Clause 3: Blacklists

113.     Under sections 137 and 138 of the 1992 Act, refusal of employment (or in the case of employment agencies refusal of service) on grounds of trade union membership is unlawful. There have in the past been instances of companies which compiled and distributed information for sale or distribution to employers to encourage discrimination against workers. Such information included lists of supposed trade union activists. Individuals whose names were on such lists could have difficulty finding work. Inclusion could be defamatory and unjustified but it was often impossible in practice to obtain a remedy. There is no evidence that blacklisting is widespread but the practice of blacklisting in the UK has been repeatedly criticised by the International Labour Organisation. In Fairness at Work, the Government proposed to prohibit the blacklisting of trade union members.

114.     The purpose of clause 3 is to give the Secretary of State the power to make regulations, subject to affirmative resolution (under clause 33), to prohibit the compilation and use of lists which contain information about individuals' trade union membership or activities with a view to their being used by employers or employment agencies for purposes of recruitment. The Government intends to consult on draft regulations before they are made.

Clause 4 and Schedule 3: Ballots and Notices

115.     Sections 226 to 235 of the 1992 Act specify the law relating to industrial action ballots and notices. These provisions are complex. The Government invited suggestions in Fairness at Work to clarify and simplify the law in this area. A large number of responses to this invitation were received, especially from trade unions and legal bodies. Clause 4 gives effect to Schedule 3, which draws on some of these suggestions and amends the law in the following areas.

Informing employers of the ballot result

116.     Section 231A of the 1992 Act requires unions to inform employers about the result of an industrial action ballot which involves their employees. In cases where a union ballots its members employed by different employers, the union must supply the information to each of the employers concerned. Under the current law, a failure to inform some, but not all, of the employers can make it unlawful for the union to induce any of its balloted members to take action. Paragraph 2(3) of the Schedule changes the law by making it lawful in these circumstances for a union to call on its members to take action where they are employed by an employer who was informed of the result. It will remain unlawful, however, for a union to induce its members to take action if their employer was not informed of the result.

Notices to employers of industrial action ballots and the taking of industrial action

117.     If a trade union decides to call on its members to take or continue industrial action, it has no immunity from legal liability unless it holds a properly conducted secret ballot in advance of the proposed action. Unions are required under the 1992 Act to give to the employers concerned advance notice in writing both of the ballot and of any official industrial action which may result. The ballot notice must describe, so that their employer can readily ascertain them, the employees who it is reasonable for the union to believe will be entitled to vote. Likewise, the notice of official industrial action must describe, so that their employer can readily ascertain them, the employees the union intends should take part in the action. The current law has been interpreted by the courts (most notably, in the case Blackpool and the Fylde College v National Association of Teachers in Further and Higher Education [1994] ICR, 648 Court of Appeal and 982 House of Lords) as requiring the union in certain circumstances to give to the employer the names of those employees which it is balloting or calling upon to take industrial action. The Bill amends the 1992 Act so as to ensure that unions are never required by the law to disclose the names of their members to employers in these circumstances.

118.     Paragraph 3 of the Schedule deals with the provisions of the 1992 Act which provide for a notice to be issued in advance of the ballot. It amends section 226A(2) to redefine the purpose for which the notice is required as being to enable the employer to make plans to deal with the consequences of any industrial action and to provide information to those employees who are being balloted. Paragraph 3(3) inserts a new section 226A(3A) which sets out the type of information which is to be included in the notice in order to satisfy the new section 226A(2). It has the effect that a union is required to provide only information in its possession and that it is not required to name the employees concerned.

119.     Paragraphs 9(1) to 9(3) amend section 234A of the 1992 Act, which provides for a notice to be issued in advance of official industrial action, in similar terms.

Requirement to send sample voting papers to employers

120.     Section 226A(1) of the 1992 Act provides that a union proposing to conduct an industrial action ballot must ensure that a sample voting paper is received by every person who it is reasonable for the union to believe will be the employer of a person or persons who will be entitled to vote in the ballot. The sample voting paper must be received not later than the third day before the opening of the ballot. Section 226A(3) has the effect that where more than one employer is involved and different forms of voting paper are used, samples of all the different forms of the voting paper must be sent to every employer.

121.     Paragraph 3(3) of the Schedule inserts a new subsection 226A(3B), which amends the requirement on unions so that they must ensure only that each employer receives the sample voting paper (or papers, where more than one form exists) which are to be sent to persons employed by that employer. In other words, unions are no longer required to ensure that an employer receives sample forms which are to be sent only to the employees of other employers.

Inducing members to take industrial action

122.     Section 227(1) of the 1992 Act provides that entitlement to vote in an industrial action ballot must be accorded equally to all union members who it is reasonable at the time of the ballot for the union to believe will be induced to take part in the industrial action. No other members are entitled to vote. Section 227(2) provides that these requirements are not satisfied if "any person" who was a member at the time of the ballot and who was denied an entitlement to vote is subsequently induced by the union to take part in the action.

123.     The effect of these provisions is that unions are free to induce new members who joined the union after the ballot to take industrial action. However, they cannot induce any members to take action if they were members at the time of the ballot but were denied an entitlement to vote. This includes cases where members changed their job after the ballot and became employed within the group of workers which the union is proposing should take industrial action.

124.     Paragraph 4 of the Schedule repeals subsection 227(2). Paragraph 6 inserts a new section 232A into the 1992 Act which defines circumstances where a union which induces a member to take industrial action who was denied an entitlement to vote in the ballot loses its protection from liability in tort. The effect of the new section is to maintain that protection for unions which induce members to take action where they were not balloted unless it was reasonable at the time of the ballot for the union to believe that they would be induced to take part. These provisions should enable unions to induce members who changed job after the ballot to take action. Paragraph 2(2) makes a consequential change to section 226 of the 1992 Act, which defines the circumstances where industrial action can be regarded as having the support of a ballot.

Overtime and call-out bans

125.     Section 229(2) of the 1992 Act provides that the voting paper in an industrial action ballot must contain either or both of two questions asking whether the voter is prepared to take part in a "strike" or in "industrial action short of a strike". In some cases, it has been unclear whether overtime bans and call-out bans were strikes or industrial action short of a strike, and court action has ensued. Recent authority has concluded that an overtime ban is strike action. Paragraph 5(2) reverses this decision and clarifies the status of call-out bans by defining both these forms of industrial action as "industrial action short of a strike" for the purposes of section 229(2).

The statement on voting papers

126.     Section 229(4) of the 1992 Act requires the following statement to appear on all ballot voting papers: "If you take part in a strike or other industrial action, you may be in breach of your contract of employment". Paragraph 5(3) of the Schedule amends this statement by adding words which describe the main features of the new protections against the unfair dismissal of workers taking industrial action contained in Schedule 5 to the Bill.

Disregard of certain minor and accidental failures

127.     The organisation of an industrial action ballot is often a complicated task and can sometimes involve many thousands of people spread around the country and, occasionally, abroad. However, a whole ballot can be invalidated if a union commits small errors in determining who is eligible to vote or if a union fails to a small extent to send ballot papers to all those entitled to vote and to nobody else. In order to provide greater scope for such errors to be disregarded, provided they are accidental and on a scale which is unlikely to affect the outcome of a ballot, paragraph 7 of the Schedule introduces a new section 232B into the 1992 Act defining where failures to meet the requirements of section 227(1) (entitlement to vote in a ballot) and parts of section 230 (conduct of a ballot) can be disregarded.

Ballots for industrial action : period of effectiveness

128.     Section 233 of the 1992 Act provides that industrial action does not have the support of a ballot unless it is called by a "specified person" and meets certain other conditions. One of these conditions is that action to which the call relates must take place before the ballot ceases to be effective in accordance with section 234 of the 1992 Act. Section 234(1) provides that, in ordinary cases, ballots cease to be effective at the end of the period of four weeks beginning with the date of the ballot. Section 246 of the 1992 Act provides that where votes are cast on more than one day the "date of ballot" is the last of those days.

129.     Paragraph 8 of the Schedule provides for this period to be lengthened by up to a maximum of four more weeks, if both the union and the employer agree to an extension. The purpose of the amendment is to avoid circumstances where a union feels obliged to organise industrial action within the four week period before a ballot becomes ineffective, even though the parties consider a settlement might be achieved by further negotiation.

130.     Where the ballot has included the workers of two or more employers, the option of agreeing an extension is to operate separately in relation to each employer. So, if a ballot involved the workers of two employers (employer A and employer B) and employer A agrees an extension but employer B does not, the extension would apply only in respect of A's workers and not B's.

131.     Subsections (2) to (6) of section 234, which deal with the particular case where a court has lifted an injunction prohibiting a union from calling industrial action, are unaffected.

Suspension of industrial action

132.     Section 234A of the 1992 Act provides for a trade union to send a notice to a person's employer informing him that the union intends to call upon all or some of his employees to take industrial action. The notice must be received at least seven days in advance of the commencement of the action. The notice must specify if action is continuous or discontinuous.

133.     Subsection 234A(7) deals with the position where continuous industrial action which has been authorised or endorsed by the union ceases to be so authorised or endorsed and is later authorised and endorsed again. It has the effect that the notice issued before the action ceased to be authorised or endorsed does not usually cover any action pursuant to the later authorisation or endorsement. This arrangement discourages unions from suspending industrial action to negotiate a settlement of the dispute because, if the negotiations fail, action cannot resume promptly because a fresh notice has to be issued at least seven days in advance.

134.     Paragraph 9(5) inserts a new subsection into section 234A which defines the circumstances where, following a specified period in which the industrial action has been suspended by joint agreement between the union and the employer, the action can be resumed without the need to issue a fresh notice. The specified period of the suspension can be extended by joint agreement.

Clause 5: Training

135.     Clause 5 inserts new sections 70B and 70C into Chapter VA of Part I of the 1992 Act. (Chapter VA is itself inserted into the 1992 Act by clause 1 of the Bill.) Under new section 70B, if a union is recognised under the procedure set out in Part I of Schedule A1 to the 1992 Act as inserted by Schedule 1 to this Bill and the CAC has specified a method for collective bargaining under paragraph 27(3) of Schedule A1 which the employer and union have not agreed should not be legally binding under paragraph 27(5) of the Schedule, the employer must invite representatives of the union to:

• consult on the employer's policy on training;

• consult on the employer's plans for training in the next six months or, if the employer sets a date for the next meeting, in the period before the next meeting, and

• report on the training undertaken since the previous meeting.

136.     This duty applies only in respect of workers within the bargaining unit. The first such meeting must be held within six months of the CAC imposing a method for collective bargaining, and further meetings must be held within six months of the previous meetings. The employer will be obliged to give to the union any information without which it would be impeded in participating in the meeting and which it is in line with good industrial relations practice to provide. This is subject to certain exceptions (for example, information which would disclose the identity of individuals without their consent). The information must be provided at least two weeks before the meeting. After the meeting, the union has four weeks in which to make written representations (comments, suggestions or requests) on the training matters discussed at the meeting, which the employer must take into account.

137.     New section 70C provides that a union may complain to an employment tribunal that an employer has failed to fulfil the obligations under new section 70B. This failure could for example consist of a failure to hold meetings or to provide insufficient information to the union in advance of a meeting. As is usual for employment tribunals, a complaint should be made within three months of the alleged failure. If the tribunal upholds the complaint, it may award compensation to each member of the bargaining unit, to a maximum of two weeks' pay. This award is payable to the individual workers, and the union may not take legal action to enforce payment: a worker may take such legal action if necessary.

Clause 6: Unfair dismissal connected with recognition: interim relief

138.     This clause allows an employee complaining of unfair dismissal under paragraph 120(2) of Schedule 1 to the Bill (dismissal connected with union recognition or derecognition) to claim interim relief.

Interim relief is dealt with in sections 128-132 of the 1996 Act. It may be awarded by an employment tribunal if it is applied for within seven days of the employee being dismissed and the tribunal considers it is likely to find the dismissal unfair. The effect of interim relief is that the employer must re-employ the worker on terms at least as favourable as before the dismissal, and hence the employee will continue to be paid. The amount paid under interim relief is offset against the compensation finally awarded by the tribunal. If the employer fails to re-employ the worker, the tribunal may order the employer to pay compensation.

Leave for family and domestic reasons

Clause 7 and Part I of Schedule 4: Maternity and parental leave

139.     Clause 7 gives effect to Part I of Schedule 4, which provides for basic rights and regulation-making powers relating to maternity and parental leave and will replace the existing maternity provisions in Part VIII of the 1996 Act. References to new sections, subsections and chapters in what follows are to the new sections, subsections and chapters inserted in the 1996 Act by Part I of Schedule 4 and references to sections etc are to the current sections of that Act.

140.     The new provisions provide a package of maternity and parental leave rights, which extends the existing maternity leave rights for women and introduces a new right to parental leave for men and women. Employees will be protected from detriment or dismissal for exercising these rights, which will be mainly enforceable through the employment tribunals.

141.     Part I of Schedule 4 sets out the basis for the maternity leave scheme which will replace the maternity provisions contained in Part VIII of the 1996 Act. The Government wishes to meet criticisms of the complexity of the 1996 Act, including those made by the Employment Select Committee on Working Mothers*, employers' and employees' organisations and the judiciary. The Bill aims to simplify the scheme by providing a basic framework in primary legislation with details in a single set of regulations. Some of the current provisions will be replaced (either in the new sections inserted in the 1996 Act or in regulations made under the new powers which the Bill inserts in that Act) in amended form to remove some of the complexities, while others will be re-enacted without any substantive difference.

142.     The new provisions were developed in informal consultation with organisations which have a particular interest in this area and then published for public consultation in Fairness at Work. These notes set out some of the details of what the Government currently intends to include in the regulations to be made under powers in these new provisions. However, these details could change as a result of the further consultation the Government intends to conduct on the draft regulations.

143.     The new Chapter I of the new Part VIII of the 1996 Act sets out the amended rights to maternity leave. It provides for three periods of leave:

• ordinary maternity leave of not less than 18 weeks (which replaces current rights for all pregnant employees to 14 weeks leave);

• at least two weeks compulsory maternity leave; and

• additional maternity leave (which replaces the current right to return to work within 29 weeks of the baby's birth for women who qualify).

In each case, the legislation provides the basic right or duty together with powers for the Secretary of State to make regulations setting out detailed provisions.

New section 71: Ordinary maternity leave

144.     The new section 71 re-enacts the general right (currently in section 71 of the 1996 Act) of all pregnant employees, regardless of their length of service with an employer, to a period of maternity leave. It also replaces provisions in sections 72 to 76 with powers which will enable similar provisions to be made in regulations. The new provisions, like those they replace, implement requirements of the Pregnant Workers Directive (Council Directive 92/85/EEC).

145.     To distinguish it from other maternity leave periods provided for, the period of leave provided for in this new section is called the ordinary maternity leave period. As under current provisions, during ordinary maternity leave the employee will be able to continue to receive the normal contractual and related benefits (including seniority and pension rights) due to her when she is working, other than her remuneration (new subsections (4) and (5)). She will also continue to be bound by contractual obligations such as confidentiality conditions (new subsection (4)(b)).

146.     The Secretary of State is given powers to make regulations:

• under new subsection (1), read with new section 75(2), prescribing conditions for qualifying for this right. As for the existing right to 14 weeks' leave, it is intended that the right will apply to all employees regardless of length of service so the prescribed conditions may be no more than a requirement that the employee notifies her employer that she is pregnant and when her baby is expected;

• under new subsections (2) and (3)(a), for the length of ordinary maternity leave, which must be not less than 18 weeks. The Government has said in Chapter 5 of Fairness at Work that the new entitlement will be to 18 weeks' leave, increased from the current entitlement of 14 weeks, in line with the 18 week period for Statutory Maternity Pay (which is dealt with in social security legislation);

• under new subsection (3)(b), which may allow employees to choose (as they do now) when they want to start maternity leave, subject to restrictions the regulations may set. Parameters similar to those having effect at present are likely to be set: currently women can choose to start maternity leave any time from the eleventh week before the expected week of the birth; maternity leave starts automatically if a woman is absent from work with pregnancy related illness in the six weeks prior to the birth, and at the latest when the baby is born; and

• under new subsection (6), specifying what counts as remuneration. It is intended that the regulations should provide that remuneration is the monetary element of a woman's salary or wages. Under the current provisions it can be difficult for employers and employees to know whether some benefits (such as a mortgage subsidy) are remuneration (and so not paid during maternity leave) or another element of the employee's terms and conditions (and therefore continue during maternity leave). This power would allow what counts as remuneration to be codified where this would be helpful in clarifying the law.

New section 72: Compulsory maternity leave

147.     This new section and the regulations for which it provides replace the Maternity (Compulsory Leave) Regulations 1994 (SI 1994 No. 2479), which implement the health and safety requirement in the Pregnant Workers Directive for there to be a minimum period of two weeks around the birth during which a woman must not work. The new provisions are intended to have similar effect to the current Regulations.

148.     The new section gives the Secretary of State powers to prescribe in regulations subject to affirmative resolution procedure the duration (subject to a minimum period of two weeks) and timing (subject to its falling within the ordinary maternity leave period) of the compulsory maternity leave period. It is intended that the period prescribed will be, as now, the two weeks following the baby's birth.

149.     The provisions put the onus on the employer not to allow a woman to work during the compulsory leave period and provide that any employer who contravenes this requirement will be guilty of a criminal offence and liable to a fine not exceeding level 2 on the standard scale for fines for summary offences (currently £500).

150.     Under the current legislation, giving women a basic right to maternity leave of 14 weeks, it would be possible for a woman starting her maternity leave eleven weeks before her baby is due to run out of leave if the baby was born late. In such a situation the current compulsory maternity leave rule ensures that her maternity leave continues for two weeks following the birth. With the increase in maternity leave entitlement from 14 weeks to 18 weeks, it is more difficult to envisage such a situation occurring, but nevertheless, if it did, the regulations would provide that the ordinary maternity leave period lasted until the end of the compulsory leave period.

New section 73: Additional maternity leave

151.     This new section and the regulations under it will replace sections 79-84 of the 1996 Act (which provide for an extended period of maternity absence for those with two years' service). The new section confers a right to a period of additional maternity leave, as distinct from ordinary maternity leave, for which employees who satisfy certain conditions will qualify. While the current legislation is silent on whether there is a contract of employment during maternity absence, this provision makes it clear that the contract continues by conferring a right to leave rather than a right to return and, under new subsection (4), by providing that terms and conditions of employment (other than remuneration, as for ordinary maternity leave) continue to apply to any extent set out in the regulations. The Government's current intention is that the conditions of employment which are always appropriate during an employment relationship, whether or not the individual is actually working, should continue to apply - such as conditions of confidentiality and mutual trust and confidence. Under new subsection (7) the Government intends to ensure that employees' rights relating to seniority etc will be suspended during the leave and not lost (subject to the provisions of the Social Security Act 1989 which provide for pension rights to continue during any paid maternity leave). Under the provisions in Chapter I of Part XIV of the 1996 Act, the period of leave will count as continuous service for the purposes of determining eligibility for rights under that Act. However, the intention is that in general employers will be free to decide whether or not other terms and conditions will continue during the period of leave.

152.     New subsections (4)(c) and (7) provide for regulations to determine the kind of job to which a woman is entitled to return and the rights she will have and the terms and conditions to which she will be subject when she returns. The intention is to include the current flexibility for employers to offer suitable alternative work where it is not reasonably practicable to take the woman back in her old job.

* Section 235 of the 1996 Act defines job, in relation to an employee, as the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed