|
| |
|
(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).” |
| |
| |
(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 |
| |
| |
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— |
| |
| |
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 |
| |
| |
(b) | not to take part, at an appropriate time, in the activities of an |
| |
| |
(c) | not to make use, at an appropriate time, of trade union services, |
| 35 |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
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 |
| |
(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, |
| |
| |
(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. |
| |
| |
(1) | Subsections (2) and (3) apply where the employment tribunal finds that |
| |
a complaint under section 145A or 145B is well-founded. |
| 30 |
| |
(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 |
| |
| |
(4) | Where an offer made in contravention of section 145A or 145B is |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
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 |
| |
| |
(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 |
| |
| 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) |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(7) | In section 151(2) of the 1992 Act (supplementary provision), for “an employee” |
| |
| |
(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 |
| |
| |
(2) | In subsection (1), omit “or” at the end of paragraph (b) and after that paragraph |
| |
| 10 |
“(ba) | preventing or deterring him from making use of trade union |
| |
services at an appropriate time, or penalising him for doing so, |
| |
| |
| |
(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— |
| |
| |
(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. |
| 25 |
(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 |
| |
| |
(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”. |
| |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| |
“(ba) | had made use, or proposed to make use, of trade union services |
| |
| 15 |
(bb) | had failed to accept an offer made in contravention of section |
| |
| |
| |
(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— |
| |
| |
(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 |
| |
| shall be construed in accordance with subsection (4).” |
| |
|
| |
|