Employment Relations Act 2004

(3A) The lists referred to in subsection (3)(a) are— (a) a list of the categories of employee to which the affected employees belong, and (b) a list of the workplaces at which the affected employees work. (3B) The figures referred to in subsection (3)(a) are— (a) the total number of the affected employees, (b) the number of the affected employees in each of the categories in the list mentioned in subsection (3A)(a), and (c) the number of the affected employees who work at each workplace in the list mentioned in subsection (3A)(b). (3C) The information referred to in subsection (3)(a)(ii) is such information as will enable the employer readily to deduce— (a) the total number of the affected employees, (b) the categories of employee to which the affected employees belong and the number of the affected employees in each of those categories, and (c) the workplaces at which the affected employees work and the number of them who work at each of those workplaces. (3D) The lists and figures supplied under this section, or the information mentioned in subsection (3C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1). (3E) For the purposes of subsection (3D) information is in the possession of the union if it is held, for union purposes— (a) in a document, whether in electronic form or any other form, and (b) in the possession or under the control of an officer or employee of the union. (3F) Nothing in this section requires a union to supply an employer with the names of the affected employees.

• (4) In subsection (5), for “is one of the affected employees” substitute “ falls within a notified category of employee and the workplace at which he works is a notified workplace ”.

• (5) For subsection (5A) substitute—

(5B) In subsection (5)— (a) a “notified category of employee” means— (i) a category of employee that is listed in the notice, or (ii) where the notice contains the information mentioned in subsection (3C), a category of employee that the employer (at the time he receives the notice) can readily deduce from the notice is a category of employee to which some or all of the affected employees belong, and (b) a “notified workplace” means— (i) a workplace that is listed in the notice, or (ii) where the notice contains the information mentioned in subsection (3C), a workplace that the employer (at the time he receives the notice) can readily deduce from the notice is the workplace at which some or all of the affected employees work. (5C) In this section references to the “affected employees” are references to those employees of the employer who the union reasonably believes will be induced by the union, or have been so induced, to take part or continue to take part in the industrial action. (5D) For the purposes of this section, the workplace at which an employee works is— (a) in relation to an employee who works at or from a single set of premises, those premises, and (b) in relation to any other employee, the premises with which his employment has the closest connection.

• (6) In subsection (8), after “, (5)” insert “ , (5C) ”.

Dismissal where employees taking protected industrial action locked out

26

• (1) Section 238A of the 1992 Act (dismissal in connection with participation in official industrial action) is amended as follows.

• (2) In subsection (3) for the words from “within” to the end substitute “ within the protected period ”.

• (3) After subsection (7) insert—

(7A) For the purposes of this section “the protected period”, in relation to the dismissal of an employee, is the sum of the basic period and any extension period in relation to that employee. (7B) The basic period is twelve weeks beginning with the first day of protected industrial action. (7C) An extension period in relation to an employee is a period equal to the number of days falling on or after the first day of protected industrial action (but before the protected period ends) during the whole or any part of which the employee is locked out by his employer. (7D) In subsections (7B) and (7C), the “first day of protected industrial action” means the day on which the employee starts to take protected industrial action (even if on that day he is locked out by his employer).

Date of dismissal

27

• (1) Section 238A of the 1992 Act is also amended as follows.

• (2) In subsection (3) for “it takes place” substitute “ the date of the dismissal is ”.

• (3) In subsection (4)(a) for “it takes place” substitute “ the date of the dismissal is ”.

• (4) In subsection (5)(a) for “it takes place” substitute “ the date of the dismissal is ”.

• (5) After subsection (8) add—

(9) In this section “date of dismissal” has the meaning given by section 238(5).

Dismissal after end of protected period

28

• (1) In section 238A(6) of the 1992 Act (dismissal after end of protected period), after paragraph (d) insert—

(e) where there was agreement to use either of the services mentioned in paragraphs (c) and (d), the matters specified in section 238B.

• (2) After section 238A of the 1992 Act insert—

(238B) (1) The matters referred to in subsection (6)(e) of section 238A are those specified in subsections (2) to (5); and references in this section to “the service provider” are to any person who provided a service mentioned in subsection (6)(c) or (d) of that section. (2) The first matter is: whether, at meetings arranged by the service provider, the employer or, as the case may be, a union was represented by an appropriate person. (3) The second matter is: whether the employer or a union, so far as requested to do so, co-operated in the making of arrangements for meetings to be held with the service provider. (4) The third matter is: whether the employer or a union fulfilled any commitment given by it during the provision of the service to take particular action. (5) The fourth matter is: whether, at meetings arranged by the service provider between the parties making use of the service, the representatives of the employer or a union answered any reasonable question put to them concerning the matter subject to conciliation or mediation. (6) For the purposes of subsection (2) an “appropriate person” is— (a) in relation to the employer— (i) a person with the authority to settle the matter subject to conciliation or mediation on behalf of the employer, or (ii) a person authorised by a person of that type to make recommendations to him with regard to the settlement of that matter, and (b) in relation to a union, a person who is responsible for handling on the union’s behalf the matter subject to conciliation or mediation. (7) For the purposes of subsection (4) regard may be had to any timetable which was agreed for the taking of the action in question or, if no timetable was agreed, to how long it was before the action was taken. (8) In any proceedings in which regard must be had to the matters referred to in section 238A(6)(e)— (a) notes taken by or on behalf of the service provider shall not be admissible in evidence; (b) the service provider must refuse to give evidence as to anything communicated to him in connection with the performance of his functions as a conciliator or mediator if, in his opinion, to give the evidence would involve his making a damaging disclosure; and (c) the service provider may refuse to give evidence as to whether, for the purposes of subsection (5), a particular question was or was not a reasonable one. (9) For the purposes of subsection (8)(b) a “damaging disclosure” is — (a) a disclosure of information which is commercially sensitive, or (b) a disclosure of information that has not previously been disclosed which relates to a position taken by a party using the conciliation or mediation service on the settlement of the matter subject to conciliation or mediation, to which the person who communicated the information to the service provider has not consented.

Part 3 — Rights of trade union members, workers and employees

Inducements and detriments in respect of membership etc. of independent trade union

Inducements relating to union membership or activities

29

After section 145 of the 1992 Act insert—

(145A) (1) A worker has the right not to have an offer made to him by his employer for the sole or main purpose of inducing the worker— (a) not to be or seek to become a member of an independent trade union, (b) not to take part, at an appropriate time, in the activities of an independent trade union, (c) not to make use, at an appropriate time, of trade union services, or (d) to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions. (2) In subsection (1) “an appropriate time” means— (a) a time outside the worker’s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services. (3) In subsection (2) “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work. (4) In subsections (1) and (2)— (a) “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and (b) references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member. (5) A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section. (145B) (1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if— (a) acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and (b) the employer’s sole or main purpose in making the offers is to achieve that result. (2) The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union. (3) It is immaterial for the purposes of subsection (1) whether the offers are made to the workers simultaneously. (4) Having terms of employment determined by collective agreement shall not be regarded for the purposes of section 145A (or section 146 or 152) as making use of a trade union service. (5) A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section. (145C) An employment tribunal shall not consider a complaint under section 145A or 145B unless it is presented— (a) before the end of the period of three months beginning with the date when the offer was made or, where the offer is part of a series of similar offers to the complainant, the date when the last of them was made, 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. (145D) (1) On a complaint under section 145A it shall be for the employer to show what was his sole or main purpose in making the offer. (2) On a complaint under section 145B it shall be for the employer to show what was his sole or main purpose in making the offers. (3) On a complaint under section 145A or 145B, in determining any question whether the employer made the offer (or offers) or the purpose for which he did so, no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised. (4) In determining whether an employer’s sole or main purpose in making offers was the purpose mentioned in section 145B(1), the matters taken into account must include any evidence— (a) that when the offers were made the employer had recently changed or sought to change, or did not wish to use, arrangements agreed with the union for collective bargaining, (b) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining, or (c) that the offers were made only to particular workers, and were made with the sole or main purpose of rewarding those particular workers for their high level of performance or of retaining them because of their special value to the employer. (145E) (1) Subsections (2) and (3) apply where the employment tribunal finds that a complaint under section 145A or 145B is well-founded. (2) The tribunal— (a) shall make a declaration to that effect, and (b) shall make an award to be paid by the employer to the complainant in respect of the offer complained of. (3) The amount of the award shall be £2,500 (subject to any adjustment of the award that may fall to be made under Part 3 of the Employment Act 2002). (4) Where an offer made in contravention of section 145A or 145B is accepted— (a) if the acceptance results in the worker’s agreeing to vary his terms of employment, the employer cannot enforce the agreement to vary, or recover any sum paid or other asset transferred by him under the agreement to vary; (b) if as a result of the acceptance the worker’s terms of employment are varied, nothing in section 145A or 145B makes the variation unenforceable by either party. (5) Nothing in this section or sections 145A and 145B prejudices any right conferred by section 146 or 149. (6) In ascertaining any amount of compensation under section 149, no reduction shall be made on the ground— (a) that the complainant caused or contributed to his loss, or to the act or failure complained of, by accepting or not accepting an offer made in contravention of section 145A or 145B, or (b) that the complainant has received or is entitled to an award under this section. (145F) (1) References in sections 145A to 145E to being or becoming a member of a trade union include references— (a) to being or becoming a member of a particular branch or section of that union, and (b) to being or becoming a member of one of a number of particular branches or sections of that union. (2) References in those sections— (a) to taking part in the activities of a trade union, and (b) to services made available by a trade union by virtue of membership of the union, shall be construed in accordance with subsection (1). (3) In sections 145A to 145E— - “worker” means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and - “employer” means— 1. in relation to a worker, the person for whom he works; 2. in relation to a former worker, the person for whom he worked. (4) The remedy of a person for infringement of the right conferred on him by section 145A or 145B is by way of a complaint to an employment tribunal in accordance with this Part, and not otherwise.

Extension of protection against detriment for union membership etc.

30

• (1) Section 146 of the 1992 Act (action short of dismissal on grounds related to union membership or activities) is amended in accordance with subsections (2) to (6).

• (2) For “An employee” in each of subsections (1) and (3), and “an employee” in each of subsections (2) and (4), substitute “ A worker ” and “ a worker ” respectively.

• (3) In subsection (2)—

• (a) for “employee's” substitute “ worker's ”; and

• (b) after “contract of employment” insert “ (or other contract personally to do work or perform services) ”.

• (4) In subsection (3), for “his contract of employment” substitute “ a contract of employment ”.

• (5) In subsection (5), for “An employee” substitute “ A worker or former worker ”.

• (6) For subsection (6) substitute—

(5A) This section does not apply where— (a) the worker is an employee; and (b) the detriment in question amounts to dismissal.

• (7) In the sidenote to section 146 of the 1992 Act, and in the cross-heading immediately preceding it, for “Action short of dismissal” substitute “ Detriment ”.

• (8) In section 151 of the 1992 Act (interpretation of sections 146 to 150 and supplementary provision), after subsection (1A) (which is inserted by section 31) insert—

(1B) In sections 146 to 150— “worker” means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and “employer” means— (a) in relation to a worker, the person for whom he works; (b) in relation to a former worker, the person for whom he worked.

• (9) In subsection (2) of that section, for “an employee” substitute “ a person ”.

• (10) In the sidenote to section 152 of the 1992 Act, and in the cross-heading immediately preceding it, after “Dismissal” insert “ of employee ”.

Detriment for use of union services or refusal of inducement

31

• (1) Section 146 of the 1992 Act (action short of dismissal on grounds related to union membership or activities) is also amended in accordance with subsections (2) to (4).

• (2) In subsection (1), omit “or” at the end of paragraph (b) and after that paragraph insert—

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

.

• (3) In subsection (2)—

• (a) for “(1)(b)” substitute “ (1) ”; and

• (b) in paragraph (b), after “the activities of a trade union” insert “ or (as the case may be) make use of trade union services ”.

• (4) After subsection (2) insert—

(2A) In this section— (a) “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and (b) references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member. (2B) If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba). (2C) A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B. (2D) For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).

• (5) In section 148 of the 1992 Act (consideration of complaint under section 146), omit subsections (3) to (5).

• (6) In section 151 of the 1992 Act, in subsection (1) (references in sections 146 to 150 to being etc. a member of a union to include being etc. a member of a branch or section) omit “; and references to taking part in the activities of a trade union shall be similarly construed”.

• (7) After that subsection insert—

(1A) References in those sections— (a) to taking part in the activities of a trade union, and (b) to services made available by a trade union by virtue of membership of the union, shall be construed in accordance with subsection (1).

• (8) Omit section 17 of the Employment Relations Act 1999 (c. 26) (which is superseded by this section and section 32).

Dismissal for use of union services or refusal of inducement

32

• (1) Section 152 of the 1992 Act (dismissal on grounds related to union membership or activities) is amended as follows.

• (2) In subsection (1), omit “or” at the end of each of paragraphs (a) and (b) and after paragraph (b) insert—

(ba) had made use, or proposed to make use, of trade union services at an appropriate time, (bb) had failed to accept an offer made in contravention of section 145A or 145B, or

.

• (3) In subsection (2)—

• (a) for “(1)(b)” substitute “ (1) ”; and

• (b) in paragraph (b), after “the activities of a trade union” insert “ or (as the case may be) make use of trade union services ”.

• (4) After subsection (2) insert—

(2A) In this section— (a) “trade union services” means services made available to the employee by an independent trade union by virtue of his membership of the union, and (b) references to an employee’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member. (2B) Where the reason or one of the reasons for the dismissal was that an independent trade union (with or without the employee’s consent) raised a matter on behalf of the employee as one of its members, the reason shall be treated as falling within subsection (1)(ba).

• (5) In subsection (4) (references to being etc. a member of a union to include being etc. a member of a branch or section) omit “; and references to taking part in the activities of a trade union shall be similarly construed”.

• (6) After that subsection add—

(5) References in this section— (a) to taking part in the activities of a trade union, and (b) to services made available by a trade union by virtue of membership of the union, shall be construed in accordance with subsection (4).

Exclusion and expulsion from trade unions

Exclusion or expulsion from trade union attributable to conduct

33

• (1) Section 174 of the 1992 Act (right not to be excluded or expelled from trade union) is amended as follows.

• (2) In subsection (2)(d) for “his conduct” substitute “ conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct ”.

• (3) For subsection (4) substitute—

(4) For the purposes of subsection (2)(d) “excluded conduct”, in relation to an individual, means— (a) conduct which consists in his being or ceasing to be, or having been or ceased to be, a member of another trade union, (b) conduct which consists in his being or ceasing to be, or having been or ceased to be, employed by a particular employer or at a particular place, or (c) conduct to which section 65 (conduct for which an individual may not be disciplined by a union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union. (4A) For the purposes of subsection (2)(d) “protected conduct” is conduct which consists in the individual’s being or ceasing to be, or having been or ceased to be, a member of a political party. (4B) Conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection (4A).

• (4) In section 176 of that Act (remedies for infringement of right not to be excluded or expelled), after subsection (1) insert—

(1A) If a tribunal makes a declaration under subsection (1) and it appears to the tribunal that the exclusion or expulsion was mainly attributable to conduct falling within section 174(4A) it shall make a declaration to that effect. (1B) If a tribunal makes a declaration under subsection (1A) and it appears to the tribunal that the other conduct to which the exclusion or expulsion was attributable consisted wholly or mainly of conduct of the complainant which was contrary to— (a) a rule of the union, or (b) an objective of the union, it shall make a declaration to that effect. (1C) For the purposes of subsection (1B), it is immaterial whether the complainant was a member of the union at the time of the conduct contrary to the rule or objective. (1D) A declaration by virtue of subsection (1B)(b) shall not be made unless the union shows that, at the time of the conduct of the complainant which was contrary to the objective in question, it was reasonably practicable for that objective to be ascertained— (a) if the complainant was not at that time a member of the union, by a member of the general public, and (b) if he was at that time a member of the union, by a member of the union.

• (5) In subsection (3)(a) of that section, after “declaration” insert “ under subsection (1) ”.

• (6) After subsection (6) of that section insert—

(6A) If on the date on which the application was made the applicant had not been admitted or re-admitted to the union, the award shall not be less than £5,900. (6B) Subsection (6A) does not apply in a case where the tribunal which made the declaration under subsection (1) also made declarations under subsections (1A) and (1B).

• (7) In sections 174 and 176 of the 1992 Act references to the conduct of an individual include references to conduct which took place before the coming into force of this section.

Applications no longer to be made to Employment Appeal Tribunal

34

• (1) Section 67 of the 1992 Act (compensation for infringement of right not to be unjustifiably disciplined) is amended in accordance with subsections (2) to (6).

• (2) In subsection (1) after “application” insert “ to an employment tribunal ”.

• (3) Omit subsections (2) and (4).

• (4) In subsections (5) and (7) omit “Employment Appeal Tribunal or”.

• (5) In subsection (8) omit the words after paragraph (b).

• (6) After that subsection insert—

(8A) If on the date on which the application was made— (a) the determination infringing the applicant’s right not to be unjustifiably disciplined has not been revoked, or (b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination, the amount of compensation shall be not less than the amount for the time being specified in section 176(6A).

• (7) Section 176 of the 1992 Act (remedies for exclusion or expulsion from trade union) is also amended in accordance with subsections (8) to (11).

• (8) In subsection (2)—

• (a) after “an application” insert “ to an employment tribunal ”; and

• (b) omit the second sentence.

• (9) In subsection (4) omit “or the Employment Appeal Tribunal”.

• (10) In subsection (5) omit “or Employment Appeal Tribunal”.

• (11) In subsection (6) omit the words after paragraph (b).

Other rights of workers and employees

Disapplication of qualifying period and upper age limit for unfair dismissal

35

For section 154 of the 1992 Act substitute—

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

National security: powers of employment tribunals

36

For subsection (6) of section 10 of the Employment Tribunals Act 1996 (c. 17)(procedure regulations in relation to cases involving issues of national security) substitute—

(6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings.

Role of companion at disciplinary or grievance hearing

37

• (1) For subsection (2) of section 10 of the Employment Relations Act 1999 (c. 26) duty of employers to permit workers to be accompanied at disciplinary and grievance hearings) substitute—

(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.

• (2) In section 11(1) of that Act (complaint to employment tribunal), for “10(2)” substitute “ 10(2A), (2B) ”.

• (3) In section 12 of that Act (right not to be subjected to a detriment or dismissal)—

• (a) in subsections (1)(a) and (3)(a) for “10(2)” substitute “ 10(2A), (2B) ”; and

• (b) after subsection (6) add—

(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).

Extension of jurisdiction of Employment Appeal Tribunal

38

In section 21(1) of the Employment Tribunals Act 1996 (c. 17) (proceedings from which appeal lies to Employment Appeal Tribunal), for paragraphs (ff) and (g) substitute—

(g) this Act, (ga) the National Minimum Wage Act 1998, (gb) the Employment Relations Act 1999,

.

Ways in which provision conferring rights on individuals may be made

39

• (1) Section 23 of the Employment Relations Act 1999 (c. 26) (power to confer on individuals of a specified description rights conferred by certain enactments) is amended as follows.

• (2) In subsection (5) (ways in which that power may be exercised) omit the words from “, whether” to the end.

• (3) After that subsection insert—

(5A) The ways in which an order under this section may make provision include, in particular— (a) amending any enactment; (b) excluding or applying (whether with or without amendment) any enactment. (5B) In subsection (5A) “enactment” includes an enactment comprised in subordinate legislation made under an Act.

Protection of employees in respect of jury service

40

• (1) In Part 5 of the Employment Rights Act 1996 (c. 18) (protection from suffering detriment in employment), before section 44 (but after the cross-heading immediately preceding that section) insert—

(43M) (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 on the ground that the employee— (a) has been summoned under the Juries Act 1974, the Coroners Act 1988, the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or (b) has been absent from work because he attended at any place in pursuance of being so summoned. (2) This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10. (3) For the purposes of this section, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration. (4) In subsection (3) “a relevant period” means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in subsection (1)(a).

• (2) In section 48(1) of that Act (application to employment tribunal), after “section” insert “ 43M, ”.

• (3) After section 98A of that Act insert—

(98B) (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) has been summoned under the Juries Act 1974, the Coroners Act 1988, the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or (b) has been absent from work because he attended at any place in pursuance of being so summoned. (2) Subsection (1) does not apply in relation to an employee who is dismissed if the employer shows— (a) that the circumstances were such that the employee’s absence in pursuance of being so summoned was likely to cause substantial injury to the employer’s undertaking, (b) that the employer brought those circumstances to the attention of the employee, (c) that the employee refused or failed to apply to the appropriate officer for excusal from or a deferral of the obligation to attend in pursuance of being so summoned, and (d) that the refusal or failure was not reasonable. (3) In paragraph (c) of subsection (2) “the appropriate officer” means— (a) in the case of a person who has been summoned under the Juries Act 1974, the officer designated for the purposes of section 8, 9 or, as the case may be, 9A of that Act; (b) in the case of a person who has been summoned under the Coroners Act 1988, a person who is the appropriate officer for the purposes of any rules made under subsection (1) of section 32 of that Act by virtue of subsection (2) of that section; (c) in the case of a person who has been summoned under the Court of Session Act 1988, either— (i) the clerk of court issuing the citation to attend for jury service; or (ii) the clerk of the court before which the person is cited to attend for jury service; (d) in the case of a person who has been summoned under the Criminal Procedure (Scotland) Act 1995, either— (i) the clerk of court issuing the citation to attend for jury service; or (ii) the clerk of the court before which the person has been cited to attend for jury service; and references in that paragraph to a refusal or failure to apply include references to a refusal or failure to give a notice under section 1(2)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980.

• (4) In section 105 of that Act (redundancy), for subsection (1)(c) substitute—

(c) it is shown that any of subsections (2A) to (7F) applies.

• (5) In that section, before subsection (3) insert—

(2A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 98B (unless the case is one to which subsection (2) of that section applies).

• (6) In section 108(3) of that Act (exceptions to one year qualifying period of continuous employment for claims of unfair dismissal), before paragraph (b) insert—

(aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,

.

• (7) In section 109(2) of that Act (exceptions to upper age limit for claims of unfair dismissal), before paragraph (b) insert—

(aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,

.

• (8) In section 237(1A)(a) of the 1992 Act (cases where employee may complain of unfair dismissal despite participation in unofficial industrial action)—

• (a) after “section” insert “ 98B, ”; and

• (b) after “(dismissal in” insert “ jury service, ”.

• (9) In section 238(2A)(a) of the 1992 Act (cases where employment tribunal to determine whether dismissal of an employee is unfair despite limitation in subsection (2) of that section)—

• (a) after “section” insert “ 98B, ”; and

• (b) after “(dismissal in” insert “ jury service, ”.

Flexible working

41

• (1) In section 237(1A)(a) of the 1992 Act (cases where employee may complain of unfair dismissal despite participation in unofficial industrial action)—

• (a) for “or 103A” substitute “ , 103A or 104C ”; and

• (b) for “and protected disclosure” substitute “ , protected disclosure and flexible working ”.

• (2) In section 238(2A)(a) of that Act (cases where employment tribunal to determine whether dismissal of an employee is unfair despite limitation in subsection (2) of that section)—

• (a) for “or 103” substitute “ , 103 or 104C ”; and

• (b) for “and employee representative” substitute “ , employee representative and flexible working ”.

• (3) In section 48(1) of the Employment Rights Act 1996 (c. 18) (complaints to employment tribunals), for “47D” substitute “ 47E ”.

• (4) After subsection (7B) of section 105 of that Act (redundancy) insert—

(7BA) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104C.

• (5) In section 108(3) of that Act (exceptions to one year qualifying period of continuous employment for claims for unfair dismissal), after paragraph (gh) insert—

(gi) section 104C applies,

.

• (6) In section 109(2) of that Act (exceptions to upper age limit for claims for unfair dismissal), after paragraph (gh) insert—

(gi) section 104C applies,

.

• (7) In sections 194(2) and 195(2) of that Act (provisions of the Act which have effect in relation to employment as a member of the staff of the House of Lords or the House of Commons), in paragraph (c) for “and 47D” substitute “ , 47D and 47E ”.

• (8) In section 199(2) of that Act (provisions of the Act not applicable to share fishermen) for “47D” substitute “ 47E ”.

Information and consultation: Great Britain

42

• (1) The Secretary of State may make regulations for the purpose of conferring on employees of an employer to whom the regulations apply, or on representatives of those employees, rights—

• (a) to be informed by the employer about prescribed matters;

• (b) to be consulted by the employer about prescribed matters.

• (2) Regulations made under subsection (1) must make provision as to the employers to whom the regulations apply which may include provision—

• (a) applying the regulations by reference to factors including the number of employees in the United Kingdom in the employer’s undertaking;

• (b) as to the method by which the number of employees in an employer’s undertaking is to be calculated; and

• (c) applying the regulations to different descriptions of employer with effect from different dates.

• (3) Regulations made under subsection (1) may make provision—

• (a) as to the circumstances in which the rights mentioned in subsection (1) arise and the extent of those rights;

• (b) for and about the initiation and conduct of negotiations between employers to whom the regulations apply and their employees for the purposes of reaching an agreement satisfying prescribed conditions about the provision of information to the employees, and consultation of them (whether that provision or consultation is to be direct or through representatives);

• (c) about the representatives the employees may have for the purposes of the regulations and the method by which those representatives are to be selected;

• (d) as to the resolution of disputes and the enforcement of obligations imposed by the regulations or by an agreement of the kind mentioned in paragraph (b).

• (4) Regulations made under subsection (1) may—

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

• (b) confer functions on the Central Arbitration Committee;

• (c) require or authorise the holding of ballots;

• (d) amend, apply with or without modifications, or make provision similar to any provision of the Employment Rights Act 1996 (c. 18) (including, in particular, Parts 5, 10 and 13), the Employment Tribunals Act 1996 (c. 17) or the 1992 Act;

• (e) include supplemental, incidental, consequential and transitional provision, including provision amending any enactment;

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

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

• (6) Nothing in subsections (2) to (4) prejudices the generality of this section.

• (7) Regulations under this section shall be made by statutory instrument.

• (8) No such regulations may be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House of Parliament.

• (9) In this section “prescribed” means prescribed by regulations under this section.

Information and consultation: Northern Ireland

43

• (1) The Department for Employment and Learning may make regulations for the purpose of conferring on employees of an employer to whom the regulations apply, or on representatives of those employees, rights—

• (a) to be informed by the employer about prescribed matters;

• (b) to be consulted by the employer about prescribed matters.

• (2) Regulations made under subsection (1) must make provision as to the employers to whom the regulations apply which may include provision—

• (a) applying the regulations by reference to factors including the number of employees in the United Kingdom in the employer’s undertaking;

• (b) as to the method by which the number of employees in an employer’s undertaking is to be calculated; and

• (c) applying the regulations to different descriptions of employer with effect from different dates.

• (3) Regulations made under subsection (1) may make provision—

• (a) as to the circumstances in which the rights mentioned in subsection (1) arise and the extent of those rights;

• (b) for and about the initiation and conduct of negotiations between employers to whom the regulations apply and their employees for the purposes of reaching an agreement satisfying prescribed conditions about the provision of information to the employees, and consultation of them (whether that provision or consultation is to be direct or through representatives);

• (c) about the representatives the employees may have for the purposes of the regulations and the method by which those representatives are to be selected;

• (d) as to the resolution of disputes and the enforcement of obligations imposed by the regulations or by an agreement of the kind mentioned in paragraph (b).

• (4) Regulations made under subsection (1) may—

• (a) confer jurisdiction (including exclusive jurisdiction) on industrial tribunals and on the High Court;

• (b) confer functions on the Industrial Court;

• (c) require or authorise the holding of ballots;

• (d) amend, apply with or without modifications, or make provision similar to any provision of—

• (i) the Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992/807 (N.I. 5));

• (ii) the Trade Union and Labour Relations (Northern Ireland) Order 1995 (S.I. 1995/1980 (N.I. 12));

• (iii) the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16))(including, in particular, Parts 6, 11 and 15); or

• (iv) the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921 (N.I. 18));

• (e) include supplemental, incidental, consequential and transitional provision, including provision amending any enactment;

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

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

• (6) Nothing in subsections (2) to (4) prejudices the generality of this section.

• (7) Power to make regulations under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

• (8) No regulations under this section may be made unless a draft of the regulations has been laid before and approved by a resolution of the Northern Ireland Assembly.

• (9) In this section—

• “enactment” includes—a provision of an Act;a provision of, or of any instrument made under, Northern Ireland legislation; anda provision of subordinate legislation;

• “the Industrial Court” means the Industrial Court constituted under Article 91 of the Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992/807 (N.I. 5));

• “industrial tribunals” has the meaning given by section 42(5) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)); and

• “prescribed” means prescribed by regulations under this section.

Part 4 — Enforcement of minimum wage legislation

Information supplied by worker and employer

44

After section 16 of the National Minimum Wage Act 1998 (c. 39) insert—

(16A) (1) Subsection (2) applies to information obtained for the purposes of the relevant legislation by an enforcement officer so far as that information relates to an identifiable worker or agency worker. (2) In order to enable or assist him to act for the purposes of the relevant legislation, the enforcement officer may disclose all or any of the information to the worker or, as the case may be, agency worker concerned. (3) Subsection (4) applies to information obtained for the purposes of the relevant legislation by an enforcement officer so far as that information relates to an identifiable employer or person who is the agent or the principal for the purposes of section 34 below. (4) In order to enable or assist him to act for the purposes of the relevant legislation, the officer may disclose all or any of the information to the employer, the agent or, as the case may be, the principal concerned. (5) In this section— - “agency worker” shall be construed in accordance with section 34 below; - “enforcement officer” means— 1. an officer acting for the purposes of this Act, whether by virtue of paragraph (a) or (b) of section 13(1) above; 2. an officer acting for the purposes of the Agricultural Wages Act 1948; or 3. an officer acting for the purposes of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977; - “the relevant legislation” means— 1. in relation to an enforcement officer acting for the purposes of this Act, this Act; 2. in relation to an enforcement officer acting for the purposes of the Agricultural Wages Act 1948, that Act; and 3. in relation to an enforcement officer acting for the purposes of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977, that Order.

Enforcement notices

45

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

Withdrawal and replacement of, and appeals against, notices

46

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

Enforcement officers for agricultural wages legislation

47

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

Part 5 — The Certification Officer

Striking out by Certification Officer of applications or complaints

48

After section 256 of the 1992 Act, insert—

(256ZA) (1) At any stage of proceedings on an application or complaint made to the Certification Officer, he may— (a) order the application or complaint, or any response, to be struck out on the grounds that it is scandalous, vexatious, has no reasonable prospect of success or is otherwise misconceived, (b) order anything in the application or complaint, or in any response, to be amended or struck out on those grounds, or (c) order the application or complaint, or any response, to be struck out on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or complainant or (as the case may be) respondent has been scandalous, vexatious, or unreasonable. (2) The Certification Officer may order an application or complaint made to him to be struck out for excessive delay in proceeding with it. (3) An order under this section may be made on the Certification Officer’s own initiative and may also be made— (a) if the order sought is to strike out an application or complaint, or to amend or strike out anything in an application or complaint, on an application by the respondent, or (b) if the order sought is to strike out any response, or to amend or strike out anything in any response, on an application by the person who made the application or complaint mentioned in subsection (1). (4) Before making an order under this section, the Certification Officer shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made. (5) Subsection (4) shall not be taken to require the Certification Officer to send a notice under that subsection if the party against whom it is proposed that the order under this section should be made has been given an opportunity to show cause orally why the order should not be made. (6) Nothing in this section prevents the Certification Officer from making further provision under section 256(1) about the striking out of proceedings on any application or complaint made to him. (7) An appeal lies to the Employment Appeal Tribunal on any question of law arising from a decision of the Certification Officer under this section. (8) In this section— - “response” means any response made by a trade union or other body in the exercise of a right to be heard, or to make representations, in response to the application or complaint; - “respondent” means any trade union, or other body, that has such a right.

Restriction of proceedings orders: proceedings before Certification Officer

49

• (1) Section 33 of the Employment Tribunals Act 1996 (c. 17) (restriction of proceedings orders) is amended in accordance with subsections (2) to (7).

• (2) In subsection (1)(a), after “whether”, where it first occurs, insert “ before the Certification Officer, ”.

• (3) In subsection (1)(b), after “whether” insert “ before the Certification Officer, ”.

• (4) In subsection (2)(a), after “instituted” insert “ before the Certification Officer, ”.

• (5) In subsection (2)(b), after “him”, where it first occurs, insert “ before the Certification Officer, ”.

• (6) In subsection (2)(c), after “proceedings” insert “ before the Certification Officer, ”.

• (7) In subsection (4)—

• (a) after “proceedings”, where it first occurs, insert “ before the Certification Officer, ”; and

• (b) for “the process of the tribunal in question” substitute “ process ”.

• (8) In section 42 of that Act (interpretation), in subsection (1), after the definition of “appointed member” insert—

“Certification Officer” shall be construed in accordance with section 254 of the Trade Union and Labour Relations (Consolidation) Act 1992,

.

• (9) In section 256A of the 1992 Act (power of Certification Officer to refuse to entertain applications and complaints made by vexatious litigants), in subsection (4) (definition of “vexatious litigant” for the purposes of that section) omit paragraph (a).

Amalgamations: approval, listing and certification

50

• (1) In section 98 of the 1992 Act (approval of instrument of amalgamation or transfer) for subsection (2) substitute—

(2) If the Certification Officer is satisfied— (a) that an instrument of amalgamation complies with the requirements of any regulations in force under this Chapter, and (b) that he is not prevented from approving the instrument of amalgamation by subsection (3), he shall approve the instrument. (3) The Certification Officer shall not approve an instrument of amalgamation if it appears to him that the proposed name of the amalgamated union is the same as the name under which another organisation— (a) was on 30th September 1971 registered as a trade union under the Trade Union Acts 1871 to 1964, (b) was at any time registered as a trade union or employers' association under the Industrial Relations Act 1971, or (c) is for the time being entered in the list of trade unions or in the list of employers' associations, or if the proposed name is one so nearly resembling any such name as to be likely to deceive the public. (4) Subsection (3) does not apply if the proposed name is the name of one of the amalgamating unions. (5) If the Certification Officer is satisfied that an instrument of transfer complies with the requirements of any regulations in force under this Chapter, he shall approve the instrument.

• (2) After section 101 of that Act insert—

(101A) (1) Subsection (2) applies if when an instrument of amalgamation is registered by the Certification Officer under this Chapter each of the amalgamating unions is entered in the list of trade unions. (2) The Certification Officer shall— (a) enter, with effect from the amalgamation date, the name of the amalgamated union in the list of trade unions, and (b) remove, with effect from that date, the names of the amalgamating unions from that list. (3) Subsection (4) applies if when an instrument of amalgamation is registered by the Certification Officer under this Chapter each of the amalgamating unions has a certificate of independence which is in force. (4) The Certification Officer shall issue to the amalgamated trade union, with effect from the amalgamation date, a certificate that the union is independent. (5) In this section “the amalgamation date” means the date on which the instrument of amalgamation takes effect. (101B) (1) If an instrument of amalgamation is registered under this Chapter by the Certification Officer and the amalgamated union is entered in the list of trade unions in accordance with section 101A, that union shall send to him, in such manner and form as he may require— (a) a copy of the rules of the union, (b) a list of its officers, and (c) the address of its head or main office. (2) The information required to be sent under subsection (1) must be accompanied by any fee prescribed for the purpose under section 108. (3) The information must be sent— (a) before the end of the period of six weeks beginning with the date on which the instrument of amalgamation takes effect, or (b) if the Certification Officer considers that it is not reasonably practicable for the amalgamated union to send it in that period, before the end of such longer period, beginning with that date, as he may specify to the amalgamated union. (4) If any of subsections (1) to (3) are not complied with by the amalgamated union, the Certification Officer shall remove its name from the list of trade unions.

• (3) In section 133(2) of the 1992 Act (modifications of Chapter 7 of Part 1 in its application to amalgamations of unincorporated employers' associations)—

• (a) omit “and” at the end of paragraph (b) and after that paragraph insert—

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

; and

• (b) in paragraph (c), after “101(3)” insert “ , 101A(3) and (4) ”.

• (4) In section 298 of that Act (definitions for the purposes of the Act) at the appropriate place insert—

“certificate of independence” means a certificate issued under— (a) section 6(6), or (b) section 101A(4);

• (5) In section 299 of that Act (index of defined terms), at the appropriate place insert—

certificate of independence	section 298.

• (6) In each of paragraphs 6, 35(4)(a), 44(4)(a), 60(4), 134(1)(b) and 138 of Schedule A1 to that Act (requirements for union to be independent) for the words “under section 6 that it is independent” substitute “ of independence ”.

Restriction of grounds of appeal from Certification Officer

51

• (1) In section 9 of the 1992 Act (appeal against decision of Certification Officer relating to the list of trade unions or a certificate of independence)—

• (a) at the end of each of subsections (1) and (2), insert “ on any appealable question ”;

• (b) omit subsection (3); and

• (c) in subsection (4), for “The rights of appeal conferred by this section extend to any question of fact or law” substitute “ For the purposes of this section, an appealable question is any question of law ”.

• (2) In section 126 of the 1992 Act (appeal against decision of Certification Officer relating to the list of employers' associations)—

• (a) at the end of subsection (1), insert “ on any appealable question ”;

• (b) omit subsection (2); and

• (c) in subsection (3), for “The right of appeal conferred by this section extend to any question of fact or law” substitute “ For the purposes of this section, an appealable question is any question of law ”.

Part 6 — Miscellaneous

Additional case in which election for president of union not required

52

• (1) Section 46 of the 1992 Act (requirement to hold elections for certain positions in trade unions) is amended as follows.

• (2) In subsection (2), omit the words after paragraph (d).

• (3) After subsection (4) insert—

(4A) This Chapter also does not apply to the position of president if— (a) the holder of that position was elected or appointed to it in accordance with the rules of the union, (b) at the time of his election or appointment as president he held a position mentioned in paragraph (a), (b) or (d) of subsection (2) by virtue of having been elected to it at a qualifying election, (c) it is no more than five years since— (i) he was elected, or re-elected, to the position mentioned in paragraph (b) which he held at the time of his election or appointment as president, or (ii) he was elected to another position of a kind mentioned in that paragraph at a qualifying election held after his election or appointment as president of the union, and (d) he has, at all times since his election or appointment as president, held a position mentioned in paragraph (a), (b) or (d) of subsection (2) by virtue of having been elected to it at a qualifying election.

• (4) In subsection (5), at the beginning, insert “ In subsection (4) ”.

• (5) After subsection (5) insert—

(5A) In subsection (4A) “qualifying election” means an election satisfying the requirements of this Chapter. (5B) The “requirements of this Chapter” referred to in subsections (1) and (5A) are those set out in sections 47 to 52 below.

Removal of rule preventing appointment of body corporate as auditor

53

• (1) In section 34(5) of the 1992 Act (persons not to act as auditor of a trade union), omit paragraph (c).

• (2) In section 36 of that Act (auditor’s report), after subsection (1) insert—

(1A) The report shall state the names of, and be signed by, the auditor or auditors.

• (3) After subsection (4) of that section add—

(5) Any reference in this section to signature by an auditor is, where the office of auditor is held by a body corporate or partnership, to signature in the name of the body corporate or partnership by an individual authorised to sign on its behalf.

• (4) In section 37 of that Act (rights of auditors), after subsection (3) add—

(4) In the case of an auditor which is a body corporate or partnership, its right to attend or be heard at a meeting is exercisable by an individual authorised by it to act as its representative at the meeting.

Means of voting in ballots and elections

54

• (1) The Secretary of State may by order provide, in relation to any description of ballot or election authorised or required by the 1992 Act, that any ballot or election of that description is to be conducted by such one or more permissible means as the responsible person determines.

• (2) A “permissible means” is a means of voting that the order provides is permissible for that description of ballot or election.

• (3) “The responsible person” is a person specified, or of a description specified, by the order.

• (4) An order under this section may—

• (a) include provision about the determinations that may be made by the responsible person, including provision requiring specified factors to be taken into account, or specified criteria to be applied, in making a determination;

• (b) allow the determination of different means of voting for voters in different circumstances;

• (c) allow a determination to be such that voters have a choice of means of voting.

• (5) The means that an order specifies as permissible means must, in the case of any description of ballot or election, include (or consist of) postal voting.

• (6) An order under this section may—

• (a) include supplemental, incidental and consequential provisions;

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

• (7) An order under this section may—

• (a) modify the provisions of the 1992 Act;

• (b) exclude or apply (with or without modifications) any provision of that Act;

• (c) make provision as respects any ballot or election conducted by specified means which is similar to any provision of that Act relating to ballots or elections.

• (8) The power to make an order under this section is exercisable by statutory instrument.

• (9) No order may be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

• (10) The Secretary of State shall not make an order under this section which provides that a means of voting is permissible for a description of ballot or election unless he considers—

• (a) that a ballot or election of that description conducted by that means could, if particular conditions were satisfied, meet the required standard; and

• (b) that, in relation to any ballot or election of that description held after the order comes into force, the responsible person will not be permitted to determine that that means must or may be used by any voters unless he has taken specified factors into account or applied specified criteria.

• (11) In specifying in an order under this section factors to be taken into account or criteria to be applied by the responsible person, the Secretary of State must have regard to the need for ballots and elections to meet the required standard.

• (12) For the purposes of subsections (10) and (11) a ballot or election meets “the required standard” if it is such that—

• (a) those entitled to vote have an opportunity to do so;

• (b) votes cast are secret;

• (c) the risk of any unfairness or malpractice is minimised.

• (13) In this section “specified” means specified in an order under this section.

Provision of money for trade union modernisation

55

• (1) Before section 117 of the 1992 Act (and before the cross-heading immediately preceding that section) insert—

(116A) (1) The Secretary of State may provide money to a trade union to enable or assist it to do any or all of the following— (a) improve the carrying out of any of its existing functions; (b) prepare to carry out any new function; (c) increase the range of services it offers to persons who are or may become members of it; (d) prepare for an amalgamation or the transfer of any or all of its engagements; (e) ballot its members (whether as a result of a requirement imposed by this Act or otherwise). (2) No money shall be provided to a trade union under this section unless at the time when the money is provided the union has a certificate of independence. (3) Money may be provided in such a way as the Secretary of State thinks fit (whether as grants or otherwise) and on such terms as he thinks fit (whether as to repayment or otherwise). (4) If money is provided to a trade union under this section, the terms on which it is so provided shall be deemed to include a prohibition (“a political fund prohibition”) on any of it being added to the political fund of the union. (5) If a political fund prohibition is contravened, the Secretary of State— (a) is entitled to recover from the trade union as a debt due to him an amount equal to the amount of money added to the union’s political fund in contravention of the prohibition (whether or not that money continues to form part of the political fund); and (b) must take such steps as are reasonably practicable to recover that amount. (6) An amount recoverable under subsection (5) is a liability of the trade union’s political fund. (7) Subsection (5) does not prevent money provided to a trade union under this section from being provided on terms containing further sanctions for a contravention of the political fund prohibition.

• (2) In section 118 of that Act (federated trade unions), after subsection (7) add—

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

Part 7 — Supplementary provisions

Meaning of “the 1992 Act”

56

In this Act “the 1992 Act” means the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52).

Minor and consequential amendments and repeals

57

• (1) Schedule 1 (which makes minor and consequential amendments) has effect.

• (2) The enactments specified in Schedule 2 are hereby repealed to the extent specified there.

Corresponding provision for Northern Ireland

58

An Order in Council under paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) (legislation for Northern Ireland during suspension of devolved government) which contains a statement that it is made only for purposes corresponding to those of this Act (other than sections 43 to 46)—

• (a) shall not be subject to paragraph 2 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.

Citation, commencement and extent

59

• (1) This Act may be cited as the Employment Relations Act 2004.

• (2) This section and sections 42, 43, 56 and 58 shall come into force on the day on which this Act is passed.

• (3) The other provisions of this Act shall not come into force until such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes.

• (4) An order under subsection (3) may contain such transitional provisions and savings as the Secretary of State considers necessary or expedient in connection with the coming into force of any of the provisions of this Act.

• (5) Subject to subsections (6) and (7), this Act extends to England and Wales and to Scotland.

• (6) Any amendment by this Act of an enactment (including an enactment contained in Northern Ireland legislation) has the same extent as the enactment amended.

• (7) Sections 43 and 58 extend to Northern Ireland only.

SCHEDULE 1

Agricultural Wages Act 1948

1

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

Agricultural Wages (Regulation) (Northern Ireland) Order 1977

2

In Article 11A of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (S.I. 1977/2151 (N.I. 22)) (disclosure of information obtained by officers acting for the purposes of the 1998 Act), after paragraph (5) add—

(6) Nothing in this Article prevents a disclosure in accordance with section 16A of the National Minimum Wage Act 1998.

The 1992 Act

3

In section 19 of the 1992 Act (application of certain provisions relating to friendly societies to trade unions), omit subsection (4).

4

In section 41(3) of the 1992 Act (date of next re-examination of superannuation scheme where exemption revoked by Certification Officer), for “(1)(b)” substitute “ (2) ”.

5

In section 54(3) of the 1992 Act (time limit for applications under section 55 or 56 of that Act), for “No such application” substitute “ Where an election has been held, no application under those sections with respect to that election ”.

6

In section 82 of the 1992 Act (rules as to a union’s political fund), for subsection (4) substitute—

(4A) Where an order has been made under this section, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the complaint on which it was made. (4B) An order made by the Certification Officer under this section may be enforced— (a) in England and Wales, in the same way as an order of the county court; (b) in Scotland, in the same way as an order of the sheriff.

7

In section 103 of the 1992 Act (complaints as regards passing of resolution on amalgamation or transfer of engagements), in subsection (8), for “application” substitute “ complaint ”.

8

In section 146 of the 1992 Act (action short of dismissal on grounds related to union membership or activities), in each of subsections (1), (3) and (4), for “the purpose” substitute “ the sole or main purpose ”.

9

In section 148 of the 1992 Act (consideration of complaint), in subsection (1), for “the purpose” substitute “ what was the sole or main purpose ”.

10

In section 150 of the 1992 Act (awards against third parties), in subsection (1)(a), for “the purpose” substitute “ the sole or main purpose ”.

11

• (1) Section 155 of the 1992 Act (matters to be disregarded in assessing contributory fault) is amended as follows.

• (2) In subsection (2), omit the word “or” at the end of paragraph (b) and at the end of paragraph (c) insert

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

• (3) After that subsection insert—