Legalize / United Kingdom / Public General Act

Employment Rights Act 2025

Type Public General Act

Publication 2025-12-18

Last updated 2026-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(84) (1) For the purposes of this Act, a member of a trade union is a “contributor” to the political fund of the union unless an opt-out notice given by the member to the union has effect (see subsection (3)). (2) An “opt-out notice” is a notice that the member opts out of being a contributor. (3) An opt-out notice has effect on and after the relevant day unless the member withdraws the notice. (4) In subsection (3), “the relevant day” means— (a) in a case where— (i) a political resolution is passed on a ballot held at a time when no such resolution is in force, and (ii) the opt-out notice is given before the end of the period of four weeks beginning with the day on which an opt-out information notice is given to the member under section 84A, the day on which the opt-out notice is given; (b) in any other case, the earlier of— (i) a day specified in, or determined in accordance with, the rules of the union, and (ii) 1 January in the year following the year in which the opt-out notice is given. (5) A member of a trade union withdraws an opt-out notice by giving the union notice of the withdrawal (a “withdrawal notice”). (6) A member of a trade union may give an opt-out notice or a withdrawal notice— (a) by delivering it (either personally or by an authorised agent or by post) at the head office or a branch office of the union; (b) by sending it by email to an address that the union has told its members can be used for sending such notices; (c) by completing an electronic form provided by the union which sets out the notice, and sending it to the union by electronic means in accordance with instructions given by the union; (d) by such other electronic means as may be prescribed. (7) The Secretary of State must, before the end of the period of three months beginning with the day on which this section comes into force, publish guidance about the kind of provision which the Secretary of State considers it is appropriate for the rules of a trade union to make for the purposes of subsection (4)(b)(i). (8) The Secretary of State— (a) may from time to time revise guidance published under subsection (7); (b) must publish any revisions of that guidance. (84A) (1) A trade union must give an opt-out information notice to each member of the union— (a) within the period of eight weeks beginning with the day after the day on which a political resolution is passed by the members of the union under section 73, and (b) within the period of eight weeks beginning with the end of— (i) the period of ten years beginning with the day on which a political resolution is passed, and (ii) each successive period of ten years, unless during that period of ten years the political resolution is rescinded or otherwise ceases to have effect. (2) An “opt-out information notice” is a notice stating that— (a) each member of the union has the right not to be a contributor to the political fund of the union, and (b) a member may exercise that right by giving an opt-out notice under section 84. (3) An opt-out information notice must be given in accordance with rules of the union approved for the purpose by the Certification Officer. (4) In deciding whether to approve those rules, the Certification Officer must have regard in each case to the existing practice and character of the union. (5) As soon as is reasonably practicable after the end of any period of eight weeks within which an opt-out information notice must be given, a trade union must send to the Certification Officer a copy of— (a) the opt-out information notice, or (b) if there is more than one form of opt-out information notice, each form of notice. (6) A member of a trade union who claims that the union has failed to comply with this section may complain to the Certification Officer. (7) Where the Certification Officer is satisfied on a complaint under subsection (6) that a trade union has failed to comply with this section, the Officer may make such order for remedying the failure as the Officer thinks just under the circumstances. (8) Before deciding the matter the Certification Officer— (a) may make such enquiries as the Officer thinks fit; (b) must give the union and the member making the complaint an opportunity to make written representations; (c) may give the union and the member making the complaint an opportunity to make oral representations. (9) An order made by the Certification Officer under this section may be enforced by the Certification Officer in the same way as an order of the court.

(4) In section 86 (employer not to deduct contributions where member gives certificate), in subsection (1), for “, he is not a contributor to the fund,” substitute

— (a) the member is not a contributor to the fund, or (b) the member has given the union an opt-out notice but it does not yet have effect,

(5) In section 94 (overseas members of trade union)—

(a) in subsection (1), at the end of paragraph (a) insert

, and (b) rules made by the union for the purpose of complying with section 84A (opt-out information notices) may provide for opt-out information notices not to be given by the union to its overseas members.

;

(b) in subsection (2), after “rules” insert “; and where provision is made in accordance with subsection (1)(b), section 84A(1) is not to be taken to require opt-out information notices to be given to overseas members.”

(6) In section 299 (index of defined expressions), in the entry for “contributor”, for “84(5)” substitute “84(1)”.

(7) In consequence of the amendments made by subsections (2) to (6), in the Trade Union Act 2016—

(a) in section 11, omit subsections (1), (2) and (5) to (8);

(b) in Schedule 4—

(i) in paragraph 7, omit sub-paragraph (3);

(ii) omit paragraph 9.

Deduction of trade union subscriptions from wages in public sector

63

(1) In the Trade Union and Labour Relations (Consolidation) Act 1992—

(a) omit section 116B (restriction on deduction of union subscriptions from wages in public sector) and the italic heading before it;

(b) in section 296 (meaning of “worker” and related expressions), in subsection (3), omit “116B(10),”.

(2) In consequence of the amendments made by subsection (1), omit section 15 of the Trade Union Act 2016.

Facilities provided to trade union representatives and members

Facilities provided to trade union officials and learning representatives

64

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (6).

(2) In section 168 (time off for carrying out trade union duties)—

(a) after subsection (3) insert—

(3A) An employer that permits an employee to take time off as required by this section must, where requested by the employee, provide the employee with such accommodation and other facilities for carrying out the duties or undergoing the training for which the employee takes time off as is reasonable in all the circumstances, having regard to any relevant provisions of a Code of Practice issued by ACAS.

;

(b) for subsection (4) substitute—

(4) An employee may present a complaint to an employment tribunal that the employer has failed— (a) to permit the employee to take time off, or (b) to provide the employee with facilities, as required by this section. (5) On a complaint under subsection (4)(a), it is for the employer to show that the amount of time off which the employee proposed to take was not a reasonable amount of time off.

(3) In section 168A (time off for union learning representatives)—

(a) after subsection (8) insert—

(8A) An employer that permits an employee to take time off as required by this section must, where requested by the employee, provide the employee with such accommodation and other facilities for the purposes for which the employee takes time off as is reasonable in all the circumstances, having regard to any relevant provisions of a Code of Practice issued by ACAS.

;

(b) for subsection (9) substitute—

(9) An employee may present a complaint to an employment tribunal that the employer has failed— (a) to permit the employee to take time off, or (b) to provide the employee with facilities, as required by this section. (10) On a complaint under subsection (9)(a), it is for the employer to show that the amount of time off which the employee proposed to take was not a reasonable amount of time off.

(4) In section 172 (remedies), in subsection (2), omit “in failing to permit time off to be taken by the employee”.

(5) In section 199 (issue of Codes of Practice by ACAS), in subsection (2)(a), after “time off” insert “and facilities”.

(6) In section 200 (procedure for issue of Code by ACAS), in subsection (3)(a), after “time off” insert “and facilities”.

(7) In section 10 of the Employment Relations Act 1999 (right to be accompanied), in subsection (7), for “and (4)” substitute “, (4) and (5)”.

Facilities for equality representatives

65

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (10).

(2) After section 168A insert—

(168B) (1) An employer must permit an employee who is— (a) a member of an independent trade union recognised by the employer, and (b) an equality representative of the trade union, to take time off during the employee’s working hours for any of the following purposes. (2) The purposes are— (a) carrying out activities for the purpose of promoting the value of equality in the workplace; (b) arranging learning or training on matters relating to equality in the workplace; (c) providing information, advice or support to qualifying members of the trade union in relation to matters relating to equality in the workplace; (d) consulting with the employer on matters relating to equality in the workplace; (e) obtaining and analysing information relating to equality in the workplace; (f) preparing for any of the things mentioned in paragraphs (a) to (e). (3) Subsection (1) applies only if— (a) the trade union has given the employer notice in writing that the employee is an equality representative of the union, and (b) the training condition is met in relation to the employee. (4) The training condition is met if— (a) the employee has undergone sufficient training to enable the employee to carry on activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact, (b) the trade union has in the last six months given the employer notice in writing that the employee will be undergoing such training, or (c) within six months of the trade union giving the employer notice in writing that the employee will be undergoing such training, the employee has done so, and the trade union has given the employer notice of that fact. (5) Only one notice under subsection (4)(b) may be given in respect of any one employee. (6) References in subsection (4) to sufficient training to carry out activities mentioned in subsection (2) are to training that is sufficient for those purposes having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State. (7) If an employer is required to permit an employee to take time off under subsection (1), the employer must also permit the employee to take time off during the employee’s working hours for the following purposes— (a) undergoing training which is relevant to the employee’s functions as an equality representative, and (b) where the trade union has in the last six months given the employer notice under subsection (4)(b) in relation to the employee, undergoing such training as is mentioned in subsection (4)(a). (8) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances, having regard to any relevant provision of a Code of Practice issued by ACAS or the Secretary of State. (9) An employer that permits an employee to take time off as required by this section must, where requested by the employee, provide the employee with such accommodation and other facilities in relation to the purposes for which the employee takes time off as is reasonable in all the circumstances, having regard to any relevant provisions of a Code of Practice issued by ACAS. (10) An employee may present a complaint to an employment tribunal that the employer has failed— (a) to permit the employee to take time off, or (b) to provide the employee with facilities, as required by this section. (11) On a complaint under subsection (10)(a), it is for the employer to show that the amount of time off which the employee proposed to take was not a reasonable amount of time off. (12) For the purposes of this section— (a) a person is an equality representative of a trade union if the person is appointed or elected as such in accordance with its rules; (b) “equality”, in relation to a workplace, means— (i) the elimination of discrimination, harassment and victimisation, each of which is to be read in accordance with the Equality Act 2010, and of any other conduct that is prohibited by or under that Act; (ii) the advancement of equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (iii) the fostering of good relations between persons who share a relevant protected characteristic and persons who do not share it; (c) “relevant protected characteristic” means age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation, each of which is to be read in accordance with the Equality Act 2010; (d) a reference to qualifying members of the trade union is a reference to members of the trade union— (i) who are employees of the employer of a description in respect of which the union is recognised by the employer, and (ii) in relation to whom it is the function of the equality representative to act as such.

(3) In section 169 (payment for time off)—

(a) in the heading, for “section 168” substitute “sections 168 to 168B”;

(b) in subsection (1), for “or 168A” substitute “, 168A or 168B”.

(4) In section 170 (time off for trade union activities)—

(a) in subsection (2A), after “learning representative” insert “or an equality representative”;

(b) in subsection (2B), after “learning representative” insert “or an equality representative”;

(i) after “applies” insert

— (a) in relation to a learning representative,

;

(ii) at the end insert—

(b) in relation to an equality representative, if the equality representative would be entitled to time off under subsection (1) of section 168B for the purpose of carrying on in relation to the employee activities of the kind mentioned in subsection (2) of that section.

;

(d) in subsection (5)—

(i) in paragraph (a), after “learning representative” insert “or an equality representative”;

(ii) omit the “and” at the end of paragraph (a);

(iii) after paragraph (b) insert

, and (c) a person who is an equality representative of a trade union acts as such if the person carries on the activities mentioned in section 168B(2) in that capacity.

(5) In section 171 (time off: time limit for proceedings), in subsection (1), after “168A,” insert “168B,”.

(6) In section 172 (time off: remedies), in subsection (1), after “168A” insert “, 168B”.

(7) In section 173 (interpretation and other supplementary provisions)—

(a) in subsection (1), after “168A” insert “, 168B”;

(b) in subsection (2), after “168A,” insert “168B,”;

(8) In section 199 (issue of Codes of Practice by ACAS), in subsection (1), after “learning representatives” insert “or equality representatives”.

(9) In section 200 (procedure for issue of Code by ACAS), in subsection (3)—

(a) omit the “or” at the end of paragraph (b);

(b) after paragraph (b) insert—

(ba) on the time off and facilities to be permitted to a trade union equality representative in accordance with section 168B (time off for training and carrying out functions as an equality representative), (bb) on the training that is sufficient to enable a trade union equality representative to carry on the activities mentioned in section 168B(2) (activities for which time off is to be permitted), or

(10) In section 203 (issue of Codes of Practice by Secretary of State), in subsection (1)(b), after “learning representatives” insert “or equality representatives”.

(11) In section 18 of the Employment Tribunals Act 1996 (conciliation: relevant proceedings), in subsection (1)(a), after “168A,” insert “168B,”.

(12) In section 104 of the Employment Rights Act 1996 (unfair dismissal for assertion of statutory rights), in subsection (4)(c), after “168A,” insert “168B,”.

Facility time: publication requirements and reserve powers

66

(1) In the Trade Union and Labour Relations (Consolidation) Act 1992—

(a) omit section 172A (publication requirements in relation to facility time);

(b) omit section 172B (reserve powers in relation to facility time).

(2) In consequence of the amendments made by subsection (1), omit sections 13 and 14 of the Trade Union Act 2016.

Blacklists

Blacklists: additional powers

67

(1) Section 3 of the Employment Relations Act 1999 (blacklists) is amended as follows.

(2) In subsection (1)(b), omit “by employers or employment agencies”.

(3) After subsection (2) insert—

(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.

(4) In subsection (3)—

(a) before paragraph (a) insert—

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

;

(b) in paragraph (e), after “subsection (1)” insert “or (2A)”.

Industrial action: ballots

Industrial action ballots: turnout threshold

68

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (5).

(2) In section 226 (requirement of ballot before action by trade union), in subsection (2)(a)—

(a) insert “and” at the end of sub-paragraph (ii);

(b) omit sub-paragraph (iia) (and the “and” after it).

(3) In section 231 (information for members as to result of ballot)—

(a) omit paragraph (a);

(b) insert “and” at the end of paragraph (d);

(e) the number of spoiled voting papers.

;

(d) omit paragraph (f).

(4) Omit section 297A (meaning of “voting”).

(5) In section 299 (index of defined expressions), omit the entry for “voting”.

(6) In consequence of the amendments made by subsections (2) to (5)—

(a) in the Trade Union Act 2016—

(i) omit section 2;

(ii) in Schedule 4, omit paragraphs 12 and 17;

(b) in section 69 of this Act, omit subsection (3)(a).

Industrial action ballots: support thresholds

69

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) and (3).

(2) In section 226 (requirement of ballot before action by trade union)—

(a) in subsection (2)(a)(iii), for “the required number of persons (see subsections (2A) to (2C))” substitute “the majority voting in the ballot”;

(b) omit subsections (2A) to (2F).

(3) In section 231 (information for members as to result of ballot)—

(a) insert “and” at the end of paragraph (e);

(b) omit paragraph (g) (and the “and” before it).

(4) In consequence of the amendments made by subsection (2), omit section 3 of the Trade Union Act 2016.

Industrial action ballots: information to be included in notices to employers

70

In section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 (notice of ballot and sample voting paper for employers)—

(a) in subsection (2)(c)—

(i) in sub-paragraph (i), for the words from “figures” (in the first place it occurs) to “arrived at” substitute “number mentioned in subsection (2B)”;

(ii) in sub-paragraph (ii), for “figures and that explanation” substitute “that number”;

(b) for subsection (2B) substitute—

(2B) The number is the total number of employees concerned.

;

(i) in paragraph (b), omit the words from “and the number” to “categories”;

(ii) in paragraph (c), omit the words from “and the number” to “workplaces”;

(d) in subsection (2D), for “figures” substitute “the number”.

Industrial action ballots: information to be included on voting paper

71

(1) In section 229 of the Trade Union and Labour Relations (Consolidation) Act 1992 (information to be included on voting paper), omit subsections (2B) to (2D).

(2) In consequence of the amendment made by subsection (1), omit section 5 of the Trade Union Act 2016.

Period after which industrial action ballot ceases to be effective

72

In section 234 of the Trade Union and Labour Relations (Consolidation) Act 1992 (period after which industrial action ballot ceases to be effective), in subsection (1), for the words from “period” to the end substitute “period of 12 months beginning with the date of the ballot”.

Electronic balloting

73

(1) In the Trade Union Act 2016, omit section 4 (provision for electronic balloting for industrial action: review and piloting scheme).

(2) Subsection (1) does not affect the power of the Secretary of State to make an order under section 54 of the Employment Relations Act 2004 (permissible means of balloting) in relation to ballots for the purposes of section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 (ballots on industrial action).

Notice to employers of industrial action

74

(1) In section 234A of the Trade Union and Labour Relations (Consolidation) Act 1992 (notice to employers of industrial action)—

(a) in subsection (3B), omit paragraph (b) (but not the “and” after it);

(b) in subsection (3C)(b), omit the words from “and the number” to “categories”;

(b) ending with the tenth day before the day, or before the first of the days, specified in the relevant notice.

(2) In consequence of the amendment made by subsection (1)(c), omit section 8 of the Trade Union Act 2016.

Industrial action: picketing

Union supervision of picketing

75

(1) In the Trade Union and Labour Relations (Consolidation) Act 1992—

(a) in section 219 (protection from certain tort liabilities), in subsection (3), for the words from “unless” to the end substitute “unless it is done in the course of attendance declared lawful by section 220 (peaceful picketing)”;

(b) omit section 220A (union supervision of picketing).

(2) In consequence of the amendments made by subsection (1), omit section 10 of the Trade Union Act 2016.

Protection for taking industrial action

Protection against detriment for taking industrial action

76

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) and (3).

(2) In Part 5 (industrial action), after section 236 insert—

(236A) (1) A worker has the right not to be subjected as an individual to detriment of a prescribed description by any act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so. (2) For that purpose, a worker takes protected industrial action if the worker commits an act which, or a series of acts each of which, the worker is induced to commit by an act which by virtue of section 219 is not actionable in tort. (3) But no account may be taken of the repudiation of any act by a trade union as mentioned in section 21 in relation to anything which occurs before the end of the next working day after the day on which the repudiation takes place. (4) Regulations under subsection (1) may prescribe detriment of any description (instead of detriment of a specific description). (5) Subsection (1) does not apply where the worker is an employee and the detriment in question amounts to dismissal (but see sections 237 to 239). (6) A worker or former worker may present a complaint to an employment tribunal on the ground that the worker or former worker has been subjected to a detriment by an employer in contravention of this section. (7) A worker or former worker has no other remedy for infringement of the right conferred by this section. (8) In this section and sections 236B to 236D— - “employer” means— in relation to a worker, the person for whom the worker works; in relation to a former worker, the person for whom the former worker worked; - “worker” means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1); - “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971. (236B) (1) An employment tribunal may not consider a complaint under section 236A unless it is presented— (a) before the end of the period of six months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable. (2) For the purposes of subsection (1)— (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period; (b) a failure to act is to be treated as done when it was decided on. (3) For the purposes of subsection (2), in the absence of evidence establishing the contrary, an employer is to be taken to decide on a failure to act— (a) when the employer does an act inconsistent with doing the failed act, or (b) if the employer has done no such inconsistent act, when the period expires within which the employer might reasonably have been expected to do the failed act if it was to be done. (4) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a). (236C) On a complaint under section 236A it is for the employer to show what was the sole or main purpose for which the employer acted or failed to act. (236D) (1) Where the employment tribunal finds that a complaint under section 236A is well-founded, the tribunal— (a) must make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure complained of. (2) The amount of the compensation awarded is to be an amount which the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the act or failure. (3) The loss is to be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the act or failure, and (b) loss of any benefit which the complainant might reasonably be expected to have had but for the act or failure. (4) In ascertaining the loss, the tribunal must apply the same rule concerning the duty of a person to mitigate 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 must reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

(3) In section 296 (meaning of “worker”), in subsection (3), for “and 151(1B)” substitute “, 151(1B) and 236A (8)”.

(4) In section 18 of the Employment Tribunals Act 1996 (conciliation: relevant proceedings), in subsection (1)(a), for “or 192” substitute “, 192 or 236A”.

(5) In section 104 of the Employment Rights Act 1996 (unfair dismissal for assertion of statutory rights), in subsection (4)(c), for “and 170” substitute “, 170 and 236A”.

Protection against dismissal for taking industrial action

77

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (4).

(2) In section 229 (industrial action ballots: voting paper), in subsection (4), omit the words from “if it takes place fewer than” to the end.

(3) In section 238A (protection for employees taking part in official industrial action)—

(a) in subsection (2), omit paragraph (b) (and the “and” before it);

(b) omit subsections (3) to (7D);

(4) Omit section 238B (conciliation and mediation: supplementary provisions).

(5) In consequence of the amendments made by subsections (2) to (4), in the Employment Relations Act 2004—

(a) omit section 26 (dismissal where employees locked out);

(b) omit section 27 (date of dismissal);

(d) in Schedule 1 (minor and consequential amendments), omit paragraph 13.

Strikes: minimum service levels

Repeal of provision about minimum service levels

78

(1) In the Trade Union and Labour Relations (Consolidation) Act 1992, omit sections 234B to 234G (minimum service levels for certain services).

(2) Accordingly, in that Act—

(a) in section 219 (protection from tort liabilities), in subsection (4), for the words from “to”, in the first place it occurs, to “steps);” substitute

to— (a) sections 222 to 225 (action excluded from protection), (b) section 226 (requirement of ballot before action by trade union), and (c) section 234A (requirement of notice to employer of industrial action);

;

(b) in section 234A (notice to employers of industrial action), in subsection (3)—

(i) at the end of paragraph (a), insert “and”;

(ii) omit paragraph (ba) and the “and” before it;

(d) for the italic heading before section 235 substitute “Sections 226 to 234A: meaning of “contract of employment””;

(e) in section 235 (construction of references to contract of employment)—

(i) in the heading, at the end insert “in sections 226 to 234A”;

(ii) for “to 234G” substitute “to 234A”;

(f) in section 238A (unfair dismissal: participation in official industrial action)—

(i) in subsection (2), insert “and” at the end of paragraph (a) and omit paragraph (aa) (and the “and” after it);

(ii) for subsection (9) substitute—

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

;

(g) in section 246 (minor definitions), for “where section 229(2A) applies (see that section and 234G(2))” substitute “for the purposes of section 229(2) (see section 229(2A))”;

(h) in section 299 (index of defined expressions)—

(i) in the entry for “contract of employment”, for “234G” substitute “234A”;

(ii) in the entry for “not protected”, for “, 234A and 234E” substitute “and 234A”;

(iii) omit the entries for “minimum service regulations (in Part 5)”, “relevant service (in Part 5)” and “work notice (in Part 5)”.

(3) The Strikes (Minimum Service Levels) Act 2023 is repealed.

Certification Officer

Annual returns: removal of provision about industrial action

79

(1) In the Trade Union and Labour Relations (Consolidation) Act 1992, omit section 32ZA (details of industrial action etc to be included in annual return).

(2) In consequence of the amendment made by subsection (1), omit section 7 of the Trade Union Act 2016.

Annual returns: removal of provision about political expenditure

80

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (6).

(2) Omit section 32ZB (details of political expenditure to be included in annual return).

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

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

(5) In section 131 (administrative provisions applying to employers’ associations), in subsection (1), omit “, section 32ZB”.

(6) In section 135 (federated employers’ associations), in subsection (3), omit “, section 32ZB”.

(7) In consequence of the amendments made by subsections (2) to (6), omit section 12 of the Trade Union Act 2016.

Removal of powers to enforce requirements relating to annual returns

81

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (5).

(2) Omit section 32ZC (enforcement of sections 32ZA and 32ZB).

(3) In section 45 (rights of union members: offences), in subsection (1), for the words from “section 32” to “sections 32A” substitute “sections 32”.

(4) In section 45D (appeals from Certification Officer on question arising in proceedings etc under Chapters 1, 2 and 3 of Part 1), omit “, 32ZC”.

(5) In section 256 (procedure before the Certification Officer), in subsection (1)(c), omit “, 32ZC”.

(6) In consequence of the amendments made by subsections (2) to (5)—

(a) omit section 18 of the Trade Union Act 2016;

(b) in section 80 of this Act, omit subsections (3) and (4).

Removal of investigatory powers

82

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (6).

(2) In section 25 (duties with respect to register of members’ names and addresses: remedies), omit subsection (6A).

(3) In section 45D (appeals from Certification Officer on question arising in proceedings etc under Chapters 1, 2 and 3 of Part 1), omit “or paragraph 5 of Schedule A3”.

(4) In section 256 (procedure before the Certification Officer), in subsection (1)(c), omit “or under paragraph 5 of Schedule A3”.

(5) Omit section 256C (investigatory powers).

(6) Omit Schedule A3 (Certification Officer: investigatory powers).

(7) In consequence of the amendments made by subsections (2) to (6)—

(a) in section 43 of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, omit subsection (4);

(b) in the Trade Union Act 2016—

(i) in section 17, omit subsections (1) and (2);

(ii) omit Schedule 1;

(iii) in Schedule 4, omit paragraphs 2 and 3(b).

Powers to be exercised only on application

83

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) to (9).

(2) In section 45C (duty to secure union positions not held by certain offenders: remedies and enforcement)—

(a) in subsection (1), omit the words from “; but the Certification Officer” to the end;

(b) in subsection (2A)—

(i) in paragraph (b), omit “(if any)”;

(ii) in paragraph (c), omit “(if any)”.

(3) In section 54 (elections for union positions: remedies), in subsection (1), omit the words after paragraph (b).

(4) In section 55 (elections for union positions: powers of Certification Officer)—

(a) in the heading, for “Powers of” substitute “Application to”;

(b) in subsection (1)—

(i) omit “, either”;

(ii) omit paragraph (b) and the “or” before it;

(i) in paragraph (b), omit “(if any)”;

(ii) in paragraph (c), omit “(if any)”.

(5) In section 72A (application of funds in breach of section 71: remedies)—

(a) in subsection (1), omit the words from “; but the Certification Officer” to the end;

(b) in subsection (2A)—

(i) in paragraph (b), omit “(if any)”;

(ii) in paragraph (c), omit “(if any)”.

(6) In section 79 (remedy for failure to comply with political ballot rules), in subsection (1), omit the words from “; but the Certification Officer” to the end.

(7) In section 80 (remedy for failure to comply with political ballot rules: powers of Certification Officer)—

(a) in the heading, for “Powers of” substitute “Application to”;

(b) in subsection (1)—

(i) omit “either”;

(ii) omit “or without any such application having been made”;

(i) in paragraph (b), omit “(if any)”;

(ii) in paragraph (c), omit “(if any)”.

(8) In section 82 (rules as to political fund)—

(a) in subsection (2), omit the words from “; but the Officer” to the end;

(b) in subsection (3)—

(i) in paragraph (b), omit “(if any)”;

(ii) in paragraph (c), omit “(if any)”.

(9) In section 103 (passing of amalgamation or transfer resolution: powers of Certification Officer)—

(a) in the heading, for “Powers of” substitute “Complaint to”;

(b) in subsection (1), omit the words from “; but the Officer” to the end;

(i) in paragraph (b), omit “(if any)”;

(ii) in paragraph (c), omit “(if any)”.

(10) In consequence of the amendments made by subsections (2) to (9), in the Trade Union Act 2016—

(a) in section 17(3), for the words from “to enable the Certification Officer” to “the Officer” substitute “in relation to the powers of the Certification Officer”;

(b) in Schedule 2—

(i) in the heading of the Schedule, omit “without application”;

(ii) in paragraph 3, omit sub-paragraph (2);

(iii) in paragraph 6, omit sub-paragraph (2).

Removal of power to impose financial penalties

84

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) and (3).

(2) Omit section 256D (power to impose financial penalties).

(3) Omit Schedule A4 (Certification Officer: power to impose financial penalties).

(4) In consequence of the amendments made by subsections (2) and (3), in the Trade Union Act 2016—

(a) in section 19, omit subsections (1) to (3);

(b) omit Schedule 3.

Removal of power to impose levy

85

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) and (3).

(2) Omit section 257A (levy payable to Certification Officer).

(3) In section 258 (Certification Officer: annual reports and account), omit subsection (1A).

(4) In consequence of the amendments made by subsections (2) and (3), omit section 20 of the Trade Union Act 2016.

Appeals to the Employment Appeal Tribunal

86

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

(2) In section 45D (appeals from Certification Officer on question arising in proceedings etc under Chapters 1, 2 and 3 of Part 1), after “question” insert “of law”.

(3) In section 56A (appeal from Certification Officer on question arising in proceedings etc under section 55), after “question” insert “of law”.

(4) In section 95 (appeal from Certification Officer on question arising in proceedings etc under Chapter 6 of Part 1), after “question” insert “of law”.

(5) In section 104 (appeal from Certification Officer on question arising in proceedings etc under section 103), after “question” insert “of law”.

(6) In section 108C (appeal from Certification Officer on question arising in proceedings etc under Chapter 7A of Part 1), after “question” insert “of law”.

General

Employment outside Great Britain

87

In section 285 of the Trade Union and Labour Relations (Consolidation) Act 1992 (employment outside Great Britain)—

(a) in subsection (1), before “works” insert “ordinarily”;

(b) in subsection (1A), before “works” insert “ordinarily”.

Regulations subject to affirmative resolution procedure

88

In section 293 of the Trade Union and Labour Relations (Consolidation) Act 1992 (regulations), for subsection (3) substitute—

(3) Regulations under this section are to be made by statutory instrument. (4) A statutory instrument containing regulations to which subsection (5) applies (whether alone or with other provision) may not be made unless a draft of the instrument is laid before and approved by a resolution of each House of Parliament. (5) This subsection applies to regulations prescribing anything for the purposes of— (a) section 70ZC (access agreements: response period and negotiation period); (b) section 70ZE (access agreements: period to make application to Central Arbitration Committee); (c) section 70ZF (access agreements: determinations by Central Arbitration Committee); (d) section 70ZJ (enforcement of access agreements: amounts payable for breach); (e) section 236A (detriment for taking industrial action). (6) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

Devolved Welsh authorities

89

In consequence of provision made by this Part—

(a) in the Trade Union and Labour Relations (Consolidation) Act 1992—

(i) omit section 297B (devolved Welsh authorities);

(ii) in section 299 (index of defined expressions), omit the entry for “devolved Welsh authority”;

(b) in the Trade Union (Wales) Act 2017 (anaw 4), omit section 1 (amendments to the Trade Union and Labour Relations (Consolidation) Act 1992).

Part 5 — Enforcement of labour market legislation

General

Enforcement of labour market legislation by Secretary of State

90

(1) The Secretary of State has the function of enforcing the labour market legislation listed in Part 1 of Schedule 7 (but see also section 92).

(2) For the purposes of enabling the Secretary of State to perform that function, this Part confers powers on—

(a) the Secretary of State, and

(b) enforcement officers.

(3) In this Part “enforcement officer” means a person appointed by the Secretary of State under this section.

(4) The powers of an enforcement officer include power to exercise any of the Secretary of State’s enforcement functions, other than the function under subsection (1).

(5) Accordingly, in the case of the exercise by an enforcement officer of an enforcement function of the Secretary of State, any reference in an enactment to the Secretary of State in connection with that function is to be read as, or as including, a reference to that officer or any other enforcement officer.

(6) A person appointed under this section may exercise any powers of an enforcement officer to the extent specified in the appointment.

(7) Subsection (1) does not limit the Secretary of State’s powers under—

(a) section 116 (power to bring proceedings in employment tribunal), or

(b) section 117 (power to provide legal assistance).

(8) Nothing in this section authorises the Secretary of State to bring proceedings in Scotland for an offence.

Enforcement functions of Secretary of State

91

(1) Any reference in this Part to an enforcement function of the Secretary of State is a reference to—

(a) any function of the Secretary of State under this Part,

(b) any function of the Secretary of State under any provision of relevant labour market legislation, or

(c) any other function of the Secretary of State that is exercisable for the purposes of enforcing any relevant labour market legislation.

(2) But the following functions are not enforcement functions of the Secretary of State for the purposes of this Part—

(a) the power to appoint enforcement officers under section 90;

(b) any function under section 92 (delegation of functions);

(d) any function under section 94 or 95 (strategies and reports);

(e) any function under or by virtue of section 116 or 117 (powers in relation to civil proceedings);

(f) any function under Part 1 of Schedule 11 (transfer schemes);

(g) any power to give directions or make subordinate legislation.

Delegation of functions

92

(1) The Secretary of State may make arrangements with a public authority—

(a) for the authority to exercise any delegable function of the Secretary of State to the extent specified in the arrangements;

(b) for officers or other staff of the authority to be appointed as enforcement officers.

(2) The following functions are “delegable functions”—

(a) any enforcement function of the Secretary of State;

(b) any function of the Secretary of State by virtue of section 116 (power to bring proceedings in employment tribunal);

(c) any function of the Secretary of State under section 7 or 11 of the Gangmasters (Licensing) Act 2004 (powers relating to licensing of gangmasters).

(3) Accordingly, in the case of the exercise of a function by a public authority in accordance with arrangements under this section, any reference in an enactment to the Secretary of State in connection with that function is to be read as a reference to that authority.

(4) Arrangements under this section may provide for payments to be made by the Secretary of State in respect of the performance of any function to which the arrangements relate.

(5) Arrangements under this section do not prevent the Secretary of State from performing a function to which the arrangements relate.

(6) In this section “public authority” means a person certain of whose functions are functions of a public nature.

Advisory Board

93

(1) The Secretary of State must establish an Advisory Board (“the Board”) for the purposes of providing advice to the Secretary of State about such matters as the Secretary of State may specify relating to the Secretary of State’s function under section 90 (1).

(2) The Board is to consist of not fewer than nine members appointed by the Secretary of State.

(3) Each member of the Board is to hold and vacate office in accordance with the terms and conditions of the member’s appointment.

(4) The members of the Board must include an equal number of each of the following—

(a) persons appearing to the Secretary of State to represent the interests of trade unions;

(b) persons appearing to the Secretary of State to represent the interests of employers;

(5) For the purposes of subsection (4)(c) an “independent expert” is a person who—

(a) is not a person falling within paragraph (a) or (b) of subsection (4), and

(b) has expertise that is relevant to the Secretary of State’s function under section 90(1).

(6) The Secretary of State may pay such remuneration or allowances to members of the Board as the Secretary of State may determine.

(7) In addition to the matters referred to in subsection (1), the Board may also provide advice to the Secretary of State about such matters as the Secretary of State may specify relating to the Secretary of State’s functions under or by virtue of sections 116 and 117 (powers in relation to civil proceedings).

Strategies and reports

Labour market enforcement strategy

94

(1) The Secretary of State must, before the beginning of each relevant three-year period (see subsection (6)), prepare and publish a labour market enforcement strategy for that period.

(2) A labour market enforcement strategy is a document that—

(a) sets out the Secretary of State’s assessment of—

(i) the scale and nature of non-compliance with relevant labour market legislation during the period of three years ending immediately before the strategy period, and

(ii) the likely scale and nature of such non-compliance during the strategy period,

(b) contains a proposal for the strategy period setting out how enforcement functions of the Secretary of State are to be exercised, and

(3) The Secretary of State—

(a) may, at any time during the strategy period, revise the labour market enforcement strategy, and

(b) must publish any revised labour market enforcement strategy.

(4) In preparing or revising a labour market enforcement strategy, the Secretary of State must consult the Advisory Board.

(5) The Secretary of State must lay before Parliament and the Northern Ireland Assembly a copy of any strategy published under this section.

(6) In this section—

“relevant three-year period” means— the period of three years beginning with the next 1 April after the day on which this section comes into force; each successive period of three years;

“strategy period”, in relation to a labour market enforcement strategy, means the period to which the strategy relates.

Annual reports

95

(1) As soon as reasonably practicable after the end of each financial year, the Secretary of State must prepare and publish an annual report for that year.

(2) The annual report must include the following—

(a) an assessment of the extent to which enforcement functions of the Secretary of State were exercised in accordance with the applicable strategy during the year;

(b) an assessment of the extent to which the applicable strategy had an effect on the scale and nature of non-compliance with relevant labour market legislation during the year.

(3) Before publishing an annual report under this section, the Secretary of State must consult the Advisory Board.

(4) The Secretary of State must lay before Parliament and the Northern Ireland Assembly a copy of every annual report published under this section.

(5) In this section—

“the applicable strategy”, in relation to a financial year, means any labour market enforcement strategy published under section 94 that has effect for that year;

“financial year” means— the period beginning with the day on which this section comes into force and ending with the following 31 March, and each successive period of 12 months.

Powers to obtain documents or information

Power to obtain documents or information

96

(1) The Secretary of State may by notice require a person—

(a) to attend at a specified time and place and to provide information by answering questions;

(b) to provide specified information, or information of a specified description, by a specified date;

In this subsection “specified” means specified in the notice.

(2) The Secretary of State may give a notice under this section to a person only if the Secretary of State has reasonable grounds to believe that—

(a) in the case of a requirement under subsection (1)(a), the person is able to provide information which is necessary for any enforcement purpose;

(b) in the case of a requirement under subsection (1)(b) or (c)—

(i) it is necessary to obtain the information or document (as the case may be) for any enforcement purpose, and

(ii) the person is able to provide it.

(3) In this section “enforcement purpose” means—

(a) the purpose of enabling the Secretary of State to determine whether to exercise any enforcement function;

(b) the purpose of determining whether there has been any non-compliance with relevant labour market legislation;

(c) in the case of a requirement under subsection (1)(c), the purpose of ascertaining whether the documents may be required as evidence in proceedings for any non-compliance with relevant labour market legislation.

Power to enter premises in order to obtain documents, etc

97

(1) An enforcement officer may, for any enforcement purpose—

(a) enter any premises, and

(b) exercise any powers within subsection (2).

This is subject to section 98 (which provides that a warrant is necessary to enter a dwelling).

(2) The powers referred to in subsection (1)(b) are—

(a) to inspect or examine any documents on the premises;

(b) to require any person on the premises to produce any documents which the officer has reasonable grounds to believe are on the premises and within the person’s possession or control;

(c) to have access to, and check the operation of, any computer or other equipment used in connection with the processing or storage of any information or documents.

(3) The officer may only exercise a power conferred by this section at a reasonable time, unless it appears to the officer that there are grounds for suspecting that the purpose of entering the premises may be frustrated if the officer seeks to enter at a reasonable time.

(4) An enforcement officer may seize any document produced, inspected or examined under this section.

(5) In this section—

“enforcement purpose” means— the purpose of enabling the Secretary of State to determine whether to exercise any enforcement function; the purpose of determining whether there has been any non-compliance with relevant labour market legislation; the purpose of ascertaining whether there are documents on the premises which may be required as evidence in proceedings for any non-compliance with relevant labour market legislation;

“equipment” includes software.

Power to enter dwelling subject to warrant

98

(1) An enforcement officer may not by virtue of section 97 enter any dwelling unless a justice has issued a warrant authorising the officer to enter the dwelling.

(2) A justice may issue a warrant under this section only if, on an application by the officer, the justice is satisfied—

(a) that the officer has reasonable grounds to believe that—

(i) there are documents in the dwelling which for any enforcement purpose the officer wishes to inspect, examine or seize, or

(ii) there is computer or other equipment in the dwelling to which the officer wishes to have access for any enforcement purpose, and

(b) that any of the conditions in subsection (3) is satisfied.

(3) The conditions are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the dwelling;

(b) that it is not practicable to communicate with any person entitled to grant access to the documents or equipment;

(d) that the purpose of entry may be frustrated or seriously prejudiced unless an enforcement officer arriving at the dwelling can secure immediate entry to it.

(4) In this section—

“enforcement purpose” has the same meaning as in section 97;

“justice” means— in relation to England and Wales, a justice of the peace; in relation to Scotland, a sheriff or summary sheriff; in relation to Northern Ireland, a lay magistrate.

(5) For further provision about warrants under this section, see section 131 and Schedule 8.

Supplementary powers in relation to documents

99

(1) A power conferred by section 96 or 97 to require the production or provision of any document includes, in the case of a document stored in an electronic form, power to require the document to be produced or provided in a form—

(a) in which it can be taken away, and

(b) in which it is visible and legible or from which it can readily be produced in a visible and legible form.

(2) The Secretary of State may inspect or examine any document provided under section 96.

(3) The Secretary of State or an enforcement officer may take copies of any document—

(a) provided in response to a requirement under section 96, or

(b) inspected, examined or produced under section 97.

Retention of documents

100

(1) This section applies to any document which—

(a) is provided in response to a requirement under section 96, or

(b) is seized under section 97.

(2) The document may be retained so long as is necessary in all the circumstances and in particular—

(a) for use as evidence at a trial for a labour market offence, or

(b) for forensic examination or for investigation in connection with a labour market offence.

(3) No document may be retained for either of the purposes mentioned in subsection (2) if a photograph or a copy would be sufficient for that purpose.

Other powers to investigate non-compliance

Powers of enforcement officers under Police and Criminal Evidence Act 1984

101

For provision enabling enforcement officers in England and Wales to exercise powers under the Police and Criminal Evidence Act 1984 in relation to the investigation of labour market offences, see section 114B of that Act.

Offences relating to gangmasters: power to enter premises with warrant

102

(1) In this section—

(a) “relevant contravention” means a contravention of section 6 of the Gangmasters (Licensing) Act 2004 (prohibition of unlicensed activities), so far as it applies in relation to England and Wales and Scotland;

(b) references to an enforcement officer do not include an enforcement officer who is authorised by virtue of section 114B of the Police and Criminal Evidence Act 1984 to exercise any power under Part 2 of that Act in relation to a relevant contravention.

(2) If a justice is satisfied that there are reasonable grounds for an enforcement officer to enter relevant premises for the purpose of determining whether there has been a relevant contravention, and is also satisfied—

(a) that admission to the premises has been refused, or that a refusal is expected, and (in either case) that notice of the intention to apply for a warrant has been given to the occupier,

(b) that an application for admission, or the giving of such a notice, would defeat the object of the entry,

(d) that the premises are unoccupied or the occupier is temporarily absent,

the justice may issue a warrant authorising the enforcement officer to enter the premises, if necessary using reasonable force.

(3) The reference in subsection (2) to being satisfied that there are reasonable grounds as mentioned in that subsection is, in relation to England and Wales, a reference to being satisfied by written information on oath.

(4) An enforcement officer entering any premises by virtue of a warrant under this section may—

(a) when entering the premises, bring any equipment which the officer considers necessary,

(b) exercise any power conferred by section 97 (2) or (4),

(c) carry out on the premises any other inspections and examinations which the officer considers necessary for the purpose of determining whether there has been a relevant contravention, and

(d) seize any item which is on the premises.

(5) Where by virtue of subsection (4)(d) an enforcement officer seizes any item, the officer must leave on the premises from which the item was removed a statement giving details of what was seized and stating that the officer has seized it.

(6) Any item seized by an enforcement officer by virtue of subsection (4)(d) may be retained for as long as the officer considers necessary for the purpose of determining whether there has been a relevant contravention.

(7) In this section—

“justice” means— in relation to England and Wales, a justice of the peace; in relation to Scotland, the sheriff, a summary sheriff or a justice of the peace;

“relevant premises” means any premises which an enforcement officer has reasonable grounds to believe are— premises where a person acting as a gangmaster, or a person supplied with workers or services by a person acting as a gangmaster, carries on business, or premises which such a person uses in connection with the person’s business;

“worker” has the same meaning as in the Gangmasters (Licensing) Act 2004 (see section 26 of that Act).

(8) Section 4 of the Gangmasters (Licensing) Act 2004 (acting as a gangmaster) applies for the purposes of this section as it applies for the purposes of that Act.

(9) For further provision about warrants under this section, see section 131 and Schedule 8.

Notices of underpayment

Power to give notice of underpayment

103

(1) Where it appears to the Secretary of State that—

(a) on any day (“the relevant day”), a sum in respect of—

(i) one or more periods ending before the relevant day, or

(ii) one or more events occurring before the relevant day,

was due from a person (the “liable party”) to an individual (the “underpaid individual”) under or by virtue of a statutory pay provision (see subsection (7)), and

(b) any period for payment of that sum to be made has ended without the sum having been paid to the underpaid individual,

the Secretary of State may give a notice of underpayment to the liable party.

(2) A notice of underpayment is a notice under this section requiring the liable party to pay the required sum to the underpaid individual before the end of the period of 28 days beginning with the day on which the notice is given.

For the meaning of the “required sum”, see section 104.

(3) Subsection (1) is subject to—

(a) subsection (6), and

(b) section 105 (period to which notice of underpayment may relate).

(4) The Secretary of State may give a notice of underpayment to a person in respect of a sum that was due from the person on the relevant day whether or not the sum remains due at the time of the giving of the notice (see, in particular, section 107 (penalties for underpayment)).

(5) But where all or part of that sum has been paid before the giving of the notice, the requirement imposed by the notice is, to that extent, to be treated as met.

(6) The Secretary of State may not give a notice of underpayment in respect of any matter if—

(a) proceedings have been brought about the matter by virtue of section 116 (power to bring proceedings in employment tribunal), and

(b) the proceedings have not been finally determined or discontinued.

(7) In this Part “statutory pay provision” means a provision of relevant labour market legislation that—

(a) confers a right or entitlement to the payment of any sum to an individual, or

(b) prohibits or restricts the withholding of payment of any sum to an individual.

Calculation of the required sum

104

(1) For the purposes of section 103 (2), the “required sum” is whichever is the greater of the following sums—

(a) the sum that was due to the underpaid individual on the relevant day;

(b) in a case where regulations under subsection (2) apply, the sum determined in accordance with the regulations.

This is subject to subsection (4).

(2) Regulations made by the Secretary of State may make provision for determining the sum required to be paid to an individual by a notice of underpayment in a case where the sum due to the individual on any day under or by virtue of a statutory pay provision would have been greater had that sum been determined by reference to the statutory pay provision as it has effect at the time of giving the notice of underpayment.

(3) But regulations under subsection (2) may not make provision in relation to any provision of the National Minimum Wage Act 1998 (see instead section 17 of that Act).

(4) If the required sum in respect of an underpaid individual would (in the absence of this subsection) be greater than the specified maximum for the statutory pay provision concerned, the required sum in respect of the underpaid individual is the specified maximum.

(5) For the purposes of subsection (4) “the specified maximum”, in relation to a statutory pay provision, means an amount specified by, or determined in accordance with, regulations made by the Secretary of State.

(6) Regulations under this section are subject to the affirmative resolution procedure.

Period to which notice of underpayment may relate

105

(1) A notice of underpayment may not relate to any sum that became due under or by virtue of a statutory pay provision before the beginning of the claim period.

(2) The “claim period”, in relation to a notice of underpayment, is the period of six years ending with the day on which the notice is given.

(3) The Secretary of State may by regulations amend this section so as to alter the length of the claim period.

(4) Regulations under subsection (3)—

(a) may specify different claim periods in relation to different statutory pay provisions;

(b) may not provide for the claim period in relation to a notice of underpayment to be greater than the period of six years ending with the day on which the notice is given.

(5) Regulations under subsection (3) are subject to the affirmative resolution procedure.

(6) A notice of underpayment may relate to sums that became due before the coming into force of this section.

(7) But a notice of underpayment may not relate to any sum that became due before the day on which this Act is passed.

(8) Subsection (7) does not apply to a notice of underpayment so far as it relates to any sum due under section 17 of the National Minimum Wage Act 1998 (entitlement to additional remuneration for failure to pay at least the minimum wage).

(9) See also section 112 (3) (claim period for replacement notices of underpayment).

Means of giving notice under section 119

106

(1) Where a notice of underpayment relates to more than one underpaid individual, the notice may identify the individuals by name or by description.

(2) A notice of underpayment must specify, for each underpaid individual to whom it relates—

(a) the relevant day in relation to the individual;

(b) the sum due to the individual on that day and how that sum was calculated;

(d) the statutory pay provision under or by virtue of which it was due;

(e) the fact that any period for payment of that sum to be made ended without the sum having been paid;

(f) the required sum in respect of the individual and (if different from the sum mentioned in paragraph (b)) how that sum was calculated.

Penalties for underpayment

107

(1) A notice of underpayment must require the liable party to pay a penalty to the Secretary of State.

This is subject to section 108 (1) (power to specify exceptions).

(2) The penalty must be paid before the end of the period of 28 days beginning with the day on which the notice is given.

(3) The amount of the penalty is the total of the amounts for each underpaid individual to whom the notice relates calculated in accordance with subsections (4) and (5) (but see subsection (6)).

(4) The amount for each underpaid individual to whom the notice relates is 200% of the sum specified in the notice of underpayment as the sum due to the individual on the relevant day (see section 106 (2)(b)).

(5) But if the amount determined under subsection (4) for any underpaid individual would be more than £20,000, the amount for the individual taken into account in calculating the penalty is to be £20,000.

(6) If a penalty calculated in accordance with subsection (3) would be less than £100, the amount of the penalty is to be £100.

(7) The Secretary of State may by regulations amend this section—

(a) so as to substitute a different percentage for a percentage for the time being specified in this section;

(b) so as to substitute a different amount for an amount for the time being specified in this section;

(8) Regulations under subsection (7) are subject to the affirmative resolution procedure.

Further provision about penalties

108

(1) The Secretary of State may by directions specify circumstances in which a notice of underpayment is not to impose a requirement to pay a penalty.

(2) A direction under subsection (1) may be amended or revoked by a further direction.

(3) A notice of underpayment that imposes a requirement to pay a penalty must—

(a) specify the amount of the penalty,

(b) state how that amount was calculated, and

(4) In a case where a notice of underpayment imposes a requirement on a person to pay a penalty, if the person, before the end of the period of 14 days beginning with the day on which the notice is given—

(a) pays (or has paid) the required sum specified in the notice of underpayment, and

(b) pays at least half the penalty,

the person is to be regarded as having paid the penalty.

(5) Any penalty received by the Secretary of State in accordance with section 107 is to be paid into the Consolidated Fund.

Suspension of penalty where criminal proceedings have been brought, etc

109

(1) Subsection (3) applies where—

(a) the Secretary of State is proposing to give a notice of underpayment that imposes a requirement on a person to pay a penalty, and

(b) it appears to the Secretary of State that—

(i) relevant criminal proceedings have been brought, or

(ii) relevant criminal proceedings may be brought.

(2) In this section “relevant criminal proceedings” means proceedings against the person for a labour market offence in respect of any act or omission to which the notice relates (“the relevant conduct”).

(3) The notice of underpayment may contain provision suspending the requirement to pay the penalty until a notice terminating the suspension is given to the person under subsection (4).

(4) The Secretary of State may give the person a notice terminating the suspension (a “penalty activation notice”) if it appears to the Secretary of State—

(a) in a case referred to in subsection (1)(b)(i), that the proceedings have concluded without the person having been convicted of a labour market offence in respect of the relevant conduct, or

(b) in a case referred to in subsection (1)(b)(ii)—

(i) that relevant criminal proceedings will not be brought, or

(ii) that relevant criminal proceedings have concluded without the person having been convicted of a labour market offence in respect of the relevant conduct.

(5) Where a penalty activation notice is given, the requirement to pay the penalty has effect as if the notice of underpayment had been given on the day on which the penalty activation notice was given.

(6) The Secretary of State must give the person a notice withdrawing the requirement to pay the penalty if it appears to the Secretary of State that the person has been convicted of a labour market offence in respect of the relevant conduct.

Appeals against notices of underpayment

110

(1) A person to whom a notice of underpayment is given may appeal to a tribunal against any one or more of the following—

(a) the decision to give the notice;

(b) any requirement imposed by the notice to pay a sum to an individual;

(2) An appeal under this section must be made before the end of the period of 28 days beginning with the day on which the notice is given.

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