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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

(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.

(3) An appeal under subsection (1)(a) may be made only on one or more of the following grounds—

(a) that no sum was due to any individual to whom the notice relates on the specified day under or by virtue of the specified provision;

(b) that, in the case of every sum specified in the notice as due to an individual to whom the notice relates, the sum had been paid before the end of the period mentioned in section 103 (1)(b);

(c) that, in the case of every sum specified in the notice as due to an individual to whom the notice relates, the sum was one to which a notice may not relate by virtue of subsection (1) or (7) of section 105 (period to which notice may relate).

(4) An appeal under subsection (1)(b) in relation to an individual may be made only on one or more of the following grounds—

(a) that, on the specified day, no sum was due to the individual under or by virtue of the specified provision;

(b) that, in the case of any sum specified in the notice as due to the individual, the sum had been paid before the end of the period mentioned in section 103 (1)(b);

(c) that, in the case of any sum specified in the notice as due to the individual, the sum was one to which a notice may not relate by virtue of subsection (1) or (7) of section 105;

(d) that the amount specified in the notice as the sum required to be paid to the individual is incorrect;

(e) that, in the case of a replacement notice given under section 112, the notice contravenes subsection (2) of that section.

(5) An appeal under subsection (1)(c) may be made only on one or more of the following grounds—

(a) that the notice was given in circumstances specified in a direction under section 108 (1);

(b) that the amount of the penalty specified in the notice of underpayment has been incorrectly calculated (whether because the notice is incorrect in some of the particulars which affect that calculation or for some other reason).

(6) Where the tribunal allows an appeal under subsection (1)(a), it must cancel the notice.

(7) Where, in a case where subsection (6) does not apply, the tribunal allows an appeal under subsection (1)(b) or (c)—

(a) the tribunal must rectify the notice, and

(b) the notice of underpayment, as rectified, has effect as if it had been given on the day on which the tribunal makes its determination.

(8) In this section—

“the specified day”, in relation to an individual, means the day specified in accordance with section 106 (2)(a) in relation to the individual;

“the specified provision”, in relation to an individual, means the statutory pay provision specified in accordance with section 106 (2)(d) in relation to the individual;

“tribunal” means— an employment tribunal, in relation to England and Wales or Scotland; an industrial tribunal, in relation to Northern Ireland.

Withdrawal of notice of underpayment

111

(1) Where—

(a) a notice of underpayment has been given to a person (and not already withdrawn or cancelled), and

(b) it appears to the Secretary of State that the notice incorrectly includes or omits any requirement or is incorrect in any particular,

the Secretary of State may withdraw it by giving a notice of withdrawal to the person.

(2) Where a notice of underpayment given to a person is withdrawn and no replacement notice of underpayment is given in accordance with section 112—

(a) any sum paid by or recovered from the person by way of penalty payable under the notice must be repaid to the person with interest at the appropriate rate running from the date when the sum was paid or recovered;

(b) any appeal against the notice must be dismissed.

(3) In subsection (2)(a) “the appropriate rate” means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838.

(4) Where subsection (2) applies, the notice of withdrawal must indicate the effect of that subsection (but a failure to do so does not make the withdrawal ineffective).

Replacement notice of underpayment

112

(1) If the Secretary of State—

(a) gives a notice of withdrawal to a person under section 111, and

(b) is of the opinion referred to in section 103 (1) in relation to any individual specified in the notice which is being withdrawn (“the original notice”),

the Secretary of State may at the same time give a fresh notice of underpayment to the person (a “replacement notice”).

(2) The replacement notice may not relate to any individual to whom the original notice did not relate.

(3) The claim period for a replacement notice (see section 105 (1)) is the period—

(a) beginning with the claim period for the original notice, and

(b) ending with the day on which the replacement notice is given.

Accordingly, the replacement notice may relate to sums that became due after the day on which the original notice was given.

(4) The replacement notice must—

(a) set out the differences between it and the original notice that it is reasonable for the Secretary of State to consider are material, and

(b) explain the effect of section 113.

(5) Failure to comply with subsection (4) does not make the replacement notice ineffective.

(6) Where a replacement notice is withdrawn under section 111, no further replacement notice may be given under subsection (1) as a result of the withdrawal.

(7) Nothing in this section affects any power that exists apart from this section to give a notice of underpayment in relation to any underpaid individual.

Effect of replacement notice of underpayment

113

(1) This section applies where a notice of underpayment is withdrawn under section 111 and a replacement notice is given in accordance with section 112.

(2) If an appeal has been made under section 110 in respect of the original notice and the appeal has not been withdrawn or finally determined before the time when that notice is withdrawn—

(a) that appeal (“the earlier appeal”) has effect after that time as if it had been made in respect of the replacement notice, and

(b) the person given the notice may exercise the right of appeal under that section in respect of the replacement notice only if the earlier appeal is withdrawn.

(3) If a sum was paid by or recovered from the person by way of penalty under the original notice—

(a) an amount equal to that sum (or, if more than one, the total of those sums) is to be treated as having been paid in respect of the penalty imposed by the replacement notice, and

(b) any amount by which that sum (or total) exceeds the amount of the penalty imposed by the replacement notice must be repaid to the person with interest at the appropriate rate running from the date when the sum (or, if more than one, the first of them) was paid or recovered.

(4) In subsection (3)(b) “the appropriate rate” means the rate that, on the date mentioned in that provision, was specified in section 17 of the Judgments Act 1838.

Enforcement of requirement to pay sums due to individuals

114

(1) In a case where it appears to the Secretary of State that the liable party has failed to comply with a requirement in a notice of underpayment to pay a sum to an underpaid individual, the Secretary of State may apply to the court for an order under this section.

(2) An application under this section may be made only if—

(a) the relevant 28-day period has ended, and

(b) the liable party’s appeal rights are exhausted (see subsection (5)).

(3) If, on an application under this section, the court is satisfied that—

(a) the notice was given to the liable party and has not been withdrawn, and

(b) the liable party has failed to comply with a requirement imposed by the notice to pay a sum to an underpaid individual,

the court must order the liable party to pay the sum to the underpaid individual within the period specified in the order.

(4) This section does not affect any right of an underpaid individual to recover any sums owed by the liable party to the individual.

(5) For the purposes of this section, the liable party’s appeal rights are exhausted if—

(a) the relevant 28-day period ended without an appeal being made under section 110 in respect of the notice,

(b) any appeal made under that section by the liable party in respect of the notice has been withdrawn, or

(c) any such appeal has been finally determined and the notice has not been cancelled under subsection (6) of that section.

(6) In this section—

“the court” means— the county court, in relation to England and Wales; the sheriff or a summary sheriff, in relation to Scotland; a county court, in relation to Northern Ireland;

“the relevant 28-day period” means the period of 28 days beginning with the day on which the notice (or, where section 110 (7)(b) applies, the rectified notice) is given.

Enforcement of requirement to pay penalty

115

(1) In England and Wales, a penalty is recoverable as if it were payable under an order of the county court.

(2) In Scotland, a penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(3) In Northern Ireland, a penalty is recoverable as if it were payable under an order of a county court.

(4) Where action is taken under this section for the recovery of a penalty, the penalty—

(a) in relation to England and Wales, is to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc) as if it were a judgment entered in the county court;

(b) in relation to Northern Ireland, is to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order.

(5) In this section “penalty” means a penalty payable under a notice of underpayment.

Powers relating to civil proceedings

Power to bring proceedings in employment tribunal

116

(1) In a case where—

(a) a worker has the right under any enactment to bring proceedings about a matter in an employment tribunal in England and Wales or Scotland, and

(b) it appears to the Secretary of State that the worker is not going to bring proceedings about that matter,

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