Employment Relations Act 1999

Trade unions

Collective bargaining: recognition

1

• (1) The Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as follows.

• (2) After Chapter V of Part I (rights of trade union members) there shall be inserted—

(70A) Schedule A1 shall have effect.

• (3) Immediately before Schedule 1 there shall be inserted the Schedule set out in Schedule 1 to this Act.

Detriment related to trade union membership

2

Schedule 2 shall have effect.

Blacklists

3

• (1) The Secretary of State may make regulations prohibiting the compilation of lists which—

• (a) contain details of members of trade unions or persons who have taken part in the activities of trade unions, and

• (b) are compiled with a view to being used ... for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.

• (2) The Secretary of State may make regulations prohibiting—

• (a) the use of lists to which subsection (1) applies;

• (b) the sale or supply of lists to which subsection (1) applies.

• (2A) The Secretary of State may make regulations prohibiting—

• (a) the use of lists which contain details of members of trade unions, or persons who have taken part in the activities of trade unions, for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers;

• (b) the sale or supply of such lists with a view to being used for those purposes.

• (3) Regulations under this section may, in particular—

• (za) make provision for a person who causes another person to do something to be treated as doing that thing;

• (a) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal;

• (b) include provision for or about the grant and enforcement of specified remedies by courts and tribunals;

• (c) include provision for the making of awards of compensation calculated in accordance with the regulations;

• (d) include provision permitting proceedings to be brought by trade unions on behalf of members in specified circumstances;

• (e) include provision about cases where an employee is dismissed by his employer and the reason or principal reason for the dismissal, or why the employee was selected for dismissal, relates to a list to which subsection (1) or (2A) applies;

• (f) create criminal offences;

• (g) in specified cases or circumstances, extend liability for a criminal offence created under paragraph (f) to a person who aids the commission of the offence or to a person who is an agent, principal, employee, employer or officer of a person who commits the offence;

• (h) provide for specified obligations or offences not to apply in specified circumstances;

• (i) include supplemental, incidental, consequential and transitional provision, including provision amending an enactment;

• (j) make different provision for different cases or circumstances.

• (4) Regulations under this section creating an offence may not provide for it to be punishable—

• (a) by imprisonment,

• (b) by a fine in excess of level 5 on the standard scale in the case of an offence triable only summarily, or

• (c) by a fine in excess of the statutory maximum in the case of summary conviction for an offence triable either way.

• (5) In this section—

• “list” includes any index or other set of items whether recorded electronically or by any other means, and

• “worker” has the meaning given by section 13.

• (6) Subject to subsection (5), expressions used in this section and in the Trade Union and Labour Relations (Consolidation) Act 1992 have the same meaning in this section as in that Act.

Ballots and notices

4

Schedule 3 shall have effect.

Training

5

In Chapter VA of Part I of the Trade Union and Labour Relations (Consolidation) Act 1992 (collective bargaining: recognition) as inserted by section 1 above, there shall be inserted after section 70A—

(70B) (1) This section applies where— (a) a trade union is recognised, in accordance with Schedule A1, as entitled to conduct collective bargaining on behalf of a bargaining unit (within the meaning of Part I of that Schedule), and (b) a method for the conduct of collective bargaining is specified by the Central Arbitration Committee under paragraph 31(3) of that Schedule (and is not the subject of an agreement under paragraph 31(5)(a) or (b)). (2) The employer must from time to time invite the trade union to send representatives to a meeting for the purpose of— (a) consulting about the employer’s policy on training for workers within the bargaining unit, (b) consulting about his plans for training for those workers during the period of six months starting with the day of the meeting, and (c) reporting about training provided for those workers since the previous meeting. (3) The date set for a meeting under subsection (2) must not be later than— (a) in the case of a first meeting, the end of the period of six months starting with the day on which this section first applies in relation to a bargaining unit, and (b) in the case of each subsequent meeting, the end of the period of six months starting with the day of the previous meeting. (4) The employer shall, before the period of two weeks ending with the date of a meeting, provide to the trade union any information— (a) without which the union’s representatives would be to a material extent impeded in participating in the meeting, and (b) which it would be in accordance with good industrial relations practice to disclose for the purposes of the meeting. (5) Section 182(1) shall apply in relation to the provision of information under subsection (4) as it applies in relation to the disclosure of information under section 181. (6) The employer shall take account of any written representations about matters raised at a meeting which he receives from the trade union within the period of four weeks starting with the date of the meeting. (7) Where more than one trade union is recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, a reference in this section to “the trade union” is a reference to each trade union. (8) Where at a meeting under this section (Meeting 1) an employer indicates his intention to convene a subsequent meeting (Meeting 2) before the expiry of the period of six months beginning with the date of Meeting 1, for the reference to a period of six months in subsection (2)(b) there shall be substituted a reference to the expected period between Meeting 1 and Meeting 2. (9) The Secretary of State may by order made by statutory instrument amend any of subsections (2) to (6). (10) No order shall be made under subsection (9) unless a draft has been laid before, and approved by resolution of, each House of Parliament. (70C) (1) A trade union may present a complaint to an employment tribunal that an employer has failed to comply with his obligations under section 70B in relation to a bargaining unit. (2) An employment 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 alleged failure, or (b) 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 before the end of that period of three months. (3) Where an employment tribunal finds a complaint under this section well-founded it— (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to each person who was, at the time when the failure occurred, a member of the bargaining unit. (4) The amount of the award shall not, in relation to each person, exceed two weeks’ pay. (5) For the purpose of subsection (4) a week’s pay— (a) shall be calculated in accordance with Chapter II of Part XIV of the Employment Rights Act 1996 (taking the date of the employer’s failure as the calculation date), and (b) shall be subject to the limit in section 227(1) of that Act. (6) Proceedings for enforcement of an award of compensation under this section— (a) may, in relation to each person to whom compensation is payable, be commenced by that person, and (b) may not be commenced by a trade union.

Unfair dismissal connected with recognition: interim relief

6

In sections 128(1)(b) and 129(1) of the Employment Rights Act 1996 (interim relief) after “103” there shall be inserted “ or in paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 ”.

Leave for family and domestic reasons

Maternity and parental leave

7

The provisions set out in Part I of Schedule 4 shall be substituted for Part VIII of the Employment Rights Act 1996.

Time off for domestic incidents

8

The provisions set out in Part II of Schedule 4 shall be inserted after section 57 of that Act.

Consequential amendments

9

Part III of Schedule 4 (which makes amendments consequential on sections 7 and 8) shall have effect.

Disciplinary and grievance hearings

Right to be accompanied

10

• (1) This section applies where a worker—

• (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and

• (b) reasonably requests to be accompanied at the hearing.

• (2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who—

• (a) is chosen by the worker; and

• (b) is within subsection (3).

• (2B) The employer must permit the worker’s companion to—

• (a) address the hearing in order to do any or all of the following—

• (i) put the worker’s case;

• (ii) sum up that case;

• (iii) respond on the worker’s behalf to any view expressed at the hearing;

• (b) confer with the worker during the hearing.

• (2C) Subsection (2B) does not require the employer to permit the worker’s companion to—

• (a) answer questions on behalf of the worker;

• (b) address the hearing if the worker indicates at it that he does not wish his companion to do so; or

• (c) use the powers conferred by that subsection in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it.

• (3) A person is within this subsection if he is—

• (a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,

• (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or

• (c) another of the employer’s workers.

• (4) If—

• (a) a worker has a right under this section to be accompanied at a hearing,

• (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and

• (c) the worker proposes an alternative time which satisfies subsection (5),

the employer must postpone the hearing to the time proposed by the worker.

• (5) An alternative time must—

• (a) be reasonable, and

• (b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.

• (6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer’s workers in accordance with a request under subsection (1)(b).

• (7) Sections 168(3) , (4) and (5), 169 and 171 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992 (time off for carrying out trade union duties) shall apply in relation to subsection (6) above as they apply in relation to section 168(1) of that Act.

Complaint to employment tribunal

11

• (1) A worker may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with section 10(2A), (2B) or (4).

• (2) A tribunal shall not consider a complaint under this section in relation to a failure or threat unless the complaint is presented—

• (a) before the end of the period of three months beginning with the date of the failure or threat, or

• (b) 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 before the end of that period of three months.

• (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) of the Employment Rights Act 1996 applies for the purposes of subsection (2)(a).

• (2B) Subsections (2) and (2A) are to be treated as provisions of the Employment Rights Act 1996 for the purposes of section 207B of that Act.

• (3) Where a tribunal finds that a complaint under this section is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay.

• (4) Chapter II of Part XIV of the Employment Rights Act 1996 (calculation of a week’s pay) shall apply for the purposes of subsection (3); and in applying that Chapter the calculation date shall be taken to be—

• (a) in the case of a claim which is made in the course of a claim for unfair dismissal, the date on which the employer’s notice of dismissal was given or, if there was no notice, the effective date of termination, and

• (b) in any other case, the date on which the relevant hearing took place (or was to have taken place).

• (5) The limit in section 227(1) of the Employment Rights Act 1996 (maximum amount of week’s pay) shall apply for the purposes of subsection (3) above.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Detriment and dismissal

12

• (1) A worker 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 he—

• (a) exercised or sought to exercise the right under section 10(2A), (2B) or (4), or

• (b) accompanied or sought to accompany another worker (whether of the same employer or not) pursuant to a request under that section.

• (2) Section 48 of the Employment Rights Act 1996 shall apply in relation to contraventions of subsection (1) above as it applies in relation to contraventions of certain sections of that Act.

• (3) A worker who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he—

• (a) exercised or sought to exercise the right under section 10(2A), (2B) or (4), or

• (b) accompanied or sought to accompany another worker (whether of the same employer or not) pursuant to a request under that section.

• (4) Sections 108 and 109 of that Act (qualifying period of employment and upper age limit) shall not apply in relation to subsection (3) above.

• (5) Sections 128 to 132 of that Act (interim relief) shall apply in relation to dismissal for the reason specified in subsection (3)(a) or (b) above as they apply in relation to dismissal for a reason specified in section 128(1)(b) of that Act.

• (6) In the application of Chapter II of Part X of that Act in relation to subsection (3) above, a reference to an employee shall be taken as a reference to a worker.

• (7) References in this section to a worker having accompanied or sought to accompany another worker include references to his having exercised or sought to exercise any of the powers conferred by section 10(2A) or (2B).

Interpretation

13

• (1) In sections 10 to 12 and this section “worker” means an individual who is—

• (a) a worker within the meaning of section 230(3) of the Employment Rights Act 1996,

• (b) an agency worker,

• (c) a home worker,

• (d) a person in Crown employment within the meaning of section 191 of that Act, other than a member of the naval, military, air or reserve forces of the Crown, or

• (e) employed as a relevant member of the House of Lords staff or the House of Commons staff within the meaning of section 194(6) or 195(5) of that Act.

• (2) In subsection (1) “agency worker” means an individual who—

• (a) is supplied by a person (“the agent”) to do work for another (“the principal”) by arrangement between the agent and the principal,

• (b) is not a party to a worker’s contract, within the meaning of section 230(3) of that Act, relating to that work, and

• (c) is not a party to a contract relating to that work under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any professional or business undertaking carried on by the individual;

and, for the purposes of sections 10 to 12, both the agent and the principal are employers of an agency worker.

• (3) In subsection (1) “home worker” means an individual who—

• (a) contracts with a person, for the purposes of the person’s business, for the execution of work to be done in a place not under the person’s control or management, and

• (b) is not a party to a contract relating to that work under which the work is to be executed for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any professional or business undertaking carried on by the individual;

and, for the purposes of sections 10 to 12, the person mentioned in paragraph (a) is the home worker’s employer.

• (4) For the purposes of section 10 a disciplinary hearing is a hearing which could result in—

• (a) the administration of a formal warning to a worker by his employer,

• (b) the taking of some other action in respect of a worker by his employer, or

• (c) the confirmation of a warning issued or some other action taken.