Small Business, Enterprise and Employment Bill (HL Bill 103)

Small Business, Enterprise and Employment BillPage 130

(4) If a draft of a statutory instrument containing regulations under section 144
would, apart from this subsection, be treated for the purposes of the Standing
Orders of either House of Parliament as a hybrid instrument, it is to proceed in
that House as if it were not a hybrid instrument

5Part 11 Employment

Equal pay

147 Equal pay: transparency

(1) The Secretary of State must, as soon as possible, and no later than 12 months
10after the passing of this Act, make regulations under section 78 of the Equality
Act 2010 (gender pay gap information) for the purpose of requiring the
publication of information showing whether there are differences in the pay of
males and females.

(2) The Secretary of State must consult such persons as the Secretary of State
15thinks appropriate on the details of such regulations prior to publication.

Whistleblowing

148 Protected disclosures: reporting requirements

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

(2) In Part 4A (protected disclosures), after section 43F insert—

43FA 20 Prescribed persons: duty to report on disclosures of information

(1) The Secretary of State may make regulations requiring a person
prescribed for the purposes of section 43F to produce an annual report
on disclosures of information made to the person by workers.

(2) The regulations must set out the matters that are to be covered in a
25report, but must not require a report to provide detail that would
enable either of the following to be identified—

(a) a worker who has made a disclosure;

(b) an employer or other person in respect of whom a disclosure
has been made.

(3) 30The regulations must make provision about the publication of a report,
and such provision may include (but is not limited to) any of the
following requirements—

(a) to send the report to the Secretary of State for laying before
Parliament;

(b) 35to include the report in another report or in information
required to be published by the prescribed person;

(c) to publish the report on a website.

(4) The regulations may make provision about the time period within
which a report must be produced and published.

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(5) Regulations under subsections (2) to (4) may make different provision
for different prescribed persons.

(3) In section 236 (orders and regulations)—

(a) in subsection (3), before “43K(4)” insert “43FA (but see subsection
5(3A)),”;

(b) after subsection (3) insert—

(3A) Subsection (3) does not apply to regulations under section 43FA
that contain only the provision mentioned in section 43FA(2),
(3) or (4).

149 10Protection for applicants for employment etc in the health service

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

(2) After section 49A insert—

Part 5A Protection for applicants for employment etc in the health service
49B 15Regulations prohibiting discrimination because of protected
disclosure

(1) The Secretary of State may make regulations prohibiting an NHS
employer from discriminating against an applicant because it appears
to the NHS employer that the applicant has made a protected
20disclosure.

(2) An “applicant”, in relation to an NHS employer, means an individual
who applies to the NHS employer for—

(a) a contract of employment,

(b) a contract to do work personally, or

(c) 25appointment to an office or post.

(3) For the purposes of subsection (1), an NHS employer discriminates
against an applicant if the NHS employer refuses the applicant’s
application or in some other way treats the applicant less favourably
than it treats or would treat other applicants in relation to the same
30contract, office or post.

(4) Regulations under this section may, in particular—

(a) make provision as to circumstances in which discrimination by
a worker or agent of an NHS employer is to be treated, for the
purposes of the regulations, as discrimination by the NHS
35employer;

(b) confer jurisdiction (including exclusive jurisdiction) on
employment tribunals or the Employment Appeal Tribunal;

(c) make provision for or about the grant or enforcement of
specified remedies by a court or tribunal;

(d) 40make provision for the making of awards of compensation
calculated in accordance with the regulations;

(e) make different provision for different cases or circumstances;

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(f) make incidental or consequential provision, including
incidental or consequential provision amending—

(i) an Act of Parliament (including this Act),

(ii) an Act of the Scottish Parliament,

(iii) 5a Measure or Act of the National Assembly for Wales, or

(iv) an instrument made under an Act or Measure within
any of sub-paragraphs (i) to (iii).

(5) Subsection (4)(f) does not affect the application of section 236(5) to the
power conferred by this section.

(6) 10NHS employer” means an NHS public body prescribed by regulations
under this section.

(7) NHS public body” means—

(a) the National Health Service Commissioning Board;

(b) a clinical commissioning group;

(c) 15a Special Health Authority;

(d) an NHS trust;

(e) an NHS foundation trust;

(f) the Care Quality Commission;

(g) Health Education England;

(h) 20the Health Research Authority;

(i) the Health and Social Care Information Centre;

(j) the National Institute for Health and Care Excellence;

(k) Monitor;

(l) a Local Health Board established under section 11 of the
25National Health Service (Wales) Act 2006;

(m) the Common Services Agency for the Scottish Health Service;

(n) Healthcare Improvement Scotland;

(o) a Health Board constituted under section 2 of the National
Health Service (Scotland) Act 1978;

(p) 30a Special Health Board constituted under that section.

(a)(a)the National Health Service Commissioning Board;

(b) a clinical commissioning group;

(c) a Special Health Authority;

(d) an NHS trust;

(e) 35an NHS foundation trust;

(f) the Care Quality Commission;

(g) Health Education England;

(h) the Health Research Authority;

(i) the Health and Social Care Information Centre;

(j) 40the National Institute for Health and Care Excellence;

(k) Monitor;

(l) a Local Health Board established under section 11 of the
National Health Service (Wales) Act 2006;

(m) the Common Services Agency for the Scottish Health Service;

(n) 45Healthcare Improvement Scotland;

(o) a Health Board constituted under section 2 of the National
Health Service (Scotland) Act 1978;

(p) a Special Health Board constituted under that section.

(8) The Secretary of State must consult the Welsh Ministers before making
50regulations prescribing any of the following NHS public bodies for the
purposes of the definition of “NHS employer”—

(a) a Special Health Authority established under section 22 of the
National Health Service (Wales) Act 2006;

(b) an NHS trust established under section 18 of that Act;

(c) 55a Local Health Board established under section 11 of that Act.

(9) The Secretary of State must consult the Scottish Ministers before
making regulations prescribing an NHS public body within any of
paragraphs (m) to (p) of subsection (7) for the purposes of the definition
of “NHS employer”.

(10) 60For the purposes of subsection (4)(a)—

(a) “worker” has the extended meaning given by section 43K, and

(b) a person is a worker of an NHS employer if the NHS employer
is an employer in relation to the person within the extended
meaning given by that section.

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(3) In section 230(6) (interpretation of references to employees, workers etc) for
“and 47B(3)” substitute “, 47B(3) and 49B(10)”.

(4) In section 236(3) (orders and regulations subject to affirmative procedure) after
“47C,” insert “49B,”.

5Employment tribunals

150 Financial penalty for failure to pay sums ordered by employment tribunal etc

(1) The Employment Tribunals Act 1996 is amended as provided in subsections (2)
to (6).

(2) After section 37 insert—

10 Part 2A Financial penalties for failure to pay sums ordered to be paid or
settlement sums
37A Sums to which financial penalty can relate

(1) This section has effect for the purposes of this Part.

(2) 15“Financial award”—

(a) means a sum of money (or, if more than one, the sums of
money) ordered by an employment tribunal on a claim
involving an employer and a worker, or on a relevant appeal, to
be paid by the employer to the worker, and

(b) 20includes—

(i) any sum (a “costs sum”) required to be paid in
accordance with an order in respect of costs or expenses
which relate to proceedings on, or preparation time
relating to, the claim or a relevant appeal, and

(ii) 25in a case to which section 16 applies, a sum ordered to be
paid to the Secretary of State under that section.

(3) Subsection (2)(b)(i) applies irrespective of when the order was made or
the amount of the costs sum was determined.

(4) “Settlement sum” means a sum payable by an employer to a worker
30under the terms of a settlement in respect of which a certificate has been
issued under section 19A(1).

(5) “Relevant sum” means—

(a) a financial award, or

(b) a settlement sum.

(6) 35“Relevant appeal”, in relation to a financial award, means an appeal
against—

(a) the decision on the claim to which it relates,

(b) a decision to make, or not to make, an order in respect of a
financial award (including any costs sum) on the claim,

(c) 40the amount of any such award, or

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(d) any decision made on an appeal within paragraphs (a) to (c) or
this paragraph.

(7) Sections 37B to 37D apply for the purposes of calculating the unpaid
amount on any day of a relevant sum.

37B 5Financial award: unpaid amount

(1) In the case of a financial award, the unpaid amount on any day means
the amount outstanding immediately before that day in respect of—

(a) the initial amount of the financial award (see subsection (2)),
and

(b) 10interest payable in respect of the financial award by virtue of
section 14.

(2) The initial amount of a financial award is—

(a) in a case to which section 16 applies, the monetary award within
the meaning of that section (see section 17(3)), together with any
15costs sum, and

(b) in any other case, the sum or sums of money ordered to be paid
(including any costs sum).

(3) An amount in respect of a financial award is not to be regarded as
outstanding—

(a) 20when the worker could make an application for an order for a
costs sum in relation to—

(i) proceedings on the claim to which the financial award
relates,

(ii) proceedings on a relevant appeal,

(b) 25when the worker has made such an application but the
application has not been withdrawn or finally determined,

(c) when the employer or worker could appeal against—

(i) the decision on the claim to which it relates,

(ii) a decision to make, or not to make, a financial award
30(including any costs sum) on the claim,

(iii) the amount of any such award, or

(iv) any decision made on an appeal within sub-paragraphs
(i) to (iii) or this sub-paragraph,

but has not done so, or

(d) 35when the employer or worker has made such an appeal but the
appeal has not been withdrawn or finally determined.

37C Settlement sum: unpaid amount

(1) In the case of a settlement sum, the unpaid amount on any day means
the amount outstanding immediately before that day in respect of—

(a) 40the settlement sum, and

(b) interest (if any) calculated in accordance with the settlement
(within the meaning of section 19A).

(2) Subject to section 37D(2) and (3), an amount in respect of a settlement
sum is not to be regarded as outstanding if the settlement sum is not
45recoverable under section 19A(3).

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37D Unpaid amount of relevant sum: further provision

(1) Subsections (2) and (3) apply where—

(a) a relevant sum is to be paid by instalments,

(b) any instalment is not paid on or before the day on which it is
5due to be paid, and

(c) a warning notice (see section 37E) is given in consequence of the
failure to pay that instalment (“the unpaid instalment”).

(2) For the purposes of calculating the unpaid amount for—

(a) that warning notice, and

(b) 10any penalty notice given in respect of that warning notice,

any remaining instalments (whether or not yet due) are to be treated as
having been due on the same day as the unpaid instalment.

(3) Accordingly, the amount outstanding in respect of the financial award
or settlement sum is to be taken to be—

(a) 15the aggregate of—

(i) the unpaid instalment, and

(ii) any remaining instalments,

including, in the case of a settlement sum, any amount which is
not recoverable under section 19A(3) by reason only of not
20being due,

(b) interest on those amounts calculated in accordance with section
37B(1)(b) or 37C(1)(b) (and subsection (2)).

(4) Subsections (2) and (3) are not to be taken to affect the time at which any
remaining instalment is due to be paid by the employer.

(5) 25The provisions of this Part apply where a financial award consists of
two or more sums (whether or not any of them is a costs sum) which
are required to be paid at different times as if—

(a) it were a relevant sum to be paid by instalments, and

(b) those sums were the instalments.

(6) 30Where a payment by an employer is made, or purported to be made, in
respect of a relevant sum, an enforcement officer may determine
whether, and to what extent, the payment is to be treated as being—

(a) in respect of that relevant sum or instead in respect of some
other amount owed by the employer;

(b) 35in respect of the initial amount or interest on it, in the case of a
payment treated as being in respect of the relevant sum.

37E Warning notice

(1) This section applies where an enforcement officer considers that an
employer who is required to pay a relevant sum has failed—

(a) 40in the case of a relevant sum which is to be paid by instalments,
to pay an instalment on or before the day on which it is due to
be paid, or

(b) in any other case, to pay the relevant sum in full on or before the
day on which it is due to be paid.

(2) 45The officer may give the employer a notice (a “warning notice”) stating
the officer’s intention to impose a financial penalty in respect of the

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relevant sum unless before a date specified in the warning notice (“the
specified date”) the employer has paid in full the amount so specified
(“the specified amount”).

This is subject to subsection (3).

(3) 5Where a penalty notice has previously been given in respect of the
relevant sum, the officer may not give a warning notice until—

(a) 3 months have elapsed since the end of the relevant period
(within the meaning of section 37H) relating to the last penalty
notice given in respect of the relevant sum, and

(b) 10if the relevant sum is to be paid by instalments, the last
instalment has become due for payment.

(4) The specified date must be after the end of the period of 28 days
beginning with the day on which the warning notice is given.

(5) The specified amount must be the unpaid amount of the relevant sum
15on the day on which the warning notice is given.

(6) A warning notice must identify the relevant sum and state—

(a) how the specified amount has been calculated;

(b) the grounds on which it is proposed to impose a penalty;

(c) the amount of the financial penalty that would be imposed if no
20payment were made in respect of the relevant sum before the
specified date;

(d) that the employer may before the specified date make
representations about the proposal to impose a penalty,
including representations—

(i) 25about payments which the employer makes in respect of
the relevant sum after the warning notice is given;

(ii) about the employer’s ability to pay both a financial
penalty and the relevant sum;

(e) how any such representations may be made.

(7) 30The statement under subsection (6)(e) must include provision for
allowing representations to be made by post (whether or not it also
allows them to be made in any other way).

(8) If the employer pays the specified amount before the specified date, the
relevant sum is to be treated for the purposes of this Part as having been
35paid in full.

(9) Subsection (8) is not to be taken to affect the liability of the employer to
pay any increase in the unpaid amount between the date of the warning
notice and the date of payment.

37F Penalty notice

(1) 40This section applies where an enforcement officer—

(a) has given a warning notice to an employer, and

(b) is satisfied that the employer has failed to pay the specified
amount in full before the specified date.

(2) The officer may give the employer a notice (a “penalty notice”)
45requiring the employer to pay a financial penalty to the Secretary of
State.

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(3) A penalty notice must identify the relevant sum and state—

(a) the grounds on which the penalty notice is given;

(b) the unpaid amount of the relevant sum on the specified date
and how it has been calculated;

(c) 5the amount of the financial penalty (see subsections (4) to (6));

(d) how the penalty must be paid;

(e) the period within which the penalty must be paid;

(f) how the employer may pay a reduced penalty instead of the
financial penalty;

(g) 10the amount of the reduced penalty (see subsection (8));

(h) how the employer may appeal against the penalty notice;

(i) the consequences of non-payment.

(4) Subject to subsections (5) and (6), the amount of the financial penalty is
50% of the unpaid amount of the relevant sum on the specified date.

(5) 15If the unpaid amount on the specified date is less than £200, the amount
of the penalty is £100.

(6) If the unpaid amount on the specified date is more than £10,000, the
amount of the financial penalty is £5,000.

(7) The period specified under subsection (3)(e) must be a period of not less
20than 28 days beginning with the day on which the penalty notice is
given.

(8) The amount of the reduced penalty is 50% of the amount of the financial
penalty.

(9) Subsection (10) applies if, within the period of 14 days beginning with
25the day on which the penalty notice is given, the employer—

(a) pays the unpaid amount of the relevant sum on the specified
date (as stated in the notice under subsection (3)(b)), and

(b) pays the reduced penalty to the Secretary of State.

(10) The employer is to be treated—

(a) 30for the purposes of this Part, as having paid the relevant sum in
full, and

(b) by paying the reduced penalty, as having paid the whole of the
financial penalty.

(11) Subsection (10)(a) is not to be taken to affect the liability of the employer
35to pay any increase in the unpaid amount of the relevant sum between
the specified date and the date of payment.

37G Appeal against penalty notice

(1) An employer to whom a penalty notice is given may, before the end of
the period specified under section 37F(3)(e) (period within which
40penalty must be paid), appeal against—

(a) the penalty notice; or

(b) the amount of the financial penalty.

(2) An appeal under subsection (1) lies to an employment tribunal.

(3) An appeal under subsection (1) may be made on one or more of the
45following grounds—

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(a) that the grounds stated in the penalty notice under section
37F(3)(a) were incorrect;

(b) that it was unreasonable for the enforcement officer to have
given the notice;

(c) 5that the calculation of an amount stated in the penalty notice
was incorrect.

(4) On an appeal under subsection (1), an employment tribunal may—

(a) allow the appeal and cancel the penalty notice;

(b) in the case of an appeal made on the ground that the calculation
10of an amount stated in the penalty notice was incorrect, allow
the appeal and substitute the correct amount for the amount
stated in the penalty notice;

(c) dismiss the appeal.

(5) Where an employer has made an appeal under subsection (1), the
15penalty notice is not enforceable until the appeal has been withdrawn
or finally determined.

37H Interest and recovery

(1) This section applies if all or part of a financial penalty which an
employer is required by a penalty notice to pay is unpaid at the end of
20the relevant period.

(2) The relevant period is—

(a) if no appeal is made under section 37G(1) relating to the penalty
notice, the period specified in the penalty notice under section
37F(3)(e);

(b) 25if such an appeal is made, the period ending when the appeal is
withdrawn or finally determined.

(3) The outstanding amount of the financial penalty for the time being
carries interest—

(a) at the rate that, on the last day of the relevant period, was
30specified in section 17 of the Judgments Act 1838,

(b) from the end of the relevant period until the time when the
amount of interest calculated under this subsection equals the
amount of the financial penalty,

(and does not also carry interest as a judgment debt under that section).

(4) 35The outstanding amount of a penalty and any interest is recoverable—

(a) in England and Wales, if the county court so orders, under
section 85 of the County Courts Act 1984 or otherwise as if the
sum were payable under an order of the county court;

(b) in Scotland, by diligence as if the penalty notice were an extract
40registered decree arbitral bearing a warrant for execution issued
by the sheriff court of any sheriffdom in Scotland.

(5) Any amount received by the Secretary of State under this Part is to be
paid into the Consolidated Fund.

37I Withdrawal of warning notice

(1) 45Where—

(a) a warning notice has been given (and not already withdrawn),

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(b) it appears to an enforcement officer that—

(i) the notice incorrectly omits any statement or is incorrect
in any particular, or

(ii) the warning notice was given in contravention of section
537E(3), and

(c) if a penalty notice has been given in relation to the warning
notice, any appeal made under section 37G(1) has not been
determined,

the officer may withdraw the warning notice by giving notice of
10withdrawal to the employer.

(2) Where a warning notice is withdrawn, no penalty notice may be given
in relation to it.

(3) Where a warning notice is withdrawn after a penalty notice has been
given in relation to it—

(a) 15the penalty notice ceases to have effect;

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

(c) 20any appeal under section 37G(1) relating to the penalty notice
must be dismissed.

(4) In subsection (3)(b), 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.

(5) 25A notice of withdrawal under this section must indicate the effect of the
withdrawal (but a failure to do so does not make the notice of
withdrawal ineffective).

(6) Withdrawal of a warning notice relating to a relevant sum does not
preclude a further warning notice being given in relation to that sum
30(subject to section 37E(3)).

37J Withdrawal of penalty notice

(1) Where—

(a) a penalty notice has been given (and not already withdrawn or
cancelled), and

(b) 35it appears to an enforcement officer that—

(i) the notice incorrectly omits any statement required by
section 37F(3), or

(ii) any statement so required is incorrect in any particular,

the officer may withdraw it by giving notice of the withdrawal to the
40employer.

(2) Where a penalty notice is withdrawn and no replacement penalty
notice is given in accordance with section 37K

(a) any sum paid by or recovered from the employer by way of
financial penalty payable under the notice must be repaid to the
45employer with interest at the appropriate rate running from the
date when the sum was paid or recovered;