|
| |
|
(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 |
| |
membership of the union, and |
| 5 |
(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 |
| |
independent trade union (with or without the employee’s consent) |
| 10 |
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 |
| |
activities of a trade union shall be similarly construed”. |
| 15 |
(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 |
| |
| 20 |
| shall be construed in accordance with subsection (4).” |
| |
Exclusion and expulsion from trade unions |
| |
28 | Exclusion or expulsion from trade union attributable to conduct |
| |
(1) | Section 174 of the 1992 Act (right not to be excluded or expelled from trade |
| |
union) is amended as follows. |
| 25 |
(2) | In subsection (2)(d) for “his conduct” substitute “conduct of his (other than |
| |
excluded conduct) and the conduct to which it is wholly or mainly attributable |
| |
is not protected conduct”. |
| |
(3) | For subsection (4) substitute— |
| |
“(4) | For the purposes of subsection (2)(d) “excluded conduct”, in relation to |
| 30 |
| |
(a) | conduct which consists in his being or ceasing to be, or having |
| |
been or ceased to be, a member of another trade union, |
| |
(b) | conduct which consists in his being or ceasing to be, or having |
| |
been or ceased to be, employed by a particular employer or at a |
| 35 |
| |
(c) | conduct to which section 65 (conduct for which an individual |
| |
may not be disciplined by a union) applies or would apply if the |
| |
references in that section to the trade union which is relevant for |
| |
the purposes of that section were references to any trade union. |
| 40 |
(4A) | For the purposes of subsection (2)(d) “protected conduct” is conduct |
| |
which consists in the individual’s being or ceasing to be, or having been |
| |
or ceased to be, a member of a political party. |
| |
|
| |
|
| |
|
(4B) | Conduct which consists of activities undertaken by an individual as a |
| |
member of a political party is not conduct falling within subsection |
| |
| |
(4) | In section 176 of that Act (remedies for infringement of right not to be excluded |
| |
or expelled), after subsection (1) insert— |
| 5 |
“(1A) | If a tribunal makes a declaration under subsection (1) and it appears to |
| |
the tribunal that the exclusion or expulsion was mainly attributable to |
| |
conduct falling within section 174(4A) it shall make a declaration to that |
| |
| |
(1B) | If a tribunal makes a declaration under subsection (1A) and it appears |
| 10 |
to the tribunal that the other conduct to which the exclusion or |
| |
expulsion was attributable consisted wholly or mainly of acting in a |
| |
way which was contrary to the rules of the union (whether or not the |
| |
complainant was a member of the union at the time at which he acted |
| |
in that way) it shall make a declaration to that effect.” |
| 15 |
(5) | In subsection (3)(a) of that section, after “declaration” insert “under subsection |
| |
| |
(6) | After subsection (6) of that section insert— |
| |
“(6A) | If on the date on which the application was made the applicant had not |
| |
been admitted or re-admitted to the union, the award shall not be less |
| 20 |
| |
(6B) | Subsection (6A) does not apply in a case where the tribunal which |
| |
made the declaration under subsection (1) also made declarations |
| |
under subsections (1A) and (1B).” |
| |
(7) | In sections 174 and 176 of the 1992 Act references to the conduct of an |
| 25 |
individual include references to conduct which took place before the coming |
| |
into force of this section. |
| |
29 | Applications no longer to be made to Employment Appeal Tribunal |
| |
(1) | Section 67 of the 1992 Act (compensation for infringement of right not to be |
| |
unjustifiably disciplined) is amended in accordance with subsections (2) to (6). |
| 30 |
(2) | In subsection (1) after “application” insert “to an employment tribunal”. |
| |
(3) | Omit subsections (2) and (4). |
| |
(4) | In subsections (5) and (7) omit “Employment Appeal Tribunal or”. |
| |
(5) | In subsection (8) omit the words after paragraph (b). |
| |
(6) | After that subsection insert— |
| 35 |
“(8A) | If on the date on which the application was made— |
| |
(a) | the determination infringing the applicant’s right not to be |
| |
unjustifiably disciplined has not been revoked, or |
| |
(b) | the union has failed to take all the steps necessary for securing |
| |
the reversal of anything done for the purpose of giving effect to |
| 40 |
| |
| the amount of compensation shall be not less than the amount for the |
| |
time being specified in section 176(6A).” |
| |
|
| |
|
| |
|
(7) | Section 176 of the 1992 Act (remedies for exclusion or expulsion from trade |
| |
union) is also amended in accordance with subsections (8) to (11). |
| |
| |
(a) | after “an application” insert “to an employment tribunal”; and |
| |
(b) | omit the second sentence. |
| 5 |
(9) | In subsection (4) omit “or the Employment Appeal Tribunal”. |
| |
(10) | In subsection (5) omit “or Employment Appeal Tribunal”. |
| |
(11) | In subsection (6) omit the words after paragraph (b). |
| |
Other rights of workers and employees |
| |
30 | Role of companion at disciplinary or grievance hearing |
| 10 |
(1) | For subsection (2) of section 10 of the Employment Relations Act 1999 (c. 26) |
| |
(duty of employers to permit workers to be accompanied at disciplinary and |
| |
grievance hearings) substitute— |
| |
“(2A) | Where this section applies, the employer must permit the worker to be |
| |
accompanied at the hearing by one companion who— |
| 15 |
(a) | is chosen by the worker; and |
| |
(b) | is within subsection (3). |
| |
(2B) | The employer must permit the worker’s companion to— |
| |
(a) | address the hearing in order to do any or all of the following— |
| |
(i) | put the worker’s case; |
| 20 |
| |
(iii) | respond on the worker’s behalf to any view expressed at |
| |
| |
(b) | confer with the worker during the hearing. |
| |
(2C) | Subsection (2B) does not require the employer to permit the worker’s |
| 25 |
| |
(a) | answer questions on behalf of the worker; |
| |
(b) | address the hearing if the worker indicates at it that he does not |
| |
wish his companion to do so; or |
| |
(c) | use the powers conferred by that subsection in a way that |
| 30 |
prevents the employer from explaining his case or prevents any |
| |
other person at the hearing from making his contribution to it.” |
| |
(2) | In section 11(1) of that Act (complaint to employment tribunal), for “10(2)” |
| |
| |
(3) | In section 12 of that Act (right not to be subjected to a detriment or dismissal)— |
| 35 |
(a) | in subsections (1)(a) and (3)(a) for “10(2)” substitute “10(2A), (2B)”; and |
| |
(b) | after subsection (6) add— |
| |
“(7) | References in this section to a worker having accompanied or |
| |
sought to accompany another worker include references to his |
| |
having exercised or sought to exercise any of the powers |
| 40 |
conferred by section 10(2A) or (2B).” |
| |
|
| |
|
| |
|
31 | Extension of jurisdiction of Employment Appeal Tribunal |
| |
In section 21(1) of the Employment Tribunals Act 1996 (c. 17) (proceedings |
| |
from which appeal lies to Employment Appeal Tribunal), for paragraphs (ff) |
| |
| |
| 5 |
(ga) | the National Minimum Wage Act 1998, |
| |
(gb) | the Employment Relations Act 1999,”. |
| |
32 | Ways in which provision conferring rights on individuals may be made |
| |
(1) | Section 23 of the Employment Relations Act 1999 (c. 26) (power to confer on |
| |
individuals of a specified description rights conferred by certain enactments) |
| 10 |
| |
(2) | In subsection (5) (ways in which that power may be exercised) omit the words |
| |
from “, whether” to the end. |
| |
(3) | After that subsection insert— |
| |
“(5A) | The ways in which an order under this section may make provision |
| 15 |
| |
(a) | amending any enactment; |
| |
(b) | excluding or applying (whether with or without amendment) |
| |
| |
(5B) | In subsection (5A) “enactment” includes an enactment comprised in |
| 20 |
subordinate legislation made under an Act.” |
| |
| |
(1) | In section 237(1A)(a) of the 1992 Act (cases where employee may complain of |
| |
unfair dismissal despite participation in unofficial industrial action)— |
| |
(a) | for “or 103A” substitute “, 103A or 104C”; and |
| 25 |
(b) | for “and protected disclosure” substitute “, protected disclosure and |
| |
| |
(2) | In subsection (2A)(a) of section 238 of that Act (cases where employment |
| |
tribunal to determine whether dismissal of an employee is unfair despite |
| |
limitation in subsection (2) of that section)— |
| 30 |
(a) | for “or 103” substitute “, 103 or 104C”; and |
| |
(b) | for “and employee representative” substitute “, employee |
| |
representative and flexible working”. |
| |
(3) | After subsection (7B) of section 105 of the Employment Rights Act 1996 (c. 18) |
| |
| 35 |
“(7BA) | This subsection applies if the reason (or, if more than one, the principal |
| |
reason) for which the employee was selected for dismissal was one of |
| |
those specified in section 104C.” |
| |
(4) | In section 108(3) of that Act (exceptions to one year qualifying period of |
| |
continuous employment for claims for unfair dismissal), after paragraph (gh) |
| 40 |
| |
“(gi) | section 104C applies,”. |
| |
|
| |
|
| |
|
(5) | In section 109(2) of that Act (exceptions to upper age limit for claims for unfair |
| |
dismissal), after paragraph (gh) insert— |
| |
“(gi) | section 104C applies,”. |
| |
34 | Information and consultation: Great Britain |
| |
(1) | The Secretary of State may make regulations for the purpose of conferring on |
| 5 |
employees of an employer to whom the regulations apply, or on |
| |
representatives of those employees, rights— |
| |
(a) | to be informed by the employer about prescribed matters; |
| |
(b) | to be consulted by the employer about prescribed matters. |
| |
(2) | Regulations made under subsection (1) must make provision as to the |
| 10 |
employers to whom the regulations apply which may include provision— |
| |
(a) | applying the regulations by reference to factors including the number |
| |
of employees in the United Kingdom in the employer’s undertaking; |
| |
(b) | as to the method by which the number of employees in an employer’s |
| |
undertaking is to be calculated; and |
| 15 |
(c) | applying the regulations to different descriptions of employer with |
| |
effect from different dates. |
| |
(3) | Regulations made under subsection (1) may make provision— |
| |
(a) | as to the circumstances in which the rights mentioned in subsection (1) |
| |
arise and the extent of those rights; |
| 20 |
(b) | for and about the initiation and conduct of negotiations between |
| |
employers to whom the regulations apply and their employees for the |
| |
purposes of reaching an agreement satisfying prescribed conditions |
| |
about the provision of information to the employees, and consultation |
| |
of them (whether that provision or consultation is to be direct or |
| 25 |
through representatives); |
| |
(c) | about the representatives the employees may have for the purposes of |
| |
the regulations and the method by which those representatives are to |
| |
| |
(d) | as to the resolution of disputes and the enforcement of obligations |
| 30 |
imposed by the regulations or by an agreement of the kind mentioned |
| |
| |
(4) | Regulations made under subsection (1) may— |
| |
(a) | confer jurisdiction (including exclusive jurisdiction) on employment |
| |
tribunals and on the Employment Appeal Tribunal; |
| 35 |
(b) | confer functions on the Central Arbitration Committee; |
| |
(c) | require or authorise the holding of ballots; |
| |
(d) | amend, apply with or without modifications, or make provision similar |
| |
to any provision of the Employment Rights Act 1996 (c. 18) (including, |
| |
in particular, Parts 5, 10 and 13), the Employment Tribunals Act 1996 |
| 40 |
| |
(e) | include supplemental, incidental, consequential and transitional |
| |
provision, including provision amending any enactment; |
| |
(f) | make different provision for different cases or circumstances. |
| |
(5) | Regulations made under subsection (1) may make any provision which |
| 45 |
appears to the Secretary of State to be necessary or expedient— |
| |
|
| |
|
| |
|
(a) | for the purpose of implementing Directive 2002/14/EC of the |
| |
European Parliament and of the Council of 11 March 2002 establishing |
| |
a general framework for informing and consulting employees in the |
| |
| |
(b) | for the purpose of dealing with any matter arising out of or related to |
| 5 |
the United Kingdom’s obligations under that Directive. |
| |
(6) | Nothing in subsections (2) to (5) prejudices the generality of this section. |
| |
(7) | Regulations under this section shall be made by statutory instrument. |
| |
(8) | No such regulations may be made unless a draft of the regulations has been |
| |
laid before Parliament and approved by a resolution of each House of |
| 10 |
| |
(9) | In this section “prescribed” means prescribed by regulations under this section. |
| |
35 | Information and consultation: Northern Ireland |
| |
(1) | The Department for Employment and Learning may make regulations for the |
| |
purpose of conferring on employees of an employer to whom the regulations |
| 15 |
apply, or on representatives of those employees, rights— |
| |
(a) | to be informed by the employer about prescribed matters; |
| |
(b) | to be consulted by the employer about prescribed matters. |
| |
(2) | Regulations made under subsection (1) must make provision as to the |
| |
employers to whom the regulations apply which may include provision— |
| 20 |
(a) | applying the regulations by reference to factors including the number |
| |
of employees in the United Kingdom in the employer’s undertaking; |
| |
(b) | as to the method by which the number of employees in an employer’s |
| |
undertaking is to be calculated; and |
| |
(c) | applying the regulations to different descriptions of employer with |
| 25 |
effect from different dates. |
| |
(3) | Regulations made under subsection (1) may make provision— |
| |
(a) | as to the circumstances in which the rights mentioned in subsection (1) |
| |
arise and the extent of those rights; |
| |
(b) | for and about the initiation and conduct of negotiations between |
| 30 |
employers to whom the regulations apply and their employees for the |
| |
purposes of reaching an agreement satisfying prescribed conditions |
| |
about the provision of information to the employees, and consultation |
| |
of them (whether that provision or consultation is to be direct or |
| |
through representatives); |
| 35 |
(c) | about the representatives the employees may have for the purposes of |
| |
the regulations and the method by which those representatives are to |
| |
| |
(d) | as to the resolution of disputes and the enforcement of obligations |
| |
imposed by the regulations or by an agreement of the kind mentioned |
| 40 |
| |
(4) | Regulations made under subsection (1) may— |
| |
(a) | confer jurisdiction (including exclusive jurisdiction) on industrial |
| |
tribunals and on the High Court; |
| |
(b) | confer functions on the Industrial Court; |
| 45 |
(c) | require or authorise the holding of ballots; |
| |
|
| |
|
| |
|
(d) | amend, apply with or without modifications, or make provision similar |
| |
| |
(i) | the Industrial Relations (Northern Ireland) Order 1992 (S.I. |
| |
| |
(ii) | the Trade Union and Labour Relations (Northern Ireland) |
| 5 |
Order 1995 (S.I. 1995/1980 (N.I. 12)); |
| |
(iii) | the Employment Rights (Northern Ireland) Order 1996 (S.I. |
| |
1996/1919 (N.I. 16)) (including, in particular, Parts 6, 11 and 15); |
| |
| |
(iv) | the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. |
| 10 |
| |
(e) | include supplemental, incidental, consequential and transitional |
| |
provision, including provision amending any enactment; |
| |
(f) | make different provision for different cases or circumstances. |
| |
(5) | Regulations made under subsection (1) may make any provision which |
| 15 |
appears to the Department for Employment and Learning to be necessary or |
| |
| |
(a) | for the purpose of implementing Directive 2002/14/EC of the |
| |
European Parliament and of the Council of 11 March 2002 establishing |
| |
a general framework for informing and consulting employees in the |
| 20 |
| |
(b) | for the purpose of dealing with any matter arising out of or related to |
| |
the United Kingdom’s obligations under that Directive. |
| |
(6) | Nothing in subsections (2) to (5) prejudices the generality of this section. |
| |
(7) | Power to make regulations under this section is exercisable by statutory rule |
| 25 |
for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. |
| |
| |
(8) | No regulations under this section may be made unless a draft of the regulations |
| |
has been laid before and approved by a resolution of the Northern Ireland |
| |
| 30 |
| |
| |
(a) | a provision of an Act; |
| |
(b) | a provision of, or of any instrument made under, Northern |
| |
| 35 |
(c) | a provision of subordinate legislation; |
| |
| “the Industrial Court” means the Industrial Court constituted under |
| |
Article 91 of the Industrial Relations (Northern Ireland) Order 1992 (S.I. |
| |
| |
| “industrial tribunals” has the meaning given by section 42(5) of the |
| 40 |
Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)); and |
| |
| “prescribed” means prescribed by regulations under this section. |
| |
|
| |
|