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3179

 

House of Commons

 
 

Notices of Amendments

 

given on

 

Thursday 16th October 2008

 

Consideration of Bill


 

Employment Bill [Lords], As Amended

 

Protection of those participating in lawful industrial action or a lawful strike

 

Mr John McDonnell

 

Andrew Dismore

 

Kelvin Hopkins

 

Mr Dennis Skinner

 

NC1

 

To move the following Clause:—

 

‘(1)    

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

 

section “the 1992 Act”) is amended as follows.

 

(2)    

For section 238A (participation in official industrial action) substitute—

 

“238A

Effect of industrial action on employment contract

 

(1)    

Any termination of a contract of employment by an employer shall be

 

unlawful and of no effect if the reason or one of the reasons was or is that

 

the worker has participated, is participating or proposes to participate in

 

lawful industrial action or a lawful strike; and in any proceedings, the

 

termination shall be presumed to be by reason of that participation or

 

proposed participation unless the employer proves the contrary.

 

(2)    

Where in any proceedings a court finds a termination unlawful as a result

 

of subsection (1), it may (in addition to making any other order)—

 

(a)    

make a declaration as to the continuation of the contract of

 

employment;

 

(b)    

award damages in respect of any loss suffered by the worker by

 

reason of the termination.

 

(3)    

Where a worker’s act or failure to act is a consequence of the worker’s

 

participation, or proposed participation, in lawful industrial action or a

 

lawful strike, that act or failure to act is not actionable on any of the

 

following grounds—

 

(a)    

that it amounts to a breach of that worker’s contract of

 

employment, or to non-performance or partial performance of

 

one or more terms of that worker’s contract of employment;


 
 

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(b)    

that it amounts to the breach, non-performance or partial

 

performance of any duty or obligation owed by the worker to any

 

person; or

 

(c)    

that it is directly or indirectly causative of the breach, non-

 

performance or partial performance of any duty or obligation

 

owed by another person.

 

(4)    

For the purposes of this section, section 238AA and section 238AB, an

 

employee participates in lawful industrial action or a lawful strike if he

 

commits an act, or a series of acts, which he is induced to commit by an

 

act which by virtue of section 219 is not actionable in tort.

 

(5)    

In this section—

 

(a)    

“court” includes an employment tribunal, and

 

(b)    

“termination” includes a purported termination.

 

238AA

  Unfair dismissal and the right not to suffer detriment

 

(1)    

An employee who is dismissed shall be regarded for the purposes of Part

 

X of the Employment Rights Act 1996 (c. 18) (unfair dismissal) as

 

unfairly dismissed if the reason or one of the reasons for the dismissal is

 

that the employee has participated, is participating or proposes to

 

participate in lawful industrial action or a lawful strike.

 

(2)    

A worker has the right not to be subjected to any detriment by any act, or

 

deliberate failure to act, by his employer, where the reason (or one of the

 

reasons) for the act or failure is that the worker has participated, is

 

participating or proposes to participate in lawful industrial action or a

 

lawful strike.

 

(3)    

Subsection (2) does not apply where the worker is an employee and the

 

detriment in question amounts to dismissal.

 

(4)    

Nothing in this section prevents an employer, in relation to a worker who

 

participates in lawful industrial action or a lawful strike, from—

 

(a)    

withholding remuneration or benefits from the worker, so long

 

as—

 

(i)    

the amount withheld does not exceed that to which the

 

worker would have been entitled had he not participated

 

in industrial action or a strike,

 

(ii)    

the withholding of the remuneration or benefits in

 

question is permitted by the worker’s contract of

 

employment, and

 

(iii)    

it is reasonable in all the circumstances to withhold the

 

remuneration or benefits in question;

 

(b)    

enforcing, to such extent as is reasonable in the circumstances,

 

any restriction imposed by the worker’s contract of employment

 

concerning trade secrets or other confidential information.

 

238AB

  Complaints to employment tribunals etc

 

(1)    

A worker or former worker may present a complaint to an employment

 

tribunal that he has been subjected to a detriment by his employer in

 

contravention of section 238AA(2).

 

(2)    

An employment tribunal shall not consider a complaint under subsection

 

(1) unless it is presented—


 
 

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(a)    

before the end of the period of three months, beginning with the

 

date of the act or failure to act (or the last in a series of similar

 

acts or failures) to which the complaint relates, or

 

(b)    

within such further period as the employment tribunal considers

 

just and equitable in all the circumstances.

 

(3)    

In proceedings on a complaint under section 238AA(2), it is for the

 

employer to show the reason for the act or failure to which the complaint

 

relates; and the act or omission shall be presumed to be by reason that the

 

worker had participated, was participating or proposed to participate in

 

lawful industrial action or a lawful strike unless the employer proves the

 

contrary.

 

(4)    

Where an employment tribunal finds that a complaint presented to it

 

under subsection (1) is well founded, it shall take such of the following

 

steps as it considers just and equitable—

 

(a)    

make a declaration as to the rights of the complainant in relation

 

to the matters to which the complaint relates;

 

(b)    

order the employer to pay such compensation to the complainant

 

as it considers just and equitable having regard to all the

 

circumstances, including the detriment to which the worker was

 

subjected and any loss suffered by the worker in consequence of

 

the act or omission to which the complaint relates; and for the

 

avoidance of doubt, compensation may be awarded in respect of

 

injury to feelings whether or not awarded under any other head.

 

(5)    

In proceedings on a complaint of unfair dismissal under section

 

238AA(1), the dismissal shall be presumed to be by reason that the

 

worker had participated, was participating or proposed to participate in

 

lawful industrial action or a lawful strike, unless the employer proves the

 

contrary.”

 

(3)    

In section 239 (supplementary provisions relating to unfair dismissal) subsection

 

(4) ceases to have effect.

 

(4)    

The Employment Rights Act 1996 (in this Act, “the 1996 Act”) is amended as

 

follows.

 

(5)    

After section 113 (reinstatement and re-engagement orders) insert the following

 

section—

 

“113A

  Automatic reinstatement

 

Where an employment tribunal finds that an employee has been unfairly

 

dismissed in circumstances to which section 238AA(1) of the Trade

 

Union and Labour Relations (Consolidation) Act 1992 applies, and the

 

complainant wishes to be reinstated, the tribunal shall make—

 

(a)    

an order for reinstatement, or

 

(b)    

an order for re-engagement on such terms as the parties may

 

agree or as the tribunal (having regard to any advice received

 

from ACAS) shall order”.

 

(6)    

In section 117 (enforcement of order and compensation) after subsection (2)

 

insert the following subsection—

 

“(2A)    

In relation to an order made pursuant to section 113A, the amount of

 

compensation shall be such as the tribunal thinks just and equitable in all

 

the circumstances having regard, in particular, to the nature of the

 

infringement of the employee’s right to be reinstated or re-engaged in

 

pursuance of the order, and to any loss suffered by the employee in


 
 

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consequence of the non-compliance; and for the avoidance of doubt,

 

compensation may be awarded in respect of injury to feelings whether or

 

not it is awarded under any other head.”

 

(7)    

In section 117 after subsection (8) insert the following subsection—

 

“(9)    

Any order for reinstatement or re-engagement made pursuant to section

 

113A may be enforced as if it were an order made by the High Court.”

 

(8)    

In section 124 (limit of compensatory award etc)—

 

(a)    

after “section 117(1) and (2)” insert “or (2A)”;

 

(b)    

for “section 115(2)(d)” substitute “section 115(2)(d), section 117(2A)”.

 

(9)    

In section 128(1)(b) (interim relief pending determination of complaint) after

 

“Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section

 

238AA(1) of that Act”.

 

(10)    

In section 129(1) (procedure on hearing of application and making of order) after

 

“Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section

 

238AA(1) of that Act”.’.

 

Employer’s duties in relation to industrial action ballots

 

Mr John McDonnell

 

Andrew Dismore

 

Kelvin Hopkins

 

Mr Dennis Skinner

 

NC2

 

To move the following Clause:—

 

“The following section is inserted after section 226C of the Trade Union and

 

Labour Relations (Consolidation) Act 1992—

 

“226D

  Employer’s duties in relation to industrial action ballots

 

(1)    

It is the duty of an employer reasonably to co-operate generally, in

 

connection with a ballot conducted or proposed for the purposes of

 

section 226, with the trade union (or unions) and the person appointed to

 

conduct the ballot.

 

(2)    

Without prejudice to the generality of subsection (1), it is the duty of an

 

employer to supply to a trade union in good time information reasonably

 

requested by the trade union for the purposes of establishing the names,

 

addresses, categories and workplaces of those members whom it wishes

 

to ballot for the purposes of section 226.”.’.

 

Agency labour replacing those taking lawful industrial action

 

Mr John McDonnell

 

Andrew Dismore

 

Kelvin Hopkins

 

Mr Dennis Skinner

 

NC3

 

To move the following Clause:—

 

“In the Conduct of Employment Agencies and Employment Businesses

 

Regulations 2003 (S.I. 2003/3319), after regulation 7 (restriction on providing

 

work-seekers in industrial disputes) insert the following regulation—


 
 

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Employment Bill-[ [], continued

 
 

“Restriction on hirers in industrial disputes

 

7A  (1)  

A person shall not hire a work-seeker to perform—

 

(a)    

the duties normally performed by a worker who is taking part,

 

or intends to or is about to take part, in a lawful strike or other

 

lawful industrial action, and in respect of whom notice of a

 

strike or other industrial action has been given by a trade

 

union (“the first worker”), or

 

(b)    

the duties normally performed by any other worker employed

 

by the hirer and who is assigned by the hirer to perform duties

 

normally performed by the first worker (whether or not the

 

employer is contractually entitled to require the other worker

 

to perform those duties).

 

      (2)  

Where a person seeks to become the hirer of a work-seeker wholly or

 

partly by reason of (or of the prospect of) a strike or other industrial

 

action, that person shall, before being supplied with a work-seeker by

 

an employment business, inform the employment business of that fact.

 

      (3)  

Paragraphs (1) and (2) shall not apply if, in relation to the first worker,

 

the strike action or other industrial action in question is an unofficial

 

strike or other unofficial industrial action for the purposes of section

 

237 of the Trade Union and Labour Relations (Consolidation) Act

 

1992.

 

      (4)  

In this regulation and in regulation 7, “employment business” includes

 

an agency.”.’.

 


 
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