Employment Protection (Consolidation) Act 1978

Trade union membership and activities E+W+S

23 Trade union membership and activities. E+W+S

(1) F1 every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of—

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or

(b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or

(c) compelling him to be or become a member of [F2 any trade union or of a particular trade union or of one of a number of particular trade unions]

[F3 (1A) Every employee shall also have the right not to have action (short of dismissal) taken against him for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(1B) For the purposes of this section any deduction made by an employer from the remuneration payable to an employee of his in respect of that employee’s employment shall, if the deduction is attributable to the employee’s failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as if it were action (short of dismissal) taken against the employee for the purpose of enforcing a requirement of a kind mentioned in subsection (1A).]

(2) In this section “appropriate time”, in relation to an employee taking part in any activities of a trade union, means time which either—

(a) is outside his working hours, or

(b) is a time within his working hours at which, in accordance with arrangements agreed with, or consent given by his employer, it is permissible for him to take part in those activities;

and in this subsection “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(2A)(2B)

F4 (3)—(6)

[F5 F6 (7) In this section references to being, becoming or ceasing to remain a member of a trade union shall include references to being, becoming or ceasing to remain a member of a particular branch or section of that union and to being, becoming or ceasing to remain a member of one of a number of particular branches or sections of that union, and references to taking part in the activities of a trade union shall be similarly construed.]

Textual Amendments

F1 Words repealed by Employment Act 1988 (c. 19, SIF 43:5), s. 33(2), Sch. 4

F2 Words substituted by Employment Act 1982 (c.46, SIF 43:5), s. 10(4) with saving in S.I. 1982/1656, Sch. 2

F3 S. 23(1A)(1B) inserted by Employment Act 1982 (c.46, SIF 43:5), s. 10(3) with saving in S.I. 1982/1656, Sch. 2

F4 S. 23(2A)(2B) repealed by Employment Act 1988 (c. 19, SIF 43:5), ss. 11(a), 33(2), Sch. 4

F5 S. 23(7) substituted by Employment Act 1988 (c. 19, SIF 43:5), s. 33(1), Sch. 3 Pt. I para. 2(1)

F6 S. 23(3)–(6) repealed with saving by Employment Act 1980 (c. 42, SIF 43:5), Sch. 2 and S.I. 1980/1170, art. 4, Sch. 3

Modifications etc. (not altering text)

C1 S. 23 amended (temp. until 1.11.1984) by S.I. 1982/1656, art. 3, Sch. 2

C2 S. 23 modified by S.I. 1989/901, art. 3, Sch.

24 Complaint to industrial tribunal. E+W+S

(1) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of section 23.

(2) An industrial tribunal shall not entertain a complaint under subsection (1) unless it is presented to the tribunal before the end of the period of three months beginning with the date on which there occurred the action complained of, or where that action is part of a series of similar actions, the last of those actions, 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.

(3) Where the tribunal finds the complaint well-founded it shall make a declaration to that effect and may make an award of compensation, calculated in accordance with section 26, to be paid by the employer to the employee in respect of the action complained of.

Modifications etc. (not altering text)

C3 S. 24 modified by S.I. 1989/901, art. 3, Sch.

25 Supplementary provisions relating to complaints under s. 24. E+W+S

(1) On a complaint under section 24 it shall be for the employer to show—

(a) the purpose for which action was taken against the complainant; and F7

(b)

F7 (2) In determining on a complaint under section 24, any question as to whether action was taken by the complainant’s employer or the purpose for which it was taken, no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to take the action complained of, and that question shall be determined as if no such pressure had been exercised.

Textual Amendments

F7 Word and s. 25(1)(b) repealed with saving by Employment Act 1980 (c. 42, SIF 43:5), Sch. 2 and S.I. 1980/1170, art. 4, Sch. 3

26 Assessment of compensation on a complaint under s. 24. E+W+S

(1) The amount of the compensation awarded by a tribunal on a complaint under section 24 shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant’s right under section 23 by the employer’s action complained of and to any loss sustained by the complainant which is attributable to that action.

(2) The said loss shall be taken to include—

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

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

(3) In ascertaining the said 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 of Scotland, as the case may be.

(4) In determining the amount of compensation to be awarded under subsection (1), no account shall be taken of any pressure as is referred to in section 25(2), and that question shall be determined as if no such pressure had been exercised.

(5) Where the tribunal finds that the action complained of was to any extent caused or contributed to by any 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.

[F8 26A Awards against third parties. E+W+S

(1) Where—

(a) a complaint is presented to an industrial tribunal under section 24 on the ground that action has been taken against the complainant by his employer for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and

(b) either the employer or the complainant claims in proceedings before the tribunal that the employer was induced to take the action by pressure which a trade union or other person exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so,

the employer or the complainant may request the tribunal to direct that the person who he claims exercised the pressure be joined, or in Scotland sisted, as a party to the proceedings.

(2) A request under subsection (1) shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration under section 24(3).

(3) Where a person has been joined, or in Scotland sisted, as a party to proceedings before an industrial tribunal by virtue of subsection (1), and the tribunal—

(a) makes an award of compensation, but

(b) finds that the claim mentioned in subsection (1) is well-founded,

the award may be made against that person instead of against the employer, or partly against that person and partly against the enployer, as the tribunal may consider just and equitable in the circumstances.]

Textual Amendments

F8 S. 26A substituted by Employment Act 1982 (c.46, SIF 43:5), s. 11 with saving in S.I. 1982/1656, Sch. 2