House of Commons - Explanatory Note
Employment Relations Bill - continued          House of Commons

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Entitlement to vote in ballot on industrial action

125.     Clause 18 amends section 227(1) of the 1992 Act. The amendment clarifies that the members to whom the union must accord an entitlement to vote in an industrial action ballot are all those it is reasonable for the union to believe will be induced by it to take part in the action. This resolves the issue that arose in the Midland Mainline case (see above at paragraph 109) by putting it beyond doubt that the union does not have to give such an entitlement to members who might take part even though not induced to do so by the union.

Inducement of members not accorded entitlement to vote

126.     Clause 19 amends section 232B of the 1992 Act and inserts a new provision into section 62 of that Act.

127.     The organisation of an industrial action ballot can be complicated and can sometimes involve many thousands of people. Under the 1992 Act as it stood before the changes made by the 1999 Act, the whole ballot could be invalidated if a union committed minor errors in determining who was eligible to vote, or failed to send ballot papers to all those required to be given an entitlement to vote.

128.     The 1999 Act inserted section 232B, which provides that such errors are to be disregarded as long as they are accidental and on a scale unlikely to affect the outcome of the ballot. The 1999 Act also inserted section 232A, which defines the circumstances in which a union that induces members to take industrial action who should have been given an entitlement to vote but were not, loses its protection against legal liability. The dispensation for accidental failures in section 232B does not presently refer expressly to the purpose of section 232A but in P v National Association of Schoolmasters/Union of Women Teachers [2003] 2 All ER 8, the House of Lords nevertheless held on the facts of the case that it did apply indirectly.

129.     Clause 19(1)(a) amends section 232B to ensure, in the interests of clarity, that where a union's failure to comply with the requirements of the 1992 Act is currently covered by the dispensation for accidental failures, and that failure would otherwise result in a failure to comply with section 232A, the latter failure is also to be disregarded. The main effect is that where a union accidentally fails to ballot an insignificant number of those it intends to induce to take part in industrial action, the union will not lose its protections against legal action because it induces them to take part in the action. The amendment confirms the judgment of the House of Lords in P v NASUWT (see above at paragraph 109) by making the position clear on the face of the legislation.

130.     Clause 19(1)(b) corrects a drafting error in section 232B. Section 230(2B) has the effect that where merchant seamen are entitled to vote in an industrial action ballot and are on a ship or outside Great Britain, special arrangements for enabling them to vote apply. Section 232B should have referred to section 230(2B) but refers instead to section 230(2A). The error was identified in P v NASUWT.

131.     Subsection (2) of clause 19 inserts a new paragraph into section 62(2) of the 1992 Act. Section 62 gives union members a right to take legal action against their union if they are likely to be or have been induced to take part in industrial action and certain of the balloting requirements contained in sections 226 to 234 of the 1992 Act have been contravened. The effect of the new subsection is to include section 232A in the list of requirements contravention of which gives union members the right to take such legal action.

Information about employees to be contained in notice of industrial action

132.     Clause 20 amends section 234A of the 1992 Act, which specifies the information required to be contained in an "industrial action notice".

133.     Section 234A currently requires a union to provide each employer the union reasonably believes to employ members who will be induced to take part in the proposed industrial action with a notice. The notice must state whether the action is intended to be continuous or discontinuous and give, in the first case, the date on which it is intended to start and, in the second, the dates on which it is intended to take place.

134.     As the section is at present, the notice is also required to contain information in the union's possession that would help the employer to make plans and bring information to the attention of the employees the union intends to induce and has to include information, if the union has it, as to the number of employees involved, their category of work and workplace. The notice must be received by the employer at least 7 days before the first date on which the industrial action is intended to take place.

135.     Clause 20 is intended to simplify the requirements of section 234A by making changes to the information the union is required to supply. The changes, which are similar to those proposed by clause 17 in relation to the requirement to give employers a ballot notice, make it desirable, in the interests of clarity, to restructure the provisions of the section and the clause therefore does so.

136.     Subsection (2) of the clause amends the current subsection (3)(a) of section 234A, with the effect that the information unions are required to include in the notice must contain the lists and figures mentioned respectively in new subsections (3A) and (3B) inserted into section 234A by subsection (3) of the clause. The intention is to reduce the uncertainty currently present in section 234A by making the information that the union must supply specific and removing the need for the union to determine what information has to be given by reference to what would help the employer to make plans and bring information to the attention of those the union intends to induce.

137.     Subsection (3) of the clause adds new subsections (3A) to (3E) to section 234A. New subsections (3A) and (3B), taken with the new subsection (2)(a), change the information required to be given by the current subsections (3)(a) and (5A) of section 234A. The effect of new subsection (3A) is that the notice must contain a list of the categories to which the "affected employees" (that is to say, the employees of the employer who the union reasonably believes will be induced to take part in the industrial action) belong and a list of the workplaces at which they work. The effect of new subsection (3B) is that the notice must contain figures showing the total number of the affected employees, the number of them in each category in the list of categories given in accordance with the new subsection (3A), and the number of them that work at each workplace in the list of workplaces given in accordance with that subsection.

138.     New subsection (3C) contains a new requirement that the lists and figures the union supplies are to be as accurate as reasonably practicable in the light of the information in the possession of the union.

139.     New subsection (3D) has the effect that for this purpose information is regarded as being in the possession of the union only if it is held, for union purposes, in a document (including an electronic document) and is in the possession or under the control of a union officer or an employee of the union. The effect is that information held only by branch officials or other lay representatives of the union is not in the union's possession for the purpose of subsection (3C).

140.     New subsection (3E) repeats the substance of the current subsection (5A)(b) of section 234A and ensures that the section does not require the notice to name the affected employees.

141.     Subsection (4) of the clause amends subsection (5) of section 234A. This subsection defines which employees are covered in principle by the notice and sets out the circumstances in which their inducement by the union to take part in industrial action is covered by the notice. At present the employees covered are the "affected employees" but this term relies on the reasonable belief of the union as to those who will be induced and its use in subsection (5) therefore leads to an imprecise result. Subsection (4) of the clause has the effect that the employees covered will be those falling within a category and employed at a workplace specified in the notice. This test is clear and objective.

142.     Subsection (5) of the clause substitutes for the present subsection (5A) of section 234A new subsections (5B) and (5C). New subsection (5B) defines the term "affected employees" to mean those employees who the union reasonably believes will be induced to take part in the industrial action. New subsection (5C) defines the term "workplace" in relation to an employee, so making section 234A more precise.

143.     Subsection (6) of the clause contains a consequential amendment to a reference in section 234A(8).

Protections for Striking Employees

144.     Section 238A of the 1992 Act, which was inserted by the Employment Relations Act 1999, provides protections to employees if they are dismissed for taking lawfully organised official industrial action (protected industrial action). The section makes it unfair to dismiss an employee for this reason (1) during the eight week period following the start of the protected industrial action, (2) after this period where the employee's participation in the action had ceased within the 8 week period, or (3) after this period where the employee's participation had not ceased before the end of the period unless the employer has taken reasonable procedural steps to resolve the dispute with the union. One tribunal case has been brought under this jurisdiction (Davis v Friction Dynamics); one issue raised by the case, which occurred in controversial circumstances, was how section 238A applied where the employees taking protected industrial action were locked out while taking it.

Unfair dismissal when employees taking protected industrial action locked out

145.     Clause 21 introduces an additional element to the protections for striking employees in section 238A of the 1992 Act by changing the scope of the 8-week period currently specified in the section. It does this by providing for 'locked-out' days to be disregarded when determining the length of the period. Under the provisions of this clause the period will in effect end when 56 days have passed since the start of the action on which no lock-out has occurred. This means, for example, that where a lock out occurred on two days, the total period of protection becomes 58 days.

146.     Subsection (2) of the clause introduces the term "protected period" into section 238A.

147.     Subsection (3) inserts four new subsections, (7A) to (7D), into section 238A of the 1992 Act that have the effect of lengthening the period of protection when a lock out occurs. New subsection (7A) states that the total length of the "protected period" equals the "basic period" plus any "extension period"

148.     New subsection (7B) defines the basic period as 8 weeks beginning with the first day of protected industrial action. New subsection (7C) defines the extension period. It means that the total period of protection is extended beyond the basic 8 week period by one day for each day on which the employee was locked out that occurred either within the basic period or within an extension period.

149.     New subsection (7D) ensures that the period of protected industrial action can begin even though a lock out might be in force on that day.

Date of dismissal when taking protected industrial action

150.     Clause 22 amends section 238A of the 1992 Act by substituting "the date of the dismissal" for the words "it takes place" (referring to when the dismissal takes place) at each place where they occur in the section, and then defining the expression "the date of dismissal" in the same way as it is defined for the purposes of section 238 by section 238(5). The effect is that for the purposes of section 238A "the date of the dismissal" means:

  • the date on which the employer's notice was given, where the employee's contract of employment was terminated by notice, and

  • in any other case the effective date of termination.

151.     The effect is to ensure that where section 238A applies in relation to a dismissal with notice the dismissal is treated as occurring when the notice is given and not when the period of notice expires.

PART THREE: RIGHTS OF TRADE UNION MEMBERS, WORKERS AND EMPLOYEES

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

152.     The general effect of sections 146 and 152 of the 1992 Act as they are at present is to make it unlawful for employers to subject employees to detriment (section 146) or dismiss them (section 152) on grounds of their union membership (or non-membership) or on grounds of taking part in union activities "at an appropriate time".

153.     In July 2002 the European Court of Human Rights delivered its judgment in the case of Wilson & the National Union of Journalists, Palmer, Wyeth & the National Union of Rail, Maritime & Transport Workers, Doolan & others v United Kingdom [2002] IRLR 568 ("Wilson and Palmer") (a summary of the judgment can be found at http://www.echr.coe.int/Eng/Press/2002/july/WilsonandOthersjudepress.htm). The Court concluded that UK trade union law was incompatible with Article 11 of the European Convention on Human Rights (freedom of association) in that where a trade union was recognised by an employer for the purposes of collective bargaining about the terms and conditions of a group of employees, the law did not prevent the employer from offering inducements to the employees in the group to persuade them to surrender their collective representation and have their terms settled instead by negotiations between each individual employee and the employer. The Government believe that the principle underlying the decision of the Court extends beyond the facts in Wilson and Palmer and is applicable to a number of other comparable circumstances. The purpose of clauses 23 to 26 is therefore to secure that these provisions deal not only with the facts in Wilson and Palmer but also with the other circumstances considered by the Government to be comparable.

Inducements relating to union membership or activities

154.     Clause 23 inserts new sections 145A to 145F into the 1992 Act.

New section 145A

155.     Subsection (1) of the new section gives a worker the right not to have an offer made to him by his employer where the employer's sole or main purpose is to induce the worker to do or not do certain things. The things are (1) not to be or seek to become a member of an independent trade union, (2) not to take part in the activities of an independent trade union at 'an appropriate time', (3) not to make use of the services of a trade union at 'an appropriate time', and (4) to be or become a member of a trade union.

156.     All the limbs of this right are new but while the first, second and fourth limbs reflect the matters covered by the right not to be subjected to detriment already contained in section 146 of the 1992 Act, the third limb relating to making use of union services is entirely new.

157.     Subsection (2) defines the term 'an appropriate time' for the purposes of the rights given by subsection (1). The effect of the definition, which is based on the definition used in the section 146(2) of the 1992 Act as amended by clauses 24 and 25, is that the limbs of the right relating to taking part in union activities and making use of trade union services apply where the worker takes part in the activities or makes use of the services outside the worker's working hours, or during them at a time when, in accordance with arrangements agreed with the employer or consent given by the employer, it is permissible for him to do so.

158.     Subsection (3) defines the term 'working hours' used in the definition of 'an appropriate time'. Working hours means any time when the worker is required to be at work by the contract under which he works.

159.     Subsection (4)(a) defines "trade union services" to mean services made available to a worker by an independent trade union by virtue of his membership of the union. Subsection (4)(b) states that references to a worker making use of trade union services include "consenting to the raising of a matter on his behalf by an independent trade union of which he is a member", so ensuring that a worker consenting to his union raising a matter is regarded as making use of union services.

New section 145B

160.     In general terms, new section 145B gives a new right to a worker who is a member of an independent trade union recognised by the employer not to have an offer made to him where similar offers are made to other workers and the sole or main purpose of the employer in making the offers is to secure that the terms of the workers will no longer be determined by a collective agreement negotiated with the union.

161.     Subsections (1) and (2) of the new section 145B have the effect that a worker who is a member of an independent trade union recognised by his employer for the purpose of collective bargaining has the right not to have an offer made to him by his employer if (1) his acceptance of the offer, together with its acceptance by other workers to whom it is made, would have the result ('the prohibited result') that the workers' terms and conditions will no longer be determined by collective agreement negotiated by or on behalf of the union, and (2) the employer's sole or main purpose in making the offers is to achieve that result.

162.     Subsection (3) has the effect that it is immaterial to the operation of the new right whether the offers are made to the workers simultaneously.

163.     Subsection (4) provides that having terms of employment determined by collective agreement is not to be regarded as making use of a trade union service for the purposes of the new section 145A, or sections 146 or 152 in their form as amended by the Bill. This removes the possibility of conflict between new sections 145A and 145B and ensures consistency in the interpretation new section 145A and sections 146 and 152.

Section 145C

164.     New section 145C sets out the time limit for bringing tribunal proceedings for contravention of the rights in new sections 145A and 145B. Paragraph (a) of the new section provides that a tribunal shall not consider a complaint unless it is presented within three months of the day that the offer was made or, where the offer is part of a series of similar offers, the date when the last was made. However, paragraph (b) of the new section allows a tribunal to consider a complaint presented later where it is satisfied that it was not reasonably practicable for the complaint to be presented within the normal three-month period.

New section 145D

165.     New section 145D contains provisions as to how complaints under new sections 145A and 145B are to be considered by an employment tribunal.

166.     Subsections (1) and (2) provide that on a complaint under new section 145A or 145B it shall be for the employer to show what his sole or main purpose in making the offer was.

167.     Subsection (3), which is based on the present section 148(2), states that in determining whether the employer made an offer or the purpose for which he did so, the tribunal shall take no account of any pressure applied to the employer by the organisation of any industrial action or the threat of such action, and that the question shall be determined as if no such pressure had been applied. The wording of subsection (3) is based on section 148(2), which is the corresponding provision about claims under section 146.

168.     Subsection (4) relates only to an offer that is alleged to have contravened new section 145B. The subsection requires that in determining whether the employer's sole or main purpose in making offers was to achieve the result that workers' terms of employment would no longer be determined by collective agreement, the matters taken into account by the tribunal must include any evidence showing (1) that when the offers were made the employer had recently changed or sought to change, or did not wish to use, arrangements agreed with the union for collective bargaining, or (2) that offers were made only to particular workers and were made with the sole or main purpose of rewarding those particular workers for their high level of performance or of retaining them because of their special value to the employer.

New section 145E

169.     New section 145E contains the remedies that apply where an employment tribunal finds that there has been a contravention of one of the new rights given by sections 145A and 145B.

170.     Subsections (1) and (2) have the effect that if the tribunal finds a complaint to be well-founded it is to make a declaration to that effect and make an award to be paid by the employer to the worker in respect of the offer complained of.

171.     Subsection (3) has the effect that the award to be paid to the worker is a fixed sum of £2,500 but that the award can be subject to a reduction or increase under the provisions of the Employment Act 2002. These provisions are not yet in force.

172.     Subsection (4) relates to offers in contravention of sections 145A or 145B that have been accepted. Subsection (4)(a) has the effect that if the acceptance of the offer resulted in the worker agreeing to vary his terms of employment later, the employer cannot enforce the agreement to vary or recover any sum paid or other asset transferred that constituted the inducement.

173.     Subsection (4)(b) has the effect that if the acceptance of the offer resulted in variations of the worker's terms of employment nothing in new sections 145A or 145B makes the variations unenforceable by either the employer or the worker.

174.     Subsection (5) relates to section 146 of the 1992 Act (action short of dismissal on grounds related to union membership or activities) and also to section 149 (remedies for breach of section 146).

175.     Under section 146 as it is at present, an employee already has the right not to have action taken against him by his employer that subjects him to detriment where the ground for taking the action is membership or non-membership of a trade union or taking part in the activities of a trade union. It should be noted that section 146, as amended by clause 25 of the Bill, would include the right not to be subjected to detriment on the ground of making use of 'trade union services' (as defined in section 146 as amended) or of a failure to accept an offer made in contravention of new section 145A or 145B.

176.      Subsection (5) makes it clear that neither the rights given by new sections 145A and 145B nor the remedies contained in new section 145E prejudice any right conferred on a worker by section 146 or 149 of the 1992 Act. This ensures that any worker who is subjected to a detriment because he has not accepted an offer that is unlawful under new section 145A or 145B is able to complain to an employment tribunal both under section 146 and under new section 145A or 145B. This ability for the worker to claim under both the sections relevant to his circumstances means that his refusal of the offer need not have the result that he looses out financially. It also means that the incentive for workers to accept an offer that contravenes section 145A or 145B is reduced.

New Section 145F

177.     New section 145F contains interpretative and other supplementary provisions, and is modeled on section 151 if the 1992 Act as amended by clause 24 and 25. Subsection (1) provides that references to "being or becoming a member of a trade union" include references to being or becoming a member of a particular branch or section of that union or of one of a number of particular branches or sections of the union.

178.     Subsection (2) ensures, consistently with subsection (1), that references to "taking part in the activities of a trade union" and to "services made available by a trade union by virtue of membership of the union" include taking part in the activities of and the services made available by a particular branch or section of the union or one of a number of particular branches or sections. This ensures that the rights conferred by new section 145A apply where it is a branch of the union that is involved rather than the union itself.

Extension of protection against detriment for union membership etc.

179.     Clause 24. Section 146 of the 1992 Act (action short of dismissal on grounds related to union membership or activities) currently confers rights only on employees, that is to say, individuals who are working under a contract of employment or, where the employment has ceased, were doing so.

180.     The effect of clause 24 is to extend the rights conferred by section 146 to "workers". The definition of a worker as given in the Act is an individual who works, or normally works or seeks to work:

  • (a) under a contract of employment; or

  • (b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client; or

  • (c) in employment under or for the purposes of a government department (except the armed forces) where the employment is not under a contract mentioned in (a) or (b).

The expression "contract of employment" is defined in section 295(1) of the 1992 Act as meaning a contract of service or of apprenticeship.

181.     Subsections (1) to (4) amend section 146 of the 1992 Act to substitute the term "worker" for the term "employee" and ensure that the section works properly in relation to circumstances where the individual is a worker but not an employee.

182.     Subsection (5) inserts a new subsection (5A) into section 146 providing that the section does not apply where the worker is an employee and the detriment he suffers is dismissal. The reason is that where an employee is dismissed for reasons that correspond to the grounds mentioned in section 146 he is able to claim unfair dismissal under section 152 of the 1992 Act (which clause 26 amends to cover dismissal for use of union services or the refusal of an offer infringing new section 145A or 145B).

183.     Subsections (6) to (8) make consequential amendments to other sections of the 1992 Act that are related to section 146.

 
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Prepared: 4 December 2003