Employment Relations Act 1999 (c. 26)

(The document as of February, 2008)

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

(8) The reference in subsection (1) to the rules of a union includes references to the rules of any branch or section of the union.

(9) In subsection (2)(c) "industrial action" means a strike or other industrial action by persons employed under contracts of employment.

(10) For the purposes of subsection (2)(d) a committee is an executive committee if--

(a) it is a committee of the union concerned and has power to make executive decisions on behalf of the union or on behalf of a constituent body,

(b) it is a committee of a major constituent body and has power to make executive decisions on behalf of that body, or

(11) For the purposes of subsection (2)(d) a decision-making meeting is--

(a) a meeting of members of the union concerned (or the representatives of such members) which has power to make a decision on any matter which, under the rules of the union, is final as regards the union or which, under the rules of the union or a constituent body, is final as regards that body, or

(b) a meeting of members of a major constituent body (or the representatives of such members) which has power to make a decision on any matter which, under the rules of the union or the body, is final as regards that body.

(12) For the purposes of subsections (10) and (11), in relation to the trade union concerned--

(a) a constituent body is any body which forms part of the union, including a branch, group, section or region;

(b) a major constituent body is such a body which has more than 1,000 members.

(13) Any order under subsection (2)(e) shall be made by statutory instrument; and no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

(14) If a person applies to the Certification Officer under this section in relation to an alleged breach or threatened breach he may not apply to the court in relation to the breach or threatened 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.

(15) If--

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

(b) the breach or threatened 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 or threatened breach.

108B Declarations and orders

(1) The Certification Officer may refuse to accept an application under section 108A unless he is satisfied that the applicant has taken all reasonable steps to resolve the claim by the use of any internal complaints procedure of the union.

(2) If he accepts an application under section 108A 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, and

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

(3) 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 breach, or withdraw the threat of a breach, 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 breach or threat of the same or a similar kind does not occur in future.

(4) The Certification Officer shall in an order imposing any such requirement as is mentioned in subsection (3)(a) specify the period within which the union is to comply with the requirement.

(5) 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.

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

(7) 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.

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

(9) An order under section 108A(2)(e) may provide that, in relation to an application under section 108A with regard to a prescribed matter, the preceding provisions of this section shall apply with such omissions or modifications as may be specified in the order; and a prescribed matter is such matter specified under section 108A(2)(e) as is prescribed under this subsection.

108C 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 this Chapter. "

Employers' associations

20 (1) Section 132 (provisions about application of funds for political objects to apply to unincorporated employers' associations) shall be amended as follows.

(2) For "The" substitute "(1) Subject to subsections (2) to (5), the".

(3) After subsection (1) (as created by sub-paragraph (2)) insert--

" (2) Subsection (1) does not apply to these provisions--

(a) section 72A;

(b) in section 80, subsections (5A) to (5C) and (8) to (10);

(3) In its application to an unincorporated employers' association, section 79 shall have effect as if at the end of subsection (1) there were inserted--

"The making of an application to the Certification Officer does not prevent the applicant, or any other person, from making an application to the court in respect of the same matter."

(4) In its application to an unincorporated employers' association, section 80(2)(b) shall have effect as if the words "where he considers it appropriate," were inserted at the beginning.

(5) In its application to an unincorporated employers' association, section 81 shall have effect as if after subsection (1) there were inserted--

" (2) If an application in respect of the same matter has been made to the Certification Officer, the court shall have due regard to any declaration, reasons or observations of his which are brought to its notice. "

In section 133 (provisions about amalgamations and similar matters to apply to unincorporated employers' associations) in subsection (2)(c) after "101(3)" there shall be inserted ", 103(2A) and (6) to (9)".

Procedure before Certification Officer

In section 256 (procedure before Certification Officer) for subsection (2) (provision for restricting disclosure of individual's identity) there shall be substituted--

" (2) He shall in particular make provision about the disclosure, and restriction of the disclosure, of the identity of an individual who has made or is proposing to make any such application or complaint.

(2A) Provision under subsection (2) shall be such that if the application or complaint relates to a trade union--

(a) the individual's identity is disclosed to the union unless the Certification Officer thinks the circumstances are such that it should not be so disclosed;

(b) the individual's identity is disclosed to such other persons (if any) as the Certification Officer thinks fit. "

After section 256 there shall be inserted--

" 256A Vexatious litigants

(1) The Certification Officer may refuse to entertain any application or complaint made to him under a provision of Chapters III to VIIA of Part I by a vexatious litigant.

(2) The Certification Officer must give reasons for such a refusal.

(3) Subsection (1) does not apply to a complaint under section 37E(1)(b) or to an application under section 41.

(4) For the purposes of subsection (1) a vexatious litigant is a person who is the subject of--

(a) an order which is made under section 33(1) of the [1996 c. 17.] Employment Tribunals Act 1996 and which remains in force,

(b) a civil proceedings order or an all proceedings order which is made under section 42(1) of the [1981 c. 54.] Supreme Court Act 1981 and which remains in force,

(d) an order which is made under section 32 of the [1978 c. 23.] Judicature (Northern Ireland) Act 1978.

256B Vexatious litigants: applications disregarded

(1) For the purposes of a relevant enactment an application to the Certification Officer shall be disregarded if--

(a) it was made under a provision mentioned in the relevant enactment, and

(b) it was refused by the Certification Officer under section 256A(1).

(2) The relevant enactments are sections 26(8), 31(7), 45C(5B), 56(8), 72A(10), 81(8) and 108A(13). "

9 Annual report by Certification Officer "

24 In section 258(1) (Certification Officer: annual report) for "calendar year" there shall be substituted "financial year".

Section 31.

SCHEDULE 7 Employment Agencies

Introduction

1 The [1973 c. 35.] Employment Agencies Act 1973 shall be amended as provided in this Schedule.

General regulations

2 (1) Section 5 (power to make general regulations) shall be amended as follows.

(2) In subsection (1) there shall be substituted for paragraphs (f) and (g) and the proviso following paragraph (g)--

" (ea) restricting the services which may be provided by persons carrying on such agencies and businesses;

(eb) regulating the way in which and the terms on which services may be provided by persons carrying on such agencies and businesses;

(ec) restricting or regulating the charging of fees by persons carrying on such agencies and businesses. "

(3) After subsection (1) there shall be inserted--

" (1A) A reference in subsection (1)(ea) to (ec) of this section to services includes a reference to services in respect of--

(a) persons seeking employment outside the United Kingdom;

(b) persons normally resident outside the United Kingdom seeking employment in the United Kingdom. "

Charges

3 For section 6(1) (restriction on demand or receipt of fee for finding or seeking to find employment) there shall be substituted--

" (1) Except in such cases or classes of case as the Secretary of State may prescribe--

(a) a person carrying on an employment agency shall not request or directly or indirectly receive any fee from any person for providing services (whether by the provision of information or otherwise) for the purpose of finding him employment or seeking to find him employment;

(b) a person carrying on an employment business shall not request or directly or indirectly receive any fee from an employee for providing services (whether by the provision of information or otherwise) for the purpose of finding or seeking to find another person, with a view to the employee acting for and under the control of that other person;

(c) a person carrying on an employment business shall not request or directly or indirectly receive any fee from a second person for providing services (whether by the provision of information or otherwise) for the purpose of finding or seeking to find a third person, with a view to the second person becoming employed by the first person and acting for and under the control of the third person. "

Inspection

4 (1) Section 9 (inspection) shall be amended as follows.

(2) In subsection (1) (power to inspect)--

(a) for paragraph (a) there shall be substituted--

" (a) enter any relevant business premises; " , and

(b) after paragraph (c) there shall be inserted-- " ; and

(d) take copies of records and other documents inspected under paragraph (b). " .

(3) After subsection (1) there shall be inserted--

" (1A) If an officer seeks to inspect or acquire, in accordance with subsection (1)(b) or (c), a record or other document or information which is not kept at the premises being inspected, he may require any person on the premises--

(a) to inform him where and by whom the record, other document or information is kept, and

(b) to make arrangements, if it is reasonably practicable for the person to do so, for the record, other document or information to be inspected by or furnished to the officer at the premises at a time specified by the officer.

(1B) In subsection (1) "relevant business premises" means premises--

(a) which are used, have been used or are to be used for or in connection with the carrying on of an employment agency or employment business,

(b) which the officer has reasonable cause to believe are used or have been used for or in connection with the carrying on of an employment agency or employment business, or

(c) which the officer has reasonable cause to believe are used for the carrying on of a business by a person who also carries on or has carried on an employment agency or employment business, if the officer also has reasonable cause to believe that records or other documents which relate to the employment agency or employment business are kept there.

(1C) For the purposes of subsection (1)--

(a) "document" includes information recorded in any form, and

(b) information is kept at premises if it is accessible from them. "

(4) For subsection (2) (self-incrimination) there shall be substituted--

" (2) Nothing in this section shall require a person to produce, provide access to or make arrangements for the production of anything which he could not be compelled to produce in civil proceedings before the High Court or (in Scotland) the Court of Session.

(2A) Subject to subsection (2B), a statement made by a person in compliance with a requirement under this section may be used in evidence against him in criminal proceedings.

(2B) Except in proceedings for an offence under section 5 of the [1911 c. 6.] Perjury Act 1911 (false statements made otherwise than on oath), no evidence relating to the statement may be adduced, and no question relating to it may be asked, by or on behalf of the prosecution unless--

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person who made the statement. "

(5) In subsection (3) (offence)--

(a) for "or (b)" there shall be substituted ", (b) or (d)", and

(b) after the words "paragraph (c) of that subsection" there shall be inserted "or under subsection (1A)".

(6) In subsection (4)(a) (restriction on disclosure of information) in sub-paragraph (iv) (exception for criminal proceedings pursuant to or arising out of the Act) the words "pursuant to or arising out of this Act" shall be omitted.

Offences

5 After section 11 there shall be inserted--

" 11A Offences: extension of time limit

(1) For the purposes of subsection (2) of this section a relevant offence is an offence under section 3B, 5(2), 6(2), 9(4)(b) or 10(2) of this Act for which proceedings are instituted by the Secretary of State.

(2) Notwithstanding section 127(1) of the [1980 c. 43.] Magistrates' Courts Act 1980 (information to be laid within 6 months of offence) an information relating to a relevant offence which is triable by a magistrates' court in England and Wales may be so tried if it is laid at any time--

(a) within 3 years after the date of the commission of the offence, and

(b) within 6 months after the date on which evidence sufficient in the opinion of the Secretary of State to justify the proceedings came to his knowledge.

(3) Notwithstanding section 136 of the [1995 c. 43.] Criminal Procedure (Scotland) Act 1995 (time limit for prosecuting certain statutory offences) in Scotland proceedings in respect of an offence under section 3B, 5(2), 6(2), 9(4)(b) or 10(2) of this Act may be commenced at any time--

(a) within 3 years after the date of the commission of the offence, and

(b) within 6 months after the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings came to his knowledge.

(4) For the purposes of this section a certificate of the Secretary of State or Lord Advocate (as the case may be) as to the date on which evidence came to his knowledge is conclusive evidence.

11B Offences: cost of investigation

The court in which a person is convicted of an offence under this Act may order him to pay to the Secretary of State a sum which appears to the court not to exceed the costs of the investigation which resulted in the conviction. "

Regulations and orders

6 For section 12(5) (regulations and orders: procedure) there shall be substituted--

" (5) Regulations under section 5(1) or 6(1) of this Act shall not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.

(6) Regulations under section 13(7)(i) of this Act or an order under section 14(3) shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

Interpretation

7 In section 13(2) (definition of employment agency) for "workers" (in each place) there shall be substituted "persons".

Exemptions

8 For section 13(7)(i) there shall be substituted--

" (i) any prescribed business or service, or prescribed class of business or service or business or service carried on or provided by prescribed persons or classes of person. "

Section 41.

SCHEDULE 8 National Security

1 The following shall be substituted for section 193 of the [1996 c. 18.] Employment Rights Act 1996 (national security)--

" 193 National security

Part IVA and section 47B of this Act do not apply in relation to employment for the purposes of--

(a) the Security Service,

(b) the Secret Intelligence Service, or

2 Section 4(7) of the [1996 c. 17.] Employment Tribunals Act 1996 (composition of tribunal: national security) shall cease to have effect.

3 The following shall be substituted for section 10 of that Act (national security, &c.)--

" 10 National security

(1) If on a complaint under--

(a) section 146 of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 (detriment: trade union membership), or

(b) section 111 of the Employment Rights Act 1996 (unfair dismissal),

it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.

(2) Employment tribunal procedure regulations may make provision about the composition of the tribunal (including provision disapplying or modifying section 4) for the purposes of proceedings in relation to which--

(a) a direction is given under subsection (3), or

(b) an order is made under subsection (4).

(3) A direction may be given under this subsection by a Minister of the Crown if--

(a) it relates to particular Crown employment proceedings, and

(b) the Minister considers it expedient in the interests of national security.

(4) An order may be made under this subsection by the President or a Regional Chairman in relation to particular proceedings if he considers it expedient in the interests of national security.

(5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security--

(a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings;

(b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings;

(c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings;

(d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings;

(e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings.

(6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do anything of a kind which a tribunal can be required to do by direction under subsection (5)(a) to (e).

(7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision--

(a) for the appointment by the Attorney General, or by the Advocate General for Scotland, of a person to represent the interests of the applicant;

(b) about the publication and registration of reasons for the tribunal's decision;

(c) permitting an excluded person to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded.

(8) Proceedings are Crown employment proceedings for the purposes of this section if the employment to which the complaint relates--

(a) is Crown employment, or

(b) is connected with the performance of functions on behalf of the Crown.

(9) The reference in subsection (4) to the President or a Regional Chairman is to a person appointed in accordance with regulations under section 1(1) as--

(a) a Regional Chairman,

(b) President of the Employment Tribunals (England and Wales), or

10A Confidential information

(1) Employment tribunal procedure regulations may enable an employment tribunal to sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of--

(a) information which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment,

(b) information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

(c) information the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, cause substantial injury to any undertaking of his or in which he works.

(2) The reference in subsection (1)(c) to any undertaking of a person or in which he works shall be construed--

(a) in relation to a person in Crown employment, as a reference to the national interest,

(b) in relation to a person who is a relevant member of the House of Lords staff, as a reference to the national interest or (if the case so requires) the interests of the House of Lords, and

(c) in relation to a person who is a relevant member of the House of Commons staff, as a reference to the national interest or (if the case so requires) the interests of the House of Commons.

10B Restriction of publicity in cases involving national security

(1) This section applies where a tribunal has been directed under section 10(5) or has determined under section 10(6)--

(a) to take steps to conceal the identity of a particular witness, or

(b) to take steps to keep secret all or part of the reasons for its decision.

(2) It is an offence to publish--

(a) anything likely to lead to the identification of the witness, or

(b) the reasons for the tribunal's decision or the part of its reasons which it is directed or has determined to keep secret.

(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) Where a person is charged with an offence under this section it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication in question was of, or included, the matter in question.

(5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of--

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person purporting to act in any such capacity,

he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(6) A reference in this section to publication includes a reference to inclusion in a programme which is included in a programme service, within the meaning of the [1990 c. 42.] Broadcasting Act 1990. "

4 Section 28(5) of the Employment Tribunals Act 1996 (composition of Appeal Tribunal: national security) shall cease to have effect.

5 (1) Section 30 of that Act (Appeal Tribunal Procedure rules) shall be amended as follows.

(2) In subsection (2)(d) for "section 10" substitute "section 10A".

(3) After subsection (2) insert--

" (2A) Appeal Tribunal procedure rules may make provision of a kind which may be made by employment tribunal procedure regulations under section 10(2), (5), (6) or (7).

(2B) For the purposes of subsection (2A)--

(a) the reference in section 10(2) to section 4 shall be treated as a reference to section 28, and

(b) the reference in section 10(4) to the President or a Regional Chairman shall be treated as a reference to a judge of the Appeal Tribunal.

(2C) Section 10B shall have effect in relation to a direction to or determination of the Appeal Tribunal as it has effect in relation to a direction to or determination of an employment tribunal. "

6 After section 69(2) of the [1976 c. 74.] Race Relations Act 1976 (evidence: Minister's certificate as to national security, &c.) there shall be inserted--

" (2A) Subsection (2)(b) shall not have effect for the purposes of proceedings on a complaint under section 54. "

7 Paragraph 4(1)(b) of Schedule 3 to the [1995 c. 50.] Disability Discrimination Act 1995 (evidence: Minister's certificate as to national security, &c.) shall cease to have effect.

Section 44.

SCHEDULE 9 Repeals

1. Ballots and Notices

Chapter

Short title

Extent of repeal

1992 c. 52.

Trade Union and Labour Relations (Consolidation) Act 1992.

In section 226(2) the word "and" at the end of paragraph (b).

Section 227(2).

In section 234A(7)(a) the words "otherwise than to enable the union to comply with a court order or an undertaking given to a court".'.

2. Leave for family reasons etc

Chapter

Short title

Extent of repeal

1996 c. 17.

Employment Tribunals Act 1996.

In section 13(2)--

the word "or" after paragraph (a),

paragraph (b), and

the words ", or which she held before her absence,".

1996 c. 18.

Employment Rights Act 1996.

In section 37, subsection (4), the word "and" after subsection (5)(a), and subsection (5)(b).

In section 43, subsection (4), the word "and" after subsection (5)(a), and subsection (5)(b).

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