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Employment Relations Bill


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

26

 

(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

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

membership of the union,

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

an individual, means—

(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

particular place, or

(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.

 

 

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

27

 

(4B)   

Conduct which consists of activities undertaken by an individual as a

member of a political party is not conduct falling within subsection

(4A).”

(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

effect.

(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

(1)”.

(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

than £5,900.

(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 determination,

   

the amount of compensation shall be not less than the amount for the

time being specified in section 176(6A).”

 

 

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

28

 

(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).

(8)   

In subsection (2)—

(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

(ii)   

sum up that case;

(iii)   

respond on the worker’s behalf to any view expressed at

the hearing;

(b)   

confer with the worker during the hearing.

(2C)   

Subsection (2B) does not require the employer to permit the worker’s

25

companion to—

(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)”

insert “10(2A), (2B)”.

(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).”

 

 

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

29

 

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)

and (g) substitute—

“(g)   

this Act,

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

is amended as follows.

(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

include, in particular—

(a)   

amending any enactment;

(b)   

excluding or applying (whether with or without amendment)

any enactment.

(5B)   

In subsection (5A) “enactment” includes an enactment comprised in

20

subordinate legislation made under an Act.”

33      

Flexible working

(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

flexible working”.

(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)

insert—

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

insert—

“(gi)   

section 104C applies,”.

 

 

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

30

 

(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

be selected;

(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

in paragraph (b).

(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

(c. 17) or the 1992 Act;

(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—

 

 

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

31

 

(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

European Community;

(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

Parliament.

(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

be selected;

(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

in paragraph (b).

(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;

 

 

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

32

 

(d)   

amend, apply with or without modifications, or make provision similar

to any provision of—

(i)   

the Industrial Relations (Northern Ireland) Order 1992 (S.I.

1992/807 (N.I. 5));

(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);

or

(iv)   

the Industrial Tribunals (Northern Ireland) Order 1996 (S.I.

10

1996/1921 (N.I. 18));

(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

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

20

European Community;

(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.

1979/1573 (N.I. 12)).

(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

Assembly.

30

(9)   

In this section—

   

“enactment” includes—

(a)   

a provision of an Act;

(b)   

a provision of, or of any instrument made under, Northern

Ireland legislation; and

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.

1992/807 (N.I. 5));

   

“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.

 

 

 
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