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Employment Bill [HL]


Employment Bill [HL]

1

 

[NOTE: The words marked in bold type were inserted by the Lords to avoid

questions of privilege.]

A

Bill

To

Make provision about the procedure for the resolution of employment

disputes; to provide for compensation for financial loss in cases of unlawful

underpayment or non-payment; to make provision about the enforcement of

minimum wages legislation and the application of the national minimum

wage to Cadet Force Adult Volunteers and voluntary workers; to make

provision about the enforcement of offences under the Employment Agencies

Act 1973; to make provision about the right of trade unions to expel or exclude

members on the grounds of membership of a political party; and for

connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Dispute resolution

1       

Statutory dispute resolution procedures

In the Employment Act 2002 (c. 22), sections 29 to 33 and Schedules 2 to 4

(which make provision for statutory dispute resolution procedures) are

repealed.

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2       

Procedural fairness

In the Employment Rights Act 1996 (c. 18), section 98A (procedural fairness) is

repealed.

3       

Non-compliance with statutory Codes of Practice

(1)   

The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is

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amended as specified in subsections (2) and (3).

 
Bill 11754/3
 
 

Employment Bill [HL]

2

 

(2)   

After section 207 there is inserted—  

“207A   

  Effect of failure to comply with Code: adjustment of awards

(1)   

This section applies to proceedings before an employment tribunal

relating to a claim by an employee under any of the jurisdictions listed

in Schedule A2.

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(2)   

If, in the case of proceedings to which this section applies, it appears to

the employment tribunal that—

(a)   

the claim to which the proceedings relate concerns a matter to

which a relevant Code of Practice applies,

(b)   

the employer has failed to comply with that Code in relation to

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that matter, and

(c)   

that failure was unreasonable,

   

the employment tribunal may, if it considers it just and equitable in all

the circumstances to do so, increase any award it makes to the

employee by no more than 25%.

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(3)   

If, in the case of proceedings to which this section applies, it appears to

the employment tribunal that—

(a)   

the claim to which the proceedings relate concerns a matter to

which a relevant Code of Practice applies,

(b)   

the employee has failed to comply with that Code in relation to

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that matter, and

(c)   

that failure was unreasonable,

   

the employment tribunal may, if it considers it just and equitable in all

the circumstances to do so, reduce any award it makes to the employee

by no more than 25%.

25

(4)   

In subsections (2) and (3), “relevant Code of Practice” means a Code of

Practice issued under this Chapter which relates exclusively or

primarily to procedure for the resolution of disputes.

(5)   

Where an award falls to be adjusted under this section and under

section 38 of the Employment Act 2002, the adjustment under this

30

section shall be made before the adjustment under that section.

(6)   

The Secretary of State may by order amend Schedule A2 for the

purpose of—

(a)   

adding a jurisdiction to the list in that Schedule, or

(b)   

removing a jurisdiction from that list.

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(7)   

The power of the Secretary of State to make an order under subsection

(6) includes power to make such incidental, supplementary,

consequential or transitional provision as the Secretary of State thinks

fit.

(8)   

An order under subsection (6) shall be made by statutory instrument.

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(9)   

No order shall be made under subsection (6) unless a draft of the

statutory instrument containing it has been laid before Parliament and

approved by a resolution of each House.”

 
 

Employment Bill [HL]

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(3)   

After Schedule A1 there is inserted—

“Schedule A2

Section 207A

 

Tribunal jurisdictions to which section 207A applies

Section 2 of the Equal Pay Act 1970 (c. 41) (equality clauses)

Section 63 of the Sex Discrimination Act 1975 (c. 65) (discrimination in the

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employment field)

Section 54 of the Race Relations Act 1976 (c. 74) (discrimination in the

employment field)

Section 145A of this Act (inducements relating to union membership or

activities)

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Section 145B of this Act (inducements relating to collective bargaining)

Section 146 of this Act (detriment in relation to union membership and

activities)

Paragraph 156 of Schedule A1 to this Act (detriment in relation to union

recognition rights)

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Section 17A of the Disability Discrimination Act 1995 (c. 50)

(discrimination in the employment field)

Section 23 of the Employment Rights Act 1996 (c. 18) (unauthorised

deductions and payments)

Section 48 of that Act (detriment in employment)

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Section 111 of that Act (unfair dismissal)

Section 163 of that Act (redundancy payments)

Section 24 of the National Minimum Wage Act 1998 (c. 39) (detriment in

relation to national minimum wage)

The Employment Tribunal Extension of Jurisdiction (England and Wales)

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Order 1994 (SI 1994/1623) (breach of employment contract and

termination)

The Employment Tribunal Extension of Jurisdiction (Scotland) Order

1994 (SI 1994/1624) (corresponding provision for Scotland)

Regulation 30 of the Working Time Regulations 1998 (SI 1998/1833)

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(breach of regulations)

Regulation 32 of the Transnational Information and Consultation of

Employees Regulations 1999 (SI 1999/3323) (detriment relating to

European Works Councils)

Regulation 28 of the Employment Equality (Sexual Orientation)

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Regulations 2003 (SI 2003/1660) (discrimination in the employment

field)

Regulation 28 of the Employment Equality (Religion or Belief)

Regulations 2003 (SI 2003/1661) (discrimination in the employment

field)

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Regulation 45 of the European Public Limited-Liability Company

Regulations 2004 (SI 2004/2326) (detriment in employment)

Regulation 33 of the Information and Consultation of Employees

Regulations 2004 (SI 2004/3426) (detriment in employment)

Paragraph 8 of the Schedule to the Occupational and Personal Pension

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Schemes (Consultation by Employers and Miscellaneous Amendment)

Regulations 2006 (SI 2006/349) (detriment in employment)

Regulation 36 of the Employment Equality (Age) Regulations 2006 (SI

2006/1031) (discrimination in the employment field)

 
 

Employment Bill [HL]

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Regulation 34 of the European Cooperative Society (Involvement of

Employees) Regulations 2006 (SI 2006/2059) (detriment in relation to

involvement in a European Cooperative Society).”

(4)   

In section 124A of the Employment Rights Act 1996 (c. 18) (adjustments under

the Employment Act 2002), in paragraph (a), for the words from “section 31” to

5

“procedures)” there is substituted “section 207A of the Trade Union and

Labour Relations (Consolidation) Act 1992 (effect of failure to comply with

Code: adjustment of awards)”.

4       

Determination of proceedings without hearing

In the Employment Tribunals Act 1996 (c. 17), in section 7 (employment

10

tribunal procedure regulations), after subsection (3A) there is inserted—

“(3AA)   

Employment tribunal procedure regulations under subsection (3A)

may only authorise the determination of proceedings without any

hearing in circumstances where—

(a)   

all the parties to the proceedings consent in writing to the

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determination without a hearing, or

(b)   

the person (or, where more than one, each of the persons)

against whom the proceedings are brought—

(i)   

has presented no response in the proceedings, or

(ii)   

does not contest the case.

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(3AB)   

For the purposes of subsection (3AA)(b), a person does not present a

response in the proceedings if he presents a response but, in accordance

with provision made by the regulations, it is not accepted.”

5       

Conciliation before bringing of proceedings

(1)   

In the Employment Tribunals Act 1996, section 18 (conciliation) is amended as

25

follows.

(2)   

In subsection (3), for the words from “shall act” to the end there is substituted

“may endeavour to promote a settlement between the parties without

proceedings being instituted”.

(3)   

For subsection (5) there is substituted—

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“(5)   

Where a conciliation officer acts pursuant to subsection (3) in a case

where the person claiming as specified in paragraph (a) of that

subsection has ceased to be employed by the employer and the

proceedings which he claims could be brought by him are proceedings

under section 111 of the Employment Rights Act 1996, the conciliation

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officer may in particular—

(a)   

seek to promote the reinstatement or re-engagement of that

person by the employer, or by a successor of the employer or by

an associated employer, on terms appearing to the conciliation

officer to be equitable, or

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(b)   

where the person does not wish to be reinstated or re-engaged,

or where reinstatement or re-engagement is not practicable,

seek to promote agreement between them as to a sum by way of

compensation to be paid by the employer to that person.”

 
 

 
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