House of Commons Public Bill Committee Proceedings

House of Commons

Session 2007 - 08
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Other Bills before Parliament

893

House of Commons

Tuesday 4th November 2008

Report Stage Proceedings

Employment Bill [Lords], As Amended

New Clauses

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

Mr John McDonnell

Andrew Dismore

Kelvin Hopkins

Mr Dennis Skinner

Michael Connarty

Ian Stewart

Jon Cruddas

Jim Cousins

Mr David Anderson

Frank Cook

Ms Katy Clark

Jeremy Corbyn

Mr David Drew

Mr Neil Gerrard

Kate Hoey

Mrs Linda Riordan

Alan Simpson

Mr Marsha Singh

David Taylor

Harry Cohen

Mr Dai Havard

Mr David Drew

Ms Diane Abbott

Dr Desmond Turner

Mrs Ann Cryer

Mr Ronnie Campbell

Alan Simpson

Dr Ian Gibson

Mr Gordon Prentice

Mr Robert N. Wareing

Mr Austin Mitchell

Lynne Jones

Colin Burgon

John Cummings

Chris McCafferty

Mark Durkan

Mr Eric Illsley

Mr Michael Clapham

Tony Lloyd

Withdrawn  NC1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)—

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Employment Bill–[ [], continued

(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;

(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;

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Employment Bill–[ [], continued

(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—

(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

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Employment Bill–[ [], continued

(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

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

Michael Connarty

Jim Cousins

Mr David Anderson

Frank Cook

Ms Katy Clark

Jeremy Corbyn

Mr David Drew

Mr Neil Gerrard

Kate Hoey

Mrs Linda Riordan

Alan Simpson

Mr Marsha Singh

David Taylor

Ian Stewart

Harry Cohen

Jon Cruddas

Mr Dai Havard

Mr David Drew

Ms Diane Abbott

Dr Desmond Turner

Mrs Ann Cryer

Mr Ronnie Campbell

Alan Simpson

Dr Ian Gibson

Mr Gordon Prentice

Mr Robert N. Wareing

Mr Austin Mitchell

Lynne Jones

Colin Burgon

John Cummings

Chris McCafferty

Mark Durkan

Mr Eric Illsley

Mr Michael Clapham

Tony Lloyd

Meg Munn

Nigel Griffiths

Negatived on division  NC2

To move the following Clause:—

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Employment Bill–[ [], continued

“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

Michael Connarty

Jim Cousins

Ian Stewart

Jon Cruddas

Mr David Anderson

Frank Cook

Ms Katy Clark

Jeremy Corbyn

Mr David Drew

Mr Neil Gerrard

Kate Hoey

Mrs Linda Riordan

Alan Simpson

Mr Marsha Singh

David Taylor

Harry Cohen

Mr Dai Havard

Mr David Drew

Ms Diane Abbott

Dr Desmond Turner

Mrs Ann Cryer

Mr Ronnie Campbell

Alan Simpson

Dr Ian Gibson

Mr Gordon Prentice

Mr Robert N. Wareing

Mr Austin Mitchell

Lynne Jones

Colin Burgon

John Cummings

Chris McCafferty

Mark Durkan

Mr Eric Illsley

Mr Michael Clapham

Tony Lloyd

Not called  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—

“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

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Employment Bill–[ [], continued

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.”.’.

Time off for Workplace environmental representatives

John McDonnell

Alan Simpson

Mr David Drew

Kelvin Hopkins

Mrs Ann Cryer

Harry Cohen

Mr Andrew Dismore

Negatived  NC4

To move the following Clause:—

‘(1)
The Employment Act 2002 (c.22) is amended as follows—

(2)
After section 43 there is inserted—

“43A
Workplace Environmental Representatives

(1)
An employer shall permit an employee of his who is—

(a)
a member of an independent trade union recognised by the

employer, and

(b)
a workplace environmental representative of the trade union, to

take reasonable time off during his working hours for any of the

following purposes.

(2)
The purposes are—

(a)
carrying out any of the following activities—

(i)
promoting environmentally sustainable workplace

initiatives and practices,

(ii)
carrying out environmental audits,

(iii)
being consulted on workplace environmental policies,

practices and management systems,

(iv)
carrying out environmental risk assessments,

(b)
consulting the employer about carrying out any such activities,

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Employment Bill–[ [], continued

(c)
preparing for any of the things mentioned in paragraphs (a) and

(b).

(3)
Subsection (1) only applies if—

(a)
the trade union has given the employer notice in writing that the

employee is a workplace environmental representative of the

trade union, and

(b)
the training condition is met in relation to him.

(4)
The training condition is met if—

(a)
the employee has unergone sufficient training to enable him to

carry on the activities mentioned in subsection (2), and the trade

union has given the employer notice in writing of that fact,

(b)
the trade union has in the last six months given the employer

notice in writing that the employee will be undergoing such

training, or

(c)
within six months of the trade union giving the employer notice

in writing that the employee will be undergoing such training,

the employee has done so, and the trade union has given the

employer notice of that fact.

(5)
Only one notice under subsection (4)(b) may be given in respect of any

one employee.

(6)
References in subsection (4) to sufficient training to carry out the

activities mentioned in subsection (2) are to training that is sufficient for

those purposes having regard to any relevant provision of a Code of

Practice issued by ACAS or the Secretary of State.

(7)
If an employer is required to permit an employee to take time off under

subsection (1), he shall also permit the employee to take time off during

his working hours for the following purposes—

(a)
undergoing training which is relevant to his functions as a

workplace environmental representative, and

(b)
where the trade union has in the last six months given the

employer notice under subsection (4)(b) in relation to the

employee, undergoing such training as is mentioned in

subsection (4)(a).

(8)
The amount of time off which an employee is to be permitted to take

under this section and the purposes for which, the occasions on which and

any conditions subject to which time off may be so taken are those that

are reasonable in all the circumstances having regard to any relevant

provision of a Code of Practice issued by ACAS or the Secretary of State.

(9)
An employee may present a complaint to an employment tribunal that his

employer has failed to permit him to take time off as required by this

section.

(10)
References in subsection (2) to environmental audits and environmental

risk assessments are to environmental autdits and environmental risk

assessments that are sufficient for those purposes having regard to any

relevant provision of a Code of Practice issued by ACAS or the Secretary

of State.

(11)
In subsection (2)(a), the reference to qualifying members of the trade

union is to members of the trade union—