13152.1-7

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Lords Amendments to the Enterprise and Regulatory Reform Bill

LORDS amendments to the
Enterprise and Regulatory Reform Bill
[The page and line references are to HL Bill 45, the bill as first printed for the Lords.]
Clause 1
1
Page 1, line 10, leave out “subsection (1)” and insert “this Part”
Clause 2
2
Page 1, line 13, leave out “two” and insert “three”
3
Page 2, line 6, at end insert—

“(2A)
The second condition is that the Secretary of State is satisfied that the

Bank’s objects in its articles of association are such that, acting consistently

with them, its activities in making, facilitating or encouraging investments

in each relevant period would (taken as a whole) be such as the Bank

considers likely to contribute to a reduction of global greenhouse gas

emissions.

(2B)
In subsection (2A), “relevant period” means each financial year of the Bank

taken together with all of its preceding financial years.”
4
Page 2, line 7, leave out “second” and insert “third”
Clause 3
5
Page 2, line 30, leave out “condition in subsection (3) is met” and insert “following

two conditions are met”
6
Page 2, line 31, after first “The” insert “first”
7
Page 2, line 36, at end insert—

“( )
The second condition is that the Secretary of State is satisfied that, if the

alteration were made, the Bank’s objects in its articles of association would

remain such that, acting consistently with them, its activities in making,

facilitating or encouraging investments in each relevant period (within the

meaning given by section 2(4)) would (taken as a whole) be such as the

Bill 152 55/2

2

Bank considers likely to contribute to a reduction of global greenhouse gas

emissions.”
Clause 5
8
Page 3, line 27, at end insert—

“( )
Where an order has been made under section 2, each report prepared by

the directors of the Bank for a financial year under section 415 of the

Companies Act 2006 must include—

(a)
an explanation of the steps that the Bank took in that year to ensure

that its activities in making, facilitating or encouraging investments

in that year and in any previous financial years would (taken as a

whole) be likely to contribute to a reduction of global greenhouse

gas emissions, and

(b)
a statement of the directors’ views on the likely effect of those

activities in those years on global greenhouse gas emissions.”
After Clause 9
9
Insert the following new Clause—

“ACAS: prohibition on disclosure of information

In Part 6 of the Trade Union and Labour Relations (Consolidation) Act 1992

(ACAS etc), after section 251A insert—

“251B
Prohibition on disclosure of information

(1)
Information held by ACAS shall not be disclosed if the

information—

(a)
relates to a worker, an employer of a worker or a trade

union (a “relevant person”), and

(b)
is held by ACAS in connection with the provision of a

service by ACAS or its officers.


This is subject to subsection (2).

(2)
Subsection (1) does not prohibit the disclosure of information if—

(a)
the disclosure is made for the purpose of enabling or

assisting ACAS to carry out any of its functions under this

Act,

(b)
the disclosure is made for the purpose of enabling or

assisting an officer of ACAS to carry out the functions of a

conciliation officer under any enactment,

(c)
the disclosure is made for the purpose of enabling or

assisting—

(i)
a person appointed by ACAS under section 210(2),

or

(ii)
an arbitrator or arbiter appointed by ACAS under

any enactment,


to carry out functions specified in the appointment,

(d)
the disclosure is made for the purposes of a criminal

investigation or criminal proceedings (whether or not

within the United Kingdom),

(e)
the disclosure is made in order to comply with a court order,

3

(f)
the disclosure is made in a manner that ensures that no

relevant person to whom the information relates can be

identified, or

(g)
the disclosure is made with the consent of each relevant

person to whom the information relates.

(3)
Subsection (2) does not authorise the making of a disclosure which

contravenes the Data Protection Act 1998.

(4)
A person who discloses information in contravention of this section

commits an offence and is liable on summary conviction to a fine

not exceeding level 5 on the standard scale.

(5)
Proceedings in England and Wales for an offence under this section

may be instituted only with the consent of the Director of Public

Prosecutions.

(6)
For the purposes of this section information held by—

(a)
a person appointed by ACAS under section 210(2) in

connection with functions specified in the appointment, or

(b)
an arbitrator or arbiter appointed by ACAS under any

enactment in connection with functions specified in the

appointment,


is information that is held by ACAS in connection with the

provision of a service by ACAS.””
Clause 11
10
Page 7, leave out lines 33 to 36
11
Page 7, line 40, leave out “a specified number of appointed members” and insert

“either two or four appointed members”
12
Page 8, leave out lines 1 to 3 and insert—

“(7)
In proceedings heard by a judge and two or four appointed

members, there shall be an equal number of—

(a)
employer-representative members, and

(b)
worker-representative members.”
Before Clause 12
13
Insert the following new Clause—

“Dismissal for political opinions: no qualifying period of employment

In section 108 of the Employment Rights Act 1996 (qualifying period of

employment), after subsection (3) insert—

“(4)
Subsection (1) does not apply if the reason (or, if more than one, the

principal reason) for the dismissal is, or relates to, the employee’s

political opinions or affiliation.””
Clause 14
14
Page 10, line 14, at end insert—

“( )
The tribunal shall have regard to an employer’s ability to pay—

4

(a)
in deciding whether to order the employer to pay a penalty

under this section;

(b)
(subject to subsections (2) to (4A)) in deciding the amount of

a penalty.”
15
Page 10, leave out lines 18 to 32 and insert—


“This subsection does not apply where subsection (3) or (4A)

applies.

(2A)
Subsection (3) applies where an employment tribunal—

(a)
makes a financial award against an employer on a claim,

and

(b)
also orders the employer to pay a penalty under this section

in respect of the claim.

(3)
In such a case, the amount of the penalty under this section shall be

50% of the amount of the award, except that—

(a)
if the amount of the financial award is less than £200, the

amount of the penalty shall be £100;

(b)
if the amount of the financial award is more than £10,000,

the amount of the penalty shall be £5,000.

(4)
Subsection (4A) applies, instead of subsection (3), where an

employment tribunal—

(a)
considers together two or more claims involving different

workers but the same employer, and

(b)
orders the employer to pay a penalty under this section in

respect of any of those claims.

(4A)
In such a case—

(a)
the amount of the penalties in total shall be at least £100;

(b)
the amount of a penalty in respect of a particular claim shall

be—

(i)
no more than £5,000, and

(ii)
where the tribunal makes a financial award against

the employer on the claim, no more than 50% of the

amount of the award.


But where the tribunal makes a financial award on any of the claims

and the amount awarded is less than £200 in total, the amount of the

penalties in total shall be £100 (and paragraphs (a) and (b) shall not

apply).”
16
Page 10, line 35, leave out “(4)” and insert “(4A)”
17
Page 11, line 41, leave out from “(2)” to end of line 42 and insert “, (3) or (4A) by

substituting a different amount”
18
Page 11, line 43, leave out “(4)” and insert “(4A)”
After Clause 15
19
Insert the following new Clause—

5

“Power to reduce compensation where disclosure not made in good faith

(1)
Omit the words “in good faith” in the following provisions of Part 4A of the

Employment Rights Act 1996 (protected disclosures)—

(a)
subsection (1) of section 43C (disclosure to employer or other

responsible person);

(b)
paragraph (b) of section 43E (disclosure to Minister of the Crown);

(c)
subsection (1)(a) of section 43F (disclosure to prescribed person).

(2)
In section 43G of that Act (disclosure in other cases), in subsection (1)—

(a)
omit paragraph (a);

(b)
in paragraph (b), for “he” substitute “the worker”.

(3)
In section 43H of that Act (disclosure of exceptionally serious failure), in

subsection (1)—

(a)
omit paragraph (a);

(b)
in paragraph (b), for “he” substitute “the worker”.

(4)
In section 49 of that Act (remedies for detriment suffered in employment),

after subsection (6) insert—

“(6A)
Where—

(a)
the complaint is made under section 48(1A), and

(b)
it appears to the tribunal that the protected disclosure was

not made in good faith,


the tribunal may, if it considers it just and equitable in all the

circumstances to do so, reduce any award it makes to the worker by

no more than 25%.”

(5)
In section 123 of that Act (compensatory award for unfair dismissal), after

subsection (6) insert—

“(6A)
Where—

(a)
the reason (or principal reason) for the dismissal is that the

complainant made a protected disclosure, and

(b)
it appears to the tribunal that the disclosure was not made

in good faith,


the tribunal may, if it considers it just and equitable in all the

circumstances to do so, reduce any award it makes to the

complainant by no more than 25%.””
20
Insert the following new Clause—

“Worker subjected to detriment by co-worker or agent of employer

(1)
In section 47B of the Employment Rights Act 1996 (protected disclosures),

after subsection (1) insert—

“(1A)
A worker (“W”) has the right not to be subjected to any detriment

by any act, or any deliberate failure to act, done—

(a)
by another worker of W’s employer in the course of that

other worker’s employment, or

(b)
by an agent of W’s employer with the employer’s authority,


on the ground that W has made a protected disclosure.

6

(1B)
Where a worker is subjected to detriment by anything done as

mentioned in subsection (1A), that thing is treated as also done by

the worker’s employer.

(1C)
For the purposes of subsection (1B), it is immaterial whether the

thing is done with the knowledge or approval of the worker’s

employer.

(1D)
In proceedings against W’s employer in respect of anything alleged

to have been done as mentioned in subsection (1A)(a), it is a defence

for the employer to show that the employer took all reasonable

steps to prevent the other worker—

(a)
from doing that thing, or

(b)
from doing anything of that description.

(1E)
A worker or agent of W’s employer is not liable by reason of

subsection (1A) for doing something that subjects W to detriment

if—

(a)
the worker or agent does that thing in reliance on a

statement by the employer that doing it does not contravene

this Act, and

(b)
it is reasonable for the worker or agent to rely on the

statement.


But this does not prevent the employer from being liable by reason

of subsection (1B).”

(2)
In section 48 of that Act (complaints to employment tribunals), in

subsection (5)—

(a)
for “includes, where” substitute “includes—

(a)
where”;

(b)
at the end insert—

“(b)
in the case of proceedings against a worker or agent

under section 47B(1A), the worker or agent.””
21
Insert the following new Clause—

“Extension of meaning of “worker”

(1)
Section 43K of that Act (extension of meaning of “worker”) is amended as

set out in subsections (2) to (7).

(2)
In subsection (1)(ba)—

(a)
for “section 84 or 100 of” substitute “section 83(2), 84, 92, 100, 107,

115(4), 117 or 134 of, or Schedule 12 to,”;

(b)
for “section 42 or 57 of” substitute “section 41(2)(b), 42, 50, 57, 64 or

92 of, or Schedule 7 to,”;

(c)
omit the words after “the National Health Service (Wales) Act

2006”.

(3)
In subsection (1)(bb), after “section 17J” insert “or 17Q”.

(4)
In subsection (1)(c)—

(a)
for the words before “in accordance with arrangements” substitute

“works or worked as a person providing services”;

(b)
in sub-paragraph (ii), after “section” insert “2C, 17AA, 17C,”.

(5)
Omit subsection (1)(ca) and the preceding “or”.

7

(6)
Omit subsection (2)(ba).

(7)
After subsection (3) insert—

“(4)
The Secretary of State may by order make amendments to this

section as to what individuals count as “workers” for the purposes

of this Part (despite not being within the definition in section

230(3)).

(5)
An order under subsection (4) may not make an amendment that

has the effect of removing a category of individual unless the

Secretary of State is satisfied that there are no longer any

individuals in that category.”

(8)
In section 236(3) of that Act (orders etc subject to affirmative resolution

procedure), after “shall be made under section” insert “43K(4),”.”

(9)
In consequence of the amendments made by subsections (6) and (7), omit

paragraph 7(a)(ii) and (b) of the Schedule to the Smoking, Health and Social

Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales

and Northern Ireland) Order 2006 (S.I. 2006/1056).

(10)
Until the coming into force of the repeal (made by Schedule 3 to the

Smoking, Health and Social Care (Scotland) Act 2005 (asp 13)) of sections

27 to 28 of the National Health Service (Scotland) Act 1978 (“the 1978 Act”),

section 43K(1)(c)(ii) of the Employment Rights Act 1996 has effect as if it

included a reference to section 27A of the 1978 Act.”
Clause 19
22
Page 13, line 33, at end insert—

“( )
Section (ACAS: prohibition on disclosure of information) does not apply in

relation to a disclosure, or a request for information, made before that

section comes into force.”
23
Page 13, line 36, at end insert—

“( )
Section (Dismissal for political opinions: no qualifying period of employment)

does not apply where the effective date of termination of the contract of

employment in question is earlier than the date on which that section

comes into force.


“Effective date of termination” here has the meaning given by section 97(1)

of the Employment Rights Act 1996.”
24
Page 13, line 41, at end insert—

“( )
Section (Disclosures not protected unless believed to be made in the public

interest), (Power to reduce compensation where disclosure not made in good faith),

(Worker subjected to detriment by co-worker or agent of employer) or (Extension

of meaning of “worker”) does not apply to a qualifying disclosure made

before the section comes into force.


“Qualifying disclosure” here has the meaning given by section 43B of the

Employment Rights Act 1996.”
25
Page 13, line 42, leave out subsection (4)
After Clause 22
26
Insert the following new Clause—