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| | Tuesday 4th November 2008 |
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| | Employment Bill [Lords], As Amended
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| | | Protection of those participating in lawful industrial action or a lawful strike |
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| | To move the following Clause:— |
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| | | ‘(1) | The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (in this |
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| | | section “the 1992 Act”) is amended as follows. |
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| | | (2) | For section 238A (participation in official industrial action) substitute— |
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| | | “238A | Effect of industrial action on employment contract |
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| | | (1) | Any termination of a contract of employment by an employer shall be |
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| | | unlawful and of no effect if the reason or one of the reasons was or is that |
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| | | the worker has participated, is participating or proposes to participate in |
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| | | lawful industrial action or a lawful strike; and in any proceedings, the |
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| | | termination shall be presumed to be by reason of that participation or |
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| | | proposed participation unless the employer proves the contrary. |
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| | | (2) | Where in any proceedings a court finds a termination unlawful as a result |
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| | | of subsection (1), it may (in addition to making any other order)— |
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| | | (a) | make a declaration as to the continuation of the contract of |
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| | | (b) | award damages in respect of any loss suffered by the worker by |
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| | | reason of the termination. |
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| | | (3) | Where a worker’s act or failure to act is a consequence of the worker’s |
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| | | participation, or proposed participation, in lawful industrial action or a |
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| | | lawful strike, that act or failure to act is not actionable on any of the |
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| | | (a) | that it amounts to a breach of that worker’s contract of |
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| | | employment, or to non-performance or partial performance of |
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| | | 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 |
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| | | performance of any duty or obligation owed by the worker to any |
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| | | (c) | that it is directly or indirectly causative of the breach, non- |
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| | | performance or partial performance of any duty or obligation |
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| | | (4) | For the purposes of this section, section 238AA and section 238AB, an |
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| | | employee participates in lawful industrial action or a lawful strike if he |
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| | | commits an act, or a series of acts, which he is induced to commit by an |
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| | | act which by virtue of section 219 is not actionable in tort. |
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| | | (a) | “court” includes an employment tribunal, and |
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| | | (b) | “termination” includes a purported termination. |
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| | | 238AA | Unfair dismissal and the right not to suffer detriment |
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| | | (1) | An employee who is dismissed shall be regarded for the purposes of Part |
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| | | X of the Employment Rights Act 1996 (c. 18) (unfair dismissal) as |
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| | | unfairly dismissed if the reason or one of the reasons for the dismissal is |
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| | | that the employee has participated, is participating or proposes to |
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| | | participate in lawful industrial action or a lawful strike. |
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| | | (2) | A worker has the right not to be subjected to any detriment by any act, or |
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| | | deliberate failure to act, by his employer, where the reason (or one of the |
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| | | reasons) for the act or failure is that the worker has participated, is |
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| | | participating or proposes to participate in lawful industrial action or a |
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| | | (3) | Subsection (2) does not apply where the worker is an employee and the |
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| | | detriment in question amounts to dismissal. |
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| | | (4) | Nothing in this section prevents an employer, in relation to a worker who |
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| | | participates in lawful industrial action or a lawful strike, from— |
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| | | (a) | withholding remuneration or benefits from the worker, so long |
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| | | (i) | the amount withheld does not exceed that to which the |
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| | | worker would have been entitled had he not participated |
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| | | in industrial action or a strike, |
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| | | (ii) | the withholding of the remuneration or benefits in |
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| | | question is permitted by the worker’s contract of |
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| | | (iii) | it is reasonable in all the circumstances to withhold the |
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| | | remuneration or benefits in question; |
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| | | (b) | enforcing, to such extent as is reasonable in the circumstances, |
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| | | any restriction imposed by the worker’s contract of employment |
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| | | concerning trade secrets or other confidential information. |
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| | | 238AB | Complaints to employment tribunals etc |
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| | | (1) | A worker or former worker may present a complaint to an employment |
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| | | tribunal that he has been subjected to a detriment by his employer in |
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| | | contravention of section 238AA(2). |
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| | | (2) | An employment tribunal shall not consider a complaint under subsection |
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| | | (1) unless it is presented— |
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| | | (a) | before the end of the period of three months, beginning with the |
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| | | date of the act or failure to act (or the last in a series of similar |
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| | | acts or failures) to which the complaint relates, or |
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| | | (b) | within such further period as the employment tribunal considers |
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| | | just and equitable in all the circumstances. |
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| | | (3) | In proceedings on a complaint under section 238AA(2), it is for the |
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| | | employer to show the reason for the act or failure to which the complaint |
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| | | relates; and the act or omission shall be presumed to be by reason that the |
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| | | worker had participated, was participating or proposed to participate in |
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| | | lawful industrial action or a lawful strike unless the employer proves the |
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| | | (4) | Where an employment tribunal finds that a complaint presented to it |
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| | | under subsection (1) is well founded, it shall take such of the following |
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| | | steps as it considers just and equitable— |
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| | | (a) | make a declaration as to the rights of the complainant in relation |
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| | | to the matters to which the complaint relates; |
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| | | (b) | order the employer to pay such compensation to the complainant |
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| | | as it considers just and equitable having regard to all the |
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| | | circumstances, including the detriment to which the worker was |
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| | | subjected and any loss suffered by the worker in consequence of |
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| | | the act or omission to which the complaint relates; and for the |
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| | | avoidance of doubt, compensation may be awarded in respect of |
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| | | injury to feelings whether or not awarded under any other head. |
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| | | (5) | In proceedings on a complaint of unfair dismissal under section |
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| | | 238AA(1), the dismissal shall be presumed to be by reason that the |
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| | | worker had participated, was participating or proposed to participate in |
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| | | lawful industrial action or a lawful strike, unless the employer proves the |
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| | | (3) | In section 239 (supplementary provisions relating to unfair dismissal) subsection |
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| | | (4) ceases to have effect. |
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| | | (4) | The Employment Rights Act 1996 (in this Act, “the 1996 Act”) is amended as |
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| | | (5) | After section 113 (reinstatement and re-engagement orders) insert the following |
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| | | “113A | Automatic reinstatement |
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| | | Where an employment tribunal finds that an employee has been unfairly |
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| | | dismissed in circumstances to which section 238AA(1) of the Trade |
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| | | Union and Labour Relations (Consolidation) Act 1992 applies, and the |
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| | | complainant wishes to be reinstated, the tribunal shall make— |
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| | | (a) | an order for reinstatement, or |
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| | | (b) | an order for re-engagement on such terms as the parties may |
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| | | agree or as the tribunal (having regard to any advice received |
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| | | (6) | In section 117 (enforcement of order and compensation) after subsection (2) |
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| | | insert the following subsection— |
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| | | “(2A) | In relation to an order made pursuant to section 113A, the amount of |
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| | | compensation shall be such as the tribunal thinks just and equitable in all |
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| | | the circumstances having regard, in particular, to the nature of the |
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| | | infringement of the employee’s right to be reinstated or re-engaged in |
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| | | 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, |
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| | | compensation may be awarded in respect of injury to feelings whether or |
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| | | not it is awarded under any other head.” |
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| | | (7) | In section 117 after subsection (8) insert the following subsection— |
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| | | “(9) | Any order for reinstatement or re-engagement made pursuant to section |
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| | | 113A may be enforced as if it were an order made by the High Court.” |
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| | | (8) | In section 124 (limit of compensatory award etc)— |
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| | | (a) | after “section 117(1) and (2)” insert “or (2A)”; |
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| | | (b) | for “section 115(2)(d)” substitute “section 115(2)(d), section 117(2A)”. |
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| | | (9) | In section 128(1)(b) (interim relief pending determination of complaint) after |
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| | | “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section |
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| | | (10) | In section 129(1) (procedure on hearing of application and making of order) after |
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| | | “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section |
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| | | Employer’s duties in relation to industrial action ballots |
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| | To move the following Clause:— |
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| | | “The following section is inserted after section 226C of the Trade Union and |
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| | | Labour Relations (Consolidation) Act 1992— |
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| | | “226D | Employer’s duties in relation to industrial action ballots |
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| | | (1) | It is the duty of an employer reasonably to co-operate generally, in |
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| | | connection with a ballot conducted or proposed for the purposes of |
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| | | section 226, with the trade union (or unions) and the person appointed to |
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| | | (2) | Without prejudice to the generality of subsection (1), it is the duty of an |
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| | | employer to supply to a trade union in good time information reasonably |
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| | | requested by the trade union for the purposes of establishing the names, |
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| | | addresses, categories and workplaces of those members whom it wishes |
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| | | to ballot for the purposes of section 226.”.’. |
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| | | Agency labour replacing those taking lawful industrial action |
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| | To move the following Clause:— |
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| | | “In the Conduct of Employment Agencies and Employment Businesses |
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| | | Regulations 2003 (S.I. 2003/3319), after regulation 7 (restriction on providing |
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| | | work-seekers in industrial disputes) insert the following regulation— |
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