Annual Leave Entitlement (Enforcement) Bill

House of Commons

Session 2004 - 05
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Annual Leave Entitlement (Enforcement) Bill

6
Annual Leave Entitlement (Enforcement) Bill
Schedule 1 — Consequential Amendments
Part 1 — Amendments relating to the jurisdiction of employment tribunals

Schedules
Schedule 1
Section 7(1)

Consequential Amendments
Part 1
Amendments relating to the jurisdiction of employment tribunals
5
Amendment of the Employment Tribunals Act 1996
1     (1)
The Employment Tribunals Act 1996 (c. 17) is amended as follows.
      (2)
In section 4 (composition of a tribunal)—
(a)
in subsection (3)(cc), at the end, insert the words “or under that
section (as applied by section 2(1) of the Annual Leave Entitlement
10
(Enforcement) Act 2005)”; and
(b)
in subsection (3)(cd), at the end, insert the words “or under those
sections (as applied by section 2(1) of the Annual Leave Entitlement
(Enforcement) Act 2005)”.
      (3)
In section 13 (right not to suffer unauthorised deductions), after subsection
15
(1), insert—
“(1A)
An employer shall not fail to provide a worker that is employed by
him with his entitlements to annual leave under—
(a)
regulations 13 to 16, and
(b)
regulation 17 (so far as it relates to an entitlement to annual
20
leave),

of the Working Time Regulations 1998 otherwise than in accordance
with a statutory provision or a relevant provision of the worker’s
contract.”
      (4)
In section 18 (conciliation), in subsection (1)(dd), at the end, insert the words
25
“or under or by virtue of those sections (as applied by section 2(1) of the
Annual Leave Entitlement (Enforcement) Act 2005)”.
      (5)
In section 23 (complaints to employment tribunals), in subsection (1)(a), after
the words “section 13”, insert the words “or failed to provide an employee
with his entitlements to annual leave specified in subsection (1A) of that
30
section in contravention of that section”.
Amendment of the Working Time Regulations
2     (1)
The Working Time Regulations are amended as follows.
      (2)
In regulation 30 (remedies)—

Annual Leave Entitlement (Enforcement) Bill
Schedule 1 — Consequential Amendments
Part 2 — Other amendments about enforcement
7

(a)
in paragraph (1)(a)(i), for the words “12(1) or (4) or 13”, substitute the
words “or 12(1) or (4)”;
(b)
paragraph (1)(b) shall cease to have effect; and
(c)
paragraph (5) shall cease to have effect.
Amendment of the Employment Act 2002
5
3     (1)
The Employment Act 2002 (c. 22) is amended as follows.
      (2)
In Schedule 3 (tribunal jurisdictions to which section 31 applies), after the
entry relating to section 24 of the National Minimum Wage Act, insert—
“section 24 of the National Minimum Wage Act 1998 (as applied by
section 2(1) of the Annual Leave Entitlement (Enforcement) Act 2005)
10
(detriment in relation to entitlements to annual leave)”.
      (3)
In Schedule 4 (tribunal jurisdictions to which section 32 applies), after the
entry relating to section 24 of the National Minimum Wage Act, insert—
“section 24 of the National Minimum Wage Act 1998 (as applied by
section 2(1) of the Annual Leave Entitlement (Enforcement) Act 2005)
15
(detriment in relation to entitlements to annual leave)”.
      (4)
In Schedule 5 (tribunal jurisdictions to which section 38 applies), after the
entry relating to section 24 of the National Minimum Wage Act, insert—
“section 24 of the National Minimum Wage Act 1998 (as applied by
section 2(1) of the Annual Leave Entitlement (Enforcement) Act 2005)
20
(detriment in relation to entitlements to annual leave)”.
Amendment of the Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004
4     (1)
The Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004 (S.I. 2004/1861) are amended as follows.
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      (2)
In regulation 14 (power to prescribe), in paragraph (3)(c)(i), at the end, insert
the words “or those sections (as applied by section 2(1) of the Annual Leave
Entitlement (Enforcement) Act 2005)”.
Part 2
Other amendments about enforcement
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Amendment of the Agricultural Wages Act 1948
5     (1)
The Agricultural Wages Act 1948 (c. 47) is amended as follows.
      (2)
In section 12 (powers of officers), after subsection (4), insert—
“(4A)
An officer acting for the purposes of this Act shall have power to act
for the purposes of the Annual Leave Entitlement (Enforcement) Act
35
2005.”
      (3)
In section 15A (information obtained by national minimum wage officers),
in subsection (5A), at the end, insert the words “or in accordance with that
section as applied by section 2(1) of the Annual Leave Entitlement
(Enforcement) Act 2005”.
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Annual Leave Entitlement (Enforcement) Bill
Schedule 1 — Consequential Amendments
Part 2 — Other amendments about enforcement
8

Amendment of the Employment Rights Act 1996
6     (1)
The Employment Rights Act 1996 (c. 18) is amended as follows.
      (2)
After section 104A, insert—
“104AA
Entitlements to annual leave
(1)
An employee who is dismissed shall be regarded for the purposes of
5
this Part as unfairly dismissed if the reason (or, if more than one, the
principal reason) for the dismissal is that—
(a)
any action was taken, or was proposed to be taken, by or on
behalf of the employee with a view to enforcing, or otherwise
securing the benefit of, a right of the employee’s to which this
10
section applies;
(b)
the employer was prosecuted for an offence under section 31
of the National Minimum Wage Act 1998 (as applied by
section 2(1) of the Annual Leave Entitlement (Enforcement)
Act 2005) (detriment in relation to entitlements to annual
15
leave) as a result of action taken by or on behalf of the
employee for the purpose of enforcing, or otherwise securing
the benefit of, a right of the employee’s to which this section
applies; or
(c)
the employee has entitlements, or might or will have
20
entitlements, to annual leave under the Working Time
Regulations.
(2)
It is immaterial for the purposes of paragraph (a) or (b) of subsection
(1) above—
(a)
whether or not the employee has the right, or
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(b)
whether or not the right has been infringed,

but, for that subsection to apply, the claim to the right and, if
applicable, the claim that it has been infringed must be made in good
faith.
(3)
The following are the rights to which this section applies—
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(a)
any right conferred by, or by virtue of, any provision of the
National Minimum Wage Act 1998 (as applied by section 2(1)
of the Annual Leave Entitlement (Enforcement) Act 2005) for
which the remedy for its infringement is by way of a
complaint to an employment tribunal; and
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(b)
any right conferred by section 17 of the National Minimum
Wage Act 1998 (as applied by section 2(1) of the Annual
Leave Entitlement (Enforcement) Act 2005) (additional
entitlement to leave or payment or both).
(4)
In this section ‘entitlements to annual leave under the Working Time
40
Regulations’ has the meaning given by section 1(2) of the Annual
Leave Entitlement (Enforcement) Act 2005.”
      (3)
In section 105 (redundancy), after subsection (4A), insert—
“(4AA)
This subsection applies if the reason (or, if more than one, the
principal reason) for which the employee was selected for dismissal
45
was one of those specified in subsection (1) of section 104AA (read
with subsection (2) of that section).”

Annual Leave Entitlement (Enforcement) Bill
Schedule 1 — Consequential Amendments
Part 2 — Other amendments about enforcement
9

      (4)
In section 109 (upper age limit), in subsection (2), in paragraph (gg), after the
words “that section)”, insert the words “or section (1) of section 104AA (read
with subsection (2) of that section)”.
Amendment of the National Minimum Wage Act
7     (1)
The National Minimum Wage Act is amended as follows.
5
      (2)
In section 15 (information obtained by officers), after subsection (3), insert—
“(3A)
Information obtained for the purposes of this Act may be used for the
purposes of the Annual Leave Entitlement (Enforcement) Act 2005.”
      (3)
In section 16 (information obtained by agricultural wages officers), after
subsection (2), insert—
10
“(2A)
Information obtained by an officer acting for the purposes of the
Agricultural Wages Act 1948 may be used for the purposes of the
Annual Leave Entitlement (Enforcement) Act 2005.”
Amendment of the Working Time Regulations
8     (1)
The Working Time Regulations are amended as follows.
15
      (2)
In regulation 28 (enforcement)—
(a)
in paragraph (1), after the words “this regulation”, insert the words
“regulation 28A”; and
(b)
in that paragraph, at the appropriate place in alphabetical order,
insert—
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“‘entitlements to annual leave under these Regulations’
has the same meaning as the term ‘entitlements to
annual leave under the Working Time Regulations’ in
section 1(2) of the Annual Leave Entitlement
(Enforcement) Act 2005;
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‘National Minimum Wage Act enforcement officer’
means an officer appointed to act for the purposes of
the National Minimum Wage Act 1998 under section
13(1) of that Act;”.
      (3)
After regulation 28, insert—
30
“28A
Assistance to enforcement of entitlements to annual leave
(1)
This regulation applies where—
(a)
an enforcement authority, or
(b)
an inspector appointed by an enforcement authority in
accordance with the provisions of paragraph 1 of Schedule 3,
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in the exercise of powers or functions relating to the relevant
requirements, obtains information that would, in its opinion or his
opinion as the case may be, be relevant to the exercise of the powers
of a National Minimum Wage Act enforcement officer relating to
entitlements to annual leave under these Regulations (as applied by
40
section 2(1) of the Annual Leave Entitlement (Enforcement) Act
2005).
(2)
Where this regulation applies, it shall be the duty of—
(a)
an enforcement authority, or

Annual Leave Entitlement (Enforcement) Bill
Schedule 2 — Revocations
10

(b)
an inspector appointed by an enforcement authority in
accordance with the provisions of paragraph 1 of Schedule 3,

to provide the relevant information to a National Minimum Wage
Act enforcement officer.”
Amendment of the National Minimum Wage Regulations 1999
5
9     (1)
The National Minimum Wage Regulations 1999 (S.I. 1999/584) are amended
as follows.
      (2)
In regulation 38 (records to be kept by an employer)—
(a)
after paragraph (1), insert—
“(1A)
The employer of a worker who has entitlements to annual
10
leave under the Working Time Regulations (within the
meaning of that term given by section 1(2) of the Annual
Leave Entitlement (Enforcement) Act 2005) shall keep in
respect of that worker records sufficient to establish that he is
providing those entitlements.”;
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(b)
in paragraph (2), for the words “paragraph (1)”, substitute the words
“paragraphs (1) and (1A)”;
(c)
in paragraph (4), for the words “paragraphs (1), (3)”, substitute the
words “paragraphs (1), (1A), (3)”; and
(d)
in paragraph (6), for the words “paragraph (1)”, substitute the words
20
“paragraphs (1) and (1A)”.
Schedule 2
Section 7(2)

Revocations

Title
Extent of revocation

Working Time Regulations
In regulation 30—

25

(a)
the word “or” at the end of paragraph

(1)(a);

(b)
paragraph (1)(b); and

(c)
paragraph (5).