Enterprise and Regulatory Reform Bill

SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
IN GRAND COMMITTEE

The amendments have been marshalled in accordance with the Instruction of 20th November 2012, as follows—

Clause 7
Schedule 1
Clause 8
Schedule 2
Clauses 9 to 14
Schedule 3
Clauses 15 to 20
Schedule 4
Clause 21
Schedules 5 and 6
Clauses 22 to 24
Schedule 7
Clauses 25 and 26
Schedule 8
Clauses 27 and 28
Schedule 9
Clause 29
Schedule 10
Clause 30
Schedule 11
Clauses 31 and 32
Schedule 12
Clauses 33 to 35
Schedule 13
Clauses 36 to 45
Schedule 14
Clauses 46 to 49
Schedule 15
Clauses 50 to 52
Schedule 16
Clauses 53 to 55
Schedule 17
Clauses 56 to 63
Schedules 18 and 19
Clause 64
Schedule 20
Clauses 65 to 68
Schedule 21
Clauses 69 to 80

[Amendments marked * are new or have been altered]

Clause 7

BARONESS DONAGHY

LORD YOUNG OF NORWOOD GREEN

16A

Page 4, line 13, at end insert—

“( ) Prior to the commencement of this section, the Secretary of State shall carry out an impact assessment into the effect of the introduction of proposed fees for the employment tribunal system and the impact this will have on the effectiveness of ACAS conciliation proceedings.”

BARONESS TURNER OF CAMDEN

17

Page 4, line 32, at end insert—

“( ) Should the intervention of the conciliation officer not result in an agreed settlement, the claimant may proceed immediately to an employment tribunal.”

18

Page 4, line 33, leave out from beginning to end of line 5 on page 5

19

Page 5, leave out lines 6 to 8

20

Page 5, leave out lines 23 to 43

BARONESS DONAGHY

LORD YOUNG OF NORWOOD GREEN

20A

Page 6, line 23, at end insert—

“(3) The Secretary of State must within 12 months of the coming into force of this Act, and afterwards annually, prepare and lay before both Houses of Parliament a report on the workings and implementation of this section.”

Clause 10

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

20B

Page 7, line 19, at end insert—

“(6E) The Secretary of State and the Lord Chancellor acting jointly, shall consult on—

(a) the level of professional attainment required by legal officers to carry out provisions in subsection (6D);

(b) the appropriate remit of proceedings that an appointed legal officer could determine; and

(c) the appropriate mechanism for appeal,

with regards to the provisions of subsection (6D).”

Clause 11

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

20C

Page 7, line 28, at end insert “with the consent of both parties”

20D

Page 7, line 41, at end insert “such number to be greater than zero”

20E

Page 8, line 3, at end insert—

“(7A) The Secretary of State must—

(a) prepare guidance for the purpose of assisting judges in deciding when it may be appropriate for proceedings to be heard by a judge alone; and

(b) publish and lay before Parliament guidance given under paragraph (a).”

20F

Page 8, line 3, at end insert—

“(7B) In deciding for the purposes of this section whether proceedings should be heard by a judge alone, a judge must—

(a) have regard to any guidance published under subsection (7A); and

(b) in the case where he decides that proceedings should be heard by a judge alone, publish a statement explaining the reasons for his decision.”

20FA*

Page 8, line 3, at end insert—

“(7C) The number of employer-representative members and worker-representative members provided for under subsection (7) must be the same.”

BARONESS TURNER OF CAMDEN

 

Baroness Turner of Camden gives notice of her intention to oppose the Question that Clause 11 stand part of the Bill.

Clause 12

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

20G

Page 8, line 28, leave out “and the employee” and insert “, the employee and, if the employee so requests—

(a) a trade union official;

(b) a workplace representative; or

(c) a legal representative.”

20H

Page 8, line 32, at end insert “or constructively”

20J

Page 8, line 33, at end insert—

“(3A) The employer will provide to the employee a written statement, setting out the reasons for any offer made under subsection (2), and subsection (1) will not apply in relation to such statement.”

BARONESS TURNER OF CAMDEN

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

 

The above-named Lords give notice of their intention to oppose the Question that Clause 12 stand part of the Bill.

Clause 13

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

20K

Page 9, leave out lines 5 to 14 and insert—

“(2A) Before the commencement of this section, the Secretary of State shall consult on the appropriate amount to be specified under subsection (2).

(2B) The Secretary of State must lay a copy of the results of any consultation undertaken under subsection (2A) before Parliament.”

BARONESS TURNER OF CAMDEN

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

 

The above-named Lords give notice of their intention to oppose the Question that Clause 13 stand part of the Bill.

Clause 14

LORD YOUNG OF NORWOOD GREEN

BARONESS HAYTER OF KENTISH TOWN

20L

Page 10, line 14, at end insert—

“(1A) Subsection (1) does not apply where an insolvency office holder has been appointed to the employer company in any of the capacities specified in section 388(1)(a), (2)(a), (2A)(a) and (2A)(b) of the Insolvency Act 1986.”

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

20M

Page 10, leave out lines 20 to 25

20MA*

Page 11, line 9, at end insert—

““aggravating features” includes a failure or failures by an employer to follow its own grievance or disciplinary procedures (or both), or, where an employer does not have its own grievance or disciplinary procedures, the ACAS code of practice on disciplinary and grievance procedures; or a failure by an employer to provide any adequate training to its managers in grievance and disciplinary procedures;”

20MB*

Page 11, line 45, at end insert—

“(d) amend this section by adding to the list of matters which amount to aggravating features”

20N

Page 11, line 47, at end insert—

“(11) Any money paid by an employer purporting to meet a liability to pay a penalty under this section shall be treated instead as payment of any financial award on a claim against that employer to the extent that any such award has not been paid.”

20P

Page 11, line 47, at end insert—

“(11) Where an employment tribunal makes a financial award against an employer on a claim, that tribunal must also specify a date by which that award must be paid.

(12) A date specified under subsection (11) shall be no later than one month following the date on which the decision was made.

(13) The Secretary of State shall introduce an order providing for the payment of interest by an employer on any award that remains unpaid after the date specified under subsection (11).

(14) Any interest levied under subsection (13) shall be paid to the worker to which the claim has been awarded.”

Clause 15

LORD YOUNG OF NORWOOD GREEN

LORD STEVENSON OF BALMACARA

20Q

Page 12, line 4, leave out from “subsection” to end of line 5 and insert “(1)(b), after “any legal obligation to which that person is subject,”, insert “other than a private contractual obligation which is owed solely to that worker”.”

LORD MARLAND

21

Page 12, line 5, at end insert —

“(2) Section 43K of that Act (extension of meaning of “worker”) is amended as set out in subsections (3) to (8).

(3) 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”.

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

(5) 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,”.

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

(7) Omit subsection (2)(ba).

(8) 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.”

(9) In section 236(3) of that Act (orders etc subject to affirmative resolution procedure), after “shall be made under section” insert “43K(4),”.

(10) 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).

(11) 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.”

BARONESS TURNER OF CAMDEN

 

Baroness Turner of Camden gives notice of her intention to oppose the Question that Clause 15 stand part of the Bill.

After Clause 15

LORD TOUHIG

LORD WILLS

LORD LOW OF DALSTON

BARONESS DEAN OF THORNTON-LE-FYLDE

22

Insert the following new Clause—

“Duty on employers to prevent detriment caused by others to workers who have made protected disclosures

(1) The Secretary of State shall make regulations requiring an employer, where a worker has made a protected disclosure under section 43A of the Employment Rights Act 1996, to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employer done on the ground that the worker has made the disclosure.

(2) Regulations under this section—

(a) are to be made by statutory instrument, and

(b) are not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

23

Insert the following new Clause—

“Removal of requirement for protected disclosures to be made in good faith

(1) The Employment Rights Act 1996 is amended as follows.

(2) In section 43C(1) (disclosure to employer or other responsible person), omit “in good faith”.

(3) In section 43E(b) (disclosure to Minister of the Crown), omit “in good faith”.

(4) In section 43F(1)(a) (disclosure to prescribed person), omit “in good faith”.

(5) In section 43G (disclosure in other cases), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.

(6) In section 43H (disclosure of exceptionally serious failure), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.”

Clause 16

BARONESS TURNER OF CAMDEN

24

Page 12, line 15, at end insert—

“(aa) where the claimant, on the advice of the Judge, withdraws a part or the whole of the claim, any deposit shall be repaid”

Clause 20

VISCOUNT ECCLES

BARONESS OPPENHEIM-BARNES

 

The above-named Lords give notice of their intention to oppose the Question that Clause 20 stand part of the Bill.

Clause 21

VISCOUNT ECCLES

BARONESS OPPENHEIM-BARNES

 

The above-named Lords give notice of their intention to oppose the Question that Clause 21 stand part of the Bill.

Clause 26

VISCOUNT ECCLES

 

Viscount Eccles gives notice of his intention to oppose the Question that Clause 26 stand part of the Bill.

After Clause 26

LORD HUNT OF WIRRAL

25

Insert the following new Clause—

“Small mergers

Small mergers

(1) Section 23 of the 2002 Act (relevant merger situations) is amended as follows.

(2) After subsection (9) insert—

“(10) A relevant merger situation shall not be created where the value of the turnover in the United Kingdom of the enterprise being taken over does not exceed £5 million.””

Clause 34

VISCOUNT ECCLES

26

Page 32, line 7, leave out from beginning to end of line 11 on page 33

Clause 56

BARONESS TURNER OF CAMDEN

27

Page 54, line 40, leave out paragraph (a)

28

Page 55, line 2, leave out subsection (2)

Clause 57

BARONESS THORNTON

LORD LESTER OF HERNE HILL

BARONESS TURNER OF CAMDEN

 

The above-named Lords give notice of their intention to oppose the Question that Clause 57 stand part of the Bill.

Clause 58

BARONESS THORNTON

LORD LESTER OF HERNE HILL

BARONESS TURNER OF CAMDEN

 

The above-named Lords give notice of their intention to oppose the Question that Clause 58 stand part of the Bill.

Clause 60

BARONESS GREENGROSS

 

Baroness Greengross gives notice of her intention to oppose the Question that Clause 60 stand part of the Bill.

Clause 61

BARONESS TURNER OF CAMDEN

 

Baroness Turner of Camden gives notice of her intention to oppose the Question that Clause 61 stand part of the Bill.

Clause 68

LORD HOWARTH OF NEWPORT

29

Page 64, line 12, after “paid” insert “if deemed required”

Prepared 4th December 2012