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Employment Relations Bill


Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees

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(3)   

After subsection (7) insert—

“(7A)   

For the purposes of this section “the protected period”, in relation to the

dismissal of an employee, is the sum of the basic period and any

extension period in relation to that employee.

(7B)   

The basic period is eight weeks beginning with the first day of

5

protected industrial action.

(7C)   

An extension period in relation to an employee is a period equal to the

number of days falling on or after the first day of protected industrial

action (but before the protected period ends) during the whole or any

part of which the employee is locked out by his employer.

10

(7D)   

In subsections (7B) and (7C), the “first day of protected industrial

action” means the day on which the employee starts to take protected

industrial action (even if on that day he is locked out by his employer).”

22      

Date of dismissal

(1)   

Section 238A of the 1992 Act is also amended as follows.

15

(2)   

In subsection (3) for “it takes place” substitute “the date of the dismissal is”.

(3)   

In subsection (4)(a) for “it takes place” substitute “the date of the dismissal is”.

(4)   

In subsection (5)(a) for “it takes place” substitute “the date of the dismissal is”.

(5)   

After subsection (8) add—

“(9)   

In this section “date of dismissal” has the meaning given by section

20

238(5).”

Part 3

Rights of trade union members, workers and employees

Inducements and detriments in respect of membership etc. of independent trade union

23      

Inducements relating to union membership or activities

25

After section 145 of the 1992 Act insert—

“Inducements

145A    

Inducements relating to union membership or activities

(1)   

A worker has the right not to have an offer made to him by his

employer for the sole or main purpose of inducing the worker—

30

(a)   

not to be or seek to become a member of an independent trade

union,

(b)   

not to take part, at an appropriate time, in the activities of an

independent trade union,

(c)   

not to make use, at an appropriate time, of trade union services,

35

or

(d)   

to be or become a member of any trade union or of a particular

trade union or of one of a number of particular trade unions.

 

 

Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees

20

 

(2)   

In subsection (1) “an appropriate time” means—

(a)   

a time outside the worker’s working hours, or

(b)   

a time within his working hours at which, in accordance with

arrangements agreed with or consent given by his employer, it

is permissible for him to take part in the activities of a trade

5

union or (as the case may be) make use of trade union services.

(3)   

In subsection (2) “working hours”, in relation to a worker, means any

time when, in accordance with his contract of employment (or other

contract personally to do work or perform services), he is required to be

at work.

10

(4)   

In subsections (1) and (2)—

(a)   

“trade union services” means services made available to the

worker by an independent trade union by virtue of his

membership of the union, and

(b)   

references to a worker’s “making use” of trade union services

15

include his consenting to the raising of a matter on his behalf by

an independent trade union of which he is a member.

(5)   

A worker may present a complaint to an employment tribunal on the

ground that his employer has made him an offer in contravention of

this section.

20

145B    

Inducements relating to collective bargaining

(1)   

A worker who is a member of an independent trade union which is

recognised by his employer has the right not to have an offer made to

him by his employer if—

(a)   

acceptance of the offer, together with other workers’ acceptance

25

of offers which the employer also makes to them, would have

the prohibited result, and

(b)   

the employer’s sole or main purpose in making the offers is to

achieve that result.

(2)   

The prohibited result is that the workers’ terms of employment, or any

30

of those terms, will no longer be determined by collective agreement

negotiated by or on behalf of the union.

(3)   

It is immaterial for the purposes of subsection (1) whether the offers are

made to the workers simultaneously.

(4)   

Having terms of employment determined by collective agreement shall

35

not be regarded for the purposes of section 145A (or section 146 or 152)

as making use of a trade union service.

(5)   

A worker may present a complaint to an employment tribunal on the

ground that his employer has made him an offer in contravention of

this section.

40

145C    

Time limit for proceedings

An employment tribunal shall not consider a complaint under section

145A or 145B unless it is presented—

(a)   

before the end of the period of three months beginning with the

date when the offer was made or, where the offer is part of a

45

series of similar offers to the worker, the date when the last of

them was made, or

 

 

Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees

21

 

(b)   

where the tribunal is satisfied that it was not reasonably

practicable for the complaint to be presented before the end of

that period, within such further period as it considers

reasonable.

145D    

Consideration of complaint

5

(1)   

On a complaint under section 145A it shall be for the employer to show

what was his sole or main purpose in making the offer.

(2)   

On a complaint under section 145B it shall be for the employer to show

what was his sole or main purpose in making the offers.

(3)   

On a complaint under section 145A or 145B, in determining any

10

question whether the employer made the offer (or offers) or the

purpose for which he did so, no account shall be taken of any pressure

which was exercised on him by calling, organising, procuring or

financing a strike or other industrial action, or by threatening to do so;

and that question shall be determined as if no such pressure had been

15

exercised.

(4)   

In determining whether an employer’s sole or main purpose in making

offers was the purpose mentioned in section 145B(1), the matters taken

into account must include any evidence—

(a)   

that when the offers were made the employer had recently

20

changed or sought to change, or did not wish to use,

arrangements agreed with the union for collective bargaining,

or

(b)   

that the offers were made only to particular workers, and were

made with the sole or main purpose of rewarding those

25

particular workers for their high level of performance or of

retaining them because of their special value to the employer.

145E    

Remedies

(1)   

Subsections (2) and (3) apply where the employment tribunal finds that

a complaint under section 145A or 145B is well-founded.

30

(2)   

The tribunal—

(a)   

shall make a declaration to that effect, and

(b)   

shall make an award to be paid by the employer to the

complainant in respect of the offer complained of.

(3)   

The amount of the award shall be £2,500 (subject to any adjustment of

35

the award that may fall to be made under Part 3 of the Employment Act

2002).

(4)   

Where an offer made in contravention of section 145A or 145B is

accepted—

(a)   

if the acceptance results in the worker’s agreeing to vary his

40

terms of employment, the employer cannot enforce the

agreement to vary, or recover any sum paid or other asset

transferred by him under the agreement to vary;

(b)   

if as a result of the acceptance the worker’s terms of

employment are varied, nothing in section 145A or 145B makes

45

the variation unenforceable by either party.

 

 

Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees

22

 

(5)   

Nothing in this section or sections 145A and 145B prejudices any right

conferred by section 146 or 149.

(6)   

In ascertaining any amount of compensation under section 149, no

reduction shall be made on the ground—

(a)   

that the complainant caused or contributed to his loss, or to the

5

act or failure complained of, by accepting or not accepting an

offer made in contravention of section 145A or 145B, or

(b)   

that the complainant has received or is entitled to an award

under this section.

145F    

Interpretation and other supplementary provisions

10

(1)   

References in sections 145A to 145E to being or becoming a member of

a trade union include references—

(a)   

to being or becoming a member of a particular branch or section

of that union, and

(b)   

to being or becoming a member of one of a number of particular

15

branches or sections of that union.

(2)   

References in those sections—

(a)   

to taking part in the activities of a trade union, and

(b)   

to services made available by a trade union by virtue of

membership of the union,

20

   

shall be construed in accordance with subsection (1).

(3)   

The remedy of a worker for infringement of the right conferred on him

by section 145A or 145B is by way of a complaint to an employment

tribunal in accordance with this Part, and not otherwise.”

24      

Extension of protection against detriment for union membership etc.

25

(1)   

Section 146 of the 1992 Act (action short of dismissal on grounds related to

union membership or activities) is amended in accordance with subsections (2)

to (5).

(2)   

For “An employee” in each of subsections (1), (3) and (5), and “an employee” in

each of subsections (2) and (4), substitute “A worker” and “a worker”

30

respectively.

(3)   

In subsection (2)—

(a)   

for “employee’s” substitute “worker’s”; and

(b)   

after “contract of employment” insert “(or other contract personally to

do work or perform services)”.

35

(4)   

In subsection (3), for “his contract of employment” substitute “a contract of

employment”.

(5)   

For subsection (6) substitute—

“(5A)   

This section does not apply where—

(a)   

the worker is an employee; and

40

(b)   

the detriment in question amounts to dismissal.”

(6)   

In the sidenote to section 146 of the 1992 Act, and in the cross-heading

immediately preceding it, for “Action short of dismissal” substitute

“Detriment”.

 

 

Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees

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(7)   

In section 151(2) of the 1992 Act (supplementary provision), for “an employee”

substitute “a worker”.

(8)   

In the sidenote to section 152 of the 1992 Act, and in the cross-heading

immediately preceding it, after “Dismissal” insert “of employee”.

25      

Detriment for use of union services or refusal of inducement

5

(1)   

Section 146 of the 1992 Act (action short of dismissal on grounds related to

union membership or activities) is also amended in accordance with

subsections (2) to (4).

(2)   

In subsection (1), omit “or” at the end of paragraph (b) and after that paragraph

insert—

10

“(ba)   

preventing or deterring him from making use of trade union

services at an appropriate time, or penalising him for doing so,

or”.

(3)   

In subsection (2)—

(a)   

for “(1)(b)” substitute “(1)”; and

15

(b)   

in paragraph (b), after “the activities of a trade union” insert “or (as the

case may be) make use of trade union services”.

(4)   

After subsection (2) insert—

“(2A)   

In this section—

(a)   

“trade union services” means services made available to the

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worker by an independent trade union by virtue of his

membership of the union, and

(b)   

references to a worker’s “making use” of trade union services

include his consenting to the raising of a matter on his behalf by

an independent trade union of which he is a member.

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(2B)   

If an independent trade union of which a worker is a member raises a

matter on his behalf (with or without his consent), penalising the

worker for that is to be treated as penalising him as mentioned in

subsection (1)(ba).

(2C)   

A worker also has the right not to be subjected to any detriment as an

30

individual by any act, or any deliberate failure to act, by his employer

if the act or failure takes place because of the worker’s failure to accept

an offer made in contravention of section 145A or 145B.

(2D)   

For the purposes of subsection (2C), not conferring a benefit that, if the

offer had been accepted by the worker, would have been conferred on

35

him under the resulting agreement shall be taken to be subjecting him

to a detriment as an individual (and to be a deliberate failure to act).”

(5)   

In section 148 of the 1992 Act (consideration of complaint under section 146),

omit subsections (3) to (5).

(6)   

In section 151 of the 1992 Act, in subsection (1) (references in sections 146 to 150

40

to being etc. a member of a union to include being etc. a member of a branch or

section) omit “; and references to taking part in the activities of a trade union

shall be similarly construed”.

 

 

Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees

24

 

(7)   

After that subsection insert—

“(1A)   

References in those sections—

(a)   

to taking part in the activities of a trade union, and

(b)   

to services made available by a trade union by virtue of

membership of the union,

5

   

shall be construed in accordance with subsection (1).”

(8)   

Omit section 17 of the Employment Relations Act 1999 (c. 26) (which is

superseded by this section and section 26).

26      

Dismissal for use of union services or refusal of inducement

(1)   

Section 152 of the 1992 Act (dismissal on grounds related to union membership

10

or activities) is amended as follows.

(2)   

In subsection (1), omit “or” at the end of each of paragraphs (a) and (b) and after

paragraph (b) insert—

“(ba)   

had made use, or proposed to make use, of trade union services

at an appropriate time,

15

(bb)   

had failed to accept an offer made in contravention of section

145A or 145B, or”.

(3)   

In subsection (2)—

(a)   

for “(1)(b)” substitute “(1)”; and

(b)   

in paragraph (b), after “the activities of a trade union” insert “or (as the

20

case may be) make use of trade union services”.

(4)   

After subsection (2) insert—

“(2A)   

In this section—

(a)   

“trade union services” means services made available to the

employee by an independent trade union by virtue of his

25

membership of the union, and

(b)   

references to an employee’s “making use” of trade union

services include his consenting to the raising of a matter on his

behalf by an independent trade union of which he is a member.

(2B)   

Where the reason or one of the reasons for the dismissal was that an

30

independent trade union (with or without the employee’s consent)

raised a matter on behalf of the employee as one of its members, the

reason shall be treated as falling within subsection (1)(ba).”

(5)   

In subsection (4) (references to being etc. a member of a union to include being

etc. a member of a branch or section) omit “; and references to taking part in the

35

activities of a trade union shall be similarly construed”.

(6)   

After that subsection add—

“(5)   

References in this section—

(a)   

to taking part in the activities of a trade union, and

(b)   

to services made available by a trade union by virtue of

40

membership of the union,

   

shall be construed in accordance with subsection (4).”

 

 

 
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Revised 2 December 2003