|
| |
|
(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 |
| 5 |
(ii) | an arbitrator or arbiter appointed by ACAS under any |
| |
| |
| 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 |
| 10 |
| |
(e) | the disclosure is made in order to comply with a court order, |
| |
(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 |
| 15 |
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 |
| 20 |
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 |
| |
| |
(6) | For the purposes of this section information held by— |
| 25 |
(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 |
| |
| 30 |
| is information that is held by ACAS in connection with the provision of |
| |
| |
Procedure for deciding tribunal cases |
| |
11 | Decisions by legal officers |
| |
(1) | In section 4 of the Employment Tribunals Act 1996 (composition of a tribunal), |
| 35 |
after subsection (6C) insert— |
| |
“(6D) | A person appointed as a legal officer in accordance with regulations |
| |
under section 1(1) may determine proceedings in respect of which an |
| |
employment tribunal has jurisdiction, or make a decision falling to be |
| |
made in the course of such proceedings, if— |
| 40 |
(a) | the proceedings are of a description specified in an order under |
| |
this subsection made by the Secretary of State and the Lord |
| |
Chancellor acting jointly, and |
| |
(b) | all the parties to the proceedings consent in writing; |
| |
| and any determination or decision made under this subsection shall be |
| 45 |
treated as made by an employment tribunal.” |
| |
|
| |
|
| |
|
(2) | In section 41(2) of that Act (orders etc subject to affirmative resolution |
| |
procedure), after “section 4(4)” insert “or (6D)”. |
| |
12 | Composition of Employment Appeal Tribunal |
| |
(1) | The Employment Tribunals Act 1996 is amended as set out in subsections (2) |
| |
| 5 |
(2) | In section 28 (composition of Appeal Tribunal), for subsections (2) to (4A) |
| |
| |
“(2) | Proceedings before the Appeal Tribunal are to be heard by a judge |
| |
| |
| This is subject to subsections (3) to (6) and to any provision made by |
| 10 |
| virtue of section 30(2)(f) or (2A). |
| |
(3) | A judge may direct that proceedings are to be heard by a judge and |
| |
either two or four appointed members. |
| |
(4) | A judge may, with the consent of the parties, direct that proceedings are |
| |
to be heard by a judge and either one or three appointed members. |
| 15 |
(5) | The Lord Chancellor may by order provide for proceedings of a |
| |
description specified in the order to be heard by a judge and either two |
| |
or four appointed members. |
| |
(6) | In proceedings heard by a judge and two or four appointed members, |
| |
there shall be an equal number of— |
| 20 |
(a) | employer-representative members, and |
| |
(b) | worker-representative members. |
| |
| |
“employer-representative members” means appointed members |
| |
whose knowledge or experience of industrial relations is as |
| 25 |
representatives of employers; |
| |
“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 |
| 30 |
for dealing with interlocutory matters), for the words from “otherwise” to the |
| |
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(5)”. |
| |
(5) | In consequence of the amendment made by subsection (2), omit paragraph 46 |
| 35 |
of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007. |
| |
| |
13 | 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.” |
| |
14 | Confidentiality of negotiations before termination of employment |
| 5 |
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 |
| |
proceedings on a complaint under section 111. |
| |
| This is subject to subsections (3) to (5). |
| 10 |
(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 |
| |
the employer and the employee. |
| |
(3) | Subsection (1) does not apply where, according to the complainant’s |
| 15 |
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 |
| |
| |
(4) | In relation to anything said or done which in the tribunal’s opinion was |
| 20 |
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 |
| |
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.” |
| 25 |
15 | 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 |
| |
| 30 |
(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 |
| 35 |
| |
(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; |
| 40 |
(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 |
| |
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 |
| 5 |
| |
(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 |
| |
and approved by a resolution of each House. |
| |
(9) | In this section “median annual earnings” means— |
| 10 |
(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 |
| |
(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 |
| 15 |
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 |
| |
etc), after subsection (4) insert— |
| |
“(4A) | A reference in this section to a sum specified in section 124(1) of the |
| 20 |
Employment Rights Act 1996 does not include anything specified by |
| |
virtue of section 15(2)(b)(ii) of the Enterprise and Regulatory Reform |
| |
Act 2013 (specified number multiplied by a week’s pay of the |
| |
| |
(4B) | As regards a sum specified in section 124(1) of the Employment Rights |
| 25 |
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 |
| |
been made under section 15(1) of the Enterprise and Regulatory |
| |
| 30 |
| |
16 | Power of employment tribunal to impose financial penalty on employers etc |
| |
(1) | After section 12 of the Employment Tribunals Act 1996 insert— |
| |
| |
| 35 |
(1) | Where an employment tribunal determining a claim involving an |
| |
| |
(a) | concludes that the employer has breached any of the worker’s |
| |
rights to which the claim relates, and |
| |
(b) | is of the opinion that the breach has one or more aggravating |
| 40 |
| |
| 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 |
| |
| |
|
| |
|
| |
|
(2) | The tribunal shall have regard to an employer’s ability to pay— |
| |
(a) | in deciding whether to order the employer to pay a penalty |
| |
| |
(b) | (subject to subsections (3) to (7)) in deciding the amount of a |
| |
| 5 |
(3) | The amount of a penalty under this section shall be— |
| |
| |
| |
| This subsection does not apply where subsection (5) or (7) applies. |
| |
(4) | Subsection (5) applies where an employment tribunal— |
| 10 |
(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 |
| |
| |
(5) | In such a case, the amount of the penalty under this section shall be 50% |
| |
of the amount of the award, except that— |
| 15 |
(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. |
| |
(6) | Subsection (7) applies, instead of subsection (5), where an employment |
| 20 |
| |
(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. |
| 25 |
| |
(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 |
| |
| |
(i) | no more than £5,000, and |
| 30 |
(ii) | where the tribunal makes a financial award against the |
| |
employer on the claim, no more than 50% of the amount |
| |
| |
| 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 |
| 35 |
penalties in total shall be £100 (and paragraphs (a) and (b) shall not |
| |
| |
(8) | Two or more claims in respect of the same act and the same worker |
| |
shall be treated as a single claim for the purposes of this section. |
| |
(9) | Subsection (5) or (7) does not require or permit an order under |
| 40 |
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 |
| |
(Consolidation) Act 1992 (failure to comply with tribunal’s |
| |
| 45 |
(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 |
| |
compensation, or further compensation, for a failure to comply |
| |
(or to comply fully) with an order or recommendation of the |
| 5 |
| |
(10) | 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 |
| |
days after the day on which notice of the decision to impose the penalty |
| |
| 10 |
| |
| |
(a) | means anything that is referred to in the relevant |
| |
legislation as a claim, a complaint or a reference, other |
| |
than a reference made by virtue of section 122(2) or |
| 15 |
128(2) of the Equality Act 2010 (reference by court of |
| |
question about a non-discrimination or equality rule |
| |
| |
(b) | also includes an application, under regulations made |
| |
under section 45 of the Employment Act 2002, for a |
| 20 |
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— |
| |
(a) | in relation to an individual seeking to be employed by a |
| |
person as a worker, includes that person; |
| 25 |
(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 |
| |
principal within the meaning of section 63A(3) of that |
| |
| 30 |
(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 |
| |
worker is not actually employed by the temporary |
| |
work agency) the temporary work agency within that |
| 35 |
| |
“financial award” means an award of a sum of money, but does |
| |
not including anything payable by virtue of section 13; |
| |
“worker” has the same meaning as in Part 4A of the Employment |
| |
Rights Act 1996, and also includes an individual seeking to be |
| 40 |
employed by a person as a worker. |
| |
(12) | The Secretary of State may by order— |
| |
(a) | amend subsection (3), (5) or (7) by substituting a different |
| |
| |
(b) | amend subsection (5), (7) or (10) by substituting a different |
| 45 |
| |
(c) | amend this section so as to alter the meaning of “claim”. |
| |
(13) | The Secretary of State shall pay sums received under this section into |
| |
| |
|
| |
|
| |
|
(2) | Schedule 3 (financial penalties: minor and consequential amendments) has |
| |
| |
| |
17 | Disclosures not protected unless believed to be made in the public interest |
| |
In section 43B of the Employment Rights Act 1996 (disclosures qualifying for |
| 5 |
protection), in subsection (1), after “in the reasonable belief of the worker |
| |
making the disclosure,” insert “is made in the public interest and”. |
| |
18 | 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)— |
| 10 |
(a) | subsection (1) of section 43C (disclosure to employer or other |
| |
| |
(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)— |
| 15 |
| |
(b) | in paragraph (b), for “he” substitute “the worker”. |
| |
(3) | In section 43H of that Act (disclosure of exceptionally serious failure), in |
| |
| |
| 20 |
(b) | in paragraph (b), for “he” substitute “the worker”. |
| |
(4) | In section 49 of that Act (remedies for detriment suffered in employment), after |
| |
| |
| |
(a) | the complaint is made under section 48(1A), and |
| 25 |
(b) | it appears to the tribunal that the protected disclosure was not |
| |
| |
| 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 |
| |
| 30 |
(5) | In section 123 of that Act (compensatory award for unfair dismissal), after |
| |
| |
| |
(a) | the reason (or principal reason) for the dismissal is that the |
| |
complainant made a protected disclosure, and |
| 35 |
(b) | it appears to the tribunal that the disclosure was not made in |
| |
| |
| 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 |
| |
| 40 |
|
| |
|