Trade Union Reform and Employment Rights Act 1993 (c. 19)

(The document as of February, 2008)

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" (2A) The report shall also state--

(a) whether the scrutineer--

(i) has inspected the register of names and addresses of the members of the trade union, or

(ii) has examined the copy of the register as at the relevant date which is supplied to him in accordance with section 75(5A)(a),

(b) if he has, whether in the case of each inspection or examination he was acting on a request by a member of the trade union or at his own instance,

(d) whether any inspection of the register, or any examination of the copy of the register, has revealed any matter which he considers should be drawn to the attention of the trade union in order to assist it in securing that the register is accurate and up-to-date,

but shall not state the name of any member who has requested such an inspection or examination.

(2B) Where one or more persons other than the scrutineer are appointed under section 77A, the statement included in the scrutineer's report in accordance with subsection (2)(b) shall also indicate--

(a) whether he is satisfied with the performance of the person, or each of the persons, so appointed, and

(b) if he is not satisfied with the performance of the person, or any of them, particulars of his reasons for not being so satisfied. " .

Section 23.

SCHEDULE 2 Maternity: the right to return to work

Right to return to work

Right to return to work.

39 (1) An employee who--

(a) has the right conferred by section 33, and

(b) has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than two years,

shall also have the right to return to work at any time during the period beginning at the end of her maternity leave period and ending twenty-nine weeks after the beginning of the week in which childbirth occurs.

(2) An employee's right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed--

(a) on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since the commencement of her maternity leave period,

(b) with her seniority, pension rights and similar rights as they would have been if the period or periods of her employment prior to the end of her maternity leave period were continuous with her employment following her return to work (but subject to the requirements of paragraph 5 of Schedule 5 to the [1989 c. 24.] Social Security Act 1989 (credit for the period of absence in certain cases)), and

(c) otherwise on terms and conditions no less favourable than those which would have been applicable to her had she not been absent from work after the end of her maternity leave period.

(3) The Secretary of State may by order vary the period of two years specified in subsection (1) or that period as so varied.

(4) No order shall be made under subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

Requirement to give notice of return to employer.

40 (1) An employee shall not have the right to return to work under section 39 unless she includes with the information required by section 37(1) the information that she intends to exercise the right.

(2) Where, not earlier than twenty-one days before the end of her maternity leave period, an employee is requested in accordance with subsection (3) by her employer, or a successor of his, to give him written confirmation that she intends to exercise the right to return to work under section 39, the employee shall not be entitled to that right unless she gives the requested confirmation within fourteen days of receiving the request or, if that is not reasonably practicable, as soon as is reasonably practicable.

(3) A request under subsection (2) shall be--

(a) made in writing, and

(b) accompanied by a written statement of the effect of that subsection.

Special provision where redundancies occur before return to work.

41 (1) Where an employee has the right to return to work under section 39, but it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right, she shall be entitled, where there is a suitable available vacancy, to be offered alternative employment with her employer (or his successor), or an associated employer, under a new contract of employment complying with subsection (2).

(2) The new contract of employment must be such that--

(a) the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

(b) the provisions of the new contract as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she had returned to work pursuant to her right to return.

Exercise of right to return to work.

42 (1) An employee shall exercise the right to return to work under section 39 by giving written notice to the employer (who may be her employer before the end of her maternity leave period or a successor of his) at least twenty-one days before the day on which she proposes to return of her proposal to return on that day (the "notified day of return").

(2) An employer may postpone an employee's return to work until a date not more than four weeks after the notified day of return if he notifies her before that day that for specified reasons he is postponing her return until that date, and accordingly she will be entitled to return to work with him on that date.

(3) Subject to subsection (4), an employee may--

(a) postpone her return to work until a date not exceeding four weeks from the notified day of return, notwithstanding that that date falls after the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred; and

(b) where no day of return has been notified to the employer, extend the time during which she may exercise her right to return in accordance with subsection (1), so that she returns to work not later than four weeks from the end of that period of twenty-nine weeks;

if, before the notified day of return (or the end of the period of twenty-nine weeks), she gives the employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return (or the end of that period).

(4) Where an employee has once exercised a right of postponement or extension under subsection (3)(a) or (b), she shall not again be entitled to exercise a right of postponement or extension under that subsection in connection with the same return to work.

(5) If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable afterwards.

(6) If--

(a) no day of return has been notified,

(b) there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred, or which appears likely to have that effect, and

the employee may exercise her right to return in accordance with subsection (1) so that she returns to work at any time before the end of the period of twenty-eight days from the end of the interruption notwithstanding that she returns to work outside the period of twenty-nine weeks.

(7) Where the employee has either--

(a) exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return; or

(b) refrained from notifying the day of return in the circumstances described in subsection (6),

the other of those subsections shall apply as if for the reference to the end of the period of twenty-nine weeks there were substituted a reference to the end of the further period of four weeks or, as the case may be, of the period of twenty-eight days from the end of the interruption of work.

Supplementary.

43 (1) Schedule 2 shall have effect for the purpose of supplementing the preceding sections in relation to an employee's right to return to work under section 39.

(2) Sections 56 and 86 also have effect for that purpose.

(3) Subject to subsection (4), in sections 56 and 86 and Schedule 2 "notified day of return" has the same meaning as in section 42.

(4) Where--

(a) an employee's return is postponed under subsection (2) or (3)(a) of section 42, or

(b) the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (5) of that section,

then, subject to subsection (4) of that section, references in those subsections and in sections 56 and 86 and Schedule 2 to the notified day of return shall be construed as references to the day to which the return is postponed or that later day.

Contractual rights.

44 (1) An employee who has the right to return to work under section 39 and a right to return to work after absence because of pregnancy or childbirth under a contract of employment or otherwise may not exercise the two rights separately but may, in returning to work, take advantage of whichever right is, in any particular respect, the more favourable.

(2) The provisions of sections 39, 41 to 43, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return to work under section 39.

Section 25.

SCHEDULE 3 Suspension from work on maternity grounds

Suspension from work on maternity grounds

45 (1) For the purposes of sections 46 and 47 an employee is suspended on maternity grounds where, in consequence of--

(a) any requirement imposed by or under any relevant provision of any enactment or of any instrument made under any enactment, or

(b) any recommendation in any relevant provision of a code of practice issued or approved under section 16 of the [1974 c. 37.] Health and Safety at Work etc. Act 1974,

she is suspended from work by her employer on the ground that she is pregnant, has recently given birth or is breastfeeding a child.

(2) For the purposes of this section, sections 46 and 47 and section 61 an employee shall be regarded as suspended from work only if, and so long as, she continues to be employed by her employer, but is not provided with work or (disregarding alternative work for the purposes of section 46) does not perform the work she normally performed before the suspension.

(3) For the purposes of subsection (1) a provision is a "relevant provision" if it is for the time being specified as a relevant provision in an order made by the Secretary of State under this subsection.

Right to offer of alternative work

46 (1) Where an employer has available suitable alternative work for an employee the employee has a right to be offered to be provided with it before being suspended on maternity grounds.

(2) For alternative work to be suitable for an employee for the purposes of this section--

(a) the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances; and

(b) the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions.

(3) An employee may present a complaint to an industrial tribunal that her employer has failed to offer to provide her with work in contravention of subsection (1).

(4) An industrial tribunal shall not entertain a complaint under subsection (3) unless it is presented to the tribunal before the end of the period of three months beginning with the first day of the suspension, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

(5) Where the tribunal finds the complaint well-founded it may make an award of compensation to be paid by the employer to the employee.

(6) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant's right under subsection (1) by the employer's failure complained of and to any loss sustained by the complainant which is attributable to that failure.

Right to remuneration on suspension

47 (1) An employee who is suspended on maternity grounds shall be entitled to be paid remuneration by her employer while she is so suspended.

(2) An employee shall not be entitled to remuneration under this section in respect of any period during which her employer has offered to provide her with work which is suitable alternative work for the purposes of section 46 and the employee has unreasonably refused to perform that work.

(3) The amount of remuneration payable by an employer to an employee under this section shall be a week's pay in respect of each week of the period of suspension; and if in any week remuneration is payable in respect only of part of that week the amount of a week's pay shall be reduced proportionately.

(4) Subject to subsection (5), a right to remuneration under this section shall not affect any right of an employee in relation to remuneration under her contract of employment (in subsection (5) referred to as "contractual remuneration").

(5) Any contractual remuneration paid by an employer to an employee in respect of any period shall go towards discharging the employer's liability under this section in respect of that period; and, conversely, any payment of remuneration in discharge of an employer's liability under this section in respect of any period shall go towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

(6) An employee may present a complaint to an industrial tribunal that her employer has failed to pay the whole or any part of remuneration to which she is entitled under this section.

(7) An industrial tribunal shall not entertain a complaint relating to remuneration under this section in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

(8) Where an industrial tribunal finds a complaint under subsection (6) well-founded the tribunal shall order the employer to pay the complainant the amount of remuneration which it finds is due to her.

Section 26.

SCHEDULE 4 Provisions substituted for sections 1 to 6 of 1978 Act

Part I Employment Particulars

Written particulars of employment

Employer's duty to give statement of employment particulars

1 (1) Not later than two months after the beginning of an employee's employment with an employer, the employer shall give to the employee a written statement which may, subject to subsection (3) of section 2, be given in instalments before the end of that period.

(2) The statement shall contain particulars of--

(a) the names of the employer and employee,

(b) the date when the employment began, and

(c) the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

(3) The statement shall also contain particulars, as at a specified date not more than seven days before the statement or instalment of the statement containing them is given, of--

(a) the scale or rate of remuneration or the method of calculating remuneration,

(b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

(d) any terms and conditions relating to any of the following--

(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

(ii) incapacity for work due to sickness or injury, including any provision for sick pay, and

(iii) pensions and pension schemes,

(e) the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

(f) the title of the job which the employee is employed to do or a brief description of the work for which the employee is employed,

(g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

(h) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

(j) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and

(k) where the employee is required to work outside the United Kingdom for a period of more than one month--

(i) the period for which he is to work outside the United Kingdom,

(ii) the currency in which remuneration is to be paid while he is working outside the United Kingdom,

(iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

(iv) any terms and conditions relating to his return to the United Kingdom.

(4) Subsection (3)(d)(iii) shall not apply to the employees of any body or authority if--

(a) the employees' pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act of Parliament, and

(b) the body or authority are required by any such provision to give to new employees information concerning their pension rights or the determination of questions affecting their pension rights.

Section 1: supplementary

2 (1) If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (3) of that section, or under any of the other paragraphs of subsection (2) or (3) of that section, that fact shall be stated.

(2) A statement under section 1--

(a) may refer the employee to the provisions of some other document which--

(i) the employee has reasonable opportunities of reading in the course of his employment, or

(ii) is made reasonably accessible to him in some other way,

for particulars of any of the matters specified in heads (ii) and (iii) of paragraph (d) of subsection (3) of section 1, and

(b) may refer the employee to the law, or, subject to subsection (3), to the provisions of any collective agreement which directly affects the terms and conditions of the employment, for particulars of either of the matters specified in paragraph (e) of that subsection.

(3) A statement under section 1 may refer the employee to the provisions of a collective agreement under subsection (2)(b) if, and only if, it is an agreement which--

(a) the employee has reasonable opportunities of reading in the course of his employment, or

(b) is made reasonably accessible to him in some other way.

(4) The particulars required by section 1(2) and the following provisions of subsection (3)--

(a) paragraphs (a) to (c),

(b) head (i) of paragraph (d),

(d) paragraph (h),

shall be included in a single document (in this Part referred to as the "principal statement").

(5) Where before the end of the period of two months after the beginning of his employment an employee is to begin to work outside the United Kingdom for a period of more than one month, the statement under section 1 shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

(6) A statement shall be given to a person under section 1 notwithstanding that his employment ends before the end of the period within which the statement is required to be given.

Statement to include note about disciplinary procedures

3 (1) A statement under section 1 shall include a note--

(a) specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document which--

(i) the employee has reasonable opportunities of reading in the course of his employment, or

(ii) is made reasonably accessible to him in some other way,

and which specifies such rules,

(b) specifying, by description or otherwise--

(i) a person to whom the employee can apply if he is dissatisfied with any disciplinary decision relating to him, and

(ii) a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment,

and the manner in which any such application should be made,

(c) where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document which--

(i) the employee has reasonable opportunities of reading in the course of his employment, or

(ii) is made reasonably accessible to him in some other way,

and which explains them, and

(d) stating whether a contracting-out certificate is in force for the employment.

(2) Subsection (1)(a) to (c) shall not apply to rules, disciplinary decisions, grievances or procedures relating to health or safety at work.

(3) The note need not comply with the following provisions of subsection (1)--

(a) paragraph (a),

(b) in paragraph (b), sub-paragraph (i) and the words following sub-paragraph (ii) so far as relating to sub-paragraph (i), and

if on the date when the employee's employment began the relevant number of employees was less than twenty.

(4) In subsection (3) "the relevant number of employees", in relation to an employee, means the number of employees employed by his employer added to the number of employees employed by any associated employer.

Employer's duty to give statement of changes

4 (1) If, after the date to which a statement given under section 1 relates, or, where no such statement is given, after the end of the period within which a statement under section 1 is required to be given, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall at the earliest opportunity and, in any event, not later than--

(a) one month after the change, or

(b) where the change results from the employee being required to work outside the United Kingdom for a period of more than one month, the time when he leaves the United Kingdom in order to begin so to work, if that is earlier,

give to the employee a written statement containing particulars of the change.

(2) In a case where the statement under section 1 is given in instalments, subsection (1) applies--

(a) in relation to--

(i) matters particulars of which are required to be (whether they are or not) included in the instalment comprising the principal statement, and

(ii) other matters particulars of which are included or referred to in that instalment;

(b) in relation to matters particulars of which are included or referred to in any other instalment; and

(c) in relation to any change occurring after the end of the two-month period within which a statement under section 1 is required to be given in matters particulars of which were required to be included in the statement given under section 1 but which were not included in any instalment;

as it applies in relation to matters particulars of which are required to be included or referred to in a statement under section 1 not given in instalments.

(3) A statement under subsection (1)--

(a) may refer the employee to the provisions of some other document which--

(i) the employee has reasonable opportunities of reading in the course of his employment, or

(ii) is made reasonably accessible to him in some other way,

for a change in any of the matters specified in sections 1(3)(d) (ii) and (iii) and 3(1)(a) and (c), and

(b) may refer the employee to the law, or, subject to subsection (4), to the provisions of any collective agreement which directly affects the terms and conditions of the employment, for a change in either of the matters specified in section 1(3)(e).

(4) A statement under subsection (1) may refer the employee to the provisions of a collective agreement under subsection (3)(b) if, and only if, it is an agreement which--

(a) the employee has reasonable opportunities of reading in the course of his employment, or

(b) is made reasonably accessible to him in some other way.

(5) Where after an employer has given to an employee a statement under section 1--

(a) either--

(i) the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

(ii) the identity of the employer is changed in circumstances in which the continuity of the employee's period of employment is not broken, and

(b) the change does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by sections 1 to 3 to be included in the statement,

the person who immediately after the change is the employer shall not be required to give to the employee a statement under section 1 but the change shall be treated as a change falling within subsection (1) of this section.

(6) A statement under subsection (1) which informs an employee of a change such as is referred to in subsection (5)(a)(ii) shall specify the date on which the employee's period of continuous employment began.

Exclusion of sections 1 to 4 in case of certain employees

5 (1) Sections 1 to 4 shall not apply to an employee if--

(a) his employment continues for less than one month, or

(b) he is employed under a contract which normally involves employment for less than eight hours weekly.

(2) Sections 1 to 4 shall apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided for by subsection (1)(b) and sections 141 and 144, and under section 149, as if his employment with his employer terminated or began at that time.

(3) The fact that section 1 is directed by subsection (2) to apply to an employee as if his employment began on his ceasing to come within the exceptions referred to in that subsection shall not affect the obligation under section 1(2)(b) to specify the date on which his employment actually began.

Power of Secretary of State to require particulars of further matters

6 The Secretary of State may by order provide that section 1 shall have effect as if particulars of such further matters as may be specified in the order were included in the particulars required by that section; and, for that purpose, the order may include such provisions amending that section as appear to the Secretary of State to be expedient.

Section 28.

SCHEDULE 5 Employment protection in health and safety cases

1 After section 22 of the 1978 Act there shall be inserted--

" Right not to suffer detriment in health and safety cases

22A Right not to suffer detriment in health and safety cases.

(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that--

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out, or proposed to carry out, any such activities,

(b) being a representative of workers on matters of health and safety at work, or a member of a safety committee--

(i) in accordance with arrangements established under or by virtue of any enactment, or

(ii) by reason of being acknowledged as such by the employer,

he performed, or proposed to perform, any functions as such a representative or a member of such a committee,

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d) in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which he reasonably believed to be serious and imminent, he took, or proposed to take, appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) An employee shall not be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have treated him as the employer did.

(4) Except where an employee is dismissed in circumstances in which, by virtue of section 142, section 54 does not apply to the dismissal, this section shall not apply where the detriment in question amounts to dismissal.

22B Proceedings for contravention of section 22A.

(1) An employee may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment in contravention of section 22A.

(2) On such a complaint it shall be for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3) An industrial tribunal shall not consider a complaint under this section 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 to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.

(4) For the purposes of subsection (3)--

(a) where an act extends over a period, the "date of the act" means the last day of that period, and

(b) a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

22C Remedies.

(1) Where the industrial tribunal finds that a complaint under section 22B is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid to the complainant in respect of the act or failure to act complained of.

(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss which is attributable to the act or failure which infringed his right.

(3) The loss shall be taken to include--

(a) any expenses reasonably incurred by the complainant in consequence of the act or failure complained of, and

(b) loss of any benefit which he might reasonably be expected to have had but for that act or failure.

(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.

(5) Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. " .

2 In subsection (3) of section 57 of that Act (general provisions as to fairness of dismissal), for the words "sections 59 to 61" there shall be substituted the words "sections 57A to 61".

3 After that section there shall be inserted--

" 57A Dismissal in health and safety cases.

(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee--

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