Employment Relations Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Employment Relations Bill

Employment Relations Bill
Part 3 — Rights of trade union members, workers and employees
19

(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
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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
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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
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(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,
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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
20
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
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(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).”