Employment Relations Act 1999 (c. 26)

(The document as of February, 2008)

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(2) In subsection (2)(a) after "order" insert "or regulations".

(3) In subsection (3)--

(a) after "and no order" insert "or regulations",

(b) for "72(3), 73(5), 79(3)," substitute "47C, 71, 72, 73, 76, 99,", and

Section 16.

SCHEDULE 5 Unfair Dismissal of Striking Workers

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

1 The Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as follows.

2 In section 238 (dismissals in connection with industrial action) after subsection (2A) there shall be inserted--

" (2B) Subsection (2) does not apply in relation to an employee who is regarded as unfairly dismissed by virtue of section 238A below. "

3 The following shall be inserted after section 238--

" 238A Participation in official industrial action

(1) For the purposes of this section an employee takes protected industrial action if he commits an act which, or a series of acts each of which, he is induced to commit by an act which by virtue of section 219 is not actionable in tort.

(2) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) as unfairly dismissed if--

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action, and

(b) subsection (3), (4) or (5) applies to the dismissal.

(3) This subsection applies to a dismissal if it takes place within the period of eight weeks beginning with the day on which the employee started to take protected industrial action.

(4) This subsection applies to a dismissal if--

(a) it takes place after the end of that period, and

(b) the employee had stopped taking protected industrial action before the end of that period.

(5) This subsection applies to a dismissal if--

(a) it takes place after the end of that period,

(b) the employee had not stopped taking protected industrial action before the end of that period, and

(c) the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates.

(6) In determining whether an employer has taken those steps regard shall be had, in particular, to--

(a) whether the employer or a union had complied with procedures established by any applicable collective or other agreement;

(b) whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action;

(c) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used;

(d) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.

(7) In determining whether an employer has taken those steps no regard shall be had to the merits of the dispute.

(8) For the purposes of this section no account shall be taken of the repudiation of any act by a trade union as mentioned in section 21 in relation to anything which occurs before the end of the next working day (within the meaning of section 237) after the day on which the repudiation takes place. "

4 (1) Section 239 (supplementary provisions relating to unfair dismissal) shall be amended as follows.

(2) In subsection (1) for "Sections 237 and 238" there shall be substituted "Sections 237 to 238A".

(3) At the end of subsection (1) there shall be added "; but sections 108 and 109 of that Act (qualifying period and age limit) shall not apply in relation to section 238A of this Act."

(4) In subsection (2) after "section 238" there shall be inserted "or 238A".

(5) At the end there shall be added--

" (4) In relation to a complaint under section 111 of the 1996 Act (unfair dismissal: complaint to employment tribunal) that a dismissal was unfair by virtue of section 238A of this Act--

(a) no order shall be made under section 113 of the 1996 Act (reinstatement or re-engagement) until after the conclusion of protected industrial action by any employee in relation to the relevant dispute,

(b) regulations under section 7 of the Employment Tribunals Act 1996 may make provision about the adjournment and renewal of applications (including provision requiring adjournment in specified circumstances), and

(c) regulations under section 9 of that Act may require a pre-hearing review to be carried out in specified circumstances. "

Employment Rights Act 1996 (c. 18)

5 (1) Section 105 of the Employment Rights Act 1996 (redundancy) shall be amended as follows.

(2) In subsection (1)(c) for "subsections (2) to (7)" there shall be substituted "subsections (2) to (7C).".

(3) After subsection (7B) (inserted by Schedule 3 to the [1999 c. 10.] Tax Credits Act 1999) there shall be inserted--

" (7C) This subsection applies if--

(a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the reason mentioned in section 238A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (participation in official industrial action), and

(b) subsection (3), (4) or (5) of that section applies to the dismissal. "

Section 29.

SCHEDULE 6 The Certification Officer

Introduction

1 The [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as provided by this Schedule.

Register of members

2 In section 24 (duty to maintain register of members' names and addresses) the second sentence of subsection (6) (application to Certification Officer does not prevent application to court) shall be omitted.

3 In section 24A (securing confidentiality of register during ballots) the second sentence of subsection (6) (application to Certification Officer does not prevent application to court) shall be omitted.

4 (1) Section 25 (application to Certification Officer for declaration of breach of duty regarding register of members' names and addresses) shall be amended as follows.

(2) In subsection (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".

(3) After subsection (5) insert--

" (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or both of the following requirements--

(a) to take such steps to remedy the declared failure, within such period, as may be specified in the order;

(b) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.

(5B) Where an enforcement order has been made, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the application on which the order was made. "

(4) After subsection (8) insert--

" (9) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(10) An enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.

(11) The following paragraphs have effect if a person applies under section 26 in relation to an alleged failure--

(a) that person may not apply under this section in relation to that failure;

(b) on an application by a different person under this section in relation to that failure, the Certification Officer shall have due regard to any declaration, order, observations or reasons made or given by the court regarding that failure and brought to the Certification Officer's notice. "

5 (1) Section 26 (application to court for declaration of breach of duty regarding register of members' names and addresses) shall be amended as follows.

(2) Omit subsection (2) (position where application in respect of the same matter has been made to Certification Officer).

(3) After subsection (7) insert--

" (8) The following paragraphs have effect if a person applies under section 25 in relation to an alleged failure--

(a) that person may not apply under this section in relation to that failure;

(b) on an application by a different person under this section in relation to that failure, the court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court's notice. "

Accounting records

6 (1) Section 31 (remedy for failure to comply with request for access to accounting records) shall be amended as follows.

(2) In subsection (1) after "the court" insert "or to the Certification Officer".

(3) In subsection (2) (court to make order if claim well-founded) after "Where" insert "on an application to it" and for "that person" substitute "the applicant".

(4) After subsection (2) insert--

" (2A) On an application to him the Certification Officer shall--

(a) make such enquiries as he thinks fit, and

(b) give the applicant and the trade union an opportunity to be heard.

(2B) Where the Certification Officer is satisfied that the claim is well-founded he shall make such order as he considers appropriate for ensuring that the applicant--

(a) is allowed to inspect the records requested,

(b) is allowed to be accompanied by an accountant when making the inspection of those records, and

(2C) In exercising his functions under this section the Certification Officer shall ensure that, so far as is reasonably practicable, an application made to him is determined within six months of being made. "

(5) In subsection (3) (court's power to grant interlocutory relief) after "an application" insert "to it".

(6) After subsection (3) insert--

" (4) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

(5) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court.

(6) If a person applies to the court under this section in relation to an alleged failure he may not apply to the Certification Officer under this section in relation to that failure.

(7) If a person applies to the Certification Officer under this section in relation to an alleged failure he may not apply to the court under this section in relation to that failure. "

Offenders

7 (1) Section 45C (application to Certification Officer or court for declaration of breach of duty to secure positions not held by certain offenders) shall be amended as follows.

(2) In subsection (2) (Certification Officer's powers and duties) insert before paragraph (a)--

" (aa) shall make such enquiries as he thinks fit, "

(3) In subsection (2)(a) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit ", where he considers it appropriate,".

(4) Omit subsections (3) and (4) (different applications in respect of the same matter).

(5) After subsection (5) insert--

" (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that it would be inappropriate, make an order imposing on the trade union a requirement to take within such period as may be specified in the order such steps to remedy the declared failure as may be so specified.

(5B) The following paragraphs have effect if a person applies to the Certification Officer under this section in relation to an alleged failure--

(a) that person may not apply to the court under this section in relation to that failure;

(b) on an application by a different person to the court under this section in relation to that failure, the court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court's notice.

(5C) The following paragraphs have effect if a person applies to the court under this section in relation to an alleged failure--

(a) that person may not apply to the Certification Officer under this section in relation to that failure;

(b) on an application by a different person to the Certification Officer under this section in relation to that failure, the Certification Officer shall have regard to any declaration, order, observations or reasons made or given by the court regarding that failure and brought to the Certification Officer's notice. "

(6) In subsection (6) (entitlement to enforce order) after "been made" insert "under subsection (5) or (5A)".

(7) After subsection (6) insert--

" (7) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

(8) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(9) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court. "

Trade union administration: appeals

8 After section 45C there shall be inserted--

" 45D Appeals from Certification Officer

An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under section 25, 31 or 45C. "

Elections

9 In section 54 (remedy for failure to comply with the duty regarding elections) the second sentence of subsection (1) (application to Certification Officer does not prevent application to court) shall be omitted.

10 (1) Section 55 (application to Certification Officer for declaration of breach of duty regarding elections) shall be amended as follows.

(2) In subsection (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".

(3) After subsection (5) insert--

(a) to secure the holding of an election in accordance with the order;

(b) to take such other steps to remedy the declared failure as may be specified in the order;

(c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.

The Certification Officer shall in an order imposing any such requirement as is mentioned in paragraph (a) or (b) specify the period within which the union is to comply with the requirements of the order.

(5B) Where the Certification Officer makes an order requiring the union to hold a fresh election, he shall (unless he considers that it would be inappropriate to do so in the particular circumstances of the case) require the election to be conducted in accordance with the requirements of this Chapter and such other provisions as may be made by the order.

(5C) Where an enforcement order has been made--

(a) any person who is a member of the union and was a member at the time the order was made, or

(b) any person who is or was a candidate in the election in question,

is entitled to enforce obedience to the order as if he had made the application on which the order was made. "

(4) After subsection (7) insert--

" (8) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(9) An enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.

(10) The following paragraphs have effect if a person applies under section 56 in relation to an alleged failure--

(a) that person may not apply under this section in relation to that failure;

11 (1) Section 56 (application to court for declaration of failure to comply with requirements regarding elections) shall be amended as follows.

(2) Omit subsection (2) (position where application in respect of the same matter has been made to the Certification Officer).

(3) After subsection (7) insert--

" (8) The following paragraphs have effect if a person applies under section 55 in relation to an alleged failure--

(a) that person may not apply under this section in relation to that failure;

12 After section 56 there shall be inserted--

" 56A Appeals from Certification Officer

An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under section 55. "

Application of funds for political objects

13 After section 72 there shall be inserted--

" 72A Application of funds in breach of section 71

(1) A person who is a member of a trade union and who claims that it has applied its funds in breach of section 71 may apply to the Certification Officer for a declaration that it has done so.

(2) On an application under this section the Certification Officer--

(a) shall make such enquiries as he thinks fit,

(b) shall give the applicant and the union an opportunity to be heard,

(c) shall ensure that, so far as is reasonably practicable, the application is determined within six months of being made,

(d) may make or refuse the declaration asked for,

(e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing, and

(f) may make written observations on any matter arising from, or connected with, the proceedings.

(3) If he makes a declaration he shall specify in it--

(a) the provisions of section 71 breached, and

(b) the amount of the funds applied in breach.

(4) If he makes a declaration and is satisfied that the union has taken or agreed to take steps with a view to--

(a) remedying the declared breach, or

(b) securing that a breach of the same or any similar kind does not occur in future,

he shall specify those steps in making the declaration.

(5) If he makes a declaration he may make such order for remedying the breach as he thinks just under the circumstances.

(6) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

(7) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(8) Where an order has been made under this section, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the application on which the order was made.

(9) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court.

(10) If a person applies to the Certification Officer under this section in relation to an alleged breach he may not apply to the court in relation to the breach; but nothing in this subsection shall prevent such a person from exercising any right to appeal against or challenge the Certification Officer's decision on the application to him.

(11) If--

(a) a person applies to the court in relation to an alleged breach, and

(b) the breach is one in relation to which he could have made an application to the Certification Officer under this section,

he may not apply to the Certification Officer under this section in relation to the breach. "

Political ballot rules

14 In section 79 (remedy for failure to comply with political ballot rules) the second sentence of subsection (1) (application to Certification Officer does not prevent application to court) shall be omitted.

15 (1) Section 80 (application to Certification Officer for declaration of failure to comply with political ballot rules) shall be amended as follows.

(2) In subsection (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".

(3) After subsection (5) insert--

(a) to secure the holding of a ballot in accordance with the order;

(b) to take such other steps to remedy the declared failure as may be specified in the order;

(c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.

The Certification Officer shall in an order imposing any such requirement as is mentioned in paragraph (a) or (b) specify the period within which the union must comply with the requirements of the order.

(5B) Where the Certification Officer makes an order requiring the union to hold a fresh ballot, he shall (unless he considers that it would be inappropriate to do so in the particular circumstances of the case) require the ballot to be conducted in accordance with the union's political ballot rules and such other provisions as may be made by the order.

(5C) Where an enforcement order has been made, any person who is a member of the union and was a member at the time the order was made is entitled to enforce obedience to the order as if he had made the application on which the order was made. "

(4) After subsection (7) insert--

" (8) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(9) An enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.

(10) The following paragraphs have effect if a person applies under section 81 in relation to a matter--

(a) that person may not apply under this section in relation to that matter;

(b) on an application by a different person under this section in relation to that matter, the Certification Officer shall have due regard to any declaration, order, observations, or reasons made or given by the court regarding that matter and brought to the Certification Officer's notice. "

16 (1) Section 81 (application to court for declaration of failure to comply with political ballot rules) shall be amended as follows.

(2) Omit subsection (2) (position where application in respect of the same matter has been made to Certification Officer).

(3) After subsection (7) insert--

" (8) The following paragraphs have effect if a person applies under section 80 in relation to a matter--

(a) that person may not apply under this section in relation to that matter;

(b) on an application by a different person under this section in relation to that matter, the court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that matter and brought to the court's notice. "

Political fund

17 (1) Section 82 (rules as to political fund) shall be amended as follows.

(2) After subsection (2) insert--

" (2A) On a complaint being made to him the Certification Officer shall make such enquiries as he thinks fit. "

(3) After subsection (3) insert--

" (3A) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date. "

Amalgamation or transfer of engagements

18 (1) Section 103 (complaints about procedure relating to amalgamation or transfer of engagements) shall be amended as follows.

(2) After subsection (2) insert--

" (2A) On a complaint being made to him the Certification Officer shall make such enquiries as he thinks fit. "

(3) After subsection (5) insert--

" (6) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

(7) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

(9) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court. "

Breach of union rules

19 In Part I, after Chapter VII there shall be inserted--

" CHAPTER VIIA BREACH OF RULES

108A Right to apply to Certification Officer

(1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7).

(2) The matters are--

(a) the appointment or election of a person to, or the removal of a person from, any office;

(b) disciplinary proceedings by the union (including expulsion);

(d) the constitution or proceedings of any executive committee or of any decision-making meeting;

(e) such other matters as may be specified in an order made by the Secretary of State.

(3) The applicant must be a member of the union, or have been one at the time of the alleged breach or threatened breach.

(4) A person may not apply under subsection (1) in relation to a claim if he is entitled to apply under section 80 in relation to the claim.

(5) No application may be made regarding--

(a) the dismissal of an employee of the union;

(b) disciplinary proceedings against an employee of the union.

(6) An application must be made--

(a) within the period of six months starting with the day on which the breach or threatened breach is alleged to have taken place, or

(b) if within that period any internal complaints procedure of the union is invoked to resolve the claim, within the period of six months starting with the earlier of the days specified in subsection (7).

(7) Those days are--

(a) the day on which the procedure is concluded, and

(b) the last day of the period of one year beginning with the day on which the procedure is invoked.

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