with order of reinstatement or re-engagement), for (5)(a) there shall be substituted “ (5) ”.

23

In section 187(2) of the 1992 Act (meaning of refusal to deal where refusal on grounds of union exclusion), paragraph (c) shall become subparagraph,

(iii)

of paragraph (b) and there shall be inserted as paragraph (c) the following, preceded by “ or ”, namely—

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

.

24

In section 228 of the 1992 Act (separate workplace ballots before action by trade union) after subsection (3) there shall be inserted—

(4) In this section “place of work”, in relation to any person who is employed, means the premises occupied by his employer at or from which that person works or, where he does not work at or from any such premises or works at or from more than one set of premises, the premises occupied by his employer with which his employment has the closest connection.

.

25

In section 229(3) of the 1992 Act (voting paper for industrial action ballot) for the word 20(3) there shall be substituted the word “ 20(2) ”.

26

In section 246 of the 1992 Act (minor definitions relating to industrial action provisions) the definition of “place of work” shall be omitted.

27

In section 278(4)(c) of the 1992 Act (House of Commons staff), after the word in there shall be inserted the word “ section ”.

SCHEDULE 8

The Factories Act 1961 (c. 34)

1

In section 119A of the Factories Act 1961 (notice of employment of a young person to be sent to local careers office), in subsection (2)(a) (definition of “local careers office”), for the words from , under to the arrangements) there shall be substituted the words “ services are provided in pursuance of arrangements made, or a direction given, under section 10 of the Employment and Training Act 1973 in the area ”.

The Parliamentary Commissioner Act 1967 (c. 13)

2

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

The Chronically Sick and Disabled Persons Act 1970 (c. 44)

3

In section 13(2) of the Chronically Sick and Disabled Persons Act 1970 (youth employment service), for the words section 10(1) there shall be substituted the words “ section 10(6) ”.

The Employment Agencies Act 1973 (c. 35)

4

In section 13(7) of the Employment Agencies Act 1973 (exclusions from provisions of that Act), after paragraph (g) there shall be inserted—

(ga) services provided in pursuance of arrangements made, or a direction given, under section 10 of the Employment and Training Act 1973;

.

The Employment and Training Act 1973 (c. 50)