|
| |
|
(6) | The Lord Chancellor may by order provide for proceedings of a |
| |
description specified in the order to be heard by a judge and a specified |
| |
number of appointed members. |
| |
(7) | An order under subsection (6) may include provision about how many |
| |
of the appointed members are to be employer-representative members |
| 5 |
and how many are to be worker-representative members. |
| |
| |
“employer-representative members” means appointed members |
| |
whose knowledge or experience of industrial relations is as |
| |
representatives of employers; |
| 10 |
“worker-representative members” means appointed members |
| |
whose knowledge or experience of industrial relations is as |
| |
representatives of workers.” |
| |
(3) | In section 30 (Appeal Tribunal procedure rules), in subsection (2)(f) (provision |
| |
for dealing with interlocutory matters), for the words from “otherwise” to the |
| 15 |
end substitute “by an officer of the Appeal Tribunal”. |
| |
(4) | In section 41(2) (orders etc subject to affirmative resolution procedure), before |
| |
“or 40” insert “, 28(6)”. |
| |
(5) | In consequence of the amendment made by subsection (2), omit paragraph 46 |
| |
of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. |
| 20 |
| |
12 | Confidentiality of negotiations before termination of employment |
| |
After section 111 of the Employment Rights Act 1996 insert— |
| |
“111A | Confidentiality of negotiations before termination of employment |
| |
(1) | Evidence of pre-termination negotiations is inadmissible in any |
| 25 |
proceedings on a complaint under section 111. |
| |
| This is subject to subsections (3) to (5). |
| |
(2) | In subsection (1) “pre-termination negotiations” means any offer made |
| |
or discussions held, before the termination of the employment in |
| |
question, with a view to it being terminated on terms agreed between |
| 30 |
the employer and the employee. |
| |
(3) | Subsection (1) does not apply where, according to the complainant’s |
| |
case, the circumstances are such that a provision (whenever made) |
| |
contained in, or made under, this or any other Act requires the |
| |
complainant to be regarded for the purposes of this Part as unfairly |
| 35 |
| |
(4) | In relation to anything said or done which in the tribunal’s opinion was |
| |
improper, or was connected with improper behaviour, subsection (1) |
| |
applies only to the extent that the tribunal considers just. |
| |
(5) | Subsection (1) does not affect the admissibility, on any question as to |
| 40 |
costs or expenses, of evidence relating to an offer made on the basis that |
| |
the right to refer to it on any such question is reserved.” |
| |
|
| |
|
| |
|
13 | Power by order to increase or decrease limit of compensatory award |
| |
(1) | The Secretary of State may by order made by statutory instrument amend |
| |
section 124 of the Employment Rights Act 1996 (limit of compensatory award |
| |
etc) so as to vary the limit imposed for the time being by subsection (1) of that |
| |
| 5 |
(2) | The limit as so varied may be— |
| |
(a) | a specified amount, or |
| |
| |
(i) | a specified amount, and |
| |
(ii) | a specified number multiplied by a week’s pay of the individual |
| 10 |
| |
(3) | Different amounts may be specified by virtue of subsection (2)(a) or (b)(i) in |
| |
relation to employers of different descriptions. |
| |
(4) | An amount specified by virtue of subsection (2)(a) or (b)(i)— |
| |
(a) | may not be less than median annual earnings; |
| 15 |
(b) | may not be more than three times median annual earnings. |
| |
(5) | A number specified by virtue of subsection (2)(b)(ii) may not be less than 52. |
| |
(6) | An order under this section may make consequential, supplemental, |
| |
transitional, transitory or saving provision. |
| |
(7) | The consequential provision that may be made under subsection (6) includes |
| 20 |
provision inserting a reference to section 124 of the Employment Rights Act |
| |
1996 in section 226(3) of that Act (week’s pay: calculation date in unfair |
| |
| |
(8) | A statutory instrument containing an order under this section is not to be made |
| |
unless a draft of the instrument has been laid before each House of Parliament |
| 25 |
and approved by a resolution of each House. |
| |
(9) | In this section “median annual earnings” means— |
| |
(a) | the latest figure for median gross annual earnings of full-time |
| |
employees in the United Kingdom published by the Statistics Board |
| |
(disregarding any provisional figures), or |
| 30 |
(b) | if that figure was published by the Statistics Board more than two years |
| |
before the laying of the draft of the statutory instrument in question, an |
| |
estimate of the current amount of such earnings worked out in |
| |
whatever way the Secretary of State thinks fit. |
| |
(10) | In section 34 of the Employment Relations Act 1999 (indexation of amounts |
| 35 |
etc), after subsection (4) insert— |
| |
“(4A) | A reference in this section to a sum specified in section 124(1) of the |
| |
Employment Rights Act 1996 does not include anything specified by |
| |
virtue of section 13(2)(b)(ii) of the Enterprise and Regulatory Reform |
| |
Act 2013 (specified number multiplied by a week’s pay of the |
| 40 |
| |
(4B) | As regards a sum specified in section 124(1) of the Employment Rights |
| |
Act 1996, the duty under subsection (2) to make an order with effect |
| |
from 6 April in a particular year does not arise where an order varying |
| |
such a sum with effect from a day within 12 months before that date has |
| 45 |
|
| |
|
| |
|
been made under section 13(1) of the Enterprise and Regulatory |
| |
| |
| |
14 | Power of employment tribunal to impose financial penalty on employers etc |
| |
(1) | After section 12 of the Employment Tribunals Act 1996 insert— |
| 5 |
| |
| |
(1) | Where an employment tribunal determining a claim involving an |
| |
| |
(a) | concludes that the employer has breached any of the worker’s |
| 10 |
rights to which the claim relates, and |
| |
(b) | is of the opinion that the breach has one or more aggravating |
| |
| |
| the tribunal may order the employer to pay a penalty to the Secretary |
| |
of State (whether or not it also makes a financial award against the |
| 15 |
| |
(2) | The amount of a penalty under this section shall be— |
| |
| |
| |
| Subsections (3) and (4) have effect subject to the limits set by this |
| 20 |
| |
(3) | If 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 |
| |
| 25 |
| the amount of that penalty shall be 50% of the amount of the award; but |
| |
this does not apply where subsection (4) applies. |
| |
(4) | In relation to a claim considered by an employment tribunal together |
| |
with another claim involving a different worker but the same |
| |
employer, if the tribunal— |
| 30 |
(a) | makes a financial award against the employer, and |
| |
(b) | also orders the employer to pay a penalty under this section, |
| |
| the maximum amount of that penalty shall be 50% of the amount of the |
| |
| |
(5) | Two or more claims in respect of the same act and the same worker |
| 35 |
shall be treated as a single claim for the purposes of this section. |
| |
(6) | Subsection (3) or (4) does not require or permit an order under |
| |
subsection (1) (or a failure to make such an order) to be reviewed where |
| |
the tribunal subsequently awards compensation under— |
| |
(a) | section 140(3) of the Trade Union and Labour Relations |
| 40 |
(Consolidation) Act 1992 (failure to comply with tribunal’s |
| |
| |
|
| |
|
| |
|
(b) | section 117 of the Employment Rights Act 1996 (failure to |
| |
| |
(c) | section 124(7) of the Equality Act 2010 (failure to comply with |
| |
tribunal’s recommendation), or |
| |
(d) | any other provision empowering the tribunal to award |
| 5 |
compensation, or further compensation, for a failure to comply |
| |
(or to comply fully) with an order or recommendation of the |
| |
| |
(7) | An employer’s liability to pay a penalty under this section is |
| |
discharged if 50% of the amount of the penalty is paid no later than 21 |
| 10 |
days after the day on which notice of the decision to impose the penalty |
| |
| |
| |
| |
(a) | means anything that is referred to in the relevant |
| 15 |
legislation as a claim, a complaint or a reference, other |
| |
than a reference made by virtue of section 122(2) or |
| |
128(2) of the Equality Act 2010 (reference by court of |
| |
question about a non-discrimination or equality rule |
| |
| 20 |
(b) | also includes an application, under regulations made |
| |
under section 45 of the Employment Act 2002, for a |
| |
declaration that a person is a permanent employee; |
| |
“employer” has the same meaning as in Part 4A of the |
| |
Employment Rights Act 1996, and also— |
| 25 |
(a) | in relation to an individual seeking to be employed by a |
| |
person as a worker, includes that person; |
| |
(b) | in relation to a right conferred by section 47A or 63A of |
| |
the Employment Rights Act 1996 (right to time off for |
| |
young person for study or training), includes the |
| 30 |
principal within the meaning of section 63A(3) of that |
| |
| |
(c) | in relation to a right conferred by the Agency Workers |
| |
Regulations 2010 (S.I. 2010/93), includes the hirer |
| |
within the meaning of those Regulations and (where the |
| 35 |
worker is not actually employed by the temporary |
| |
work agency) the temporary work agency within that |
| |
| |
“financial award” means an award of a sum of money, but does |
| |
not including anything payable by virtue of section 13; |
| 40 |
“worker” has the same meaning as in Part 4A of the Employment |
| |
Rights Act 1996, and also includes an individual seeking to be |
| |
employed by a person as a worker. |
| |
(9) | The Secretary of State may by order— |
| |
(a) | amend subsection (2) by substituting a different amount in |
| 45 |
| |
(b) | amend subsection (3), (4) or (7) by substituting a different |
| |
| |
(c) | amend this section so as to alter the meaning of “claim”. |
| |
|
| |
|
| |
|
(10) | The Secretary of State shall pay sums received under this section into |
| |
| |
(2) | Schedule 3 (financial penalties: minor and consequential amendments) has |
| |
| |
| 5 |
| |
(1) | In section 43B of the Employment Rights Act 1996 (disclosures qualifying for |
| |
protection), in subsection (1), after “in the reasonable belief of the worker |
| |
making the disclosure,” insert “is made in the public interest and”. |
| |
(2) | Section 43K of that Act (extension of meaning of “worker”) is amended as set |
| 10 |
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 |
| 15 |
| |
(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 |
| 20 |
“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— |
| 25 |
“(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 |
| 30 |
State is satisfied that there are no longer any individuals in that |
| |
| |
(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 |
| 35 |
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 |
| 40 |
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. |
| |
16 | Tribunal procedure: miscellaneous |
| |
(1) | The Employment Tribunals Act 1996 is amended as follows. |
| |
(2) | In section 9 (pre-hearing reviews and preliminary matters), in subsection (2) |
| 5 |
(deposit orders), in paragraph (a)— |
| |
(a) | omit “, if he wishes to continue to participate in those proceedings,”; |
| |
(b) | after “an amount not exceeding £1,000” insert “as a condition of— |
| |
(i) | continuing to participate in those proceedings, |
| |
| 10 |
(ii) | pursuing any specified allegations or |
| |
| |
(3) | In section 13A (payments in respect of preparation time)— |
| |
(a) | in subsection (3), after “shall also” insert “, subject to subsection (4),”; |
| |
(b) | after subsection (3) insert— |
| 15 |
“(4) | Subsection (3) does not require the regulations to include |
| |
provision to prevent an employment tribunal from making— |
| |
(a) | an order of the kind mentioned in subsection (1), and |
| |
(b) | an award of the kind mentioned in section 13(1)(a) that |
| |
is limited to witnesses’ expenses.” |
| 20 |
(4) | In section 42 (interpretation), in subsection (1), after the definition of |
| |
“employment tribunal procedure regulations” insert— |
| |
““representative” shall be construed in accordance with section |
| |
6(1) (in Part 1) or section 29(1) (in Part 2),”. |
| |
17 | Indexation of amounts: timing and rounding |
| 25 |
(1) | Section 34 of the Employment Relations Act 1999 (indexation of amounts, etc) |
| |
| |
| |
(a) | omit “as soon as practicable”; |
| |
(b) | at the end insert “, with effect from the following 6th April”. |
| 30 |
(3) | In subsection (3), for the words after “the Secretary of State shall” substitute |
| |
“round the result to the nearest whole pound, taking 50p as nearest to the next |
| |
| |
18 | Renaming of “compromise agreements”, “compromise contracts” and |
| |
| 35 |
(1) | In the following provisions, for “compromise” (in each place where it occurs) |
| |
| |
(a) | section 288(2A) and (2B) of the Trade Union and Labour Relations |
| |
(Consolidation) Act 1992 (restriction on contracting out); |
| |
(b) | section 203(2)(f) and (3) of the Employment Rights Act 1996 |
| 40 |
(restrictions on contracting out); |
| |
|
| |
|
| |
|
(c) | section 58(4) and (5) of the Pensions Act 2008 (restrictions on |
| |
agreements to limit operation of Part 1). |
| |
(2) | In section 19A of the Employment Tribunals Act 1996 (conciliation: recovery of |
| |
sums payable under compromises)— |
| |
(a) | in subsections (1), (3), (4), (5) and (6), for “compromise” (in each place |
| 5 |
where it occurs) substitute “settlement”; |
| |
| |
(i) | for “compromise” (in the first two places it occurs) substitute |
| |
| |
(ii) | omit “, or compromise,”; |
| 10 |
(c) | in the heading, for “compromises” substitute “settlements”. |
| |
(3) | In section 49 of the National Minimum Wage Act 1998 (restrictions on |
| |
| |
(a) | in subsections (3) and (4), for “compromise” (in each place where it |
| |
occurs) substitute “settlement”; |
| 15 |
(b) | after subsection (8) insert— |
| |
“(8A) | In the application of this section in relation to Northern Ireland, |
| |
subsections (3) and (4) above shall have effect as if for |
| |
“settlement agreements” (in each place) there were substituted |
| |
| 20 |
(4) | In section 28 of the Equality Act 2006 (legal assistance), in subsection (11), for |
| |
“compromise contract or agreement” substitute “settlement agreement”. |
| |
(5) | In section 144 of the Equality Act 2010 (contracting out), in subsection (4)(b), for |
| |
“compromise contract” substitute “settlement agreement”. |
| |
(6) | In section 147 of that Act (meaning of “qualifying compromise contract”), in |
| 25 |
subsections (2) and (5) and in the heading, for “compromise contract” |
| |
substitute “settlement agreement”. |
| |
| |
19 | Transitional provision |
| |
(1) | Section 11 does not apply in relation to proceedings that are in the process of |
| 30 |
being heard by the Employment Appeal Tribunal when that section comes into |
| |
| |
(2) | Section 12 does not apply to any offer made or discussions held before the |
| |
commencement of that section. |
| |
(3) | Section 14 does not apply in relation to any claim presented before the end of |
| 35 |
the sixth month after the day on which this Act is passed (or before the |
| |
commencement of that section). |
| |
(4) | If an order under section 34 of the Employment Relations Act 1999 made before |
| |
the commencement of section 17 is expressed to come into force on a date that |
| |
is after that commencement— |
| 40 |
(a) | the Secretary of State must revoke the order, and |
| |
(b) | the amendments made by section 17 apply in relation to the two retail |
| |
prices indices on which the order was based. |
| |
|
| |
|