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Employment Relations Bill


Employment Relations Bill
Part 2 — Law relating to industrial action

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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.

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(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

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238(5).”

23      

Dismissal after end of protected period

(1)   

In section 238A(6) of the 1992 Act (dismissal after end of protected period),

after paragraph (d) insert—

“(e)   

where there was agreement to use either of the services

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mentioned in paragraphs (c) and (d), the matters specified in

section 238B.”

(2)   

After section 238A of the 1992 Act insert—

“238B   

Conciliation and mediation: supplementary provisions

(1)   

The matters referred to in subsection (6)(e) of section 238A are those

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specified in subsections (2) to (5); and references in this section to “the

service provider” are to any person who provided a service mentioned

in subsection (6)(c) or (d) of that section.

(2)   

The first matter is: whether, at meetings arranged by the service

provider, the employer or, as the case may be, a union was represented

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by an appropriate person.

(3)   

The second matter is: whether the employer or a union, so far as

requested to do so, co-operated in the making of arrangements for

meetings to be held with the service provider.

 

 

Employment Relations Bill
Part 2 — Law relating to industrial action

20

 

(4)   

The third matter is: whether the employer or a union fulfilled any

commitment given by it during the provision of the service to take

particular action.

(5)   

The fourth matter is: whether, at meetings arranged by the service

provider between the parties making use of the service, the

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representatives of the employer or a union answered any reasonable

question put to them concerning the matter subject to conciliation or

mediation.

(6)   

For the purposes of subsection (2) an “appropriate person” is—

(a)   

in relation to the employer—

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(i)   

a person with the authority to settle the matter subject to

conciliation or mediation on behalf of the employer, or

(ii)   

a person authorised by a person of that type to make

recommendations to him with regard to the settlement

of that matter, and

15

(b)   

in relation to a union, a person who is responsible for handling

on the union’s behalf the matter subject to conciliation or

mediation.

(7)   

For the purposes of subsection (4) regard may be had to any timetable

which was agreed for the taking of the action in question or, if no

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timetable was agreed, to how long it was before the action was taken.

(8)   

In any proceedings in which regard must be had to the matters referred

to in section 238A(6)(e)—

(a)   

notes taken by or on behalf of the service provider shall not be

admissible in evidence;

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(b)   

the service provider must refuse to give evidence as to anything

communicated to him in connection with the performance of his

functions as a conciliator or mediator if, in his opinion, to give

the evidence would involve his making a damaging disclosure;

and

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(c)   

the service provider may refuse to give evidence as to whether,

for the purposes of subsection (5), a particular question was or

was not a reasonable one.

(9)   

For the purposes of subsection (8)(b) a “damaging disclosure” is —

(a)   

a disclosure of information which is commercially sensitive, or

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(b)   

a disclosure of information that has not previously been

disclosed which relates to a position taken by a party using the

conciliation or mediation service on the settlement of the matter

subject to conciliation or mediation,

   

to which the person who communicated the information to the service

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provider has not consented.”’.

 

 

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

21

 

Part 3

Rights of trade union members, workers and employees

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

24      

Inducements relating to union membership or activities

After section 145 of the 1992 Act insert—

5

“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—

(a)   

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

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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,

or

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(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

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arrangements agreed with or consent given by his employer, it

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

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

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

at work.

(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

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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.

(5)   

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

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

this section.

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

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him by his employer if—

 

 

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

22

 

(a)   

acceptance of the offer, together with other workers’ acceptance

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.

5

(2)   

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

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.

10

(4)   

Having terms of employment determined by collective agreement shall

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

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this section.

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

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

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

them was made, or

(b)   

where the tribunal is satisfied that it was not reasonably

practicable for the complaint to be presented before the end of

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that period, within such further period as it considers

reasonable.

145D    

Consideration of complaint

(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.

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(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

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

35

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

exercised.

(4)   

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

40

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

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

arrangements agreed with the union for collective bargaining,

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or

 

 

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

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(b)   

that the 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.

145E    

Remedies

5

(1)   

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

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

(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

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complainant in respect of the offer complained of.

(3)   

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

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

15

accepted—

(a)   

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

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;

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(b)   

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

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

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.

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(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

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

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

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(b)   

that the complainant has received or is entitled to an award

under this section.

145F    

Interpretation and other supplementary provisions

(1)   

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

a trade union include references—

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(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

branches or sections of that union.

(2)   

References in those sections—

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(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,

   

shall be construed in accordance with subsection (1).

 

 

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

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(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.”

25      

Extension of protection against detriment for union membership etc.

(1)   

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

5

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”

respectively.

10

(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)”.

(4)   

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

15

employment”.

(5)   

For subsection (6) substitute—

“(5A)   

This section does not apply where—

(a)   

the worker is an employee; and

(b)   

the detriment in question amounts to dismissal.”

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(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”.

(7)   

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

substitute “a worker”.

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(8)   

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

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

26      

Detriment for use of union services or refusal of inducement

(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

30

subsections (2) to (4).

(2)   

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

insert—

“(ba)   

preventing or deterring him from making use of trade union

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

35

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

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

40

(4)   

After subsection (2) insert—

“(2A)   

In this section—

 

 

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

25

 

(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

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

5

an independent trade union of which he is a member.

(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).

10

(2C)   

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

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

15

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

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).

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(6)   

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

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—

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“(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,

   

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

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(8)   

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

superseded by this section and section 27).

27      

Dismissal for use of union services or refusal of inducement

(1)   

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

or activities) is amended as follows.

35

(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,

(bb)   

had failed to accept an offer made in contravention of section

40

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

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

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