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Trade Union and Labour Relations (Consolidation) Act 1992

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This is the original version (as it was originally enacted).

Trade Union and Labour Relations (Consolidation) Act 1992

1992 CHAPTER 52

An Act to consolidate the enactments relating to collective labour relations, that is to say, to trade unions, employers' associations, industrial relations and industrial action.

[16th July 1992]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part ITrade Unions

Chapter IIntroductory

Meaning of “trade union”

1Meaning of “trade union”

In this Act a “trade union” means an organisation (whether temporary or permanent)—

(a)which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers' associations; or

(b)which consists wholly or mainly of—

(i)constituent or affiliated organisations which fulfil the conditions in paragraph (a) (or themselves consist wholly or mainly of constituent or affiliated organisations which fulfil those conditions), or

(ii)representatives of such constituent or affiliated organisations,

and whose principal purposes include the regulation of relations between workers and employers or between workers and employers' associations, or the regulation of relations between its constituent or affiliated organisations.

The list of trade unions

2The list of trade unions

(1)The Certification Officer shall keep a list of trade unions containing the names of—

(a)the organisations whose names were, immediately before the commencement of this Act, duly entered in the list of trade unions kept by him under section 8 of the [1974 c. 52.] Trade Union and Labour Relations Act 1974, and

(b)the names of the organisations entitled to have their names entered in the list in accordance with this Part.

(2)The Certification Officer shall keep copies of the list of trade unions, as for the time being in force, available for public inspection at all reasonable hours free of charge.

(3)A copy of the list shall be included in his annual report.

(4)The fact that the name of an organisation is included in the list of trade unions is evidence (in Scotland, sufficient evidence) that the organisation is a trade union.

(5)On the application of an organisation whose name is included in the list, the Certification Officer shall issue it with a certificate to that effect.

(6)A document purporting to be such a certificate is evidence (in Scotland, sufficient evidence) that the name of the organisation is entered in the list.

3Application to have name entered in the list

(1)An organisation of workers, whenever formed, whose name is not entered in the list of trade unions may apply to the Certification Officer to have its name entered in the list.

(2)The application shall be made in such form and manner as the Certification Officer may require and shall be accompanied by—

(a)a copy of the rules of the organisation,

(b)a list of its officers,

(c)the address of its head or main office, and

(d)the name under which it is or is to be known,

and by the prescribed fee.

(3)If the Certification Officer is satisfied—

(a)that the organisation is a trade union,

(b)that subsection (2) has been complied with, and

(c)that entry of the name in the list is not prohibited by subsection (4),

he shall enter the name of the organisation in the list of trade unions.

(4)The Certification Officer shall not enter the name of an organisation in the list of trade unions if the name is the same as that under which another organisation—

(a)was on 30th September 1971 registered as a trade union under the Trade Union Acts 1871 to 1964,

(b)was at any time registered as a trade union or employers' association under the [1971 c. 72.] Industrial Relations Act 1971, or

(c)is for the time being entered in the list of trade unions or in the list of employers' associations kept under Part II of this Act,

or if the name is one so nearly resembling any such name as to be likely to deceive the public.

4Removal of name from the list

(1)If it appears to the Certification Officer, on application made to him or otherwise, that an organisation whose name is entered in the list of trade unions is not a trade union, he may remove its name from the list.

(2)He shall not do so without giving the organisation notice of his intention and considering any representations made to him by the organisation within such period (of not less than 28 days beginning with the date of the notice) as may be specified in the notice.

(3)The Certification Officer shall remove the name of an organisation from the list of trade unions if—

(a)he is requested by the organisation to do so, or

(b)he is satisfied that the organisation has ceased to exist.

Certification as independent trade union

5Meaning of “independent trade union”

In this Act an “independent trade union” means a trade union which—

(a)is not under the domination or control of an employer or group of employers or of one or more employers' associations, and

(b)is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control;

and references to “independence”, in relation to a trade union, shall be construed accordingly.

6Application for certificate of independence

(1)A trade union whose name is entered on the list of trade unions may apply to the Certification Officer for a certificate that it is independent.

The application shall be made in such form and manner as the Certification Officer may require and shall be accompanied by the prescribed fee.

(2)The Certification Officer shall maintain a record showing details of all applications made to him under this section and shall keep it available for public inspection (free of charge) at all reasonable hours.

(3)If an application is made by a trade union whose name is not entered on the list of trade unions, the Certification Officer shall refuse a certificate of independence and shall enter that refusal on the record.

(4)In any other case, he shall not come to a decision on the application before the end of the period of one month after it has been entered on the record; and before coming to his decision he shall make such enquiries as he thinks fit and shall take into account any relevant information submitted to him by any person.

(5)He shall then decide whether the applicant trade union is independent and shall enter his decision and the date of his decision on the record.

(6)If he decides that the trade union is independent he shall issue a certificate accordingly; and if he decides that it is not, he shall give reasons for his decision.

7Withdrawal or cancellation of certificate

(1)The Certification Officer may withdraw a trade union’s certificate of independence if he is of the opinion that the union is no longer independent.

(2)Where he proposes to do so he shall notify the trade union and enter notice of the proposal in the record.

(3)He shall not come to a decision on the proposal before the end of the period of one month after notice of it was entered on the record; and before coming to his decision he shall make such enquiries as he thinks fit and shall take into account any relevant information submitted to him by any person.

(4)He shall then decide whether the trade union is independent and shall enter his decision and the date of his decision on the record.

(5)He shall confirm or withdraw the certificate accordingly; and if he decides to withdraw it, he shall give reasons for his decision.

(6)Where the name of an organisation is removed from the list of trade unions, the Certification Officer shall cancel any certificate of independence in force in respect of that organisation by entering on the record the fact that the organisation’s name has been removed from that list and that the certificate is accordingly cancelled.

8Conclusive effect of Certification Officer’s decision

(1)A certificate of independence which is in force is conclusive evidence for all purposes that a trade union is independent; and a refusal, withdrawal or cancellation of a certificate of independence, entered on the record, is conclusive evidence for all purposes that a trade union is not independent.

(2)A document purporting to be a certificate of independence and to be signed by the Certification Officer, or by a person authorised to act on his behalf, shall be taken to be such a certificate unless the contrary is proved.

(3)A document purporting to be a certified copy of an entry on the record and to be signed by the Certification Officer, or by a person authorised to act on his behalf, shall be taken to be a true copy of such an entry unless the contrary is proved.

(4)If in any proceedings before a court, the Employment Appeal Tribunal, the Central Arbitration Committee, ACAS or an industrial tribunal a question arises whether a trade union is independent and there is no certificate of independence in force and no refusal, withdrawal or cancellation of a certificate recorded in relation to that trade union—

(a)that question shall not be decided in those proceedings, and

(b)the proceedings shall instead be stayed or sisted until a certificate of independence has been issued or refused by the Certification Officer.

(5)The body before whom the proceedings are stayed or sisted may refer the question of the independence of the trade union to the Certificate Officer who shall proceed in accordance with section 6 as on an application by that trade union.

Supplementary

9Appeal against decision of Certification Officer

(1)An organisation aggrieved by the refusal of the Certification Officer to enter its name in the list of trade unions, or by a decision of his to remove its name from the list, may appeal to the Employment Appeal Tribunal.

(2)A trade union aggrieved by the refusal of the Certification Officer to issue it with a certificate of independence, or by a decision of his to withdraw its certificate, may appeal to the Employment Appeal Tribunal.

(3)If on appeal the Tribunal is satisfied that the organisation’s name should be or remain entered in the list or, as the case may be, that the certificate should be issued or should not be withdrawn, it shall declare that fact and give directions to the Certification Officer accordingly.

(4)The rights of appeal conferred by this section extend to any question of fact or law arising in the proceedings before, or arising from the decision of, the Certification Officer.

Chapter IIStatus and property of trade unions

General

10Quasi-corporate status of trade unions

(1)A trade union is not a body corporate but—

(a)it is capable of making contracts;

(b)it is capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action; and

(c)proceedings for an offence alleged to have been committed by it or on its behalf may be brought against it in its own name.

(2)A trade union shall not be treated as if it were a body corporate except to the extent authorised by the provisions of this Part.

(3)A trade union shall not be registered—

(a)as a company under the [1985 c. 9.] Companies Act 1985, or

(b)under the [1974 c. 46.] Friendly Societies Act 1974 or the [1965 c. 12.] Industrial and Provident Societies Act 1965;

and any such registration of a trade union (whenever effected) is void.

11Exclusion of common law rules as to restraint of trade

(1)The purposes of a trade union are not, by reason only that they are in restraint of trade, unlawful so as—

(a)to make any member of the trade union liable to criminal proceedings for conspiracy or otherwise, or

(b)to make any agreement or trust void or voidable.

(2)No rule of a trade union is unlawful or unenforceable by reason only that it is in restraint of trade.

Property of trade union

12Property to be vested in trustees

(1)All property belonging to a trade union shall be vested in trustees in trust for it.

(2)A judgment, order or award made in proceedings of any description brought against a trade union is enforceable, by way of execution, diligence, punishment for contempt or otherwise, against any property held in trust for it to the same extent and in the same manner as if it were a body corporate.

(3)Subsection (2) has effect subject to section 23 (restriction on enforcement of awards against certain property).

13Vesting of property in new trustees

(1)The provisions of this section apply in relation to the appointment or discharge of trustees in whom any property is vested in trust for a trade union whose name is entered in the list of trade unions.

(2)In the following sections as they apply to such trustees references to a deed shall be construed as references to an instrument in writing—

(a)section 39 of the [1925 c. 19.] Trustee Act 1925 and section 38 of the [1958 c. 23 (N.I.).] Trustee Act (Northern Ireland) 1958 (retirement of trustee without a new appointment), and

(b)section 40 of the Trustee Act 1925 and section 39 of the Trustee Act (Northern Ireland) 1958 (vesting of trust property in new or continuing trustees).

(3)Where such a trustee is appointed or discharged by a resolution taken by or on behalf of the union, the written record of the resolution shall be treated for the purposes of those sections as an instrument in writing appointing or discharging the trustee.

(4)In section 40 of the Trustee Act 1925 and section 39 of the Trustee Act (Northern Ireland) 1958 as they apply to such trustees, paragraphs (a) and (c) of subsection (4) (which exclude certain property from the section) shall be omitted.

14Transfer of securities held in trust for trade union

(1)In this section—

  • “instrument of appointment” means an instrument in writing appointing a new trustee of a trade union whose name is entered in the list of trade unions, and

  • “instrument of discharge” means an instrument in writing discharging a trustee of such a trade union;

and for the purposes of this section where a trustee is appointed or discharged by a resolution taken by or on behalf of such a trade union, the written record of the resolution shall be treated as an instrument in writing appointing or discharging the trustee.

(2)Where by any enactment or instrument the transfer of securities of any description is required to be effected or recorded by means of entries in a register, then if—

(a)there is produced to the person authorised or required to keep the register a copy of an instrument of appointment or discharge which contains or has attached to it a list identifying the securities of that description held in trust for the union at the date of the appointment or discharge, and

(b)it appears to that person that any of the securities so identified are included in the register kept by him,

he shall make such entries as may be necessary to give effect to the instrument of appointment or discharge.

This subsection has effect notwithstanding anything in any enactment or instrument regulating the keeping of the register.

(3)A document which purports to be a copy of an instrument of appointment or discharge containing or having attached to it such a list, and to be certified in accordance with the following subsection to be a copy of such an instrument, shall be taken to be a copy of such an instrument unless the contrary is proved.

(4)The certificate shall be given by the president and general secretary of the union and, in the case of an instrument to which a list of securities is attached, shall appear both on the instrument and on the list.

(5)Nothing done for the purposes of or in pursuance of this section shall be taken to affect any person with notice of any trust or to impose on any person a duty to inquire into any matter.

(6)In relation to a Scottish trust, references in this section to the appointment and discharge of a trustee shall be construed as including references to, respectively, the assumption and resignation of a trustee; and references to an instrument appointing or discharging a trustee shall be construed accordingly.

15Prohibition on use of funds to indemnify unlawful conduct

(1)It is unlawful for property of a trade union to be applied in or towards—

(a)the payment for an individual of a penalty which has been or may be imposed on him for an offence or for contempt of court,

(b)the securing of any such payment, or

(c)the provision of anything for indemnifying an individual in respect of such a penalty.

(2)Where any property of a trade union is so applied for the benefit of an individual on whom a penalty has been or may be imposed, then—

(a)in the case of a payment, an amount equal to the payment is recoverable by the union from him, and

(b)in any other case, he is liable to account to the union for the value of the property applied.

(3)If a trade union fails to bring or continue proceedings which it is entitled by bring by virtue of subsection (2), a member of the union who claims that the failure is unreasonable may apply to the court on that ground for an order authorising him to bring or continue the proceedings on the union’s behalf and at the union’s expense.

(4)In this section “penalty”, in relation to an offence, includes an order to pay compensation and an order for the forfeiture of any property; and references to the imposition of a penalty for an offence shall be construed accordingly.

(5)The Secretary of State may by order designate offences in relation to which the provisions of this section do not apply.

Any such order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6)This section does not affect—

(a)any other enactment, any rule of law or any provision of the rules of a trade union which makes it unlawful for the property of a trade union to be applied in a particular way; or

(b)any other remedy available to a trade union, the trustees of its property or any of its members in respect of an unlawful application of the union’s property.

(7)In this section “member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of the constituent or affiliated organisations.

16Remedy against trustees for unlawful use of union property

(1)A member of a trade union who claims that the trustees of the union’s property—

(a)have so carried out their functions, or are proposing so to carry out their functions, as to cause or permit an unlawful application of the union’s property, or

(b)have complied, or are proposing to comply, with an unlawful direction which has been or may be given, or purportedly given, to them under the rules of the union,

may apply to the court for an order under this section.

(2)In a case relating to property which has already been unlawfully applied, or to an unlawful direction that has already been complied with, an application under this section may be made only by a person who was a member of the union at the time when the property was applied or, as the case may be, the direction complied with.

(3)Where the court is satisfied that the claim is well-founded, it shall make such order as it considers appropriate.

The court may in particular—

(a)require the trustees (if necessary, on behalf of the union) to take all such steps as may be specified in the order for protecting or recovering the property of the union;

(b)appoint a receiver of, or in Scotland a judicial factor on, the property of the union;

(c)remove one or more of the trustees.

(4)Where the court makes an order under this section in a case in which—

(a)property of the union has been applied in contravention of an order of any court, or in compliance with a direction given in contravention of such an order, or

(b)the trustees were proposing to apply property in contravention of such an order or to comply with any such direction,

the court shall by its order remove all the trustees except any trustee who satisfies the court that there is a good reason for allowing him to remain a trustee.

(5)Without prejudice to any other power of the court, the court may on an application for an order under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

(6)This section does not affect any other remedy available in respect of a breach of trust by the trustees of a trade union’s property.

(7)In this section “member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of the constituent or affiliated organisations.

17Nominations by members of trade unions

(1)The Secretary of State may make provision by regulations for enabling members of trade unions who are not under 16 years of age to nominate a person or persons to become entitled, on the death of the person making the nomination, to the whole or part of any money payable on his death out of the funds of the trade union.

(2)The regulations may include provision as to the manner in which nominations may be made and as to the manner in which nominations may be varied or revoked.

(3)The regulations may provide that, subject to such exceptions as may be prescribed, no nomination made by a member of a trade union shall be valid if at the date of the nomination the person nominated is an officer or employee of the trade union or is otherwise connected with the trade union in such manner as may be prescribed by the regulations.

(4)The regulations may include such incidental, transitional or supplementary provisions as the Secretary of State may consider appropriate.

(5)They may, in particular, include provision for securing, to such extent and subject to such conditions as may be prescribed in the regulations, that nominations made under the [1876 c. 22.] Trade Union Act 1871 Amendment Act 1876 have effect as if made under the regulations and may be varied or revoked accordingly.

(6)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

18Payments out of union funds on death of member

(1)The Secretary of State may make provision by regulations for enabling money payable out of the funds of a trade union on the death of a member, to an amount not exceeding £5,000, to be paid or distributed on his death without letters of administration, probate of any will or confirmation.

(2)The regulations may include such incidental, transitional and supplementary provisions as the Secretary of State may consider appropriate.

(3)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4)The Treasury may by order under section 6(1) of the [1965 c. 32.] Administration of Estates (Small Payments) Act 1965 direct that subsection (1) above shall have effect with the substitution for the reference to £5,000 of a reference to such higher amount as may be specified in the order.

19Application of certain provisions relating to industrial assurance or friendly societies

(1)The following provisions apply to a trade union as to an industrial assurance company—

(a)section 6(1) of the [1948 c. 39.] Industrial Assurance and Friendly Societies Act 1948 (prohibition on insuring money to be paid on death of child under ten);

(b)sections 63 to 66 of the [1896 c. 25.] Friendly Societies Act 1896 and section 4(2) of the [1923 c. 8.] Industrial Assurance Act 1923 (conditions on which payments to be made), so far as they apply to cases excepted from that prohibition by paragraph (c) of the proviso to section 6(1) (children not ordinarily resident in United Kingdom or the Isle of Man).

(2)A trade union which contravenes section 6(1) of the Industrial Assurance and Friendly Societies Act 1948 commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

The provisions of the [1974 c. 46.] Friendly Societies Act 1974 as to offences under that Act apply to an offence under this subsection.

(3)Section 52 of the Friendly Societies Act 1974 (charitable subscriptions and contributions to other registered societies) extends to a trade union, or branch of a trade union, as regards contributing to the funds and taking part in the government of a medical society, that is, a society for the purpose of relief in sickness by providing medical attendance and medicine.

A trade union, or branch of a trade union, shall not withdraw from contributing to the funds of such a society except on three months notice to the society and on payment of all contributions accrued or accruing due to the date of the expiry of the notice.

Liability of trade unions in proceedings in tort

20Liability of trade union in certain proceedings in tort

(1)Where proceedings in tort are brought against a trade union—

(a)on the ground that an act—

(i)induces another person to break a contract or interferes or induces another person to interfere with its performance, or

(ii)consists in threatening that a contract (whether one to which the union is a party or not) will be broken or its performance interfered with, or that the union will induce another person to break a contract or interfere with its performance, or

(b)in respect of an agreement or combination by two or more persons to do or to procure the doing of an act which, if it were done without any such agreement or combination, would be actionable in tort on such a ground,

then, for the purpose of determining in those proceedings whether the union is liable in respect of the act in question, that act shall be taken to have been done by the union if, but only if, it is to be taken to have been authorised or endorsed by the trade union in accordance with the following provisions.

(2)An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed—

(a)by any person empowered by the rules to do, authorise or endorse acts of the kind in question, or

(b)by the principal executive committee or the president or general secretary, or

(c)by any other committee of the union or any other official of the union (whether employed by it or not).

(3)For the purposes of paragraph (c) of subsection (2)—

(a)any group of persons constituted in accordance with the rules of the union is a committee of the union; and

(b)an act shall be taken to have been done, authorised or endorsed by an official if it was done, authorised or endorsed by, or by any member of, any group of persons of which he was at the material time a member, the purposes of which included organising or co-ordinating industrial action.

(4)The provisions of paragraphs (b) and (c) of subsection (2) apply notwithstanding anything in the rules of the union, or in any contract or rule of law, but subject to the provisions of section 21 (repudiation by union of certain acts).

(5)Where for the purposes of any proceedings an act is by virtue of this section taken to have been done by a trade union, nothing in this section shall affect the liability of any other person, in those or any other proceedings, in respect of that act.

(6)In proceedings arising out of an act which is by virtue of this section taken to have been done by a trade union, the power of the court to grant an injunction or interdict includes power to require the union to take such steps as the court considers appropriate for ensuring—

(a)that there is no, or no further, inducement of persons to take part or to continue to take part in industrial action, and

(b)that no person engages in any conduct after the granting of the injunction or interdict by virtue of having been induced before it was granted to take part or to continue to take part in industrial action.

The provisions of subsections (2) to (4) above apply in relation to proceedings for failure to comply with any such injunction or interdict as they apply in relation to the original proceedings.

(7)In this section “rules”, in relation to a trade union, means the written rules of the union and any other written provision forming part of the contract between a member and the other members.

21Repudiation by union of certain acts

(1)An act shall not be taken to have been authorised or endorsed by a trade union by virtue only of paragraph (c) of section 20(2) if it was repudiated by the executive, president or general secretary as soon as reasonably practicable after coming to the knowledge of any of them.

(2)Where an act is repudiated—

(a)written notice of the repudiation must be given to the committee or official in question, without delay, and

(b)the union must do its best to give individual written notice of the fact and date of repudiation, without delay—

(i)to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act, and

(ii)to the employer of every such member.

(3)The notice given to members in accordance with paragraph (b)(i) of subsection (2) must contain the following statement— Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal.

(4)If subsection (2) or (3) is not complied with, the repudiation shall be treated as ineffective.

(5)An act shall not be treated as repudiated if at any time after the union concerned purported to repudiate it the executive, president or general secretary has behaved in a manner which is inconsistent with the purported repudiation.

(6)The executive, president or general secretary shall be treated as so behaving if, on a request made to any of them within six months of the purported repudiation by a person who—

(a)is a party to a commercial contract whose performance has been or may be interfered with as a result of the act in question, and

(b)has not been given written notice by the union of the repudiation,

it is not forthwith confirmed in writing that the act has been repudiated.

(7)In this section “commercial contract” mean means any contract other than—

(a)a contract of employment, or

(b)any other contract under which a person agrees personally to do work or perform services for another.

22Limit on damages awarded against trade unions in actions in tort

(1)This section applies to any proceedings in tort brought against a trade union, except—

(a)proceedings for personal injury as a result of negligence, nuisance or breach of duty;

(b)proceedings for breach of duty in connection with the ownership, occupation, possession, control or use of property;

(c)proceedings brought by virtue of Part I of the [1987 c. 43.] Consumer Protection Act 1987 (product liability).

(2)In any proceedings in tort to which this section applies the amount which may awarded against the union by way of damages shall not exceed the following limit—

Number of members of unionMaximum award of damages
Less than 5,000£10,000
5,000 or more but less than 25,000£50,000
25,000 or more but less than 100,000£125,000
100,000 or more£250,000

(3)The Secretary of State may by order amend subsection (2) so as to vary any of the sums specified; and the order may make such transitional provision as the Secretary of State considers appropriate.

(4)Any such order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5)In this section—

  • “breach of duty” means breach of a duty imposed by any rule of law or by or under any enactment;

  • “personal injury” includes any disease and any impairment of a person’s physical or mental condition; and

  • “property” means any property, whether real or personal (or in Scotland, heritable or moveable).

Restriction on enforcement against certain property

23Restriction on enforcement of awards against certain property

(1)Where in any proceedings an amount is awarded by way of damages, costs or expenses—

(a)against a trade union,

(b)against trustees in whom property is vested in trust for a trade union, in their capacity as such (and otherwise than in respect of a breach of trust on their part), or

(c)against members or officials of a trade union on behalf of themselves and all of the members of the union,

no part of that amount is recoverable by enforcement against any protected property.

(2)The following is protected property—

(a)property belonging to the trustees otherwise than in their capacity as such;

(b)property belonging to any member of the union otherwise than jointly or in common with the other members;

(c)property belonging to an official of the union who is neither a member nor a trustee;

(d)property comprised in the union’s political fund where that fund—

(i)is subject to rules of the union which prevent property which is or has been comprised in the fund from being used for financing strikes or other industrial action, and

(ii)was so subject at the time when the act in respect of which the proceedings are brought was done;

(e)property comprised in a separate fund maintained in accordance with the rules of the union for the purpose only of providing provident benefits.

(3)For this purpose “provident benefits” includes—

(a)any payment expressly authorised by the rules of the union which is made—

(i)to a member during sickness or incapacity from personal injury or while out of work, or

(ii)to an aged member by way of superannuation, or

(iii)to a member who has met with an accident or has lost his tools by fire or theft;

(b)a payment in discharge or aid of funeral expenses on the death of a member or the wife of a member or as provision for the children of a deceased member.

Chapter IIITrade union administration

Register of members' names and addresses

24Duty to maintain register of members' names and addresses

(1)A trade union shall compile and maintain a register of the names and addresses of its members, and shall secure, so far as is reasonably practicable, that the entries in the register are accurate and are kept up-to-date.

(2)The register may be kept by means of a computer.

(3)A trade union shall—

(a)allow any member, upon reasonable notice, to ascertain from the register, free of charge and at any reasonable time, whether there is an entry on it relating to him; and

(b)if requested to do so by any member, supply him as soon as reasonably practicable, either free of charge or on payment of a reasonable fee, with a copy of any entry on the register relating to him.

(4)Any duty falling upon a branch under this section by reason of its being a trade union shall be treated as having been discharged to the extent to which the union of which it is a branch has discharged the duty instead.

(5)For the purposes of this section a member’s address means either his home address or another address which he has requested the union in writing to treat as his postal address.

(6)The remedy for failure to comply with the requirements of this section is by way of application under section 25 (to the Certification Officer) or section 26 (to the court).

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.

25Remedy for failure: application to Certification Officer

(1)A member of a trade union who claims that the union has failed to comply with any of the requirements of section 24 (duties with respect to register of members' names and addresses) may apply to the Certification Officer for a declaration to that effect.

(2)On an application being made to him, the Certification Officer shall—

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

(b)where he considers it appropriate, give the applicant and the trade union an opportunity to be heard,

and may make or refuse the declaration asked for.

(3)If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.

(4)Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration.

(5)Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings.

(6)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.

(7)Where he 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.

26Remedy for failure: application to court

(1)A member of a trade union who claims that the union has failed to comply with any of the requirements of section 24 (duties with respect to register of members' names and addresses) may apply to the court for a declaration to that effect.

(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.

(3)If the court makes a declaration it shall specify in it the provisions with which the trade union has failed to comply.

(4)Where the court makes a declaration it shall also, unless it 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.

(5)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.

(6)Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

Duty to supply copy of rules

27Duty to supply copy of rules

A trade union shall at the request of any person supply him with a copy of its rules either free of charge or on payment of a reasonable charge.

Accounting records

28Duty to keep accounting records

(1)A trade union shall—

(a)cause to be kept proper accounting records with respect to its transactions and its assets and liabilities, and

(b)establish and maintain a satisfactory system of control of its accounting records, its cash holdings and all its receipts and remittances.

(2)Proper accounting records shall not be taken to be kept with respect to the matters mentioned in subsection (1)(a) unless there are kept such records as are necessary to give a true and fair view of the state of the affairs of the trade union and to explain its transactions.

29Duty to keep records available for inspection

(1)A trade union shall keep available for inspection from their creation until the end of the period of six years beginning with the 1st January following the end of the period to which they relate such of the records of the union, or of any branch or section of the union, as are, or purport to be, records required to be kept by the union under section 28.

This does not apply to records relating to periods before 1st January 1988.

(2)In section 30 (right of member to access to accounting records)—

(a)references to a union’s accounting records are to any such records as are mentioned in subsection (1) above, and

(b)references to records available for inspection are to records which the union is required by that subsection to keep available for inspection.

(3)The expiry of the period mentioned in subsection (1) above does not affect the duty of a trade union to comply with a request for access made under section 30 before the end of that period.

30Right of access to accounting records

(1)A member of a trade union has a right to request access to any accounting records of the union which are available for inspection and relate to periods including a time when he was a member of the union.

In the case of records relating to a branch or section of the union, it is immaterial whether he was a member of that branch or section.

(2)Where such access is requested the union shall—

(a)make arrangements with the member for him to be allowed to inspect the records requested before the end of the period of twenty-eight days beginning with the day the request was made,

(b)allow him and any accountant accompanying him for the purpose to inspect the records at the time and place arranged, and

(c)secure that at the time of the inspection he is allowed to take, or is supplied with, any copies of, or of extracts from, records inspected by him which he requires.

(3)The inspection shall be at a reasonable hour and at the place where the records are normally kept, unless the parties to the arrangements agree otherwise.

(4)An “accountant” means a person who is eligible for appointment as a company auditor under section 25 of the [1989 c. 40.] Companies Act 1989.

(5)The union need not allow the member to be accompanied by an accountant if the accountant fails to enter into such agreement as the union may reasonably require for protecting the confidentiality of the records.

(6)Where a member who makes a request for access to a union’s accounting records is informed by the union, before any arrangements are made in pursuance of the request—

(a)of the union’s intention to charge for allowing him to inspect the records to which the request relates, for allowing him to take copies of, or extracts from, those records or for supplying any such copies, and

(b)of the principles in accordance with which its charges will be determined,

then, where the union complies with the request, he is liable to pay the union on demand such amount, not exceeding the reasonable administrative expenses incurred by the union in complying with the request, as is determined in accordance with those principles.

(7)In this section “member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of the constituent or affiliated organisations.

31Remedy for failure to comply with request for access

(1)A person who claims that a trade union has failed in any respect to comply with a request made by him under section 30 may apply to the court.

(2)Where the court is satisfied that the claim is well-founded, it shall make such order as it considers appropriate for ensuring that that person—

(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

(c)is allowed to take, or is supplied with, such copies of, or of extracts from, the records as he may require.

(3)Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

Annual return, accounts and audit

32Annual return

(1)A trade union shall send to the Certification Officer as respects each calendar year a return relating to its affairs.

(2)The annual return shall be in such form and be signed by such persons as the Certification Officer may require and shall be sent to him before 1st June in the calendar year following that to which it relates.

(3)The annual return shall contain—

(a)the following accounts—

(i)revenue accounts indicating the income and expenditure of the trade union for the period to which the return relates,

(ii)a balance sheet as at the end of that period, and

(iii)such other accounts as the Certification Officer may require,

each of which must give a true and fair view of the matters to which it relates,

(b)a copy of the report made by the auditor or auditors of the trade union on those accounts and such other documents relating to those accounts and such further particulars as the Certification Officer may require, and

(c)a copy of the rules of the trade union as in force at the end of the period to which the return relates;

and shall have attached to it a note of all the changes in the officers of the union and of any change in the address of the head or main office of the union during the period to which the return relates.

(4)The Certification Officer may, if in any particular case he considers it appropriate to do so—

(a)direct that the period for which a return is to be sent to him shall be a period other than the calendar year last preceding the date on which the return is sent;

(b)direct that the date before which a return is to be sent to him shall be such date (whether before or after 1st June) as may be specified in the direction.

(5)A trade union shall at the request of any person supply him with a copy of its most recent return either free of charge or on payment of a reasonable charge.

(6)The Certification Officer shall at all reasonable hours keep available for public inspection either free of charge or on payment of a reasonable charge, copies of all annual returns sent to him under this section.

33Duty to appoint auditors

(1)A trade union shall in respect of each accounting period appoint an auditor or auditors to audit the accounts contained in its annual return.

(2)An “accounting period” means any period in relation to which it is required to send a return to the Certification Officer.

34Eligibility for appointment as auditor

(1)A person is not qualified to be the auditor or one of the auditors of a trade union unless he is eligible for appointment as a company auditor under section 25 of the [1989 c. 40.] Companies Act 1989.

(2)Two or more persons who are not so qualified may act as auditors of a trade union in respect of an accounting period if—

(a)the receipts and payments in respect of the union’s last preceding accounting period did not in the aggregate exceed £5,000,

(b)the number of its members at the end of that period did not exceed 500, and

(c)the value of its assets at the end of that period did not in the aggregate exceed £5,000.

(3)Where by virtue of subsection (2) persons who are not qualified as mentioned in subsection (1) act as auditors of a trade union in respect of an accounting period, the Certification Officer may (during that period or after it comes to an end) direct the union to appoint a person who is so qualified to audit its accounts for that period.

(4)The Secretary of State may by regulations—

(a)substitute for any sum or number specified in subsection (2) such sum or number as may be specified in the regulations; and

(b)prescribe what receipts and payments are to be taken into account for the purposes of that subsection.

Any such regulations shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5)None of the following shall act as auditor of a trade union—

(a)an officer or employee of the trade union or of any of its branches or sections;

(b)a person who is a partner of, or in the employment of, or who employs, such an officer or employee;

(c)a body corporate.

References in this subsection to an officer shall be construed as not including an auditor.

35Appointment and removal of auditors

(1)The rules of every trade union shall contain provision for the appointment and removal of auditors.

But the following provisions have effect notwithstanding anything in the rules.

(2)An auditor of a trade union shall not be removed from office except by resolution passed at a general meeting of its members or of delegates of its members.

(3)An auditor duly appointed to audit the accounts of a trade union shall be re-appointed as auditor for the following accounting period, unless—

(a)a resolution has been passed at a general meeting of the trade union appointing somebody instead of him or providing expressly that he shall not be re-appointed, or

(b)he has given notice to the trade union in writing of his unwillingness to be re-appointed, or

(c)he is ineligible for re-appointment, or

(d)he has ceased to act as auditor by reason of incapacity.

(4)Where notice has been given of an intended resolution to appoint somebody in place of a retiring auditor but the resolution cannot be proceeded with at the meeting because of the death or incapacity of that person, or because he is ineligible for the appointment, the retiring auditor need not automatically be re-appointed.

(5)The references above to a person being ineligible for appointment as auditor of a trade union are to his not being qualified for the appointment in accordance with subsections (1) to (6) of section 34 or being precluded by subsection (7) of that section from acting as its auditor.

(6)The Secretary of State may make provision by regulations as to the procedure to be followed when it is intended to move a resolution—

(a)appointing another auditor in place of a retiring auditor, or

(b)providing expressly that a retiring auditor shall not be re-appointed,

and as to the rights of auditors and members of the trade union in relation to such a motion.

Any such regulations shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7)Where regulations under subsection (6)—

(a)require copies of any representations made by a retiring auditor to be sent out, or

(b)require any such representations to be read out at a meeting,

the court, on the application of the trade union or of any other person, may dispense with the requirement if satisfied that the rights conferred on the retiring auditor by the regulations are being abused to secure needless publicity for defamatory matter.

(8)On such an application the court may order the costs or expenses of the trade union to be paid, in whole or in part, by the retiring auditor, whether he is a party to the application or not.

36Auditors' report

(1)The auditor or auditors of a trade union shall make a report to it on the accounts audited by him or them and contained in its annual return.

(2)The report shall state whether, in the opinion of the auditor or auditors, the accounts give a true and fair view of the matters to which they relate.

(3)It is the duty of the auditor or auditors in preparing their report to carry out such investigations as will enable them to form an opinion as to—

(a)whether the trade union has kept proper accounting records in accordance with the requirements of section 28,

(b)whether it has maintained a satisfactory system of control over its transactions in accordance with the requirements of that section, and

(c)whether the accounts to which the report relates agree with the accounting records.

(4)If in the opinion of the auditor or auditors the trade union has failed to comply with section 28, or if the accounts do not agree with the accounting records, the auditor or auditors shall state that fact in the report.

37Rights of auditors

(1)Every auditor of a trade union—

(a)has a right of access at all times to its accounting records and to all other documents relating to its affairs, and

(b)is entitled to require from its officers, or the officers of any of its branches or sections, such information and explanations as he thinks necessary for the performance of his duties as auditor.

(2)If an auditor fails to obtain all the information and explanations which, to the best of his knowledge and belief, are necessary for the purposes of an audit, he shall state that fact in his report.

(3)Every auditor of a trade union is entitled—

(a)to attend any general meeting of its members, or of delegates of its members, and to receive all notices of and other communications relating to any general meeting which any such member or delegate is entitled to receive, and

(b)to be heard at any meeting which he attends on any part of the business of the meeting which concerns him as auditor.

Members' superannuation schemes

38Members' superannuation schemes: separate fund to be maintained

(1)In the following provisions a “members' superannuation scheme” means any scheme or arrangement made by or on behalf of a trade union (including a scheme or arrangement shown in the rules of the union) in so far as it provides—

(a)for benefits to be paid by way of pension (including any widows' or children’s pensions or dependants' pensions) to or in respect of members or former members of the trade union, and

(b)for those benefits to be so paid either out of the funds of the union or under an insurance scheme maintained out of those funds.

(2)A trade union shall not maintain a members' superannuation scheme unless it maintains a separate fund for the payment of benefits in accordance with the scheme.

A “separate fund” means a fund separate from the general funds of the trade union.

39Examination of proposals for new scheme

(1)A trade union shall not begin to maintain a members' superannuation scheme unless, before the date on which the scheme begins to be maintained—

(a)the proposals for the scheme have been examined by an appropriately qualified actuary, and

(b)a copy of a report made to the trade union by the actuary on the results of his examination of the proposals, signed by the actuary, has been sent to the Certification Officer.

(2)The actuary’s report shall state—

(a)whether in his opinion the premium or contribution rates will be adequate,

(b)whether the accounting or funding arrangements are suitable, and

(c)whether in his opinion the fund for the payment of benefits will be adequate.

(3)A copy of the actuary’s report shall, on the application of any of the union’s members, be supplied to him free of charge.

40Periodical re-examination of existing schemes

(1)Where a trade union maintains a members' superannuation scheme, it shall arrange for the scheme to be examined periodically by an appropriately qualified actuary and for a report to be made to it by the actuary on the result of his examination.

(2)The examination shall be of the scheme as it has effect at such date as the trade union may determine, not being more than five years after the date by reference to which the last examination or, as the case may be, the examination of the proposals for the scheme was carried out.

(3)The examination shall include a valuation (as at the date by reference to which the examination is carried out) of the assets comprised in the fund maintained for the payment of benefits and of the liabilities falling to be discharged out of it.

(4)The actuary’s report shall state—

(a)whether in his opinion the premium or contribution rates are adequate,

(b)whether the accounting or funding arrangements are suitable, and

(c)whether in his opinion the fund for the payment of benefits is adequate.

(5)A copy of the report, signed by the actuary, shall be sent to the Certification Officer.

(6)The trade union shall make such arrangements as will enable the report to be sent to the Certification Officer within a year of the date by reference to which the examination was carried out.

(7)A copy of the actuary’s report shall, on the application of any of the union’s members, be supplied to him free of charge.

41Powers of the Certification Officer

(1)The Certification Officer may, on the application of a trade union—

(a)exempt a members' superannuation scheme which the union proposes to maintain from the requirements of section 39 (examination of proposals for new scheme), or

(b)exempt a members' superannuation scheme which the union maintains from the requirements of section 40 (periodical re-examination of scheme),

if he is satisfied that, by reason of the small number of members to which the scheme is applicable or for any other special reasons, it is unnecessary for the scheme to be examined in accordance with those provisions.

(2)An exemption may be revoked if it appears to the Certification Officer that the circumstances by reason of which it was granted have ceased to exist.

(3)Where an exemption is revoked under subsection (1)(b), the date as at which the next periodical examination is to be carried out under section 40 shall be such as the Certification Officer may direct.

(4)The Certification Officer may in any case direct that section 40 (periodical re-examination of schemes) shall apply to a trade union with the substitution for the reference to five years of a reference to such shorter period as may be specified in the direction.

42Meaning of “appropriately qualified actuary”

In sections 39 and 40 an “appropriately qualified actuary” means a person who is either—

(a)a Fellow of the Institute of Actuaries, or

(b)a Fellow of the Faculty of Actuaries,

or is approved by the Certification Officer on the application of the trade union as a person having actuarial knowledge.

Supplementary

43Newly-formed trade unions

(1)The following provisions of this Chapter do not apply to a trade union which has been in existence for less than twelve months—

(a)section 27 (duty to supply copy of rules),

(b)sections 32 to 37 (annual return, accounts and audit), and

(c)sections 38 to 42 (members' superannuation schemes).

(2)Sections 24 to 26 (register of members' names and addresses) do not apply to a trade union until more than one year has elapsed since its formation (by amalgamation or otherwise).

For this purpose the date of formation of a trade union formed otherwise than by amalgamation shall be taken to be the date on which the first members of the executive of the union are first appointed or elected.

44Discharge of duties in case of union having branches or sections

(1)The following provisions apply where a trade union consists of or includes branches or sections.

(2)Any duty falling upon the union in relation to a branch or section under the provisions of—

  • section 28 (duty to keep accounting records),

  • sections 32 to 37 (annual return, accounts and audit), or

  • sections 38 to 42 (members' superannuation schemes),

shall be treated as discharged to the extent to which a branch or section discharges it instead of the union.

(3)In sections 29 to 31 (right of member to access to accounting records) references to a branch or section do not include a branch or section which is itself a trade union.

(4)Any duty falling upon a branch or section by reason of its being a trade union under—

  • section 24 (register of members' names and addresses),

  • section 28 (duty to keep accounting records),

  • sections 32 to 37 (annual return, accounts and audit), or

  • section 38 to 42 (members' superannuation schemes),

shall be treated as discharged to the extent to which the union of which it is a branch or section discharges the duty instead of it.

45Offences

(1)If a trade union refuses or wilfully neglects to perform a duty imposed on it by or under any of the provisions of—

  • section 27 (duty to supply copy of rules),

  • sections 28 to 30 (accounting records),

  • sections 32 to 37 (annual return, accounts and audit), or

  • sections 38 to 42 (members' superannuation schemes),

it commits an offence.

(2)The offence shall be deemed to have been also committed by—

(a)every officer of the trade union who is bound by the rules of the union to discharge on its behalf the duty breach of which constitutes the offence, or

(b)if there is no such officer, every member of the general committee of management of the union.

(3)In any proceedings brought against an officer or member by virtue of subsection (2) in respect of a breach of duty, it is a defence for him to prove that he had reasonable cause to believe, and did believe, that some other person who was competent to discharge that duty was authorised to discharge it instead of him and had discharged it or would do so.

(4)A person who wilfully alters or causes to be altered a document which is required for the purposes of any of the provisions mentioned in subsection (1), with intent to falsify the document or to enable a trade union to evade any of those provisions, commits an offence.

(5)A person guilty of an offence under this section is liable on summary conviction—

(a)in the case of an offence under subsection (1), to a fine not exceeding level 3 on the standard scale;

(b)in the case of an offence under subsection (4), to a fine not exceeding level 5 on the standard scale.

Chapter IVElections for certain positions

Duty to hold elections

46Duty to hold elections for certain positions

(1)A trade union shall secure—

(a)that every person who holds a position in the union to which this Chapter applies does so by virtue of having been elected to it at an election satisfying the requirements of this Chapter, and

(b)that no person continues to hold such a position for more than five years without being re-elected at such an election.

(2)The positions to which this Chapter applies (subject as mentioned below) are—

(a)member of the executive,

(b)any position by virtue of which a person is a member of the executive,

(c)president, and

(d)general secretary;

and the requirements referred to above are those set out in sections 47 to 52 below.

(3)In this Chapter “member of the executive” includes any person who, under the rules or practice of the union, may attend and speak at some or all of the meetings of the executive, otherwise than for the purpose of providing the committee with factual information or with technical or professional advice with respect to matters taken into account by the executive in carrying out its functions.

(4)This Chapter does not apply to the position of president or general secretary if the holder of that position—

(a)is not, in respect of that position, either a voting member of the executive or an employee of the union,

(b)holds that position for a period which under the rules of the union cannot end more than 13 months after he took it up, and

(c)has not held either position at any time in the period of twelve months ending with the day before he took up that position.

(5)A “voting member of the executive” means a person entitled in his own right to attend meetings of the executive and to vote on matters on which votes are taken by the executive (whether or not he is entitled to attend all such meetings or to vote on all such matters or in all circumstances).

(6)The provisions of this Chapter apply notwithstanding anything in the rules or practice of the union; and the terms and conditions on which a person is employed by the union shall be disregarded in so far as they would prevent the union from complying with the provisions of this Chapter.

Requirements to be satisfied with respect to elections

47Candidates

(1)No member of the trade union shall be unreasonably excluded from standing as a candidate.

(2)No candidate shall be required, directly or indirectly, to be a member of a political party.

(3)A member of a trade union shall not be taken to be unreasonably excluded from standing as a candidate if he is excluded on the ground that he belongs to a class of which all the members are excluded by the rules of the union.

But a rule which provides for such a class to be determined by reference to whom the union chooses to exclude shall be disregarded.

48Election addresses

(1)The trade union shall—

(a)provide every candidate with an opportunity of preparing an election address in his own words and of submitting it to the union to be distributed to the persons accorded entitlement to vote in the election; and

(b)secure that, so far as reasonably practicable, copies of every election address submitted to it in time are distributed to each of those persons by post along with the voting papers for the election.

(2)The trade union may determine the time by which an election address must be submitted to it for distribution; but the time so determined must not be earlier than the latest time at which a person may become a candidate in the election.

(3)The trade union may provide that election addresses submitted to it for distribution—

(a)must not exceed such length, not being less than one hundred words, as may be determined by the union, and

(b)may, as regards photographs and other matter not in words, incorporate only such matter as the union may determine.

(4)The trade union shall secure that no modification of an election address submitted to it is made by any person in any copy of the address to be distributed except—

(a)at the request or with the consent of the candidate, or

(b)where the modification is necessarily incidental to the method adopted for producing that copy.

(5)The trade union shall secure that the same method of producing copies is applied in the same way to every election address submitted and, so far as reasonably practicable, that no such facility or information as would enable a candidate to gain any benefit from—

(a)the method by which copies of the election addresses are produced, or

(b)the modifications which are necessarily incidental to that method,

is provided to any candidate without being provided equally to all the others.

(6)The trade union shall, so far as reasonably practicable, secure that the same facilities and restrictions with respect to the preparation, submission, length or modification of an election address, and with respect to the incorporation of photographs or other matter not in words, are provided or applied equally to each of the candidates.

(7)The arrangements made by the trade union for the production of the copies to be so distributed must be such as to secure that none of the candidates is required to bear any of the expense of producing the copies.

(8)No-one other than the candidate himself shall incur any civil or criminal liability in respect of the publication of a candidate’s election address or of any copy required to be made for the purposes of this section.

49Appointment of independent scrutineer

(1)The trade union shall, before the election is held, appoint a qualified independent person (“the scrutineer”) to carry out—

(a)the functions in relation to the election which are required under this section to be contained in his appointment; and

(b)such additional functions in relation to the election as may be specified in his appointment.

(2)A person is a qualified independent person in relation to an election if—

(a)he satisfies such conditions as may be specified for the purposes of this section by order of the Secretary of State or is himself so specified; and

(b)the trade union has no grounds for believing either that he will carry out any functions conferred on him in relation to the election otherwise than competently or that his independence in relation to the union, or in relation to the election, might reasonably be called into question.

An order under paragraph (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)The scrutineer’s appointment shall require him—

(a)to be the person who supervises the production and distribution of the voting papers and to whom the voting papers are returned by those voting;

(b)to take such steps as appear to him to be appropriate for the purpose of enabling him to make his report (see section 52);

(c)to make his report to the trade union as soon as reasonably practicable after the last date for the return of voting papers; and

(d)to retain custody of all voting papers returned for the purposes of the election—

(i)until the end of the period of one year beginning with the announcement by the union of the result of the election; and

(ii)if within that period an application is made under section 54 (complaint of failure to comply with election requirements), until the Certification Officer or the court authorises him to dispose of the papers.

(4)The trade union shall ensure that nothing in the terms of the scrutineer’s appointment (including any additional functions specified in the appointment) is such as to make it reasonable for any person to call the scrutineer’s independence in relation to the union into question.

(5)The trade union shall, before the scrutineer begins to carry out his functions, either—

(a)send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or

(b)take all such other steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.

(6)The trade union shall ensure that the scrutineer duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call the scrutineer’s independence in relation to the union into question.

(7)The trade union shall comply with all reasonable requests made by the scrutineer for the purposes of, or in connection with, the carrying out of his functions.

50Entitlement to vote

(1)Subject to the provisions of this section, entitlement to vote shall be accorded equally to all members of the trade union.

(2)The rules of the union may exclude entitlement to vote in the case of all members belonging to one of the following classes, or to a class falling within one of the following—

(a)members who are not in employment;

(b)members who are in arrears in respect of any subscription or contribution due to the union;

(c)members who are apprentices, trainees or students or new members of the union.

(3)The rules of the union may restrict entitlement to vote to members who fall within—

(a)a class determined by reference to a trade or occupation,

(b)a class determined by reference to a geographical area, or

(c)a class which is by virtue of the rules of the union treated as a separate section within the union,

or to members who fall within a class determined by reference to any combination of the factors mentioned in paragraphs (a), (b) and (c).

The reference in paragraph (c) to a section of a trade union includes a part of the union which is itself a trade union.

(4)Entitlement may not be restricted in accordance with subsection (3) if the effect is that any member of the union is denied entitlement to vote at all elections held for the purposes of this Chapter otherwise than by virtue of belonging to a class excluded in accordance with subsection (2).

51Voting

(1)The method of voting must be by the marking of a voting paper by the person voting.

(2)Each voting paper must—

(a)state the name of the independent scrutineer and clearly specify the address to which, and the date by which, it is to be returned,

(b)be given one of a series of consecutive whole numbers every one of which is used in giving a different number in that series to each voting paper printed or otherwise produced for the purposes of the election, and

(c)be marked with its number.

(3)Every person who is entitled to vote at the election must—

(a)be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and

(b)so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.

(4)So far as is reasonably practicable, every person who is entitled to vote at the election must—

(a)have sent to him by post, at his home address or another address which he has requested the trade union in writing to treat as his postal address, a voting paper which either lists the candidates at the election or is accompanied by a separate list of those candidates; and

(b)be given a convenient opportunity to vote by post.

(5)The ballot shall be conducted so as to secure that—

(a)so far as is reasonably practicable, those voting do so in secret, and

(b)the votes given at the election are fairly and accurately counted.

For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the election.

(6)The ballot shall be so conducted as to secure that the result of the election is determined solely by counting the number of votes cast directly for each candidate.

(7)Nothing in subsection (6) shall be taken to prevent the system of voting used for the election being the single transferable vote, that is, a vote capable of being given so as to indicate the voter’s order of preference for the candidates and of being transferred to the next choice—

(a)when it is not required to give a prior choice the necessary quota of votes, or

(b)when, owing to the deficiency in the number of votes given for a prior choice, that choice is eliminated from the list of candidates.

52Scrutineer’s report

(1)The scrutineer’s report on the election shall state—

(a)the number of voting papers distributed for the purposes of the election,

(b)the number of voting papers returned to the scrutineer,

(c)the number of valid votes cast in the election for each candidate, and

(d)the number of spoiled or otherwise invalid voting papers returned.

(2)The report shall also state whether the scrutineer is satisfied—

(a)that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the election,

(b)that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the election, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur, and

(c)that he has been able to carry out his functions without such interference as would make it reasonable for any person to call his independence in relation to the union into question;

and if he is not satisfied as to any of those matters, the report shall give particulars of his reasons for not being satisfied as to that matter.

(3)The trade union shall not publish the result of the election until it has received the scrutineer’s report.

(4)The trade union shall within the period of three months after it receives the report either—

(a)send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or

(b)take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.

(5)Any such copy or notification shall be accompanied by a statement that the union will, on request, supply any member of the union with a copy of the report, either free of charge or on payment of such reasonable fee as may be specified in the notification.

(6)The trade union shall so supply any member of the union who makes such a request and pays the fee (if any) notified to him.

53Uncontested elections

Nothing in this Chapter shall be taken to require a ballot to be held at an uncontested election.

Remedy for failure to comply with requirements

54Remedy for failure to comply with requirements: general

(1)The remedy for a failure on the part of a trade union to comply with the requirements of this Chapter is by way of application under section 55 (to the Certification Officer) or section 56 (to the court).

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.

(2)An application under those sections may be made—

(a)by a person who is a member of the trade union (provided, where the election has been held, he was also a member at the time when it was held), or

(b)by a person who is or was a candidate at the election;

and the references in those sections to a person having a sufficient interest are to such a person.

(3)No such application may be made after the end of the period of one year beginning with the day on which the union announced the result of the election.

55Application to Certification Officer

(1)A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the Certification Officer for a declaration to that effect.

(2)On an application being made to him, the Certification Officer shall—

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

(b)where he considers it appropriate, give the applicant and the trade union an opportunity to be heard,

and may make or refuse the declaration asked for.

(3)If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.

(4)Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration.

(5)Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings.

(6)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.

(7)Where he 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.

56Application to court

(1)A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the court for a declaration to that effect.

(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.

(3)If the court makes the declaration asked for, it shall specify in the declaration the provisions with which the trade union has failed to comply.

(4)Where the court makes a declaration it shall also, unless it considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements—

(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 court 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.

(5)Where the court makes an order requiring the union to hold a fresh election, the court shall (unless it 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.

(6)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.

(7)Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

Supplementary

57Exemption of newly-formed trade unions, &c

(1)The provisions of this Chapter do not apply to a trade union until more than one year has elapsed since its formation (by amalgamation or otherwise).

For this purpose the date of formation of a trade union formed otherwise than by amalgamation shall be taken to be the date on which the first members of the executive of the union are first appointed or elected.

(2)Where a trade union is formed by amalgamation, the provisions of this Chapter do not apply in relation to a person who—

(a)by virtue of an election held a position to which this Chapter applies in one of the amalgamating unions immediately before the amalgamation, and

(b)becomes the holder of a position to which this Chapter applies in the amalgamated union in accordance with the instrument of transfer,

until after the end of the period for which he would have been entitled in accordance with this Chapter to continue to hold the first-mentioned position without being re-elected.

(3)Where a trade union transfers its engagements to another trade union, the provisions of this Chapter do not apply in relation to a person who—

(a)held a position to which this Chapter applies in the transferring union immediately before the transfer, and

(b)becomes the holder of a position to which this Chapter applies in the transferee union in accordance with the instrument of transfer,

until after the end of the period of one year beginning with the date of the transfer or, if he held the first-mentioned position by virtue of an election, any longer period for which he would have been entitled in accordance with this Chapter to continue to hold that position without being re-elected.

58Exemption of certain persons nearing retirement

(1)Section 46(1)(b) (requirement of re-election) does not apply to a person holding a position to which this Chapter applies if the following conditions are satisfied.

(2)The conditions are that—

(a)he holds the position by virtue of having been elected at an election in relation to which the requirements of this Chapter were satisfied,

(b)he is a full-time employee of the union by virtue of the position,

(c)he will reach retirement age within five years,

(d)he is entitled under the rules of the union to continue as the holder of the position until retirement age without standing for re-election,

(e)he has been a full-time employee of the union for a period (which need not be continuous) of at least ten years, and

(f)the period between the day on which the election referred to in paragraph (a) took place and the day immediately preceding that on which paragraph (c) is first satisfied does not exceed five years.

(3)For the purposes of this section “retirement age”, in relation to any person, means the earlier of—

(a)the age fixed by, or in accordance with, the rules of the union for him to retire from the position in question, or

(b)the age which is for the time being pensionable age for the purpose of Parts I to VI of the [1992 c. 4.] Social Security (Contributions and Benefits) Act 1992.

59Period for giving effect to election

Where a person holds a position to which this Chapter applies immediately before an election at which he is not re-elected to that position, nothing in this Chapter shall be taken to require the union to prevent him from continuing to hold that position for such period (not exceeding six months) as may reasonably be required for effect to be given to the result of the election.

60Overseas members

(1)A trade union which has overseas members may choose whether or not to accord any of those members entitlement to vote at an election for a position to which this Chapter applies.

(2)An “overseas member” means a member of the union (other than a merchant seaman or offshore worker) who is outside Great Britain throughout the period during which votes may be cast.

For this purpose—

  • “merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships; and

  • “offshore worker” means a person in offshore employment, other than one who is in such employment in an area where the law of Northern Ireland applies.

(3)Where the union chooses to accord an overseas member entitlement to vote, section 51 (requirements as to voting) applies in relation to him; but nothing in section 47 (candidates) or section 50 (entitlement to vote) applies in relation to an overseas member or in relation to a vote cast by such a member.

61Other supplementary provisions

(1)For the purposes of this Chapter the date on which a contested election is held shall be taken, in the case of an election in which votes may be cast on more than one day, to be the last of those days.

(2)Nothing in this Chapter affects the validity of anything done by a person holding a position to which this Chapter applies.

Chapter VRights of trade union members

Right to a ballot before industrial action

62Right to a ballot before industrial action

(1)A member of a trade union who claims that members of the union, including himself, are likely to be or have been induced by the union to take part or to continue to take part in industrial action which does not have the support of a ballot may apply to the court for an order under this section.

(2)For this purpose industrial action shall be regarded as having the support of a ballot only if—

(a)the union has held a ballot in respect of the action in relation to which the requirements of sections 227 to 232 were satisfied and in which the applicant was accorded entitlement to vote,

(b)the majority voting in the ballot answered “Yes” to the question applicable in accordance with section 229(2) to industrial action of the kind which the applicant has been or is likely to be induced to take part in, and

(c)the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.

(3)Where on an application under this section the court is satisfied that the claim is well-founded, it shall make such order as it considers appropriate for requiring the union to take steps for ensuring—

(a)that there is no, or no further, inducement of members of the union to take part or to continue to take part in the industrial action to which the application relates, and

(b)that no member engages in conduct after the making of the order by virtue of having been induced before the making of the order to take part or continue to take part in the action.

(4)Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

(5)For the purposes of this section an act shall be taken to be done by a trade union if it is authorised or endorsed by the union; and the provisions of section 20(2) to (4) apply for the purpose of determining whether an act is to be taken to be so authorised or endorsed.

Those provisions also apply in relation to proceedings for failure to comply with an order under this section as they apply in relation to the original proceedings.

(6)In this section—

  • “inducement” includes an inducement which is or would be ineffective, whether because of the member’s unwillingness to be influenced by it or for any other reason; and

  • “industrial action” means a strike or other industrial action by persons employed under contracts of employment.

(7)Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between that person and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this section.

(8)References in this section to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.

(9)Nothing in this section shall be construed as requiring a trade union to hold separate ballots for the purposes of this section and sections 226 to 234 (requirement of ballot before action by trade union).

Right not to be denied access to the courts

63Right not to be denied access to the courts

(1)This section applies where a matter is under the rules of a trade union required or allowed to be submitted for determination or conciliation in accordance with the rules of the union, but a provision of the rules purporting to provide for that to be a person’s only remedy has no effect (or would have no effect if there were one).

(2)Notwithstanding anything in the rules of the union or in the practice of any court, if a member or former member of the union begins proceedings in a court with respect to a matter to which this section applies, then if—

(a)he has previously made a valid application to the union for the matter to be submitted for determination or conciliation in accordance with the union’s rules, and

(b)the court proceedings are begun after the end of the period of six months beginning with the day on which the union received the application,

the rules requiring or allowing the matter to be so submitted, and the fact that any relevant steps remain to be taken under the rules, shall be regarded for all purposes as irrelevant to any question whether the court proceedings should be dismissed, stayed or sisted, or adjourned.

(3)An application shall be deemed to be valid for the purposes of subsection (2)(a) unless the union informed the applicant, before the end of the period of 28 days beginning with the date on which the union received the application, of the respects in which the application contravened the requirements of the rules.

(4)If the court is satisfied that any delay in the taking of relevant steps under the rules is attributable to unreasonable conduct of the person who commenced the proceedings, it may treat the period specified in subsection (2)(b) as extended by such further period as it considers appropriate.

(5)In this section—

(a)references to the rules of a trade union include any arbitration or other agreement entered into in pursuance of a requirement imposed by or under the rules; and

(b)references to the relevant steps under the rules, in relation to any matter, include any steps falling to be taken in accordance with the rules for the purposes of or in connection with the determination or conciliation of the matter, or any appeal, review or reconsideration of any determination or award.

(6)This section does not affect any enactment or rule of law by virtue of which a court would apart from this section disregard any such rules of a trade union or any such fact as is mentioned in subsection (2).

Right not to be unjustifiably disciplined

64Right not to be unjustifiably disciplined

(1)An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.

(2)For this purpose an individual is “disciplined” by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that—

(a)he should be expelled from the union or a branch or section of the union,

(b)he should pay a sum to the union, to a branch or section of the union or to any other person;

(c)sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose,

(d)he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union,

(e)another trade union, or a branch or section of it, should be encouraged or advised not to accept him as a member, or

(f)he should be subjected to some other detriment;

and whether an individual is “unjustifiably disciplined” shall be determined in accordance with section 65.

(3)Where a determination made in infringement of an individual’s right under this section requires the payment of a sum or the performance of an obligation, no person is entitled in any proceedings to rely on that determination for the purpose of recovering the sum or enforcing the obligation.

(4)Subject to that, the remedies for infringement of the right conferred by this section are as provided by sections 66 and 67, and not otherwise.

(5)The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this section; and nothing in this section or sections 65 to 67 affects any remedy for infringement of any such right.

65Meaning of “unjustifiably disciplined”

(1)An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is—

(a)conduct to which this section applies, or

(b)something which is believed by the union to amount to such conduct;

but subject to subsection (6) (cases of bad faith in relation to assertion of wrongdoing).

(2)This section applies to conduct which consists in—

(a)failing to participate in or support a strike or other industrial action (whether by members of the union or by others), or indicating opposition to or a lack of support for such action;

(b)failing to contravene, for a purpose connected with such a strike or other industrial action, a requirement imposed on him by or under a contract of employment;

(c)asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any enactment (whenever passed) or any rule of law;

(d)encouraging or assisting a person—

(i)to perform an obligation imposed on him by a contract of employment, or

(ii)to make or attempt to vindicate any such assertion as is mentioned in paragraph (c); or

(e)contravening a requirement imposed by or in consequence of a determination which infringes the individual’s or another individual’s right not to be unjustifiably disciplined.

(3)This section applies to conduct which involves the Commissioner for the Rights of Trade Union Members or the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject-matter of any such assertion as is mentioned in subsection (2)(c) above.

(4)This section also applies to conduct which consists in proposing to engage in, or doing anything preparatory or incidental to, conduct falling within subsection (2) or (3).

(5)This section does not apply to an act, omission or statement comprised in conduct falling within subsection (2), (3) or (4) above if it is shown that the act, omission or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts, omissions or statements were in connection with conduct within subsection (2) or (3) above.

(6)An individual is not unjustifiably disciplined if it is shown—

(a)that the reason for disciplining him, or one of them, is that he made such an assertion as is mentioned in subsection (2)(c), or encouraged or assisted another person to make or attempt to vindicate such an assertion,

(b)that the assertion was false, and

(c)that he made the assertion, or encouraged or assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith,

and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined.

(7)In this section—

  • “conduct” includes statements, acts and omissions;

  • “contract of employment”, in relation to an individual, includes any agreement between that individual and a person for whom he works or normally works; and

  • “representative”, in relation to a union, means a person acting or purporting to act—

    (a)

    in his capacity as a member of the union, or

    (b)

    on the instructions or advice of a person acting or purporting to act in that capacity or in the capacity of an official of the union.

(8)Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between him and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this section.

66Complaint of infringement of right

(1)An individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the union to an industrial tribunal.

(2)The tribunal shall not entertain such a complaint unless it is presented—

(a)before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or

(b)where the tribunal is satisfied—

(i)that it was not reasonably practicable for the complaint to be presented before the end of that period, or

(ii)that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,

within such further period as the tribunal considers reasonable.

(3)Where the tribunal finds the complaint well-founded, it shall make a declaration to that effect.

(4)Where an individual who is, or is seeking to be, in employment to which section 174 applies (employment subject to union membership agreement) is refused membership of, or is expelled from, a union in pursuance of a determination which infringes his right not to be unjustifiably disciplined, he may not present a complaint under this section but the refusal or expulsion shall be regarded as unreasonable for the purposes of that section.

67Further remedies for infringement of right

(1)An individual whose complaint under section 66 has been declared to be well-founded may make an application for one or both of the following—

(a)an award of compensation to be paid to him by the union;

(b)an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in section 64(2)(b).

(2)An application under this section shall be made to the Employment Appeal Tribunal if, when it is made—

(a)the determination infringing the applicant’s right not to be unjustifiably disciplined has not been revoked, or

(b)the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination;

and in any other case it shall be made to an industrial tribunal.

(3)An application under this section shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date.

(4)Where the Employment Appeal Tribunal or industrial tribunal is satisfied that it would be required by virtue of subsection (2) to dismiss the application, it may instead transfer it to the tribunal to which it should have been made; and an application so transferred shall be proceeded with as if it had been made in accordance with that subsection when originally made.

(5)The amount of compensation awarded shall, subject to the following provisions, be such as the Employment Appeal Tribunal or industrial tribunal considers just and equitable in all the circumstances.

(6)In determining the amount of compensation to be awarded, the same rule shall be applied concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law in England and Wales or Scotland.

(7)Where the Employment Appeal Tribunal or industrial tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

(8)The amount of compensation awarded against a trade union on an application under this section shall not exceed the aggregate of—

(a)an amount equal to 30 times the limit for the time being imposed by paragraph 8(1)(b) of Schedule 14 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (maximum amount of a week’s pay for basic award in unfair dismissal cases), and

(b)an amount equal to the limit for the time being imposed by section 75 of that Act (maximum compensatory award in such cases);

and, in the case of an award by the Employment Appeal Tribunal, shall not be less than the amount for the time being specified in section 156(1) of this Act (minimum basic award in certain cases of unfair dismissal).

(9)A reduction or increase required to be made by virtue of the limits in subsection (8) shall be made before a reduction made—

(a)by virtue of subsection (6) or (7), or

(b)on account of sums already paid by the union by way of compensation in respect of the determination to which the application relates or in respect of anything done for the purpose of giving effect to the determination;

and, accordingly, where the case so requires, the reductions mentioned in paragraphs (a) and (b) shall be applied to the maximum or minimum award under subsection (8).

Right to require employer to stop deduction of union dues

68Right to require employer to stop deductions of union dues

(1)If a person certifies to his employer—

(a)that notice given by him to a trade union for the purpose of terminating his membership has expired or will expire on a particular date, or

(b)that his membership of a trade union to the knowledge of the union has been or will be terminated from a particular date,

the employer shall ensure that no amount representing a payment to the union in respect of his membership of the union after that date is deducted from emoluments payable to him.

(2)The employer’s duty under subsection (1) applies from the first day, following the giving of the certificate, on which it is reasonably practicable for him to comply with that subsection.

(3)If a person who has given a certificate under subsection (1) notifies his employer that the certificate is withdrawn, the employer’s duty under that subsection does not apply in relation to emoluments paid after the notification.

(4)A deduction made in contravention of this section shall be treated for the purposes of Part I of the [1986 c. 48.] Wages Act 1986 as a deduction in contravention of section 1(1) of that Act notwithstanding anything in any contract between the employee and employer, or in any agreement or consent signified by the employee.

Right to terminate membership of union

69Right to terminate membership of union

In every contract of membership of a trade union, whether made before or after the passing of this Act, a term conferring a right on the member, on giving reasonable notice and complying with any reasonable conditions, to terminate his membership of the union shall be implied.

Supplementary

70Membership of constituent or affiliated organisation

In this Chapter “member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of the constituent or affiliated organisations.

Chapter VIApplication of funds for political objects

Restriction on use of funds for certain political objects

71Restriction on use of funds for political objects

(1)The funds of a trade union shall not be applied in the furtherance of the political objects to which this Chapter applies unless—

(a)there is in force in accordance with this Chapter a resolution (a “political resolution”) approving the furtherance of those objects as an object of the union (see sections 73 to 81), and

(b)there are in force rules of the union as to—

(i)the making of payments in furtherance of those objects out of a separate fund, and

(ii)the exemption of any member of the union objecting to contribute to that fund,

which comply with this Chapter (see sections 82, 84 and 85) and have been approved by the Certification Officer.

(2)This applies whether the funds are so applied directly, or in conjunction with another trade union, association or body, or otherwise indirectly.

72Political objects to which restriction applies

(1)The political objects to which this Chapter applies are the expenditure of money—

(a)on any contribution to the funds of, or on the payment of expenses incurred directly or indirectly by, a political party;

(b)on the provision of any service or property for use by or on behalf of any political party;

(c)in connection with the registration of electors, the candidature of any person, the selection of any candidate or the holding of any ballot by the union in connection with any election to a political office;

(d)on the maintenance of any holder of a political office;

(e)on the holding of any conference or meeting by or on behalf of a political party or of any other meeting the main purpose of which is the transaction of business in connection with a political party;

(f)on the production, publication or distribution of any literature, document, film, sound recording or advertisement the main purpose of which is to persuade people to vote for a political party or candidate or to persuade them not to vote for a political party or candidate.

(2)Where a person attends a conference or meeting as a delegate or otherwise as a participator in the proceedings, any expenditure incurred in connection with his attendance as such shall, for the purposes of subsection (1)(e), be taken to be expenditure incurred on the holding of the conference or meeting.

(3)In determining for the purposes of subsection (1) whether a trade union has incurred expenditure of a kind mentioned in that subsection, no account shall be taken of the ordinary administrative expenses of the union.

(4)In this section—

  • “candidate” means a candidate for election to a political office and includes a prospective candidate;

  • “contribution”, in relation to the funds of a political party, includes any fee payable for affiliation to, or membership of, the party and any loan made to the party;

  • “electors” means electors at an election to a political office;

  • “film” includes any record, however made, of a sequence of visual images, which is capable of being used as a means of showing that sequence as a moving picture;

  • “local authority” means a local authority within the meaning of section 270 of the [1972. c.70] Local Government Act 1972 or section 235 of the [1973 c. 65] Local Government (Scotland) Act 1973; and

  • “political office” means the office of member of Parliament, member of the European Parliament or member of a local authority or any position within a political party.

Political resolution

73Passing and effect of political resolution

(1)A political resolution must be passed by a majority of those voting on a ballot of the members of the trade union held in accordance with this Chapter.

(2)A political resolution so passed shall take effect as if it were a rule of the union and may be rescinded in the same manner and subject to the same provisions as such a rule.

(3)If not previously rescinded, a political resolution shall cease to have effect at the end of the period of ten years beginning with the date of the ballot on which it was passed.

(4)Where before the end of that period a ballot is held on a new political resolution, then—

(a)if the new resolution is passed, the old resolution shall be treated as rescinded, and

(b)if it is not passed, the old resolution shall cease to have effect at the end of the period of two weeks beginning with the date of the ballot.

74Approval of political ballot rules

(1)A ballot on a political resolution must be held in accordance with rules of the trade union (its “political ballot rules”) approved by the Certification Officer.

(2)Fresh approval is required for the purposes of each ballot which it is proposed to hold, notwithstanding that the rules have been approved for the purposes of an earlier ballot.

(3)The Certification Officer shall not approve a union’s political ballot rules unless he is satisfied that the requirements set out in—

  • section 75 (appointment of independent scrutineer),

  • section 76 (entitlement to vote),

  • section 77 (voting), and

  • section 78 (scrutineer’s report),

would be satisfied in relation to a ballot held by the union in accordance with the rules.

75Appointment of independent scrutineer

(1)The trade union shall, before the ballot is held, appoint a qualified independent person (“the scrutineer”) to carry out—

(a)the functions in relation to the ballot which are required under this section to be contained in his appointment; and

(b)such additional functions in relation to the ballot as may be specified in his appointment.

(2)A person is a qualified independent person in relation to a ballot if—

(a)he satisfies such conditions as may be specified for the purposes of this section by order of the Secretary of State or is himself so specified; and

(b)the trade union has no grounds for believing either that he will carry out any functions conferred on him in relation to the ballot otherwise than competently or that his independence in relation to the union, or in relation to the ballot, might reasonably be called into question.

An order under paragraph (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)The scrutineer’s appointment shall require him—

(a)to be the person who supervises the production and distribution of the voting papers and to whom the voting papers are returned by those voting;

(b)to take such steps as appear to him to be appropriate for the purpose of enabling him to make his report (see section 78);

(c)to make his report to the trade union as soon as reasonably practicable after the last date for the return of voting papers; and

(d)to retain custody of all voting papers returned for the purposes of the ballot—

(i)until the end of the period of one year beginning with the announcement by the union of the result of the ballot; and

(ii)if within that period an application is made under section 79 (complaint of failure to comply with ballot rules), until the Certification Officer or the court authorises him to dispose of the papers.

(4)The trade union shall ensure that nothing in the terms of the scrutineer’s appointment (including any additional functions specified in the appointment) is such as to make it reasonable for any person to call the scrutineer’s independence in relation to the union into question.

(5)The trade union shall, before the scrutineer begins to carry out his functions, either—

(a)send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or

(b)take all such other steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.

(6)The trade union shall ensure that the scrutineer duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call the scrutineer’s independence in relation to the union into question.

(7)The trade union shall comply with all reasonable requests made by the scrutineer for the purposes of, or in connection with, the carrying out of his functions.

76Entitlement to vote

Entitlement to vote in the ballot shall be accorded equally to all members of the trade union.

77Voting

(1)The method of voting must be by the marking of a voting paper by the person voting.

(2)Each voting paper must—

(a)state the name of the independent scrutineer and clearly specify the address to which, and the date by which, it is to be returned, and

(b)be given one of a series of consecutive whole numbers every one of which is used in giving a different number in that series to each voting paper printed or otherwise produced for the purposes of the ballot, and

(c)be marked with its number.

(3)Every person who is entitled to vote in the ballot must—

(a)be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and

(b)so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.

(4)So far as is reasonably practicable, every person who is entitled to vote in the ballot must—

(a)have a voting paper sent to him by post at his home address or another address which he has requested the trade union in writing to treat as his postal address, and

(b)be given a convenient opportunity to vote by post.

(5)The ballot shall be conducted so as to secure that—

(a)so far as is reasonably practicable, those voting do so in secret, and

(b)the votes given in the ballot are fairly and accurately counted.

For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot.

78Scrutineer’s report

(1)The scrutineer’s report on the ballot shall state—

(a)the number of voting papers distributed for the purposes of the ballot,

(b)the number of voting papers returned to the scrutineer,

(c)the number of valid votes cast in the ballot for and against the resolution, and

(d)the number of spoiled or otherwise invalid voting papers returned.

(2)The report shall also state whether the scrutineer is satisfied—

(a)that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot,

(b)that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the ballot, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur, and

(c)that he has been able to carry out his functions without such interference as would make it reasonable for any person to call his independence in relation to the union into question;

and if he is not satisfied as to any of those matters, the report shall give particulars of his reasons for not being satisfied as to that matter.

(3)The trade union shall not publish the result of the ballot until it has received the scrutineer’s report.

(4)The trade union shall within the period of three months after it receives the report—

(a)send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or

(b)take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.

(5)Any such copy or notification shall be accompanied by a statement that the union will, on request, supply any member of the union with a copy of the report, either free of charge or on payment of such reasonable fee as may be specified in the notification.

(6)The trade union shall so supply any member of the union who makes such a request and pays the fee (if any) notified to him.

79Remedy for failure to comply with ballot rules: general

(1)The remedy for—

(a)the taking by a trade union of a ballot on a political resolution otherwise than in accordance with political ballot rules approved by the Certification Officer, or

(b)the failure of a trade union, in relation to a proposed ballot on a political resolution, to comply with the political ballot rules so approved,

is by way of application under section 80 (to the Certification Officer) or 81 (to the court).

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.

(2)An application under those sections may be made only by a person who is a member of the trade union and, where the ballot has been held, was a member at the time when it was held.

References in those sections to a person having a sufficient interest are to such a person.

(3)No such application may be made after the end of the period of one year beginning with the day on which the union announced the result of the ballot.

80Application to Certification Officer

(1)A person having a sufficient interest (see section 79(2)) who claims that a trade union—

(a)has held a ballot on a political resolution otherwise than in accordance with political ballot rules approved by the Certification Officer, or

(b)has failed in relation to a proposed ballot on a political resolution to comply with political ballot rules so approved,

may apply to the Certification Officer for a declaration to that effect.

(2)On an application being made to him, the Certification Officer shall—

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

(b)where he considers it appropriate, give the applicant and the trade union an opportunity to be heard,

and may make or refuse the declaration asked for.

(3)If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.

(4)Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall in making the declaration specify those steps.

(5)Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings.

(6)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.

(7)Where he 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 shall, unless he considers that it would be inappropriate to do so, proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

81Application to court

(1)A person having a sufficient interest (see section 79(2)) who claims that a trade union—

(a)has held a ballot on a political resolution otherwise than in accordance with political ballot rules approved by the Certification Officer, or

(b)has failed in relation to a proposed ballot on a political resolution to comply with political ballot rules so approved,

may apply to the court for a declaration to that effect.

(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.

(3)If the court makes the declaration asked for, it shall specify in the declaration the provisions with which the trade union has failed to comply.

(4)Where the court makes a declaration it shall also, unless it considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements—

(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 court 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.

(5)Where the court makes an order requiring the union to hold a fresh ballot, the court shall (unless it 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.

(6)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.

(7)Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

The political fund

82Rules as to political fund

(1)The trade union’s rules must provide—

(a)that payments in the furtherance of the political objects to which this Chapter applies shall be made out of a separate fund (the “political fund” of the union);

(b)that a member of the union who gives notice in accordance with section 84 that he objects to contributing to the political fund shall be exempt from any obligation to contribute to it;

(c)that a member shall not by reason of being so exempt—

(i)be excluded from any benefits of the union, or

(ii)be placed in any respect either directly or indirectly under a disability or at a disadvantage as compared with other members of the union (except in relation to the control or management of the political fund); and

(d)that contribution to the political fund shall not be made a condition for admission to the union.

(2)A member of a trade union who claims that he is aggrieved by a breach of any rule made in pursuance of this section may complain to the Certification Officer.

(3)Where, after giving the member and a representative of the union an opportunity of being heard, the Certification Officer considers that a breach has been committed, he may make such order for remedying the breach as he thinks just under the circumstances.

(4)Any such order, on being recorded in the county court or, in Scotland, the sheriff court, may be enforced in the same way as an order of that court.

83Assets and liabilities of political fund

(1)There may be added to a union’s political fund only—

(a)sums representing contributions made to the fund by members of the union or by any person other than the union itself, and

(b)property which accrues to the fund in the course of administering the assets of the fund.

(2)The rules of the union shall not be taken to require any member to contribute to the political fund at a time when there is no political resolution in force in relation to the union.

(3)No liability of a union’s political fund shall be discharged out of any other fund of the union.

This subsection applies notwithstanding any term or condition on which the liability was incurred or that an asset of the other fund has been charged in connection with the liability.

84Notice of objection to contributing to political fund

(1)A member of a trade union may give notice in the following form, or in a form to the like effect, that he objects to contribute to the political fund:—

(2)On the adoption of a political resolution, notice shall be given to members of the union acquainting them—

(a)that each member has a right to be exempted from contributing to the union’s political fund, and

(b)that a form of exemption notice can be obtained by or on behalf of a member either by application at or by post from—

(i)the head office or any branch office of the union, or

(ii)the office of the Certification Officer.

(3)The notice to members shall be given in accordance with rules of the union approved for the purpose by the Certification Officer, who shall have regard in each case to the existing practice and character of the union.

(4)On giving an exemption notice in accordance with this section, a member shall be exempt from contributing to the union’s political fund—

(a)where the notice is given within one month of the giving of notice to members under subsection (2) following the passing of a political resolution on a ballot held at a time when no such resolution is in force, as from the date on which the exemption notice is given;

(b)in any other case, as from the 1st January next after the exemption notice is given.

(5)An exemption notice continues to have effect until it is withdrawn.

85Manner of giving effect to exemptions

(1)Effect may be given to the exemption of members from contributing to the political fund of a union either—

(a)by a separate levy of contributions to that fund from the members who are not exempt, or

(b)by relieving members who are exempt from the payment of the whole or part of any periodical contribution required from members towards the expenses of the union.

(2)In the latter case, the rules shall provide—

(a)that relief shall be given as far as possible to all members who are exempt on the occasion of the same periodical payment, and

(b)for enabling each member of the union to know what portion (if any) of any periodical contribution payable by him is a contribution to the political fund.

Duties of employer who deducts union contributions

86Certificate of exemption or objection to contributing to political fund

(1)If a member of a trade union which has a political fund certifies in writing to his employer that, or to the effect that—

(a)he is exempt from the obligation to contribute to the fund, or

(b)he has, in accordance with section 84, notified the union in writing of his objection to contributing to the fund,

the employer shall ensure that no amount representing a contribution to the political fund is deducted by him from emoluments payable to the member.

(2)The employer’s duty under subsection (1) applies from the first day, following the giving of the certificate, on which it is reasonably practicable for him to comply with that subsection, until the certificate is withdrawn.

(3)An employer may not refuse to deduct any union dues from emoluments payable to a person who has given a certificate under this section if he continues to deduct union dues from emoluments payable to other members of the union, unless his refusal is not attributable to the giving of the certificate or otherwise connected with the duty imposed by subsection (1).

87Application to court in respect of employer’s failure

(1)A person who claims his employer has failed to comply with section 86 in deducting or refusing to deduct any amount from emoluments payable to him may apply to the county court or, in Scotland, the sheriff court.

(2)If the court is satisfied that there has been such a failure it shall make a declaration to that effect.

(3)The court may, if it considers it appropriate to do so in order to prevent a repetition of the failure, make an order requiring the employer to take, within a specified time, the steps specified in the order in relation to emoluments payable by him to the applicant.

(4)Where in proceedings arising out of section 86(3) (refusal to deduct union dues) the question arises whether the employer’s refusal to deduct an amount was attributable to the certificate having been given or was otherwise connected with the duty under section 86(1), it is for the employer to satisfy the court that it was not.

88Application of provisions of Wages Act 1986

(1)The following provisions apply where a certificate has been given by a worker to his employer for the purposes of section 86.

(2)Nothing in the worker’s contract, or in any agreement or consent signified by him, shall be taken for the purposes of section 1 of the [1986 c. 48.] Wages Act 1986 (general restriction on deductions from wages) as authorising the making of deductions in contravention of the obligation imposed on the employer in consequence of the giving of the certificate.

(3)No complaint under section 5 of the Wages Act 1986 (complaint to industrial tribunal in respect of unauthorised deduction) shall be presented in respect of a deduction made in contravention of the obligation imposed on the employer in consequence of the giving of the certificate unless a declaration has been made under section 87(2), either before or after the date of payment of the wages from which the deduction was made, that the employer has failed to comply with that obligation.

(4)Section 5(2) of the Wages Act 1986 (time limit for presenting complaint) shall be read in relation to a complaint in respect of such a deduction, or of a series of deductions of which such a deduction is the last, as referring, if it is later, to the date of the declaration instead of to the date of payment of the wages from which the deduction was made.

Position where political resolution ceases to have effect

89Administration of political fund where no resolution in force

(1)The following provisions have effect with respect to the political fund of a trade union where there ceases to be any political resolution in force in relation to the union.

(2)If the resolution ceases to have effect by reason of a ballot being held on which a new political resolution is not passed, the union may continue to make payments out of the fund as if the resolution had continued in force for six months beginning with the date of the ballot.

But no payment shall be made which causes the fund to be in deficit or increases a deficit in it.

(3)There may be added to the fund only—

(a)contributions to the fund paid to the union (or to a person on its behalf) before the resolution ceased to have effect, and

(b)property which accrues to the fund in the course of administering the assets of the fund.

(4)The union may, notwithstanding any of its rules or any trusts on which the fund is held, transfer the whole or part of the fund to such other fund of the union as it thinks fit.

(5)If a new political resolution is subsequently passed, no property held immediately before the date of the ballot by or on behalf of the union otherwise than in its political fund, and no sums representing such property, may be added to the fund.

90Discontinuance of contributions to political fund

(1)Where there ceases to be any political resolution in force in relation to a trade union, the union shall take such steps as are necessary to ensure that the collection of contributions to its political fund is discontinued as soon as is reasonably practicable.

(2)The union may, notwithstanding any of its rules, pay into any of its other funds any such contribution which is received by it after the resolution ceases to have effect.

(3)If the union continues to collect contributions, it shall refund to a member who applies for a refund the contributions made by him collected after the resolution ceased to have effect.

(4)A member of a trade union who claims that the union has failed to comply with subsection (1) may apply to the court for a declaration to that effect.

(5)Where the court is satisfied that the complaint is well-founded, it may, if it considers it appropriate to do so in order to secure that the collection of contributions to the political fund is discontinued, make an order requiring the union to take, within such time as may be specified in the order, such steps as may be so specified.

Such an order may be enforced by a person who is a member of the union and was a member at the time the order was made as if he had made the application.

(6)The remedy for failure to comply with subsection (1) is in accordance with subsections (4) and (5), and not otherwise; but this does not affect any right to recover sums payable to a person under subsection (3).

91Rules to cease to have effect

(1)If there ceases to be any political resolution in force in relation to a trade union, the rules of the union made for the purpose of complying with this Chapter also cease to have effect, except so far as they are required to enable the political fund to be administered at a time when there is no such resolution in force.

(2)If the resolution ceases to have effect by reason of a ballot being held on which a new political resolution is not passed, the rules cease to have effect at the end of the period of six months beginning with the date of the ballot.

In any other case the rules cease to have effect when the resolution ceases to have effect.

(3)Nothing in this section affects the operation of section 82(2) (complaint to Certification Officer in respect of breach of rules) in relation to a breach of a rule occurring before the rule in question ceased to have effect.

(4)No member of a trade union who has at any time been exempt from the obligation to contribute to its political fund shall by reason of his having been exempt—

(a)be excluded from any benefits of the union, or

(b)be placed in any respect either directly or indirectly under a disability or at a disadvantage as compared with other members (except in relation to the control or management of the political fund).

Supplementary

92Manner of making union rules

If the Certification Officer is satisfied, and certifies, that rules of a trade union made for any of the purposes of this Chapter and requiring approval by him have been approved—

(a)by a majority of the members of the union voting for the purpose, or

(b)by a majority of delegates of the union at a meeting called for the purpose,

the rules shall have effect as rules of the union notwithstanding that the rules of the union as to the alteration of rules or the making of new rules have not been complied with.

93Effect of amalgamation

(1)Where on an amalgamation of two or more trade unions—

(a)there is in force in relation to each of the amalgamating unions a political resolution and such rules as are required by this Chapter, and

(b)the rules of the amalgamated union in force immediately after the amalgamation include such rules as are required by this Chapter,

the amalgamated union shall be treated for the purposes of this Chapter as having passed a political resolution.

(2)That resolution shall be treated as having been passed on the date of the earliest of the ballots on which the resolutions in force immediately before the amalgamation with respect to the amalgamating unions were passed.

(3)Where one of the amalgamating unions is a Northern Ireland union, the references above to the requirements of this Chapter shall be construed as references to the requirements of the corresponding provisions of the law of Northern Ireland.

94Overseas members of trade union

(1)Where a political resolution is in force in relation to the union—

(a)rules made by the union for the purpose of complying with section 74 (political ballot rules) in relation to a proposed ballot may provide for overseas members of the union not to be accorded entitlement to vote in the ballot, and

(b)rules made by the union for the purpose of complying with section 84 (notice of right to object to contribute to political fund to be given where resolution passed) may provide for notice not to be given by the union to its overseas members.

(2)Accordingly, where provision is made in accordance with subsection (1)(a), the Certification Officer shall not on that ground withhold his approval of the rules; and where provision is made in accordance with subsection (1)(b), section 84(2) (duty to give notice) shall not be taken to require notice to be given to overseas members.

(3)An “overseas member” means a member of the trade union (other than a merchant seaman or offshore worker) who is outside Great Britain throughout the period during which votes may be cast.

For this purpose—

  • “merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships; and

  • “offshore worker” means a person in offshore employment, other than one who is in such employment in an area where the law of Northern Ireland applies.

95Appeals 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.

96Meaning of “date of the ballot”

In this Chapter the “date of the ballot” means, in the case of a ballot in which votes may be cast on more than one day, the last of those days.

Chapter VIIAmalgamations and similar matters

Amalgamation or transfer of engagements

97Amalgamation or transfer of engagements

(1)Two or more trade unions may amalgamate and become one trade union, with or without a division or dissolution of the funds of any one or more of the amalgamating unions, but shall not do so unless—

(a)the instrument of amalgamation is approved in accordance with section 98, and

(b)the requirements of sections 99 and 100 (notice to members and passing of resolution) are complied with in respect of each of the amalgamating unions.

(2)A trade union may transfer its engagements to another trade union which undertakes to fulfil those engagements, but shall not do so unless—

(a)the instrument of transfer is approved in accordance with section 98, and

(b)the requirements of sections 99 and 100 (notice to members and passing of resolution) are complied with in respect of the transferor union.

(3)An amalgamation or transfer of engagements does not prejudice any right of any creditor of any trade union party to the amalgamation or transfer.

(4)The above provisions apply to every amalgamation or transfer of engagements notwithstanding anything in the rules of any of the trade unions concerned.

98Approval of instrument of amalgamation or transfer

(1)The instrument of amalgamation or transfer must be approved by the Certification Officer and shall be submitted to him for approval before the resolution to approve it is voted on by members of any amalgamating union or, as the case may be, of the transferor union.

(2)The instrument must comply with the requirements of any regulations in force under this Chapter and the Certification Officer shall approve it if he is satisfied that it does so.

99Notice to be given to members

(1)The trade union shall take all reasonable steps to secure that, not less than seven days before voting begins on the resolution to approve the instrument of amalgamation or transfer, every member of the union is supplied with a notice in writing approved for the purpose by the Certification Officer.

(2)The notice shall be in writing and shall either—

(a)set out in full the instrument of amalgamation or transfer to which the resolution relates, or

(b)give an account of it sufficient to enable those receiving the notice to form a reasonable judgment of the main effects of the proposed amalgamation or transfer.

(3)If the notice does not set out the instrument in full it shall state where copies of the instrument may be inspected by those receiving the notice.

(4)The notice shall also comply with the requirements of any regulations in force under this Chapter.

(5)The notice proposed to be supplied to members of the union under this section shall be submitted to the Certification Officer for approval; and he shall approve it if he is satisfied that it meets the requirements of this section.

100Resolution approving instrument of amalgamation or transfer

(1)A resolution approving the instrument of amalgamation or transfer must be passed on a vote taken in a manner which satisfies the following conditions—

(a)every member of the union must be entitled to vote on the resolution;

(b)every member of the union must be allowed to vote without interference or constraint and must, so far as is reasonably possible, be given a fair opportunity of voting;

(c)the method of voting must involve the marking of a voting paper by the person voting.

(2)The committee of management or other governing body of the union may arrange for the vote to be taken in any manner which that body thinks fit.

This subsection does not apply if the rules of the trade union expressly provide that it is not to apply in relation to that union.

(3)A simple majority of the votes recorded is sufficient to pass the resolution, whether the vote is taken under arrangements made under subsection (2) or under the rules of the union.

This subsection does not apply if the rules of the trade union expressly provide that it is not to apply in relation to that union.

(4)The provisions of subsections (2) and (3) have effect, where they apply, notwithstanding anything in the rules of the trade union and, in particular, notwithstanding anything in those rules which would require the resolution—

(a)to be passed by a majority greater than a simple majority, or

(b)to be voted on by not less than a specified proportion of the members of the union.

101Registration of instrument of amalgamation or transfer

(1)An instrument of amalgamation or transfer shall not take effect before it has been registered by the Certification Officer under this Chapter.

(2)It shall not be so registered before the end of the period of six weeks beginning with the date on which an application for its registration is sent to the Certification Officer.

102Power to alter rules of transferee union for purposes of transfer

(1)Where a trade union proposes to transfer its engagements to another trade union and an alteration of the rules of the transferee union is necessary to give effect to provisions in the instrument of transfer, the committee of management or other governing body of that union may by memorandum in writing alter the rules of that union so far as is necessary to give effect to those provisions.

This subsection does not apply if the rules of the trade union expressly provide that this section is not to apply to that union.

(2)An alteration of the rules of a trade union under subsection (1) shall not take effect unless or until the instrument of transfer takes effect.

(3)The provisions of subsection (1) have effect, where they apply, notwithstanding anything in the rules of the union.

103Complaints as regards passing of resolution

(1)A member of a trade union which passes or purports to pass a resolution approving an instrument of amalgamation or transfer may complain to the Certification Officer on one or more of the following grounds—

(a)that section 99 (notice to be given to members) was not complied with;

(b)that the manner in which the vote on the resolution was taken did not satisfy the conditions specified in section 100(1);

(c)where that vote was taken under arrangements made under section 100(2), that the manner in which it was taken was not in accordance with the arrangements;

(d)where that vote was taken under provisions in the rules of the union, that the manner in which it was taken was not in accordance with those rules;

(e)that the votes recorded did not have the effect of passing the resolution.

(2)Any complaint must be made before the end of the period of six weeks beginning with the date on which an application for registration of the instrument of amalgamation or transfer is sent to the Certification Officer.

Where a complaint is made, the Certification Officer shall not register the instrument before the complaint is finally determined or is withdrawn.

(3)If the Certification Officer, after giving the complainant and the trade union an opportunity of being heard, finds the complaint to be justified—

(a)he shall make a declaration to that effect, and

(b)he may make an order specifying the steps which must be taken before he will entertain any application to register the instrument of amalgamation or transfer;

and where he makes such an order, he shall not entertain any application to register the instrument unless he is satisfied that the steps specified in the order have been taken.

An order under this subsection may be varied by the Certification Officer by a further order.

(4)The Certification Officer shall furnish a statement, orally or in writing, of the reasons for his decision on a complaint under this section.

(5)The validity of a resolution approving an instrument of amalgamation or transfer shall not be questioned in any legal proceedings whatsoever (except proceedings before the Certification Officer under this section or proceedings arising out of such proceedings) on any ground on which a complaint could be, or could have been, made to the Certification Officer under this section.

104Appeal from decision of Certification Officer

An appeal lies to the Employment Appeal Tribunal, at the instance of the complainant or the trade union, on any question of law arising in any proceedings before, or arising from any decision of, the Certification Officer under section 103.

105Transfer of property on amalgamation or transfer

(1)Where an instrument of amalgamation or transfer takes effect, the property held—

(a)for the benefit of any of the amalgamating unions, or for the benefit of a branch of any of those unions, by the trustees of the union or branch, or

(b)for the benefit of the transferor trade union, or for the benefit of a branch of the transferor trade union, by the trustees of the union or branch,

shall without any conveyance, assignment or assignation vest, on the instrument taking effect, or on the appointment of the appropriate trustees, whichever is the later, in the appropriate trustees.

(2)In the case of property to be held for the benefit of a branch of the amalgamated union, or of the transferee union, “the appropriate trustees” means the trustees of that branch, unless the rules of the amalgamated or transferee union provide that the property to be so held is to be held by the trustees of the union.

(3)In any other case “the appropriate trustees” means the trustees of the amalgamated or transferee union.

(4)This section does not apply—

(a)to property excepted from the operation of this section by the instrument of amalgamation or transfer, or

(b)to stocks and securities in the public funds of the United Kingdom or Northern Ireland.

106Amalgamation or transfer involving Northern Ireland union

(1)This Chapter has effect subject to the following modifications in the case of an amalgamation or transfer of engagements to which a trade union and a Northern Ireland union are party.

(2)The requirements of sections 98 to 100 (approval of instrument; notice to members; passing of resolution) do not apply in relation to the Northern Ireland union; but the Certification Officer shall not register the instrument under section 101 unless he is satisfied that it will be effective under the law of Northern Ireland.

(3)The instrument of amalgamation or transfer submitted to the Certification Officer for his approval under section 98 shall state which of the bodies concerned is a Northern Ireland union and, in the case of an amalgamation, whether the amalgamated body is to be a Northern Ireland union; and the Certification Officer shall withhold his approval if the instrument does not contain that information.

(4)Nothing in section 102 (alteration of rules) or section 103 (complaint as to passing of resolution) applies in relation to the Northern Ireland union.

(5)Subject to the exceptions specified above, the provisions of this Chapter as to amalgamations or transfers of engagements apply in relation to the Northern Ireland union.

Change of name

107Change of name of trade union

(1)A trade union may change its name by any method expressly provided for by its rules or, if its rules do not expressly provide for a method of doing so, by adopting in accordance with its rules an alteration of the provision in them which gives the union its name.

(2)If the name of the trade union is entered in the list of trade unions a change of name shall not take effect until approved by the Certification Officer.

(3)The Certification Officer shall not approve a change of name if it appears to him that the proposed new name—

(a)is the same as one entered in the list as the name of another trade union, or

(b)is the same as one entered in the list of employers' associations kept under Part II of this Act,

or is a name so nearly resembling such a name as to be likely to deceive the public.

(4)A change of name by a trade union does not affect any right or obligation of the union or any of its members; and any pending legal proceedings may be continued by or against the union, the trustees of the union or any other officer of the union who can sue or be sued on its behalf notwithstanding its change of name.

Supplementary

108General power to make regulations

(1)The Secretary of State may make regulations as respects—

(a)applications to the Certification Officer under this Chapter,

(b)the registration under this Chapter of any document or matter,

(c)the inspection of documents kept by the Certification Officer under this Chapter,

(d)the charging of fees in respect of such matters, and of such amounts, as may with the approval of the Treasury be prescribed by the regulations,

and generally for carrying this Chapter into effect.

(2)Provision may in particular be made—

(a)requiring an application for the registration of an instrument of amalgamation or transfer, or of a change of name, to be accompanied by such statutory declarations or other documents as may be specified in the regulations;

(b)as to the form or content of any document required by this Chapter, or by the regulations, to be sent or submitted to the Certification Officer and as to the manner in which any such document is to be signed or authenticated;

(c)authorising the Certification Officer to require notice to be given or published in such manner as he may direct of the fact that an application for registration of an instrument of amalgamation or transfer has been or is to be made to him.

(3)Regulations under this section may make different provision for different circumstances.

(4)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Chapter VIIIAssistance for certain legal proceedings

109Proceedings in relation to which assistance may be provided

(1)This Chapter applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of—

(a)an application to the court under section 15(3) (application for order authorising member to take or continue proceedings on behalf of trade union) or any other proceedings brought by virtue of that section;

(b)an application to the court under section 16 (remedy against trustees for unlawful use of trade union property);

(c)an application to the court under section 26 (remedy for failure to maintain register of members);

(d)an application to the court under section 31 (remedy for failure to comply with request for access to trade union’s accounting records);

(e)an application to the court under section 56 (remedy for failure to comply with requirements as to election for office);

(f)an application to the court under section 62 (application for order where industrial action does not have support of ballot);

(g)proceedings brought by virtue of section 71 (restriction on use of funds for political objects) with respect to the unlawful application of the funds of a trade union;

(h)an application to the court under section 81 (remedy for failure to comply with requirements as to political ballot).

(2)This Chapter applies to proceedings or prospective proceedings in the High Court or the Court of Session (or on an appeal therefrom to the Court of Appeal or the House of Lords) to the extent that they arise out of an alleged breach or threatened breach of the rules of a trade union relating to any of the following matters—

(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);

(c)the authorising or endorsing of industrial action;

(d)the balloting of members;

(e)the application of the union’s funds or property;

(f)the imposition, collection or distribution of any levy for the purposes of industrial action;

(g)the constitution or proceedings of any committee, conference or other body.

The reference above to the rules of a trade union includes the rules of any branch or section of the trade union; and in paragraph (a) “office” includes any position by virtue of which a person is an official in relation to the trade union or is entitled to attend as a representative any meeting concerned with union business.

(3)This Chapter also applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of such other proceedings against a trade union, an official of a trade union or the trustees of the property of a trade union as may be specified in an order made by the Secretary of State.

Any order 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.

110Application for assistance: its consideration

(1)An individual who is an actual or prospective party to proceedings to which this Chapter applies may apply to the Commissioner for assistance in relation to the proceedings, and the Commissioner shall, as soon as reasonably practicable after receiving the application, consider it and decide whether and to what extent to grant it.

(2)The matters to which the Commissioner may have regard in determining whether, and to what extent, to grant an application include—

(a)whether the case raises a question of principle,

(b)whether it is unreasonable, having regard to the complexity of the case, to expect the applicant to deal with it unaided, and

(c)whether, in the Commissioner’s opinion, the case involves a matter of substantial public interest.

(3)In the case of an application made by virtue of section 109(1)(c), (f) or (h) (failure to maintain register of members or to comply with requirements as to election or ballot), if—

(a)the Certification Officer has already made a declaration with respect to the subject-matter of the proceedings or prospective proceedings, and

(b)it appears to the Commissioner that the applicant would (if assisted) have a reasonable prospect of securing the making of an enforcement order in the proceedings,

the Commissioner shall grant the application to the extent he considers necessary for securing that, so far as reasonably practicable, all the steps he considers appropriate (including, where appropriate, the holding of another ballot or election) are taken by the trade union for the purpose of remedying the declared failure and of ensuring that a failure of the same or a similar kind does not occur in future.

(4)The Commissioner shall not grant an application made by virtue of section 109(2) (proceedings arising out of breach of rules) unless it appears to him—

(a)that the breach of rules in question affects, or may affect, members of the union other than the applicant, or

(b)that similar breaches of the rules have been or may be committed in relation to other members of the union.

(5)If the Commissioner decides not to provide assistance, he shall, as soon as reasonably practicable after making the decision, notify the applicant of his decision and, if he thinks fit, of the reasons for it.

111Provision of assistance

(1)If the Commissioner decides to provide assistance, he shall, as soon as reasonably practicable after making the decision—

(a)notify the applicant, stating the extent of the assistance to be provided, and

(b)give him a choice, subject to any restrictions specified in the notification, as to the financial arrangements to be made in connection with the provision of the assistance.

(2)The assistance provided may include the making of arrangements for, or for the Commissioner to bear the costs of—

(a)the giving of advice or assistance by a solicitor or counsel, and

(b)the representation of the applicant, or the provision to him of such assistance as is usually given by a solicitor or counsel—

(i)in steps preliminary or incidental to the proceedings, or

(ii)in arriving at or giving effect to a compromise to avoid or bring an end to the proceedings.

(3)Where assistance is provided with respect to the conduct of proceedings, it shall include an agreement by the Commissioner to indemnify the applicant (subject only to any exceptions specified in the notification) in respect of liability to pay costs or expenses arising by virtue of any judgment or order of the court in the proceedings.

(4)Where the Commissioner provides assistance in relation to any proceedings, he shall do so on such terms, or make such other arrangements, as will secure that a person against whom the proceedings have been or are commenced is informed that assistance has been or is being provided by the Commissioner in relation to them.

(5)In England and Wales, the recovery of expenses incurred by the Commissioner in providing an applicant with assistance (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Commissioner—

(a)on any costs which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and

(b)on any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring proceedings to an end.

(6)In Scotland, the recovery of such expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall be paid to the Commissioner, in priority to other debts—

(a)out of any expenses which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and

(b)out of any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring proceedings to an end.

112Title of proceedings where assistance provided

(1)Where a person is receiving assistance in relation to proceedings, there shall, if he so wishes, be added after his name in the title of the proceedings the words “(assisted by the Commissioner for the Rights of Trade Union Members)”.

(2)The addition of those words shall not be construed as making the Commissioner a party to the proceedings or as liable to be treated as a party for any purpose; and the omission of those words shall be treated as an irregularity only and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.

113Recovery of sums paid in case of fraud

(1)Where the Commissioner grants an application to a person who for the purposes of the application—

(a)has made a statement which he knew to be false in a material particular, or

(b)has recklessly made a statement which was false in a material particular,

he is entitled to recover from that person any sums paid by him to that person, or to any other person, by way of assistance.

(2)This does not affect the power of the Commissioner to enter into any agreement he thinks fit as to the terms on which assistance is provided.

114Supplementary provisions

(1)Nothing in this Chapter affects the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings.

(2)The power of the Commissioner to provide assistance to a prospective applicant to the court under section 26, 56 or 81 (under which applications may be made either to the court or to the Certification Officer, and in certain cases to both) does not entitle the Commissioner to provide assistance with the making of an application to the Certification Officer.

(3)In this Chapter “applicant”, in relation to assistance under this Chapter, means the individual on whose application the assistance is provided.

Chapter IXMiscellaneous and general provisions

Further provisions with respect to ballots

115Payments towards expenditure in connection with secret ballots

(1)The Secretary of State may by regulations make a scheme providing for payments by the Certification Officer towards expenditure incurred by independent trade unions in respect of such ballots to which this section applies as may be prescribed by the scheme.

(2)This section applies to a ballot if the purpose of the question to be asked (or if there is more than one such question, the purpose of any of them) is—

(a)to obtain a decision or ascertain the views of members of a trade union—

(i)as to the acceptance or rejection of a proposal made by an employer in relation to the contractual terms and conditions upon which, or the other incidents of the relationship whereby, a person works or provides services for the employer, or

(ii)as to the calling or ending of a strike or other industrial action;

(b)to carry out an election—

(i)provided for by the rules of a trade union, or

(ii)required by section 46 (duty to hold elections for certain offices),

or to elect a worker who is a member of a trade union to be a representative of other members also employed by his employer;

(c)to amend the rules of a trade union;

(d)to obtain a decision in accordance with Chapter VI on a political resolution within the meaning of that Chapter at a time when there is such a resolution in force in relation to the union;

(e)to obtain a decision in accordance with Chapter VII on a resolution to approve an instrument of amalgamation or transfer;

(f)any other purpose specified by order of the Secretary of State.

(3)The scheme may include provision for payments to be made towards expenditure incurred in respect of arrangements to hold a ballot which is not proceeded with but which would have been a ballot to which this section applies if it had been held.

(4)The circumstances in which and the conditions subject to which payments may be made under the scheme, and the amounts of the payments, shall be such as may be prescribed by the scheme; and the scheme shall include provision for restricting the cases in which payments are made to cases in which the ballot is so conducted as to secure, so far as reasonably practicable, that those voting do so in secret.

(5)Regulations or an order under this section shall be made by statutory instrument; and—

(a)a statutory instrument containing regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament; and

(b)no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

116Use of employer’s premises for secret ballot

(1)Where an independent trade union which is recognised by an employer to any extent for the purposes of collective bargaining—

(a)proposes to hold a ballot to which this section applies, and

(b)requests the employer to permit premises of his to be used for the purpose of giving workers employed by him who are members of the union a convenient opportunity of voting,

the employer shall, so far as reasonably practicable, comply with that request.

(2)This section applies to a ballot if—

(a)as respects the purposes of the question (or one of the questions) to be voted upon, the ballot satisfies the requirements of a scheme under section 115, and

(b)the proposals for the conduct of the ballot are such as to secure, so far as reasonably practicable, that those voting do so in secret.

(3)Subsection (1) does not apply where—

(a)the ballot is one in which every person who is entitled to vote must be given a convenient opportunity to vote by post; or

(b)at the time the request is made the number of workers employed by the employer, added to the number employed by any associated employer, does not exceed 20.

(4)A trade union which claims that an employer has failed to comply with a request made by the union in accordance with subsection (1), which it was reasonably practicable for him to comply with, may present a complaint to an industrial tribunal.

(5)The tribunal shall not entertain a complaint unless it is presented to the tribunal—

(a)before the end of the period of three months beginning with the date of the failure, 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 the tribunal considers reasonable.

(6)Where the tribunal finds that the complaint is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the union of such amount as it considers just and equitable in all the circumstances having regard to the employer’s failure and to any expenses incurred by the union in consequence of the failure.

(7)The remedy of a union for failure to comply with a request under subsection (1) is by way of complaint to an industrial tribunal in accordance with this section, and not otherwise.

Exceptions and adaptations for certain bodies

117Special register bodies

(1)In this section a “special register body” means an organisation whose name appeared in the special register maintained under section 84 of the [1971 c. 72.] Industrial Relations Act 1971 immediately before 16 September 1974, and which is a company registered under the [1985 c. 6.] Companies Act 1985 or is incorporated by charter or letters patent.

(2)The provisions of this Part apply to special register bodies as to other trade unions, subject to the following exceptions and adaptations.

(3)In Chapter II (status and property of trade unions)—

(a)in section 10 (quasi-corporate status of trade unions)—

(i)subsections (1) and (2) (prohibition on trade union being incorporated) do not apply, and

(ii)subsection (3) (prohibition on registration under certain Acts) does not apply so far as it relates to registration as a company under the [1985 c. 6.] Companies Act 1985;

(b)section 11 (exclusion of common law rules as to restraint of trade) applies to the purposes or rules of a special register body only so far as they relate to the regulation of relations between employers or employers' associations and workers;

(c)sections 12 to 14 (vesting of property in trustees; transfer of securities) do not apply; and

(d)in section 20 (liability of trade union in certain proceedings in tort) in subsection (7) the reference to the contract between a member and the other members shall be construed as a reference to the contract between a member and the body.

(4)Sections 33 to 35 (appointment and removal of auditors) do not apply to a special register body which is registered as a company under the Companies Act 1985; and sections 36 and 37 (rights and duties of auditors) apply to the auditors appointed by such a body under Chapter V of Part XI of that Act.

(5)Chapter IV (elections for certain union position) only applies to—

(a)the position of voting member of the executive, and

(b)any position by virtue of which a person is a voting member of the executive.

In this subsection “voting member of the executive” has the meaning given by section 46(5).

118Federated trade unions

(1)In this section a “federated trade union” means a trade union which consists wholly or mainly of constituent or affiliated organisations, or representatives or such organisations, as described in paragraph (b) of the definition of “trade union” in section 1.

(2)The provisions of this Part apply to federated trade unions subject to the following exceptions and adaptations.

(3)For the purposes of section 22 (limit on amount of damages) as it applies to a federated trade union, the members of such of its constituent or affiliated organisations as have their head or main office in Great Britain shall be treated as members of the union.

(4)The following provisions of Chapter III (trade union administration) do not apply to a federated trade union which consists wholly or mainly of representatives of constituent or affiliated organisations—

(a)section 27 (duty to supply copy of rules),

(b)section 28 (duty to keep accounting records),

(c)sections 32 to 37 (annual return, accounts and audit), and

(d)sections 38 to 42 (members' superannuation schemes).

(5)Sections 29 to 31 (right of member to access to accounting records) do not apply to a federated trade union which has no members other than constituent or affiliated organisations or representatives of such organisations.

(6)Sections 24 to 26 (register of members' names and addresses) and Chapter IV (elections for certain trade union positions) do not apply to a federated trade union—

(a)if it has no individual members other than representatives of constituent or affiliated organisations, or

(b)if its individual members (other than such representatives) are all merchant seamen and a majority of them are ordinarily resident outside the United Kingdom.

For this purpose “merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships.

(7)The provisions of Chapter VI (application of funds for political objects) apply to a trade union which is in whole or part an association or combination of other unions as if the individual members of the component unions were members of that union and not of the component unions.

But nothing in that Chapter prevents a component union from collecting contributions on behalf of the association or combination from such of its members as are not exempt from the obligation to contribute to the political fund of the association or combination.

Interpretation

119Expressions relating to trade unions

In this Act, in relation to a trade union—

  • “branch or section”, except where the context otherwise requires, includes a branch or section which is itself a trade union;

  • “executive” means the principal committee of the union exercising executive functions, by whatever name it is called;

  • “general secretary” means the official of the union who holds the office of general secretary or, where there is no such office, holds an office which is equivalent, or (except in section 14(4)) the nearest equivalent, to that of general secretary;

  • “officer” includes—

    (a)

    any member of the governing body of the union, and

    (b)

    any trustee of any fund applicable for the purposes of the union;

  • “official” means—

    (a)

    an officer of the union or of a branch or section of the union, or

    (b)

    a person elected or appointed in accordance with the rules of the union to be a representative of its members or of some of them,

    and includes a person so elected or appointed who is an employee of the same employer as the members or one or more of the members whom he is to represent;

  • “president” means the official of the union who holds the office of president or, where there is no such office, who holds an office which is equivalent, or (except in section 14(4) or Chapter IV) the nearest equivalent, to that of president; and

  • “rules”, except where the context otherwise requires, includes the rules of any branch or section of the union.

120Northern Ireland unions

In this Part a “Northern Ireland union” means a trade union whose principal office is situated in Northern Ireland.

121Meaning of “the court”

In this Part “the court” (except where the reference is expressed to be to the county court or sheriff court) means the High Court or the Court of Session.

Part IIEmployers' Associations

Introductory

122Meaning of “employers' association”

(1)In this Act an “employers' association” means an organisation (whether temporary or permanent)—

(a)which consists wholly or mainly of employers or individual owners of undertakings of one or more descriptions and whose principal purposes include the regulation of relations between employers of that description or those descriptions and workers or trade unions; or

(b)which consists wholly or mainly of—

(i)constituent or affiliated organisations which fulfil the conditions in paragraph (a) (or themselves consist wholly or mainly of constituent or affiliated organisations which fulfil those conditions), or

(ii)representatives of such constituent or affiliated organisations,

and whose principal purposes include the regulation of relations between employers and workers or between employers and trade unions, or the regulation of relations between its constituent or affiliated organisations.

(2)References in this Act to employers' associations include combinations of employers and employers' associations.

The list of employers' associations

123The list of employers' associations

(1)The Certification Officer shall keep a list of employers' associations containing the names of—

(a)the organisations whose names were, immediately before the commencement of this Act, duly entered in the list of employers' associations kept by him under section 8 of the [1974 c. 52.] Trade Union and Labour Relations Act 1974, and

(b)the names of the organisations entitled to have their names entered in the list in accordance with this Part.

(2)The Certification Officer shall keep copies of the list of employers' associations, as for the time being in force, available for public inspection at all reasonable hours free of charge.

(3)A copy of the list shall be included in his annual report.

(4)The fact that the name of an organisation is included in the list of employers' associations is evidence (in Scotland, sufficient evidence) that the organisation is an employers' association.

(5)On the application of an organisation whose name is included in the list, the Certification Officer shall issue it with a certificate to that effect.

(6)A document purporting to be such a certificate is evidence (in Scotland, sufficient evidence) that the name of the organisation is entered in the list.

124Application to have name entered in the list

(1)An organisation of employers, whenever formed, whose name is not entered in the list of employers' associations may apply to the Certification Officer to have its name entered in the list.

(2)The application shall be made in such form and manner as the Certification Officer may require and shall be accompanied by—

(a)a copy of the rules of the organisation,

(b)a list of its officers,

(c)the address of its head or main office, and

(d)the name under which it is or is to be known,

and by the prescribed fee.

(3)If the Certification Officer is satisfied—

(a)that the organisation is an employers' association,

(b)that subsection (2) has been complied with, and

(c)that entry of the name in the list is not prohibited by subsection (4),

he shall enter the name of the organisation in the list of employers' associations.

(4)The Certification Officer shall not enter the name of an organisation in the list of employers' associations if the name is the same as that under which another organisation—

(a)was on 30th September 1971 registered as a trade union under the Trade Union Acts 1871 to 1964,

(b)was at any time registered as an employers' association or trade union under the [1971 c. 72.] Industrial Relations Act 1971, or

(c)is for the time being entered in the list of employers' associations or in the list of trade unions kept under Chapter I of Part I of this Act,

or if the name is one so nearly resembling any such name as to be likely to deceive the public.

125Removal of name from the list

(1)If it appears to the Certification Officer, on application made to him or otherwise, that an organisation whose name is entered in the list of employers' associations is not an employers' association, he may remove its name from the list.

(2)He shall not do so without giving the organisation notice of his intention and considering any representations made to him by the organisation within such period (of not less than 28 days beginning with the date of the notice) as may be specified in the notice.

(3)The Certification Officer shall remove the name of an organisation from the list of employers' associations if—

(a)he is requested by the organisation to do so, or

(b)he is satisfied that the organisation has ceased to exist.

126Appeal against decision of Certification Officer

(1)An organisation aggrieved by the refusal of the Certification Officer to enter its name in the list of employers' associations, or by a decision of his to remove its name from the list, may appeal to the Employment Appeal Tribunal.

(2)If on appeal the Tribunal is satisfied that the organisation’s name should be or remain entered in the list, it shall declare that fact and give directions to the Certification Officer accordingly.

(3)The right of appeal conferred by this section extend to any question of fact or law arising in the proceedings before, or arising from the decision of, the Certification Officer.

Status and property of employers' associations

127Corporate or quasi-corporate status of employers' associations

(1)An employers' association may be either a body corporate or an unincorporated association.

(2)Where an employers' association is unincorporated—

(a)it is capable of making contracts;

(b)it is capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action; and

(c)proceedings for an offence alleged to have been committed by it or on its behalf may be brought against it in its own name.

(3)Nothing in section 716 of the [1985 c. 6.] Companies Act 1985 (associations of over 20 members to be incorporated or otherwise formed in special ways) shall be taken to prevent the formation of an employers' association which is neither registered as a company under that Act nor otherwise incorporated.

128Exclusion of common law rules as to restraint of trade

(1)The purposes of an unincorporated employers' association and, so far as they relate to the regulation of relations between employers and workers or trade unions, the purposes of an employers' association which is a body corporate are not, by reason only that they are in restraint of trade, unlawful so as—

(a)to make any member of the association liable to criminal proceedings for conspiracy or otherwise, or

(b)to make any agreement or trust void or voidable.

(2)No rule of an unincorporated employers' association or, so far as it relates to the regulation of relations between employers and workers or trade unions, of an employers' association which is a body corporate, is unlawful or unenforceable by reason only that it is in restraint of trade.

129Property of unincorporated employers' associations, &c

(1)The following provisions of Chapter II of Part I of this Act apply to an unincorporated employers' association as in relation to a trade union—

(a)section 12(1) and (2) (property to be vested in trustees),

(b)section 13 (vesting of property in new trustees), and

(c)section 14 (transfer of securities held in trust for trade union).

(2)In sections 13 and 14 as they apply by virtue of subsection (1) the reference to entry in the list of trade unions shall be construed as a reference to entry in the list of employers' associations.

(3)Section 19 (application of certain provisions relating to industrial assurance or friendly societies) applies to any employers' association as in relation to a trade union.

130Restriction on enforcement of awards against certain property

(1)Where in any proceedings an amount is awarded by way of damages, costs or expenses—

(a)against an employers' association,

(b)against trustees in whom property is vested in trust for an employers' association, in their capacity as such (and otherwise than in respect of a breach of trust on their part), or

(c)against members or officials of an employers' association on behalf of themselves and all of the members of the association,

no part of that amount is recoverable by enforcement against any protected property.

(2)The following is protected property—

(a)property belonging to the trustees otherwise than in their capacity as such;

(b)property belonging to any member of the association otherwise than jointly or in common with the other members;

(c)property belonging to an official of the association who is neither a member nor a trustee.

Administration of employers' associations

131Administrative provisions applying to employers' associations

(1)The following provisions of Chapter III of Part I of this Act apply to an employers' association as in relation to a trade union—

  • section 27 (duty to supply copy of rules),

  • section 28 (duty to keep accounting records),

  • sections 32 to 37 (annual return, accounts and audit),

  • sections 38 to 42 (members' superannuation schemes),

  • section 43(1) (exemption for newly-formed organisations),

  • section 44(1),(2) and (4) (discharge of duties in case of organisation having branches or sections), and

  • section 45 (offences).

(2)Sections 33 to 35 (appointment and removal of auditors) do not apply to an employers' association which is registered as a company under the [1985 c. 6.] Companies Act 1985; and sections 36 and 37 (rights and duties of auditors) apply to the auditors appointed by such an association under Chapter V of Part XI of that Act.

Application of funds for political objects

132Application of funds for political objects

The provisions of Chapter VI of Part I of this Act (application of funds for political objects) apply to an unincorporated employers' association as in relation to a trade union.

Amalgamations and similar matters

133Amalgamations and transfers of engagements

The provisions of Chapter VII of Part I of this Act (amalgamations and similar matters), with the exception of section 107 (change of name: see section 134 below), apply to unincorporated employers' associations as in relation to trade unions.

134Change of name of employers' association

(1)An unincorporated employers' association may change its name by any method expressly provided for by its rules or, if its rules do not expressly provide for a method of doing so, by adopting in accordance with its rules an alteration of the provision in them which gives the association its name.

(2)If the name of an employers' association, whether incorporated or unincorporated, is entered in the list of employers' associations a change of name shall not take effect until approved by the Certification Officer.

(3)The Certification Officer shall not approve a change of name if it appears to him that the proposed new name—

(a)is the same as one entered in the list as the name of another employers' association, or

(b)is the same as one entered in the list of trade unions kept under Part I of this Act,

or is a name so nearly resembling such a name as to be likely to deceive the public.

(4)A change of name by an unincorporated employers' association does not affect any right or obligation of the association or any of its members; and any pending legal proceedings may be continued by or against the association, the trustees of the association or any other officer of the association who can sue or be sued on its behalf notwithstanding its change of name.

(5)The power conferred by section 108 (power to make regulations for carrying provisions into effect) applies in relation to this section as in relation to a provision of Chapter VII of Part I.

General

135Federated employers' associations

(1)In this section a “federated employers' association” means a employers' association which consists wholly or mainly of constituent or affiliated organisations, or representatives or such organisations, as described in paragraph (b) of the definition of “employers' association” in section 122.

(2)The provisions of Part I applied by this Part to employers' associations apply to federated employers' associations subject to the following exceptions and adaptations.

(3)The following provisions of Chapter III of Part I (administration) do not apply to a federated employers' association which consists wholly or mainly of representatives of constituent or affiliated organisations—

(a)section 27 (duty to supply copy of rules),

(b)section 28 (duty to keep accounting records),

(c)sections 32 to 37 (annual return, accounts and audit), and

(d)sections 38 to 42 (members' superannuation schemes).

(4)The provisions of Chapter VI of Part I (application of funds for political objects) apply to a employers' association which is in whole or part an association or combination of other associations as if the individual members of the component associations were members of that association and not of the component associations.

But nothing in that Chapter prevents a component association from collecting contributions on behalf of the association or combination from such of its members as are not exempt from the obligation to contribute to the political fund of the association or combination.

136Meaning of “officer” of employers' association

In this Act “officer”, in relation to an employers' association, includes—

(a)any member of the governing body of the association, and

(b)any trustee of any fund applicable for the purposes of the association.

Part IIIRights in relation to union membership and activities

Access to employment

137Refusal of employment on grounds related to union membership

(1)It is unlawful to refuse a person employment—

(a)because he is, or is not, a member of a trade union, or

(b)because he is unwilling to accept a requirement—

(i)to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

(ii)to make payments or suffer deductions in the event of his not being a member of a trade union.

(2)A person who is thus unlawfully refused employment has a right of complaint to an industrial tribunal.

(3)Where an advertisement is published which indicates, or might reasonably be understood as indicating—

(a)that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or

(b)that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to employment to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.

(4)Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.

(5)A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—

(a)refuses or deliberately omits to entertain and process his application or enquiry, or

(b)causes him to withdraw or cease to pursue his application or enquiry, or

(c)refuses or deliberately omits to offer him employment of that description, or

(d)makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or

(e)makes him an offer of such employment but withdraws it or causes him not to accept it.

(6)Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.

(7)Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in this section applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union.

For this purpose an “office” means any position—

(a)by virtue of which the holder is an official of the union, or

(b)to which Chapter IV of Part I applies (duty to hold elections).

(8)The provisions of this section apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

138Refusal of service of employment agency on grounds related to union membership

(1)It is unlawful for an employment agency to refuse a person any of its services—

(a)because he is, or is not, a member of a trade union, or

(b)because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.

(2)A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an industrial tribunal.

(3)Where an advertisement is published which indicates, or might reasonably be understood as indicating—

(a)that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or

(b)that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to a service to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.

(4)A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—

(a)refuses or deliberately omits to make the service available to him, or

(b)causes him not to avail himself of the service or to cease to avail himself of it, or

(c)does not provide the same service, on the same terms, as is provided to others.

(5)Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

139Time limit for proceedings

(1)An industrial tribunal shall not consider a complaint under section 137 or 138 unless it is presented to the tribunal—

(a)before the end of the period of three months beginning with the date of the conduct to which the complaint relates, 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 the tribunal considers reasonable.

(2)The date of the conduct to which a complaint under section 137 relates shall be taken to be—

(a)in the case of an actual refusal, the date of the refusal;

(b)in the case of a deliberate omission—

(i)to entertain and process the complainant’s application or enquiry, or

(ii)to offer employment,

the end of the period within which it was reasonable to expect the employer to act;

(c)in the case of conduct causing the complainant to withdraw or cease to pursue his application or enquiry, the date of that conduct;

(d)in a case where an offer was made but withdrawn, the date when it was withdrawn;

(e)in any other case where an offer was made but not accepted, the date on which it was made.

(3)The date of the conduct to which a complaint under section 138 relates shall be taken to be—

(a)in the case of an actual refusal, the date of the refusal;

(b)in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect the employment agency to act;

(c)in the case of conduct causing the complainant not to avail himself of a service or to cease to avail himself of it, the date of that conduct;

(d)in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact provided was provided.

140Remedies

(1)Where the industrial tribunal finds that a complaint under section 137 or 138 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable—

(a)an order requiring the respondent to pay compensation to the complainant of such amount as the tribunal may determine;

(b)a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.

(2)Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.

(3)If the respondent fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one.

(4)The total amount of compensation shall not exceed the limit for the time being imposed by section 75 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (limit on compensation for unfair dismissal).

141Complaint against employer and employment agency

(1)Where a person has a right of complaint against a prospective employer and against an employment agency arising out of the same facts, he may present a complaint against either of them or against them jointly.

(2)If a complaint is brought against one only, he or the complainant may request the tribunal to join or sist the other as a party to the proceedings.

The request 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 its decision as to whether the complaint is well-founded.

(3)Where a complaint is brought against an employer and an employment agency jointly, or where it is brought against one and the other is joined or sisted as a party to the proceedings, and the tribunal—

(a)finds that the complaint is well-founded as against the employer and the agency, and

(b)makes an award of compensation,

it may order that the compensation shall be paid by the one or the other, or partly by one and partly by the other, as the tribunal may consider just and equitable in the circumstances.

142Awards against third parties

(1)If in proceedings on a complaint under section 137 or 138 either the complainant or the respondent claims that the respondent was induced to act in the manner complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, the complainant or the respondent may request the industrial tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings.

(2)The request 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 its decision as to whether the complaint is well-founded.

(3)Where a person has been so joined or sisted as a party to the proceedings and the tribunal—

(a)finds that the complaint is well-founded,

(b)makes an award of compensation, and

(c)also finds that the claim in subsection (1) above is well-founded,

it may order that the compensation shall be paid by the person joined instead of by the respondent, or partly by that person and partly by the respondent, as the tribunal may consider just and equitable in the circumstances.

(4)Where by virtue of section 141 (complaint against employer and employment agency) there is more than one respondent, the above provisions apply to either or both of them.

143Interpretation and other supplementary provisions

(1)In sections 137 to 143—

  • “advertisement” includes every form of advertisement or notice, whether to the public or not, and references to publishing an advertisement shall be construed accordingly;

  • “employment” means employment under a contract of employment, and related expressions shall be construed accordingly; and

  • “employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers, but subject to subsection (2) below.

(2)For the purposes of sections 137 to 143 as they apply to employment agencies—

(a)services other than those mentioned in the definition of “employment agency” above shall be disregarded, and

(b)a trade union shall not be regarded as an employment agency by reason of services provided by it only for, or in relation to, its members.

(3)References in sections 137 to 143 to being or not being a member of a trade union are to being or not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.

Any such reference includes a reference to being or not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.

(4)The remedy of a person for conduct which is unlawful by virtue of section 137 or 138 is by way of a complaint to an industrial tribunal in accordance with this Part, and not otherwise.

No other legal liability arises by reason that conduct is unlawful by virtue of either of those sections.

Contracts for supply of goods or services

144Union membership requirement in contract for goods or services void

A term or condition of a contract for the supply of goods or services is void in so far as it purports to require that the whole, or some part, of the work done for the purposes of the contract is done only by persons who are, or are not, members of trade unions or of a particular trade union.

145Refusal to deal on union membership grounds prohibited

(1)A person shall not refuse to deal with a supplier or prospective supplier of goods or services on union membership grounds. “Refuse to deal” and “union membership grounds” shall be construed as follows.

(2)A person refuses to deal with a person if, where he maintains (in whatever form) a list of approved suppliers of goods or services, or of persons from whom tenders for the supply of goods or services may be invited, he fails to include the name of that person in that list.

He does so on union membership grounds if the ground, or one of the grounds, for failing to include his name is that if that person were to enter into a contract with him for the supply of goods or services, work to be done for the purposes of the contract would, or would be likely to, be done by persons who were, or who were not, members of trade unions or of a particular trade union.

(3)A person refuses to deal with a person if, in relation to a proposed contract for the supply of goods or services—

(a)he excludes that person from the group of persons from whom tenders for the supply of the goods or services are invited, or

(b)he fails to permit that person to submit such a tender, or

(c)he otherwise determines not to enter into a contract with that person for the supply of the goods or services.

He does so on union membership grounds if the ground, or one of the grounds, on which he does so is that if the proposed contract were entered into with that person, work to be done for the purposes of the contract would, or would be likely to, be done by persons who were, or who were not, members of trade unions or of a particular trade union.

(4)A person refuses to deal with a person if he terminates a contract with him for the supply of goods or services.

He does so on union membership grounds if the ground, or one of the grounds, on which he does so is that work done, or to be done, for the purposes of the contract has been, or is likely to be, done by persons who are or are not members of trade unions or of a particular trade union.

(5)The obligation to comply with this section is a duty owed to the person with whom there is a refusal to deal and to any other person who may be adversely affected by its contravention; and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty.

Action short of dismissal

146Action short of dismissal on grounds related to union membership or activities

(1)An employee has 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,

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

(c)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.

(2)In subsection (1)(b) “an appropriate time” means—

(a)a time outside the employee’s working hours, or

(b)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 the activities of a trade union;

and for this purpose “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.

(3)An employee also has 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 not being 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.

(4)For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being 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 action short of dismissal taken against him for the purpose of enforcing a requirement of a kind mentioned in that subsection.

(5)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 this section.

147Time limit for proceedings

An industrial tribunal shall not consider a complaint under section 146 unless it is presented—

(a)before the end of the period of three months beginning with the date of the action to which the complaint relates or, where that action is part of a series of similar actions, the last of those actions, 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.

148Consideration of complaint

(1)On a complaint under section 146 it shall be for the employer to show the purpose for which action was taken against the complainant.

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

149Remedies

(1)Where the industrial tribunal finds that a complaint under section 146 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant in respect of the action 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 sustained by the complainant which is attributable to the action which infringed his right.

(3)The 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.

(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)In determining the amount of compensation to be awarded no account shall be taken of any pressure which was exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(6)Where the tribunal finds that the action 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.

150Awards against third parties

(1)If in proceedings on a complaint under section 146—

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

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

(2)The request 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 that the complaint is well-founded.

(3)Where a person has been so joined or sisted as a party to proceedings and the tribunal—

(a)makes an award of compensation, and

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

it may order that the compensation shall be paid by the person joined instead of by the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable in the circumstances.

151Interpretation and other supplementary provisions

(1)References in sections 146 to 150 to being, becoming or ceasing to remain a member of a trade union 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.

(2)The remedy of an employee for infringement of the right conferred on him by section 146 is by way of a complaint to an industrial tribunal in accordance with this Part, and not otherwise.

Dismissal

152Dismissal on grounds related to union membership or activities

(1)For purposes of Part V of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

(a)was, or proposed to become, a member of an independent trade union, or

(b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or

(c)was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member.

(2)In subsection (1)(b) “an appropriate time” means—

(a)a time outside the employee’s working hours, or

(b)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 the activities of a trade union;

and for this purpose “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.

(3)Where the reason, or one of the reasons, for the dismissal was—

(a)the employee’s refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being 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, or

(b)his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment,

the reason shall be treated as falling within subsection (1)(c).

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

153Selection for redundancy on grounds related to union membership or activities

Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown—

(a)that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and

(b)that the reason (or, if more than one, the principal reason) why he was selected for dismissal was one of those specified in section 152(1),

the dismissal shall be regarded as unfair for the purposes of Part V of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (unfair dismissal).

154Exclusion of requirement as to qualifying period, &c

Sections 64 and 64A of the Employment Protection (Consolidation) Act 1978 (qualifying period and upper age limit for unfair dismissal protection) do not apply to the dismissal of an employee if it is shown that the reason or principal reason for the dismissal was one of those specified in section 152(1).

155Matters to be disregarded in assessing contributory fault

(1)Where an industrial tribunal makes an award of compensation for unfair dismissal in a case where the dismissal is unfair by virtue of section 152 or 153, the tribunal shall disregard, in considering whether it would be just and equitable to reduce, or further reduce, the amount of any part of the award, any such conduct or action of the complainant as is specified below.

(2)Conduct or action of the complainant shall be disregarded in so far as it constitutes a breach or proposed breach of a requirement—

(a)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,

(b)to cease to be, or refrain from becoming, a member of any trade union or of a particular trade union or of one of a number of particular trade unions, or

(c)not to take part in the activities of any trade union or of a particular trade union or of one of a number of particular trade unions.

For the purposes of this subsection a requirement means a requirement imposed on the complainant by or under an arrangement or contract of employment or other agreement.

(3)Conduct or action of the complainant shall be disregarded in so far as it constitutes a refusal, or proposed refusal, to comply with a requirement of a kind mentioned in section 152(3)(a) (payments in lieu of membership) or an objection, or proposed, objection, (however expressed) to the operation of a provision of a kind mentioned in section 152(3)(b) (deductions in lieu of membership).

156Minimum basic award

(1)Where a dismissal is unfair by virtue of section 152(1) or 153, the amount of the basic award of compensation, before any reduction is made under subsection (7A), (7B) or (9) of section 73 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978, shall be not less than £2,700.

(2)But where the dismissal is unfair by virtue of section 153, subsection (7B) of that section (reduction for contributory fault) applies in relation to so much of the basic award as is payable because of subsection (1) above.

157Special award of compensation

(1)Where an industrial tribunal makes an award of compensation for unfair dismissal in a case where the dismissal is unfair by virtue of section 152(1) or 153, then, unless—

(a)the complainant does not request the tribunal to make an order for reinstatement or re-engagement, or

(b)the case falls within section 73(2) of the Employment Protection (Consolidation) Act 1978 (cases where employer takes requisite steps to renew employment or re-engage employee),

the award shall include a special award calculated in accordance with section 158.

(2)Section 71(2)(b) of the Employment Protection (Consolidation) Act 1978 (additional award of compensation in case of failure to comply with an order for reinstatement or re-engagement) does not apply in a case where the dismissal is unfair by virtue of section 152(1) or 153.

158Amount of special award

(1)Subject to the following provisions of this section, the amount of the special award shall be one week’s pay multiplied by 104, or £13,400, whichever is the greater, but shall not exceed £26,800.

(2)Where the award of compensation is made under section 71(2)(a) of the Employment Protection (Consolidation) Act 1978 (compensation where employee not reinstated or re-engaged in accordance with order) then, unless the employer satisfies the tribunal that it was not practicable to comply with the order for reinstatement or re-engagement, the amount of the special award shall be increased to one week’s pay multiplied by 156, or £20,100 whichever is the greater.

(3)In a case where the amount of the basic award is reduced under section 73(5) of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (reduction where complainant aged over 64), the amount of the special award shall be reduced by the same fraction.

(4)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

(5)Where the tribunal finds that the complainant has unreasonably—

(a)prevented an order for reinstatement or re-engagement from being complied with, or

(b)refused an offer by the employer (made otherwise than in compliance with such an order) which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed,

the tribunal shall reduce or further reduce the amount of the special award to such extent as it considers just and equitable having regard to that finding.

(6)Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining for the purposes of subsection (2) whether it was practicable to comply with an order for reinstatement or re-enagement unless the employer shows that it was not practicable for him to arrange for the complainant’s work to be done without engaging a permanent replacement.

159Power to increase sums by order

(1)The Secretary of State may by order made by statutory instrument increase—

(a)the sum mentioned in section 156(1) (minimum basic award), or

(b)any of the sums specified in section 158(1) or (2) (limits on amount of special award).

(2)The order may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.

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

160Awards against third parties

(1)If in proceedings before an industrial tribunal on a complaint of unfair dismissal either the employer or the complainant claims—

(a)that the employer was induced to dismiss the complainant 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, and

(b)that the pressure was exercised because the complainant was not a member of any trade union or of a particular trade union or of one of a number of particular trade unions,

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

(2)The request shall be granted if it is made before the hearing of the complaint begins, but may be refused after that time; and no such request may be made after the tribunal has made an award of compensation for unfair dismissal or an order for reinstatement or re-engagement.

(3)Where a person has been so joined or sisted as a party to the proceedings and the tribunal—

(a)makes an award of compensation for unfair dismissal, and

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

the tribunal may order that the compensation shall be paid by that person instead of the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable.

161Application for interim relief

(1)An employee who presents a complaint of unfair dismissal alleging that the dismissal is unfair by virtue of section 152 may apply to the tribunal for interim relief.

(2)The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).

(3)In a case where the employee relies on section 152(1)(a) or (b) the tribunal shall not entertain an application for interim relief unless before the end of that period there is also so presented a certificate in writing signed by an authorised official of the independent trade union of which the employee was or proposed to become a member stating—

(a)that on the date of the dismissal the employee was or proposed to become a member of the union, and

(b)that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.

(4)An “authorised official” means an official of the trade union authorised by it to act for the purposes of this section.

(5)A document purporting to be an authorisation of an official by a trade union to act for the purposes of this section and to be signed on behalf of the union shall be taken to be such an authorisation unless the contrary is proved; and a document purporting to be a certificate signed by such an official shall be taken to be signed by him unless the contrary is proved.

(6)For the purposes of subsection (3) the date of dismissal shall be taken to be—

(a)where the employee’s contract of employment was terminated by notice (whether given by his employer or by him), the date on which the employer’s notice was given, and

(b)in any other case, the effective date of termination.

162Application to be promptly determined

(1)An industrial tribunal shall determine an application for interim relief as soon as practicable after receiving the application and, where appropriate, the requisite certificate.

(2)The tribunal shall give to the employer, not later than seven days before the hearing, a copy of the application and of any certificate, together with notice of the date, time and place of the hearing.

(3)If a request under section 160 (awards against third parties) is made three days or more before the date of the hearing, the tribunal shall also give to the person to whom the request relates, as soon as reasonably practicable, a copy of the application and of any certificate, together with notice of the date, time and place of the hearing.

(4)The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

163Procedure on hearing of application and making of order

(1)If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply.

(2)The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—

(a)to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or

(b)if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

(3)For this purpose “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means as regards seniority, pension rights and other similar rights that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.

(4)If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.

(5)If the employer states that he is willing to re-engage the employee in another job, and specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions; and—

(a)if the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect, and

(b)if he is not, then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and otherwise the tribunal shall make no order.

(6)If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee’s contract of employment.

164Order for continuation of contract of employment

(1)An order under section 163 for the continuation of a contract of employment is an order that the contract of employment continue in force—

(a)for the purposes of pay or any benefit derived from the employment, seniority, pension rights and other similar matters, and

(b)for the purpose of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.

(2)Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.

(3)Subject as follows, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—

(a)in the case of payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and

(b)in the case of a payment for any past period, within such time as may be specified in the order.

(4)If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.

(5)Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period or part of any such period shall go towards discharging the employer’s liability in respect of that period under subsection (2); and conversely any payment under that subsection in respect of a period shall go towards discharging any liability of the employer under, or in respect of the breach of, the contract of employment in respect of that period.

(6)If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.

(7)For the purposes of this section the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed.

165Application for variation or revocation of order

(1)At any time between the making of an order under section 163 and the determination or settlement of the complaint, the employer or the employee may apply to an industrial tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.

(2)Sections 161 to 163 apply in relation to such an application as in relation to an original application for interim relief, except that—

(a)no certificate need be presented to the tribunal under section 161(3), and

(b)in the case of an application by the employer, section 162(2) (service of copy of application and notice of hearing) has effect with the substitution of a reference to the employee for the reference to the employer.

166Consequences of failure to comply with order

(1)If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under section 163(4) or (5)(a), the tribunal shall—

(a)make an order for the continuation of the employee’s contract of employment, and

(b)order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard—

(i)to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and

(ii)to any loss suffered by the employee in consequence of the non-compliance.

(2)Section 164 applies to an order under subsection (1)(a) as in relation to an order under section 163.

(3)If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment, the following provisions apply.

(4)If the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the tribunal shall determine the amount owed by the employer on the date of the determination.

If on that date the tribunal also determines the employee’s complaint that he has been unfairly dismissed, it shall specify that amount separately from any other sum awarded to the employee.

(5)In any other case, the tribunal shall order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance.

167Interpretation and other supplementary provisions

(1)Part V of the Employment Protection (Consolidation) Act 1978 (unfair dismissal) has effect subject to the provisions of sections 152 to 166 above.

(2)Those sections shall be construed as one with that Part; and in those sections—

  • “complaint of unfair dismissal” means a complaint under section 67 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978;

  • “award of compensation for unfair dismissal” means an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) of that Act; and

  • “order for reinstatement or re-engagement” means an order for reinstatement or re-engagement under section 69 of that Act.

(3)Nothing in those sections shall be construed as conferring a right to complain of unfair dismissal from employment of a description to which that Part does not otherwise apply.

Time off for trade union duties and activities

168Time off for carrying out trade union duties

(1)An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out any duties of his, as such an official, concerned with—

(a)negotiations with the employer related to or connected with matters falling within section 178(2) (collective bargaining) in relation to which the trade union is recognised by the employer, or

(b)the performance on behalf of employees of the employer of functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union.

(2)He shall also permit such an employee to take time off during his working hours for the purpose of undergoing training in aspects of industrial relations—

(a)relevant to the carrying out of such duties as are mentioned in subsection (1), and

(b)approved by the Trades Union Congress or by the independent trade union of which he is an official.

(3)The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.

(4)An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section.

169Payment for time off under section 168

(1)An employer who permits an employee to take time off under section 168 shall pay him for the time taken off pursuant to the permission.

(2)Where the employee’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he shall be paid as if he had worked at that work for the whole of that time.

(3)Where the employee’s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he shall be paid an amount calculated by reference to the average hourly earnings for that work.

The average hourly earnings shall be those of the employee concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.

(4)A right to be paid an amount under this section does not affect any right of an employee in relation to remuneration under his contract of employment, but—

(a)any contractual remuneration paid to an employee in respect of a period of time off to which this section applies shall go towards discharging any liability of the employer under this section in respect of that period, and

(b)any payment under this section in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

(5)An employee may present a complaint to an industrial tribunal that his employer has failed to pay him in accordance with this section.

170Time off for trade union activities

(1)An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of taking part in—

(a)any activities of the union, and

(b)any activities in relation to which the employee is acting as a representative of the union.

(2)The right conferred by subsection (1) does not extend to activities which themselves consist of industrial action, whether or not in contemplation or furtherance of a trade dispute.

(3)The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.

(4)An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section.

171Time limit for proceedings

An industrial tribunal shall not consider a complaint under section 168, 169 or 170 unless it is presented to the tribunal—

(a)within three months of the date when the failure occurred, or

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

172Remedies

(1)Where the tribunal finds a complaint under section 168 or 170 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee.

(2)The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.

(3)Where on a complaint under section 169 the tribunal finds that the employer has failed to pay the employee in accordance with that section, it shall order him to pay the amount which it finds to be due.

173Intepretation and other supplementary provisions

(1)For the purposes of sections 168 and 170 the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work.

(2)The remedy of an employee for infringement of the rights conferred on him by section 168, 169 or 170 is by way of complaint to an industrial tribunal in accordance with this Part, and not otherwise.

Exclusion or expulsion from trade union where employment subject to union membership agreement

174Right not to be unreasonably excluded or expelled from union

(1)A person who is, or is seeking to be, in employment with respect to which it is the practice, in accordance with a union membership agreement, for the employee to belong to a specified trade union, or one of a number of specified trade unions, has the right—

(a)not to have an application for membership of a specified trade union unreasonably refused, and

(b)not to be unreasonably expelled from a specified union.

(2)A “union membership agreement” means an agreement or arrangement relating to employees of an identifiable class which—

(a)is made by or on behalf of, or otherwise exists between one or more independent trade unions and one or more employers or employers' associations, and

(b)has the effect in practice of requiring the employees of the class to which it relates (whether or not there is a condition to that effect in their contract of employment) to be or become members of the union or one of the unions which is or are parties to the agreement or arrangement or of another specified independent trade union.

Employees shall be treated as belonging to the same class if they have been identified as such by the parties to the agreement, and they may be so identified by reference to any characteristics or circumstances whatever.

(3)A trade union shall be treated as “specified” for the purposes of, or in relation to, a union membership agreement if it is specified in the agreement or is accepted by the parties to the agreement as being the equivalent of a union so specified.

(4)For the purposes of this section—

(a)an application for membership of a trade union which is neither granted nor rejected before the end of the period within which it might reasonably have been expected to be granted if it was to be granted, shall be treated as having been refused on the last day of that period, and

(b)a person who under the rules of a trade union ceases to be a member of the union on the happening of an event specified in the rules shall be treated as having been expelled from the union.

(5)A person who claims that an application by him for membership of a trade union has been unreasonably refused, or that he has been unreasonably expelled from a trade union, in contravention of this section, may present a complaint to an industrial tribunal.

(6)The question whether the trade union acted reasonably or unreasonably shall be determined in accordance with equity and the substantial merits of the case.

In particular, a union shall not be regarded as having acted reasonably only because it has acted in accordance with the requirements of its rules or unreasonably only because it has acted in contravention of them.

175Time limit for proceedings

An industrial tribunal shall not entertain a complaint under section 174 unless it is presented to the tribunal—

(a)before the end of the period of six months beginning with the date of the refusal or expulsion, 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 the tribunal considers reasonable.

176Remedies

(1)Where the industrial tribunal finds a complaint under section 174 is well-founded, it shall make a declaration to that effect.

(2)A person whose complaint has been declared to be well-founded may make an application for an award of compensation to be paid to him by the union.

The application shall be made to an industrial tribunal if when it is made the applicant has been admitted or re-admitted to membership of the union, and otherwise to the Employment Appeal Tribunal.

(3)The application shall not be entertained if made—

(a)before the end of the period of four weeks beginning with the date of the declaration, or

(b)after the end of the period of six months beginning with that date.

(4)The amount of compensation awarded by an industrial tribunal shall be such as it considers appropriate to compensate the applicant for the loss sustained by him in consequence of the refusal or expulsion complained of.

The amount of the compensation shall not exceed the aggregate of—

(a)an amount equal to thirty times the limit for the time being imposed by paragraph 8(1)(b) of Schedule 14 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (maximum amount of a week’s pay for basic award in unfair dismissal cases), and

(b)an amount equal to the limit for the time being imposed by section 75 of that Act (maximum compensatory award in such cases).

(5)The amount of compensation awarded by the Employment Appeal Tribunal shall be such as it considers just and equitable in all the circumstances.

The amount of the compensation shall not exceed the aggregate of—

(a)the aggregate amount mentioned in subsection (4), and

(b)an amount equal to fifty-two times the limit for the time being imposed by paragraph 8(1)(a) of Schedule 14 to the Employment Protection (Consolidation) Act 1978 (maximum amount of a week’s pay for additional award of compensation in unfair dismissal cases),

and shall not be less than the amount for the time being specified in section 156(1) (minimum basic award).

(6)In determining the amount of compensation to be awarded, the industrial tribunal or Employment Appeal 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.

(7)Where the industrial tribunal or Employment Appeal Tribunal finds that the refusal or expulsion complained of was to any extent caused or contributed to by action of the applicant, it shall reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding.

(8)In determining the amount of compensation to be awarded, any reduction or increase under subsection (4) or (5) shall be made before—

(a)any reduction by virtue of subsection (6) or (7), or

(b)any reduction on account of sums already paid by the union by way of compensation in respect of the subject matter of the application;

and accordingly, where the case so required the reductions mentioned in paragraphs (a) and (b) shall be made to the maximum or, as the case may be, minimum award under subsection (4) or (5).

177Interpretation and other supplementary provisions

(1)References in section 174 to a trade union include a branch or section of a trade union.

(2)The remedy of a person for infringement of the rights conferred by section 174 is by way of a complaint to an industrial tribunal in accordance with this Part, and not otherwise.

(3)Those rights are in addition to, and not in substitution for, any right existing apart from that section.

Part IVIndustrial Relations

Chapter ICollective bargaining

Introductory

178Collective agreements and collective bargaining

(1)In this Act “collective agreement” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations and relating to one or more of the matters specified below; and “collective bargaining” means negotiations relating to or connected with one or more of those matters.

(2)The matters referred to above are—

(a)terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b)engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c)allocation of work or the duties of employment between workers or groups of workers;

(d)matters of discipline;

(e)a worker’s membership or non-membership of a trade union;

(f)facilities for officials of trade unions; and

(g)machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(3)In this Act “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “recognised” and other related expressions shall be construed accordingly.

Enforceability of collective agreements

179Whether agreement intended to be a legally enforceable contract

(1)A collective agreement shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement—

(a)is in writing, and

(b)contains a provision which (however expressed) states that the parties intend that the agreement shall be a legally enforceable contract.

(2)A collective agreement which does satisfy those conditions shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract.

(3)If a collective agreement is in writing and contains a provision which (however expressed) states that the parties intend that one or more parts of the agreement specified in that provision, but not the whole of the agreement, shall be a legally enforceable contract, then—

(a)the specified part or parts shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract, and

(b)the remainder of the agreement shall be conclusively presumed not to have been intended by the parties to be such a contract.

(4)A part of a collective agreement which by virtue of subsection (3)(b) is not a legally enforceable contract may be referred to for the purpose of interpreting a part of the agreement which is such a contract.

180Effect of provisions restricting right to take industrial action

(1)Any terms of a collective agreement which prohibit or restrict the right of workers to engage in a strike or other industrial action, or have the effect of prohibiting or restricting that right, shall not form part of any contract between a worker and the person for whom he works unless the following conditions are met.

(2)The conditions are that the collective agreement—

(a)is in writing,

(b)contains a provision expressly stating that those terms shall or may be incorporated in such a contract,

(c)is reasonably accessible at his place of work to the worker to whom it applies and is available for him to consult during working hours, and

(d)is one where each trade union which is a party to the agreement is an independent trade union;

and that the contract with the worker expressly or impliedly incorporates those terms in the contract.

(3)The above provisions have effect notwithstanding anything in section 179 and notwithstanding any provision to the contrary in any agreement (including a collective agreement or a contract with any worker).

Disclosure of information for purposes of collective bargaining

181General duty of employers to disclose information

(1)An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.

In this section and sections 182 to 185 “representative”, in relation to a trade union, means an official or other person authorised by the union to carry on such collective bargaining.

(2)The information to be disclosed is all information relating to the employer’s undertaking which is in his possession, or that of an associated employer, and is information—

(a)without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and

(b)which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.

(3)A request by trade union representatives for information under this section shall, if the employer so requests, be in writing or be confirmed in writing.

(4)In determining what would be in accordance with good industrial relations practice, regard shall be had to the relevant provisions of any Code of Practice issued by ACAS, but not so as to exclude any other evidence of what that practice is.

(5)Information which an employer is required by virtue of this section to disclose to trade union representatives shall, if they so request, be disclosed or confirmed in writing.

182Restrictions on general duty

(1)An employer is not required by section 181 to disclose information—

(a)the disclosure of which would be against the interests of national security, or

(b)which he could not disclose without contravening a prohibition imposed by or under an enactment, or

(c)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

(d)which relates specifically to an individual (unless that individual has consented to its being disclosed), or

(e)the disclosure of which would cause substantial injury to his undertaking for reasons other than its effect on collective bargaining, or

(f)obtained by him for the purpose of bringing, prosecuting or defending any legal proceedings.

In formulating the provisions of any Code of Practice relating to the disclosure of information, ACAS shall have regard to the provisions of this subsection.

(2)In the performance of his duty under section 181 an employer is not required—

(a)to produce, or allow inspection of, any document (other than a document prepared for the purpose of conveying or confirming the information) or to make a copy of or extracts from any document, or

(b)to compile or assemble any information where the compilation or assembly would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

183Complaint of failure to disclose information

(1)A trade union may present a complaint to the Central Arbitration Committee that an employer has failed—

(a)to disclose to representatives of the union information which he was required to disclose to them by section 181, or

(b)to confirm such information in writing in accordance with that section.

The complaint must be in writing and in such form as the Committee may require.

(2)If on receipt of a complaint the Committee is of the opinion that it is reasonably likely to be settled by conciliation, it shall refer the complaint to ACAS and shall notify the trade union and employer accordingly, whereupon ACAS shall seek to promote a settlement of the matter.

If a complaint so referred is not settled or withdrawn and ACAS is of the opinion that further attempts at conciliation are unlikely to result in a settlement, it shall inform the Committee of its opinion.

(3)If the complaint is not referred to ACAS or, if it is so referred, on ACAS informing the Committee of its opinion that further attempts at conciliation are unlikely to result in a settlement, the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether it finds the complaint well-founded, wholly or in part, and stating the reasons for its findings.

(4)On the hearing of a complaint any person who the Committee considers has a proper interest in the complaint is entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned does not affect the validity of any decision of the Committee in those proceedings.

(5)If the Committee finds the complaint wholly or partly well-founded, the declaration shall specify—

(a)the information in respect of which the Committee finds that the complaint is well founded,

(b)the date (or, if more than one, the earliest date) on which the employer refused or failed to disclose or, as the case may be, to confirm in writing, any of the information in question, and

(c)a period (not being less than one week from the date of the declaration) within which the employer ought to disclose that information, or, as the case may be, to confirm it in writing.

(6)On a hearing of a complaint under this section a certificate signed by or on behalf of a Minister of the Crown and certifying that a particular request for information could not be complied with except by disclosing information the disclosure of which would have been against the interests of national security shall be conclusive evidence of that fact.

A document which purports to be such a certificate shall be taken to be such a certificate unless the contrary is proved.

184Further complaint of failure to comply with declaration

(1)After the expiration of the period specified in a declaration under section 183(5)(c) the trade union may present a further complaint to the Central Arbitration Committee that the employer has failed to disclose or, as the case may be, to confirm in writing to representatives of the union information specified in the declaration.

The complaint must be in writing and in such form as the Committee may require.

(2)On receipt of a further complaint the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether they find the complaint well-founded, wholly or in part, and stating the reasons for their finding.

(3)On the hearing of a further complaint any person who the Committee consider has a proper interest in that complaint shall be entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned shall not affect the validity of any decision of the Committee in those proceedings.

(4)If the Committee find the further complaint wholly or partly well-founded the declaration shall specify the information in respect of which the Committee find that that complaint is well-founded.

185Determination of claim and award

(1)On or after presenting a further complaint under section 184 the trade union may present to the Central Arbitration Committee a claim, in writing, in respect of one or more descriptions of employees (but not workers who are not employees) specified in the claim that their contracts should include the terms and conditions specified in the claim.

(2)The right to present a claim expires if the employer discloses or, as the case may be, confirms in writing, to representatives of the trade union the information specified in the declaration under section 183(5) or 184(4); and a claim presented shall be treated as withdrawn if the employer does so before the Committee make an award on the claim.

(3)If the Committee find, or have found, the further complaint wholly or partly well-founded, they may, after hearing the parties, make an award that in respect of any description of employees specified in the claim the employer shall, from a specified date, observe either—

(a)the terms and conditions specified in the claim; or

(b)other terms and conditions which the Committee consider appropriate.

The date specified may be earlier than that on which the award is made but not earlier than the date specified in accordance with section 183(5)(b) in the declaration made by the Committee on the original complaint.

(4)An award shall be made only in respect of a description of employees, and shall comprise only terms and conditions relating to matters in respect of which the trade union making the claim is recognised by the employer.

(5)Terms and conditions which by an award under this section an employer is required to observe in respect of an employee have effect as part of the employee’s contract of employment as from the date specified in the award, except in so far as they are superseded or varied—

(a)by a subsequent award under this section,

(b)by a collective agreement between the employer and the union for the time being representing that employee, or

(c)by express or implied agreement between the employee and the employer so far as that agreement effects an improvement in terms and conditions having effect by virtue of the award.

(6)Where—

(a)by virtue of any enactment, other than one contained in this section, providing for minimum remuneration or terms and conditions, a contract of employment is to have effect as modified by an award, order or other instrument under that enactment, and

(b)by virtue of an award under this section any terms and conditions are to have effect as part of that contract,

that contract shall have effect in accordance with that award, order or other instrument or in accordance with the award under this section, whichever is the more favourable, in respect of any terms and conditions of that contract, to the employee.

(7)No award may be made under this section in respect of terms and conditions of employment which are fixed by virtue of any enactment.

Prohibition of union recognition requirements

186Recognition requirement in contract for goods or services void

A term or condition of a contract for the supply of goods or services is void in so far as it purports to require a party to the contract—

(a)to recognise one or more trade unions (whether or not named in the contract) for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

(b)to negotiate or consult with, or with an official of, one or more trade unions (whether or not so named).

187Refusal to deal on grounds of union exclusion prohibited

(1)A person shall not refuse to deal with a supplier or prospective supplier of goods or services if the ground or one of the grounds for his action is that the person against whom it is taken does not, or is not likely to—

(a)recognise one or more trade unions for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

(b)negotiate or consult with, or with an official of, one or more trade unions.

(2)A person refuses to deal with a person if—

(a)where he maintains (in whatever form) a list of approved suppliers of goods or services, or of persons from whom tenders for the supply of goods or services may be invited, he fails to include the name of that person in that list; or

(b)in relation to a proposed contract for the supply of goods or services—

(i)he excludes that person from the group of persons from whom tenders for the supply of the goods or services are invited, or

(ii)he fails to permit that person to submit such a tender; or

(c)he otherwise determines not to enter into a contract with that person for the supply of the goods or services.

(3)The obligation to comply with this section is a duty owed to the person with whom there is a refusal to deal and to any other person who may be adversely affected by its contravention; and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

Chapter IIProcedure for Handling Redundancies

Duty of employer to consult trade union representatives

188Duty of employer to consult trade union representatives

(1)An employer proposing to dismiss as redundant an employee of a description in respect of which an independent trade union is recognised by him shall consult representatives of the union about the dismissal in accordance with this section.

(2)The consultation must begin at the earliest opportunity, and in any event—

(a)where the employer is proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days or less, at least 90 days before the first of those dismissals takes effect;

(b)where the employer is proposing to dismiss as redundant at least 10 but less than 100 employees at one establishment within a period of 30 days or less, at least 30 days before the first of those dismissals takes effect.

(3)In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

(4)For the purposes of the consultation the employer shall disclose in writing to the trade union representatives—

(a)the reasons for his proposals,

(b)the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

(c)the total number of employees of any such description employed by the employer at the establishment in question,

(d)the proposed method of selecting the employees who may be dismissed, and

(e)the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect.

(5)That information shall be delivered to the trade union representatives, or sent by post to an address notified by them to the employer, or sent by post to the union at the address of its head or main office.

(6)In the course of the consultation the employer shall—

(a)consider any representations made by the trade union representatives, and

(b)reply to those representations and, if he rejects any of those representations, state his reasons.

(7)If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.

(8)This section does not confer any rights on a trade union or an employee except as provided by sections 189 to 192 below.

189Complaint by trade union and protective award

(1)Where an employer has dismissed as redundant, or is proposing to dismiss as redundant, one or more employees of a description in respect of which an independent trade union is recognised by him, and has not complied with the requirements of section 188, the union may present a complaint to an industrial tribunal on that ground.

(2)If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

(3)A protective award is an award in respect of one or more descriptions of employees—

(a)who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b)in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

(4)The protected period—

(a)begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

(b)is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;

but shall not exceed 90 days in a case falling within section 188(2)(a), 30 days in a case falling within section 188(2)(b), or 28 days in any other case.

(5)An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a)before the proposed dismissal takes effect, or

(b)before the end of the period of three months beginning with the date on which the dismissal takes effect, or

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

(6)If on a complaint under this section a question arises—

(a)whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or

(b)whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

it is for the employer to show that there were and that he did.

190Entitlement under protective award

(1)Where an industrial tribunal has made a protective award, every employee of a description to which the award relates is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period.

(2)The rate of remuneration payable is a week’s pay for each week of the period; and remuneration in respect of a period less than one week shall be calculated by reducing proportionately the amount of a week’s pay.

(3)Any payment made to an employee by an employer in respect of a period falling within a protected period—

(a)under the employee’s contract of employment, or

(b)by way of damages for breach of that contract,

shall go towards discharging the employer’s liability to pay remuneration under the protective award in respect of that first mentioned period.

Conversely, any payment of remuneration under a protective award in respect of any period shall go towards discharging any liability of the employer under, or in respect of any breach of, the contract of employment in respect of that period.

(4)An employee is not entitled to remuneration under a protective award in respect of a period during which he is employed by the employer unless he would be entitled to be paid by the employer in respect of that period—

(a)by virtue of his contract of employment, or

(b)by virtue of Schedule 3 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (rights of employee in period of notice),

if that period fell within the period of notice required to be given by section 49(1) of that Act.

(5)Schedule 14 to the Employment Protection (Consolidation) Act 1978 applies with respect to the calculation of a week’s pay for the purposes of this section.

The calculation date for the purposes of Part II of that Schedule is the date on which the protective award was made or, in the case of an employee who was dismissed before the date on which the protective award was made, the date which by virtue of paragraph 7(1)(k) or (l) of that Schedule is the calculation date for the purpose of computing the amount of a redundancy payment in relation to that dismissal (whether or not the employee concerned is entitled to any such payment).

(6)If an employee of a description to which a protective award relates dies during the protected period, the award has effect in his case as if the protected period ended on his death.

191Termination of employment during protected period

(1)Where the employee is employed by the employer during the protected period and—

(a)he is fairly dismissed by his employer for a reason other than redundancy, or

(b)he unreasonably terminates the contract of employment,

then, subject to the following provisions, he is not entitled to remuneration under the protective award in respect of any period during which but for that dismissal or termination he would have been employed.

(2)If an employer makes an employee an offer (whether in writing or not and whether before or after the ending of his employment under the previous contract) to renew his contract of employment, or to re-engage him under a new contract, so that the renewal or re-engagement would take effect before or during the protected period, and either—

(a)the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract, or

(b)the offer constitutes an offer of suitable employment in relation to the employee,

the following subsections have effect.

(3)If the employee unreasonably refuses the offer, he is not entitled to remuneration under the protective award in respect of a period during which but for that refusal he would have been employed.

(4)If the employee’s contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of such an offer as is referred to in subsection (2)(b), there shall be a trial period in relation to the contract as renewed, or the new contract (whether or not there has been a previous trial period under this section).

(5)The trial period begins with the ending of his employment under the previous contract and ends with the expiration of the period of four weeks beginning with the date on which the he starts work under the contract as renewed, or the new contract, or such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract.

(6)Any such agreement—

(a)shall be made between the employer and the employee or his representative before the employee starts work under the contract as renewed or, as the case may be, the new contract,

(b)shall be in writing,

(c)shall specify the date of the end of the trial period, and

(d)shall specify the terms and conditions of employment which will apply in the employee’s case after the end of that period.

(7)If during the trial period—

(a)the employee, for whatever reason, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated, or

(b)the employer, for a reason connected with or arising out of the change to the renewed, or new, employment, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated,

the employee remains entitled under the protective award unless, in a case falling within paragraph (a), he acted unreasonably in terminating or giving notice to terminate the contract.

192Complaint by employee to industrial tribunal

(1)An employee may present a complaint to an industrial tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award.

(2)An industrial tribunal shall not entertain a complaint under this section unless it is presented to the tribunal—

(a)before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or

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

(3)Where the tribunal finds a complaint under this section well-founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

(4)The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise.

Duty of employer to notify Secretary of State

193Duty of employer to notify Secretary of State of certain redundancies

(1)An employer proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days or less shall notify the Secretary of State, in writing, of his proposal at least 90 days before the first of those dismissals takes effect.

(2)An employer proposing to dismiss as redundant 10 or more employees at one establishment within a period of 30 days or less shall notify the Secretary of State, in writing, of his proposal at least 30 days before the first of those dismissals takes effect.

(3)In determining how many employees an employer is proposing to dismiss as redundant within the period mentioned in subsection (1) or (2), no account shall be taken of employees in respect of whose proposed dismissal notice has already been given to the Secretary of State.

(4)A notice under this section shall—

(a)be given to the Secretary of State by delivery to him or by sending it by post to him, at such address as the Secretary of State may direct in relation to the establishment where the employees proposed to be dismissed are employed,

(b)in a case where consultation with trade union representatives is required by section 188, identify the trade union concerned and state the date when consultation began, and

(c)be in such form and contain such particulars, in addition to those required by paragraph (b), as the Secretary of State may direct.

(5)After receiving a notice under this section from an employer the Secretary of State may by written notice require the employer to give him such further information as may be specified in the notice.

(6)Where a notice given under subsection (1) or subsection (2) relates to employees of a description in respect of which an independent trade union is recognised by the employer, the employer shall give a copy of the notice to representatives of that union.

The copy shall be delivered to them or sent by post to an address notified by them to the employer, or sent by post to the union at the address of its head or main office.

(7)If in any case there are special circumstances rendering it not reasonably practicable for the employer to comply with any of the requirements of subsections (1) to (6), he shall take all such steps towards compliance with that requirement as are reasonably practicable in the circumstances.

194Offence of failure to notify

(1)An employer who fails to give notice to the Secretary of State in accordance with section 193 commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2)Proceedings in England or Wales for such an offence shall be instituted only by or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State.

An officer so authorised may, although not of counsel or a solicitor, prosecute or conduct proceedings for such an offence before a magistrates' court.

(3)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 neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any 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.

(4)Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Supplementary provisions

195Meaning of “redundancy”

(1)In this Chapter, references to redundancy or to being redundant, in relation to an employee, are references to—

(a)the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee is or was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee is or was so employed, or

(b)the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he is or was so employed, have ceased or diminished or are expected to cease or diminish.

(2)In subsection (1)—

  • “business” includes a trade or profession and includes any activity carried on by a body of persons, whether corporate or unincorporate; and

  • “cease” means cease either permanently or temporarily and from whatever cause, and “diminish” has a corresponding meaning.

(3)For the purposes of any proceedings under this Chapter, the dismissal or proposed dismissal of an employee shall be presumed, unless the contrary is proved, to be by reason of redundancy.

196Meaning of “trade union representative”

References in this Chapter to a trade union representative, in relation to an employer, are to an official or other person authorised by the trade union to carry on collective bargaining with that employer.

197Power to vary provisions

(1)The Secretary of State may by order made by statutory instrument vary—

(a)the provisions of sections 188(2) and 193(1) (requirements as to consultation and notification), and

(b)the periods referred to at the end of section 189(4) (maximum protected period);

but no such order shall be made which has the effect of reducing to less than 30 days the periods referred to in sections 188(2) and 193(1) as the periods which must elapse before the first of the dismissals takes effect.

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

198Power to adapt provisions in case of collective agreement

(1)This section applies where there is in force a collective agreement which establishes—

(a)arrangements for providing alternative employment for employees to whom the agreement relates if they are dismissed as redundant by an employer to whom it relates, or

(b)arrangements for the handling of redundancies.

(2)On the application of all the parties to the agreement the Secretary of State may, if he is satisfied having regard to the provisions of the agreement that the arrangements are on the whole at least as favourable to those employees as the foregoing provisions of this Chapter, by order made by statutory instrument adapt, modify or exclude any of those provisions both in their application to all or any of those employees and in their application to any other employees of any such employer.

(3)The Secretary of State shall not make such an order unless the agreement—

(a)provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee to whom the agreement relates claims that any employer or other person to whom it relates has not complied with the provisions of the agreement, and

(b)provides that those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached,

or indicates that any such employee may present a complaint to an industrial tribunal that any such employer or other person has not complied with those provisions.

(4)An order under this section may confer on an industrial tribunal to whom a complaint is presented as mentioned in subsection (3) such powers and duties as the Secretary of State considers appropriate.

(5)An order under this section may be varied or revoked by a subsequent order thereunder either in pursuance of an application made by all or any of the parties to the agreement in question or without any such application.

Chapter IIICodes of Practice

Codes of Practice issued by ACAS

199Issue of Codes of Practice by ACAS

(1)ACAS may issue Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations.

(2)In particular, ACAS shall in one or more Codes of Practice provide practical guidance on the following matters—

(a)the time off to be permitted by an employer to a trade union official in accordance with section 168 (time off for carrying out trade union duties);

(b)the time off to be permitted by an employer to a trade union member in accordance with section 170 (time off for trade union activities); and

(c)the information to be disclosed by employers to trade union representatives in accordance with sections 181 and 182 (disclosure of information for purposes of collective bargaining).

(3)The guidance mentioned in subsection (2)(a) shall include guidance on the circumstances in which a trade union official is to be permitted to take time off under section 168 in respect of duties connected with industrial action; and the guidance mentioned in subsection (2)(b) shall include guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action.

(4)ACAS may from time to time revise the whole or any part of a Code of Practice issued by it and issue that revised Code.

200Procedure for issue of Code by ACAS

(1)Where ACAS proposes to issue a Code of Practice, or a revised Code, it shall prepare and publish a draft of the Code, shall consider any representations made to it about the draft and may modify the draft accordingly.

(2)If ACAS determines to proceed with the draft, it shall transmit the draft to the Secretary of State who—

(a)if he approves of it, shall lay it before both Houses of Parliament, and

(b)if he does not approve of it, shall publish details of his reasons for withholding approval.

(3)A Code containing practical guidance on any of the matters referred to in section 199(2) shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft.

(4)In any other case the following procedure applies—

(a)if, within the period of 40 days beginning with the day on which the draft is laid before Parliament, (or, if copies are laid before the two Houses on different days, with the later of the two days) either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft;

(b)if no such resolution is passed, ACAS shall issue the Code in the form of the draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(5)A Code issued in accordance with this section shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.

The order may contain such transitional provisions or savings as appear to him to be necessary or expedient.

201Consequential revision of Code issued by ACAS

(1)A Code of Practice issued by ACAS may be revised by it in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

“Subsequent statutory provisions” means provisions made by or under an Act of Parliament and coming into force after the Code was issued (whether before or after the commencement of this Act).

(2)Where ACAS proposes to revise a Code under this section, it shall transmit a draft of the revised Code to the Secretary of State who—

(a)if he approves of it, shall lay the draft before each House of Parliament, and

(b)if he does not approve of it, shall publish details of his reasons for withholding approval.

(3)If, within the period of 40 days beginning with the day on which the draft is laid before Parliament, (or, if copies are laid before the two Houses on different days, with the later of the two days) either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(4)If no such resolution is passed ACAS shall issue the Code in the form of the draft and it shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.

The order may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient.

202Revocation of Code issued by ACAS

(1)A Code of Practice issued by ACAS may, at the request of ACAS, be revoked by the Secretary of State by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

(2)If ACAS requests the Secretary of State to revoke a Code and he decides not to do so, he shall publish details of his reasons for his decision.

(3)An order shall not be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Codes of Practice issued by the Secretary of State

203Issue of Codes of Practice by the Secretary of State

(1)The Secretary of State may issue Codes of Practice containing such practical guidance as he thinks fit for the purpose—

(a)of promoting the improvement of industrial relations, or

(b)of promoting what appear to him to be to be desirable practices in relation to the conduct by trade unions of ballots and elections.

(2)The Secretary of State may from time to time revise the whole or any part of a Code of Practice issued by him and issue that revised Code.

204Procedure for issue of Code by Secretary of State

(1)When the Secretary of State proposes to issue a Code of Practice, or a revised Code, he shall after consultation with ACAS prepare and publish a draft of the Code, shall consider any representations made to him about the draft and may modify the draft accordingly.

(2)If he determines to proceed with the draft, he shall lay it before both Houses of Parliament and, if it is approved by resolution of each House, shall issue the Code in the form of the draft.

(3)A Code issued under this section shall come into effect on such day as the Secretary of State may by order appoint.

The order may contain such transitional provisions or savings as appear to him to be necessary or expedient.

(4)An order under subsection (3) shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

205Consequential revision of Code issued by Secretary of State

(1)A Code of Practice issued by the Secretary of State may be revised by him in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

“Subsequent statutory provisions” means provisions made by or under an Act of Parliament and coming into force after the Code was issued (whether before or after the commencement of this Act).

(2)Where the Secretary of State proposes to revise a Code under this section, he shall lay a draft of the revised Code before each House of Parliament.

(3)If within the period of 40 days beginning with the day on which the draft is laid before Parliament, or, if copies are laid before the two Houses on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(4)If no such resolution is passed the Secretary of State shall issue the Code in the form of the draft and it shall come into effect on such day as he may appoint by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

206Revocation of Code issued by Secretary of State

(1)A Code of Practice issued by the Secretary of State may be revoked by him by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

(2)An order shall not be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Supplementary provisions

207Effect of failure to comply with Code

(1)A failure on the part of any person to observe any provision of a Code of Practice issued under this Chapter shall not of itself render him liable to any proceedings.

(2)In any proceedings before an industrial tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

(3)In any proceedings before a court or industrial tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by the Secretary of State shall be admissible in evidence, and any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

208Provisions of earlier Code superseded by later

(1)If ACAS is of the opinion that the provisions of a Code of Practice to be issued by it under this Chapter will supersede the whole or part of a Code previously issued under this Chapter, by it or by the Secretary of State, it shall in the new Code state that on the day on which the new Code comes into effect the old Code or a specified part of it shall cease to have effect.

(2)If the Secretary of State is of the opinion that the provisions of a Code of Practice to be issued by him under this Chapter will supersede the whole or part of a Code previously issued under this Chapter by him or by ACAS, he shall in the new Code state that on the day on which the new Code comes into effect the old Code or a specified part of it shall cease to have effect.

(3)The above provisions do not affect any transitional provisions or savings made by the order bringing the new Code into effect.

Chapter IVGeneral

Functions of ACAS

209General duty to promote improvement of industrial relations

It is the general duty of ACAS to promote the improvement of industrial relations, and in particular to encourage the extension of collective bargaining and the development and, where necessary, reform of collective bargaining machinery.

210Conciliation

(1)Where a trade dispute exists or is apprehended ACAS may, at the request of one or more parties to the dispute or otherwise, offer the parties to the dispute its assistance with a view to bringing about a settlement.

(2)The assistance may be by way of conciliation or by other means, and may include the appointment of a person other than an officer or servant of ACAS to offer assistance to the parties to the dispute with a view to bringing about a settlement.

(3)In exercising its functions under this section ACAS shall have regard to the desirability of encouraging the parties to a dispute to use any appropriate agreed procedures for negotiation or the settlement of disputes.

211Conciliation officers

(1)ACAS shall designate some of its officers to perform the functions of conciliation officers under any enactment (whenever passed) relating to matters which are or could be the subject of proceedings before an industrial tribunal.

(2)References in any such enactment to a conciliation officer are to an officer designated under this section.

212Arbitration

(1)Where a trade dispute exists or is apprehended ACAS may, at the request of one or more of the parties to the dispute and with the consent of all the parties to the dispute, refer all or any of the matters to which the dispute relates for settlement to the arbitration of—

(a)one or more persons appointed by ACAS for that purpose (not being officers or employees of ACAS), or

(b)the Central Arbitration Committee.

(2)In exercising its functions under this section ACAS shall consider the likelihood of the dispute being settled by conciliation.

(3)Where there exist appropriate agreed procedures for negotiation or the settlement of disputes, ACAS shall not refer a matter for settlement to arbitration under this section unless—

(a)those procedures have been used and have failed to result in a settlement, or

(b)there is, in ACAS’s opinion, a special reason which justifies arbitration under this section as an alternative to those procedures.

(4)Where a matter is referred to arbitration under subsection (1)(a)—

(a)if more than one arbitrator or arbiter is appointed, ACAS shall appoint one of them to act as chairman; and

(b)the award may be published if ACAS so decides and all the parties consent.

(5)Part I of the [1950 c. 27.] Arbitration Act 1950 (general provisions as to arbitration) does not apply to an arbitration under this section.

213Advice

(1)ACAS may give employers, employers' associations, workers and trade unions such advice as it thinks appropriate on matters concerned with industrial relations or employment policies.

The advice may be given on request or otherwise, and shall be without charge.

(2)The matters on which advice may be given include the following—

(a)the organisation of workers or employers for the purpose of collective bargaining;

(b)the recognition of trade unions by employers;

(c)machinery for the negotiation of terms and conditions of employment, and for joint consultation;

(d)procedures for avoiding and settling disputes and workers' grievances;

(e)questions relating to communication between employers and workers;

(f)facilities for officials of trade unions;

(g)procedures relating to the termination of employment;

(h)disciplinary matters;

(i)manpower planning, labour turnover and absenteeism;

(j)recruitment, retention, promotion and vocational training of workers;

(k)payment systems, including job evaluation and equal pay.

(3)ACAS may also publish general advice on matters concerned with industrial relations or employment policies, including any of the matters referred to above.

214Inquiry

(1)ACAS may, if it thinks fit, inquire into any question relating to industrial relations generally or to industrial relations in any particular industry or in any particular undertaking or part of an undertaking.

(2)The findings of an inquiry under this section, together with any advice given by ACAS in connection with those findings, may be published by ACAS if—

(a)it appears to ACAS that publication is desirable for the improvement of industrial relations, either generally or in relation to the specific question inquired into, and

(b)after sending a draft of the findings to all parties appearing to to be concerned and taking account of their views, it thinks fit.

Courts of inquiry

215Inquiry and report by court of inquiry

(1)Where a trade dispute exists or is apprehended, the Secretary of State may inquire into the causes and circumstances of the dispute, and, if he thinks fit, appoint a court of inquiry and refer to it any matters appearing to him to be connected with or relevant to the dispute.

(2)The court shall inquire into the matters referred to it and report on them to the Secretary of State; and it may make interim reports if it thinks fit.

(3)Any report of the court, and any minority report, shall be laid before both Houses of Parliament as soon as possible.

(4)The Secretary of State may, before or after the report has been laid before Parliament, publish or cause to be published from time to time, in such manner as he thinks fit, any information obtained or conclusions arrived at by the court as the result or in the course of its inquiry.

(5)No report or publication made or authorised by the court or the Secretary of State shall include any information obtained by the court of inquiry in the course of its inquiry—

(a)as to any trade union, or

(b)as to any individual business (whether carried on by a person, firm, or company),

which is not available otherwise than through evidence given at the inquiry, except with the consent of the secretary of the trade union or of the person, firm, or company in question.

Nor shall any individual member of the court or any person concerned in the inquiry disclose such information without such consent.

(6)The Secretary of State shall from time to time present to Parliament a report of his proceedings under this section.

216Constitution and proceedings of court of inquiry

(1)A court of inquiry shall consist of—

(a)a chairman and such other persons as the Secretary of State thinks fit to appoint, or

(b)one person appointed by the Secretary of State,

as the Secretary of State thinks fit.

(2)A court may act notwithstanding any vacancy in its number.

(3)A court may conduct its inquiry in public or in private, at its discretion.

(4)The Secretary of State may make rules regulating the procedure of a court of inquiry, including rules as to summoning of witnesses, quorum, and the appointment of committees and enabling the court to call for such documents as the court may determine to be relevant to the subject-matter of the inquiry.

(5)A court of inquiry may, if and to such extent as may be authorised by rules under this section, by order require any person who appears to the court to have knowledge of the subject-matter of the inquiry—

(a)to supply (in writing or otherwise) such particulars in relation thereto as the court may require, and

(b)where necessary, to attend before the court and give evidence on oath;

and the court may administer or authorise any person to administer an oath for that purpose.

(6)Provision shall be made by rules under this section with respect to the cases in which persons may appear by counsel or solicitor in proceedings before a court of inquiry, and except as provided by those rules no person shall be entitled to appear in any such proceedings by counsel or solicitor.

Supplementary provisions

217Exclusion of power of arbiter to state case to Court of Session

Section 3 of the [1972 c. 59.] Administration of Justice (Scotland) Act 1972 (power of arbiter to state case for opinion of Court of Session) does not apply to—

(a)any form of arbitration relating to a trade dispute, or

(b)any other arbitration arising from a collective agreement.

218Meaning of “trade dispute” in Part IV

(1)In this Part “trade dispute” means a dispute between employers and workers, or between workers and workers, which is connected with one or more of the following matters—

(a)terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b)engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c)allocation of work or the duties of employment as between workers or groups of workers;

(d)matters of discipline;

(e)the membership or non-membership of a trade union on the part of a worker;

(f)facilities for officials of trade unions; and

(g)machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures.

(2)A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated for the purposes of this Part as a dispute between an employer and those workers if the dispute relates—

(a)to matters which have been referred for consideration by a joint body on which, by virtue of any provision made by or under any enactment, that Minister is represented, or

(b)to matters which cannot be settled without that Minister exercising a power conferred on him by or under an enactment.

(3)There is a trade dispute for the purpose of this Part even though it relates to matters occurring outside Great Britain.

(4)A dispute to which a trade union or employer’s association is a party shall be treated for the purposes of this Part as a dispute to which workers or, as the case may be, employers are parties.

(5)In this section—

  • “employment” includes any relationship whereby one person personally does work or performs services for another; and

  • “worker”, in relation to a dispute to which an employer is a party, includes any worker even if not employed by that employer.

Part VIndustrial action

Protection of acts in contemplation or furtherance of trade dispute

219Protection from certain tort liabilities

(1)An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—

(a)that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or

(b)that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.

(2)An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort.

(3)Nothing in subsections (1) and (2) prevents an act done in the course of picketing from being actionable in tort unless it is done in the course of attendance declared lawful by section 220 (peaceful picketing)

(4)Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to section 226 (requirement of ballot before action by trade union); and in those sections “not protected” means excluded from the protection afforded by this section.

220Peaceful picketing

(1)It is lawful for a person in contemplation or furtherance of a trade dispute to attend—

(a)at or near his own place of work, or

(b)if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,

for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.

(2)If a person works or normally works—

(a)otherwise than at any one place, or

(b)at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable,

his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.

(3)In the case of a worker not in employment where—

(a)his last employment was terminated in connection with a trade dispute, or

(b)the termination of his employment was one of the circumstances giving rise to a trade dispute,

in relation to that dispute his former place of work shall be treated for the purposes of subsection (1) as being his place of work.

(4)A person who is an official of a trade union by virtue only of having been elected or appointed to be a representative of some of the members of the union shall be regarded for the purposes of subsection (1) as representing only those members; but otherwise an official of a union shall be regarded for those purposes as representing all its members.

221Restrictions on grant of injunctions and interdicts

(1)Where—

(a)an application for an injunction or interdict is made to a court in the absence of the party against whom it is sought or any representative of his, and

(b)he claims, or in the opinion of the court would be likely to claim, that he acted in contemplation or furtherance of a trade dispute,

the court shall not grant the injunction or interdict unless satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the application and an opportunity of being heard with respect to the application have been given to him.

(2)Where—

(a)an application for an interlocutory injunction is made to a court pending the trial of an action, and

(b)the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute,

the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party’s succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) or section 220 (peaceful picketing).

This subsection does not extend to Scotland.

Action excluded from protection

222Action to enforce trade union membership

(1)An act is not protected if the reason, or one of the reasons, for which it is done is the fact or belief that a particular employer—

(a)is employing, has employed or might employ a person who is not a member of a trade union, or

(b)is failing, has failed or might fail to discriminate against such a person.

(2)For the purposes of subsection (1)(b) an employer discriminates against a person if, but only if, he ensures that his conduct in relation to—

(a)persons, or persons of any description, employed by him, or who apply to be, or are, considered by him for employment, or

(b)the provision of employment for such persons,

is different, in some or all cases, according to whether or not they are members of a trade union, and is more favourable to those who are.

(3)An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person—

(a)to incorporate in a contract to which that person is a party, or a proposed contract to which he intends to be a party, a term or condition which is or would be void by virtue of section 144 (union membership requirement in contract for goods or services), or

(b)to contravene section 145 (refusal to deal with person on grounds relating to union membership).

(4)References in this section to an employer employing a person are to a person acting in the capacity of the person for whom a worker works or normally works.

(5)References in this section to not being a member of a trade union are to not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.

Any such reference includes a reference to not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.

223Action taken because of dismissal for taking unofficial action

An act is not protected if the reason, or one of the reasons, for doing it is the fact or belief that an employer has dismissed one or more employees in circumstances such that by virtue of section 237 (dismissal in connection with unofficial action) they have no right to complain of unfair dismissal.

224Secondary action

(1)An act is not protected if one of the facts relied on for the purpose of establishing liability is that there has been secondary action which is not lawful picketing.

(2)There is secondary action in relation to a trade dispute when, and only when, a person—

(a)induces another to break a contract of employment or interferes or induces another to interfere with its performance, or

(b)threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,

and the employer under the contract of employment is not the employer party to the dispute.

(3)Lawful picketing means acts done in the course of such attendance as is declared lawful by section 220 (peaceful picketing)—

(a)by a worker employed (or, in the case of a worker not in employment, last employed) by the employer party to the dispute, or

(b)by a trade union official whose attendance is lawful by virtue of subsection (1)(b) of that section.

(4)For the purposes of this section an employer shall not be treated as party to a dispute between another employer and workers of that employer; and where more than one employer is in dispute with his workers, the dispute between each employer and his workers shall be treated as a separate dispute.

In this subsection “worker” has the same meaning as in section 244 (meaning of “trade dispute”).

(5)An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute.

Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute.

(6)In this section “contract of employment” includes any contract under which one person personally does work or performs services for another, and related expressions shall be construed accordingly.

225Pressure to impose union recognition requirement

(1)An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person—

(a)to incorporate in a contract to which that person is a party, or a proposed contract to which he intends to be a party, a term or condition which is or would be void by virtue of section 186 (recognition requirement in contract for goods or services), or

(b)to contravene section 187 (refusal to deal with person on grounds of union exclusion).

(2)An act is not protected if—

(a)it interferes with the supply (whether or not under a contract) of goods or services, or can reasonably be expected to have that effect, and

(b)one of the facts relied upon for the purpose of establishing liability is that a person has—

(i)induced another to break a contract of employment or interfered or induced another to interfere with its performance, or

(ii)threatened that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance, and

(c)the reason, or one of the reasons, for doing the act is the fact or belief that the supplier (not being the employer under the contract of employment mentioned in paragraph (b)) does not, or might not—

(i)recognise one or more trade unions for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

(ii)negotiate or consult with, or with an official of, one or more trade unions.

Requirement of ballot before action by trade union

226Requirement of ballot before action by trade union

(1)An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected unless the industrial action has the support of a ballot.

(2)Industrial action shall be regarded as having the support of a ballot only if—

(a)the union has held a ballot in respect of the action in relation to which the requirements of sections 227 to 232 were satisfied,

(b)the majority voting in that ballot answered “Yes” to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates, and

(c)the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.

(3)Where separate workplace ballots are held by virtue of section 228(1), industrial action shall be regarded as having the support of a ballot if the above conditions are satisfied in relation to the ballot for the place of work of the person induced to take part, or continue to take part, in the industrial action.

(4)For the purposes of this section an inducement, in relation to a person, includes an inducement which is or would be ineffective, whether because of his unwillingness to be influenced by it or for any other reason.

227Entitlement to vote in ballot

(1)Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others.

(2)The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held and was denied entitlement to vote in the ballot is induced by the union to take part or, as the case may be, to continue to take part in the industrial action.

228Separate workplace ballots

(1)Subject to the following provisions, where the members who it is reasonable at the time of the ballot for the union to believe will be induced to take part, or continue to take part, in the industrial action in question have different places of work, separate ballots shall be held for each place of work.

In such a case entitlement to vote in the ballot for each place of work shall be accorded only to such of those members as the union reasonably believes to have that as their place of work.

(2)Subsection (1) does not apply if at the time of the ballot it is reasonable for the union to believe, and it does believe, that all the members who are accorded entitlement to vote in the ballot have the same place of work.

(3)Subsection (1) does not apply if at the time of the ballot it is reasonable for the union to believe, and it does believe, that there is in relation to each of the members of the union who is accorded entitlement to vote in the ballot some factor (whether or not the same factor) which—

(a)relates to the terms or conditions of his employment or to the occupational description which is applicable to him in his employment,

(b)is a factor which he has in common with one or more of the other members of the union who are accorded that entitlement, and

(c)in a case where there are individuals employed by the same employer as he is who are members of the union but are not accorded that entitlement, is not a factor—

(i)which he has in common with any of those individuals, or

(ii)which individuals employed by that employer have in common as a consequence of having the same place of work;

nor does that subsection apply if at the time of the ballot it is reasonable for the union to believe, and it does believe, that the above conditions would be satisfied if any overseas members accorded entitlement to vote in the ballot were disregarded.

229Voting paper

(1)The method of voting in a ballot must be by the marking of a voting paper by the person voting.

(2)The voting paper must contain at least one of the following questions—

(a)a question (however framed) which requires the person answering it to say, by answering “Yes” or “No”, whether he is prepared to take part or, as the case may be, to continue to take part in a strike;

(b)a question (however framed) which requires the person answering it to say, by answering “Yes” or “No”, whether he is prepared to take part or, as the case may be, to continue to take part in industrial action short of a strike.

(3)The voting paper must specify who, in the event of a vote in favour of industrial action, is authorised for the purposes of section 233 to call upon members to take part or continue to take part in the industrial action.

The person or description of persons so specified need not be authorised under the rules of the union but must be within section 20(3) (persons for whose acts the union is taken to be responsible).

(4)The following statement must (without being qualified or commented upon by anything else on the voting paper) appear on every voting paper—

“If you take part in a strike or other industrial action, you may be in breach of your contract of employment.”.

230Conduct of ballot

(1)Every person who is entitled to vote in the ballot must—

(a)be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and

(b)so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.

(2)So far as is reasonably practicable, every person who is entitled to vote in the ballot must—

(a)be supplied with a voting paper, or

(b)have one made available to him immediately before, immediately after, or during his working hours, at his place of work or at a place which is more convenient for him.

(3)So far as reasonably practicable, every person who is entitled to vote in the ballot must be given either—

(a)a convenient opportunity to vote by post, or

(b)an opportunity to vote immediately before, immediately after, or during, his working hours at his place of work or at a place which is more convenient for him,

or, as alternatives, both of those opportunities.

No opportunity to vote shall be given except as mentioned above.

(4)A ballot shall be conducted so as to secure that—

(a)so far as is reasonably practicable, those voting do so in secret, and

(b)the votes given in the ballot are fairly and accurately counted.

For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot.

231Information as to result of ballot

As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of—

(a)votes cast in the ballot,

(b)individuals answering “Yes” to the question, or as the case may be, to each question,

(c)individuals answering “No” to the question, or, as the case may be, to each question, and

(d)spoiled voting papers.

232Balloting of overseas members

(1)A trade union which has overseas members may choose whether or not to accord any of those members entitlement to vote in a ballot; and nothing in section 227 to 230 applies in relation to an overseas member or a vote cast by such a member.

(2)Where overseas members have voted in the ballot, section 231 (information as to result of ballot) shall be read as requiring the information mentioned in that provision—

(a)to be provided to all those entitled to vote in the ballot other than overseas members, and

(b)to distinguish between overseas members and other members.

(3)An “overseas member” of a trade union means a member (other than a merchant seaman or offshore worker) who is outside Great Britain throughout the period during which votes may be cast.

For this purpose—

  • “merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships; and

  • “offshore worker” means a person in offshore employment, other than one who is in such employment in an area where the law of Northern Ireland applies.

(4)A member who throughout the period during which votes may be cast is in Northern Ireland shall not be treated as an overseas member—

(a)where the ballot is one to which section 228(1) or (2) applies (workplace ballots) and his place of work is in Great Britain, or

(b)where the ballot is one to which section 228(3) applies (general ballots) and relates to industrial action involving members both in Great Britain and in Northern Ireland.

(5)In relation to offshore employment the references in subsection (4) to Northern Ireland include any area where the law of Northern Ireland applies and the references to Great Britain include any area where the law of England and Wales or Scotland applies.

233Calling of industrial action with support of ballot

(1)Industrial action shall not be regarded as having the support of a ballot unless it is called by a specified person and the conditions specified below are satisfied.

(2)A “specified person” means a person specified or of a description specified in the voting paper for the ballot in accordance with section 229(3).

(3)The conditions are that—

(a)there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot;

(b)there must be a call for industrial action by a specified person, and industrial action to which it relates must take place, before the ballot ceases to be effective in accordance with section 234.

(4)For the purposes of this section a call shall be taken to have been made by a trade union if it was authorised or endorsed by the union; and the provisions of section 20(2) to (4) apply for the purpose of determining whether a call, or industrial action, is to be taken to have been so authorised or endorsed.

234Period after which ballot ceases to be effective

(1)Subject to the following provisions, a ballot ceases to be effective for the purposes of section 233(3)(b) at the end of the period of four weeks beginning with the date of the ballot.

(2)Where for the whole or part of that period the calling or organising of industrial action is prohibited—

(a)by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or

(b)by virtue of an undertaking given to a court by any person from which he is subsequently released or by which he ceases to be bound,

the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).

(3)The application must be made forthwith upon the prohibition ceasing to have effect—

(a)to the court by virtue of whose decision it ceases to have effect, or

(b)where an order lapses or an undertaking ceases to bind without any such decision, to the court by which the order was made or to which the undertaking was given;

and no application may be made after the end of the period of eight weeks beginning with the date of the ballot.

(4)The court shall not make an order if it appears to the court—

(a)that the result of the ballot no longer represents the views of the union members concerned, or

(b)that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.

(5)No appeal lies from the decision of the court to make or refuse an order under this section.

(6)The period between the making of an application under this section and its determination does not count towards the period referred to in subsection (1).

But a ballot shall not by virtue of this subsection (together with any order of the court) be regarded as effective for the purposes of section 233(3)(b) after the end of the period of twelve weeks beginning with the date of the ballot.

235Construction of references to contract of employment

In sections 226 to 234 (requirement of ballot before action by trade union) references to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.

No compulsion to work

236No compulsion to work

No court shall, whether by way of—

(a)an order for specific performance or specific implement of a contract of employment, or

(b)an injunction or interdict restraining a breach or threatened breach of such a contract,

compel an employee to do any work or attend at any place for the doing of any work.

Loss of unfair dismissal protection

237Dismissal of those taking part in unofficial industrial action

(1)An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(2)A strike or other industrial action is unofficial in relation to an employee unless—

(a)he is a member of a trade union and the action is authorised or endorsed by that union, or

(b)he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(3)The provisions of section 20(2) apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

(4)The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal.

Provided that, where an act is repudiated as mentioned in section 21, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place.

(5)In this section the “time of dismissal” means—

(a)where the employee’s contract of employment is terminated by notice, when the notice is given,

(b)where the employee’s contract of employment is terminated without notice, when the termination takes effect, and

(c)where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires;

and a “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the [1971 c. 80.] Banking and Financial Dealings Act 1971.

(6)For the purposes of this section membership of a trade union for purposes unconnected with the employment in question shall be disregarded; but an employee who was a member of a trade union when he began to take part in industrial action shall continue to be treated as a member for the purpose of determining whether that action is unofficial in relation to him or another notwithstanding that he may in fact have ceased to be a member.

238Dismissals in connection with other industrial action

(1)This section applies in relation to an employee who has a right to complain of unfair dismissal (the “complainant”) and who claims to have been unfairly dismissed, where at the date of the dismissal—

(a)the employer was conducting or instituting a lock-out, or

(b)the complainant was taking part in a strike or other industrial action.

(2)In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

(a)that one or more relevant employees of the same employer have not been dismissed, or

(b)that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement.

(3)For this purpose “relevant employees” means—

(a)in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and

(b)in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action.

Nothing in section 237 (dismissal of those taking part in unofficial industrial action) affects the question who are relevant employees for the purposes of this section.

(4)An offer of re-engagement means an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

(5)In this section “date of dismissal” means—

(a)where the employee’s contract of employment was terminated by notice, the date on which the employer’s notice was given, and

(b)in any other case, the effective date of termination.

239Supplementary provisions relating to unfair dismissal

(1)Sections 237 and 238 (loss of unfair dismissal protection in connection with industrial action) shall be construed as one with Part V of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (unfair dismissal).

(2)In relation to a complaint to which section 238 applies, section 67(2) of that Act (time limit for complaint) does not apply, but an industrial tribunal shall not consider the complaint unless it is presented to the tribunal—

(a)before the end of the period of six months beginning with the date of the complainant’s dismissal (as defined by section 238(5)), 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 the tribunal considers reasonable.

(3)Where it is shown that the condition referred to in section 238(2)(b) is fulfilled (discriminatory re-engagement), the references in—

(a)sections 57 to 61 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978, and

(b)sections 152 and 153 of this Act,

to the reason or principal reason for which the complainant was dismissed shall be read as references to the reason or principal reason he has not been offered re-engagement.

Criminal offences

240Breach of contract involving injury to persons or property

(1)A person commits an offence who wilfully and maliciously breaks a contract of service or hiring, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be—

(a)to endanger human life or cause serious bodily injury, or

(b)to expose valuable property, whether real or personal, to destruction or serious injury.

(2)Subsection (1) applies equally whether the offence is committed from malice conceived against the person endangered or injured or, as the case may be, the owner of the property destroyed or injured, or otherwise.

(3)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 2 on the standard scale or both.

(4)This section does not apply to seamen.

241Intimidation or annoyance by violence or otherwise

(1)A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority—

(a)uses violence to or intimidates that person or his wife or children, or injures his property,

(b)persistently follows that person about from place to place,

(c)hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,

(d)watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or

(e)follows that person with two or more other persons in a disorderly manner in or through any street or road.

(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.

(3)A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section.

242Restriction of offence of conspiracy: England and Wales

(1)Where in pursuance of any such agreement as is mentioned in section 1(1) of the [1977 c. 45.] Criminal Law Act 1977 (which provides for the offence of conspiracy) the acts in question in relation to an offence are to be done in contemplation or furtherance of a trade dispute, the offence shall be disregarded for the purposes of that subsection if it is a summary offence which is not punishable with imprisonment.

(2)This section extends to England and Wales only.

243Restriction of offence of conspiracy: Scotland

(1)An agreement or combination by two or more persons to do or procure to be done an act in contemplation or furtherance of a trade dispute is not indictable as a conspiracy if that act committed by one person would not be punishable as a crime.

(2)A crime for this purpose means an offence punishable on indictment, or an offence punishable on summary conviction, and for the commission of which the offender is liable under the statute making the offence punishable to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment.

(3)Where a person is convicted of any such agreement or combination as is mentioned above to do or procure to be done an act which is punishable only on summary conviction, and is sentenced to imprisonment, the imprisonment shall not exceed three months or such longer time as may be prescribed by the statute for the punishment of the act when committed by one person.

(4)Nothing in this section—

(a)exempts from punishment a person guilty of a conspiracy for which a punishment is awarded by an Act of Parliament, or

(b)affects the law relating to riot, unlawful assembly, breach of the peace, or sedition or any offence against the State or the Sovereign.

(5)This section extends to Scotland only.

Supplementary

244Meaning of “trade dispute” in Part V

(1)In this Part a “trade dispute” means a dispute between workers and their employer which relates wholly or mainly to one or more of the following—

(a)terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b)engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c)allocation of work or the duties of employment between workers or groups of workers;

(d)matters of discipline;

(e)a worker’s membership or non-membership of a trade union;

(f)facilities for officials of trade unions; and

(g)machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(2)A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between those workers and their employer if the dispute relates to matters which—

(a)have been referred for consideration by a joint body on which, by virtue of provision made by or under any enactment, he is represented, or

(b)cannot be settled without him exercising a power conferred on him by or under an enactment.

(3)There is a trade dispute even though it relates to matters occurring outside the United Kingdom, so long as the person or persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely to be affected in respect of one or more of the matters specified in subsection (1) by the outcome of the dispute.

(4)An act, threat or demand done or made by one person or organisation against another which, if resisted, would have led to a trade dispute with that other, shall be treated as being done or made in contemplation of a trade dispute with that other, notwithstanding that because that other submits to the act or threat or accedes to the demand no dispute arises.

(5)In this section—

  • “employment” includes any relationship whereby one person personally does work or performs services for another; and

  • “worker”, in relation to a dispute with an employer, means—

    (a)

    a worker employed by that employer; or

    (b)

    a person who has ceased to be so employed if his employment was terminated in connection with the dispute or if the termination of his employment was one of the circumstances giving rise to the dispute.

245Crown employees and contracts

Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between that person and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of—

(a)the law relating to liability in tort of a person who commits an act which—

(i)induces another person to break a contract, interferes with the performance of a contract or induces another person to interfere with its performance, or

(ii)consists in a threat that a contract will be broken or its performance interfered with, or that any person will be induced to break a contract or interfere with its performance, and

(b)the provisions of this or any other Act which refer (whether in relation to contracts generally or only in relation to contracts of employment) to such an act.

246Minor definitions

In this Part—

  • “date of the ballot” means, in the case of a ballot in which votes may be cast on more than one day, the last of those days;

  • “place of work”, in relation to any person who is employed, means the premises occupied by his employer at or from which that person works or, where he does not work at or from any such premises or works at or from more than one set of premises, the premises occupied by his employer with which his employment has the closest connection;

  • “strike” means any concerted stoppage of work;

  • “working hours”, in relation to a person, means any time when under his contract of employment, or other contract personally to do work or perform services, he is required to be at work.

Part VIAdministrative provisions

ACAS

247ACAS

(1)There shall continue to be a body called the Advisory, Conciliation and Arbitration Service (referred to in this Act as “ACAS”).

(2)ACAS is a body corporate of which the corporators are the members of its Council.

(3)Its functions, and those of its officers and servants, shall be performed on behalf of the Crown, but not so as to make it subject to directions of any kind from any Minister of the Crown as to the manner in which it is to exercise its functions under any enactment.

(4)For the purposes of civil proceedings arising out of those functions the [1947 c. 44.] Crown Proceedings Act 1947 applies to ACAS as if it were a government department and the [1857 c. 44.] Crown Suits (Scotland) Act 1857 applies to it as if it were a public department.

(5)Nothing in section 9 of the [1947 c. 39.] Statistics of Trade Act 1947 (restriction on disclosure of information obtained under that Act) shall prevent or penalise the disclosure to ACAS, for the purposes of the exercise of any of its functions, of information obtained under that Act by a government department.

(6)ACAS shall maintain offices in such of the major centres of employment in Great Britain as it thinks fit for the purposes of discharging its functions under any enactment.

248The Council of ACAS

(1)ACAS shall be directed by a Council which, subject to the following provisions, shall consist of a chairman and nine ordinary members appointed by the Secretary of State.

(2)Before appointing those ordinary members of the Council, the Secretary of State shall—

(a)as to three of them, consult such organisations representing employers as he considers appropriate, and

(b)as to three of them, consult such organisations representing workers as he considers appropriate.

(3)The Secretary of State may, if he thinks fit, appoint a further two ordinary members of the Council (who shall be appointed so as to take office at the same time); and before making those appointments he shall—

(a)as to one of them, consult such organisations representing employers as he considers appropriate, and

(b)as to one of them, consult such organisations representing workers as he considers appropriate.

(4)The Secretary of State may appoint up to three deputy chairman who may be appointed from the ordinary members, or in addition to those members.

(5)The Council shall determine its own procedure, including the quorum necessary for its meetings.

(6)If the Secretary of State has not appointed a deputy chairman, the Council may choose a member to act as chairman in the absence or incapacity of the chairman.

(7)The validity of proceedings of the Council is not affected by any vacancy among the members of the Council or by any defect in the appointment of any of them.

249Terms of appointment of members of Council

(1)The members of the Council shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2)Appointment as chairman shall be a full-time appointment.

Appointment as deputy chairman, or as an ordinary member of the Council, may be a full-time or part-time appointment; and the Secretary of State may, with the consent of the member concerned, vary the terms of his appointment as to whether his appointment is full-time or part-time.

(3)A person shall not be appointed to the Council for a term exceeding five years, but previous membership does not affect eligibility for re-appointment.

(4)A member may at any time resign his membership, and the chairman or a deputy chairman may at any time resign his office as such, by notice in writing to the Secretary of State.

A deputy chairman appointed in addition to the ordinary members of the Council shall on resigning his office as deputy chairman cease to be a member of the Council.

(5)If the Secretary of State is satisfied that a member—

(a)has been absent from meetings of the Council for a period longer than six consecutive months without the permission of the Council, or

(b)has become bankrupt or made an arrangement with his creditors (or, in Scotland, has had his estate sequestrated or has made a trust deed for his creditors or has made and had accepted a composition contract), or

(c)is incapacitated by physical or mental illness, or

(d)is otherwise unable or unfit to discharge the functions of a member,

the Secretary of State may declare his office as a member to be vacant and shall notify the declaration in such manner as he thinks fit, whereupon the office shall become vacant.

If the chairman or a deputy chairman ceases to be a member of the Council, he shall also cease to be chairman or, as the case may be, a deputy chairman.

250Remuneration, &c. of members of Council

(1)ACAS shall pay to the members of its Council such remuneration and travelling and other allowances as may be determined by the Secretary of State.

(2)The Secretary of State may pay, or make provision for payment, to or in respect of a member of the Council such pension, allowance or gratuity on death or retirement as he may determine.

(3)Where a person ceases to be the holder of the Council otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, he may make him a payment of such amount he may determine.

(4)The approval of the Treasury is required for any determination by the Secretary of State under this section.

251Secretary, officers and staff of ACAS

(1)ACAS may, with the approval of the Secretary of State, appoint a secretary.

The consent of the Secretary of State is required as to his terms and conditions of service.

(2)ACAS may appoint such other officers and staff as it may determine.

The consent of the Secretary of State is required as to their numbers, manner of appointment and terms and conditions of service.

(3)The Secretary of State shall not give his consent under subsection (1) or (2) without the approval of the Treasury.

(4)ACAS shall pay to the Treasury, at such times in each accounting year as may be determined by the Treasury, sums of such amounts as may be so determined as being equivalent to the increase in that year of such liabilities of his as are attributable to the provision of pensions, allowances or gratuities to or in respect of persons who are or have been in the service of ACAS in so far as that increase results from the service of those persons during that accounting year and to the expense to be incurred in administering those pensions, allowances or gratuities.

(5)The fixing of the common seal of ACAS shall be authenticated by the signature of the secretary of ACAS or some other person authorised by ACAS to act for that purpose.

A document purporting to be duly executed under the seal of ACAS shall be received in evidence and shall, unless the contrary is proved, be deemed to be so executed.

252General financial provisions

(1)The Secretary of State shall pay to ACAS such sums as are approved by the Treasury and as he considers appropriate for the purpose of enabling ACAS to perform its functions.

(2)ACAS may pay to—

(a)persons appointed under section 210(2) (conciliation) who are not officers or servants of ACAS, and

(b)arbitrators or arbiters appointed by ACAS under any enactment,

such fees and travelling and other allowances as may be determined by the Secretary of State with the approval of the Treasury.

253Annual report and accounts

(1)ACAS shall as soon as practicable after the end of each calendar year make a report to the Secretary of State on its activities during that year.

The Secretary of State shall lay a copy of the report before each House of Parliament and arrange for it to be published.

(2)ACAS shall keep proper accounts and proper records in relation to the accounts and shall prepare in respect of each financial year a statement of accounts, in such form as the Secretary of State may, with the approval of the Treasury, direct.

(3)ACAS shall not later than 30th November following the end of the financial year to which the statement relates, send copies of the statement to the Secretary of State and to the Comptroller and Auditor General.

(4)The Comptroller and Auditor General shall examine, certify and report on each such statement and shall lay a copy of the statement and of his report before each House of Parliament.

The Certification Officer

254The Certification Officer

(1)There shall continue to be an officer called the Certification Officer.

(2)The Certification Officer shall be appointed by the Secretary of State after consultation with ACAS.

(3)The Certification Officer may appoint one or more assistant certification officers and shall appoint an assistant certification officer for Scotland.

(4)The Certification Officer may delegate to an assistant certification officer such functions as he thinks appropriate, and in particular may delegate to the assistant certification officer for Scotland such functions as he thinks appropriate in relation to organisations whose principal office is in Scotland.

References to the Certification Officer in enactments relating to his functions shall be construed accordingly.

(5)ACAS shall provide for the Certification Officer the requisite staff (from among the officers and servants of ACAS) and the requisite accommodation, equipment and other facilities.

(6)The Secretary of State shall pay to the Certification Officer such sums as he may require for making payments under the scheme under section 115 (payments towards expenditure in connection with secret ballots).

255Remuneration, &c. of Certification Officer and assistants

(1)ACAS shall pay to the Certification Officer and any assistant certification officer such remuneration and travelling and other allowances as may be determined by the Secretary of State.

(2)The Secretary of State may pay, or make provision for payment, to or in respect of the Certification Officer and any assistant certification officer such pension, allowance or gratuity on death or retirement as he may determine.

(3)Where a person ceases to be the Certification Officer or an assistant certification officer otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, he may make him a payment of such amount he may determine.

(4)The approval of the Treasury is required for any determination by the Secretary of State under this section.

256Procedure before the Certification Officer

(1)Except in relation to matters as to which express provision is made by or under an enactment, the Certification Officer may regulate the procedure to be followed—

(a)on any application or complaint made to him, or

(b)where his approval is sought with respect to any matter.

(2)He shall, in particular, make such provision as he thinks appropriate for restricting the circumstances in which the identity of an individual who has made, or is proposing to make, any such application or complaint is disclosed to any person.

(3)The Secretary of State may, with the consent of the Treasury, make a scheme providing for the payment by the Certification Officer to persons of such sums as may be specified in or determined under the scheme in respect of expenses incurred by them for the purposes of, or in connection with, their attendance at hearings held by him in the course of carrying out his functions.

(4)ACAS shall pay to the Certification Officer such sums as he may require for the making of payments in pursuance of any such scheme.

257Custody of documents submitted under earlier legislation

(1)The Certification Officer shall continue to have custody of the annual returns, accounts, copies of rules and other documents submitted for the purposes of—

(a)the Trade Union Acts 1871 to 1964,

(b)the [1971 c. 72.] Industrial Relations Act 1971, or

(c)the [1974 c. 52.] Trade Union and Labour Relations Act 1974,

of which he took custody under section 9 of the [1975 c. 71.] Employment Protection Act 1975.

(2)He shall keep available for public inspection (either free of charge or on payment of a reasonable charge) at all reasonable hours such of those documents as were available for public inspection in pursuance of any of those Acts.

258Annual report and accounts

(1)The Certification Officer shall, as soon as practicable after the end of each calendar year, make a report of his activities during that year to ACAS and to the Secretary of State.

The Secretary of State shall lay a copy of the report before each House of Parliament and arrange for it to be published.

(2)The accounts prepared by ACAS in respect of any financial year shall show separately any sums disbursed to or on behalf of the Certification Officer in consequence of the provisions of this Part.

Central Arbitration Committee

259The Central Arbitration Committee

(1)There shall continue to be a body called the Central Arbitration Committee.

(2)The functions of the Committee shall be performed on behalf of the Crown, but not so as to make it subject to directions of any kind from any Minister of the Crown as to the manner in which it is to exercise its functions.

(3)ACAS shall provide for the Committee the requisite staff (from among the officers and servants of ACAS) and the requisite accommodation, equipment and other facilities.

260The members of the Committee

(1)The Central Arbitration Committee shall consist of a chairman appointed by the Secretary of State after consultation with ACAS and other members appointed by the Secretary of State as follows.

(2)The members of the Committee apart from the chairman shall be appointed by the Secretary of State from persons nominated by ACAS as experienced in industrial relations, and shall include some persons whose experience is as representatives of employers and some whose experience is as representatives of workers.

(3)The Secretary of State may, after consultation with ACAS, appoint one or more deputy chairmen in addition to the existing members of the Committee.

(4)At any time when the chairman of the Committee is absent or otherwise incapable of acting, or there is a vacancy in the office of chairman, and the Committee has a deputy chairman or deputy chairmen—

(a)the deputy chairman, if there is only one, or

(b)if there is more than one, such of the deputy chairmen as they may agree or in default of agreement as the Secretary of State may direct,

may perform any of the functions of chairman of the Committee.

(5)At any time when every person who is chairman or deputy chairman is absent or otherwise incapable of acting, or there is no such person, such member of the Committee as the Secretary of State may direct may perform any of the functions of the chairman of the Committee.

(6)The validity of any proceedings of the Committee shall not be affected by any vacancy among the members of the Committee or by any defect in the appointment of a member of the Committee.

261Terms of appointment of members of Committee

(1)The members of the Central Arbitration Committee shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2)A person shall not be appointed to the Committee for a term exceeding five years, but previous membership does not affect eligibility for re-appointment.

(3)The Secretary of State may, with the consent of the member concerned, vary the terms of his appointment as to whether he is a full-time or part-time member.

(4)A member may at any time resign his membership, and the chairman or a deputy chairman may at any time resign his office as such, by notice in writing to the Secretary of State.

(5)If the Secretary of State is satisfied that a member—

(a)has become bankrupt or made an arrangement with his creditors (or, in Scotland, has had his estate sequestrated or has made a trust deed for his creditors or has made and had accepted a composition contract), or

(b)is incapacitated by physical or mental illness, or

(c)is otherwise unable or unfit to discharge the functions of a member,

the Secretary of State may declare his office as a member to be vacant and shall notify the declaration in such manner as he thinks fit, whereupon the office shall become vacant.

(6)If the chairman or a deputy chairman ceases to be a member of the Committee, he shall also cease to be chairman or, as the case may be, a deputy chairman.

262Remuneration, &c. of members of Committee

(1)ACAS shall pay to the members of the Central Arbitration Committee such remuneration and travelling and other allowances as may be determined by the Secretary of State.

(2)The Secretary of State may pay, or make provision for payment, to or in respect of a member of the Committee such pension, allowance or gratuity on death or retirement as he may determine.

(3)Where a person ceases to be the holder of the Committee otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, he may make him a payment of such amount he may determine.

(4)The approval of the Treasury is required for any determination by the Secretary of State under this section.

263Proceedings of the Committee

(1)For the purpose of discharging its functions in any particular case the Central Arbitration Committee shall consist of the chairman and such other members as the chairman may direct:

Provided that, it may sit in two or more divisions constituted of such members as the chairman may direct, and in a division in which the chairman does not sit the functions of the chairman shall be performed by a deputy chairman.

(2)The Committee may, at the discretion of the chairman, where it appears expedient to do so, call in the aid of one or more assessors, and may settle the matter wholly or partly with their assistance.

(3)The Committee may at the discretion of the chairman sit in private where it appears expedient to do so.

(4)If in any case the Committee cannot reach a unanimous decision on its award, the chairman shall decide the matter acting with the full powers of an umpire or, in Scotland, an oversman.

(5)Subject to the above provisions, the Committee shall determine its own procedure.

(6)Part I of the [1950 c. 27.] Arbitration Act 1950 (general provisions as to arbitration) and section 3 of the [1972 c. 59.] Administration of Justice (Scotland) Act 1972 (power of arbiter to state case to Court of Session) do not apply to proceedings before the Committee.

264Awards of the Committee

(1)The Central Arbitration Committee may correct in any award any clerical mistake or error arising from an accidental slip or omission.

(2)If a question arises as to the interpretation of an award of the Committee, any party may apply to the Committee for a decision; and the Committee shall decide the question after hearing the parties or, if the parties consent, without a hearing, and shall notify the parties.

(3)Decisions of the Committee in the exercise of any of its functions shall be published.

265Annual report and accounts

(1)ACAS shall, as soon as practicable after the end of each calendar year, make a report to the Secretary of State on the activities of the Central Arbitration Committee during that year.

For that purpose the Committee shall, as soon as practicable after the end of each calendar year, transmit to ACAS an account of its activities during that year.

(2)The accounts prepared by ACAS in respect of any financial year shall show separately any sums disbursed to or on behalf of the Committee in consequence of the provisions of this Part.

The Commissioner for the Rights of Trade Union Members

266The Commissioner

(1)There shall continue to be an officer called the Commissioner for the Rights of Trade Union Members (referred to in this Act as “the Commissioner”) whose function is to provide assistance in accordance with Chapter VIII of Part I of this Act in connection with certain legal proceedings.

(2)The Commissioner shall be appointed by the Secretary of State.

(3)The Commissioner shall have an official seal for the authentication of documents required for the purposes of his functions.

(4)Anything authorised or required by or under this Act to be done by the Commissioner may be done by a member of his staff authorised by him for the purpose, whether generally or specifically.

An authorisation given for the purposes of this subsection continues to have effect during a vacancy in the office of Commissioner.

(5)Neither the Commissioner nor any member of his staff shall, in that capacity, be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

267Terms of appointment of Commissioner

(1)The Commissioner shall hold and vacate office in accordance with the terms of his appointment, subject to the following provisions.

(2)The appointment of a person to hold office as the Commissioner shall be for a term not exceeding five years; but previous appointment to that office does not affect eligibility for re-appointment.

(3)The Secretary of State may remove a person from that office if he is satisfied—

(a)that that person has been adjudged bankrupt, his estate has been sequestrated or he has made a composition or arrangement with, or granted a trust deed for, his creditors,

(b)that he is incapacitated by physical or mental illness, or

(c)that he is otherwise unable or unfit to discharge his functions as the Commissioner.

268Remuneration, pension, &c

(1)There shall be paid to the Commissioner such remuneration, and such travelling and other allowances, as the Secretary of State may determine.

(2)If the Secretary of State so determines in the case of any holder of the office of Commissioner, there shall be paid such pension, allowance or gratuity to or in respect of him on his retirement or death, or such contributions or payments towards provision for such a pension, allowance or gratuity as may be so determined.

(3)If, when a person ceases to hold office as the Commissioner, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, there may be paid to him a sum by way of compensation of such amount as may be so determined.

(4)Payments required to be made under this section shall be made by the Secretary of State

(5)The consent of the Treasury is required for the making of a determination under this section.

269Staff of the Commissioner

(1)The Commissioner may appoint such staff as he may determine, with the approval of the Secretary of State as to numbers and terms and conditions of service.

The consent of the Treasury is required for the giving of an approval under this subsection.

(2)Employment as a member of the staff of the Commissioner is one of the kinds of employment to which a superannuation scheme under section 1 of the [1972 c. 11.] Superannuation Act 1972 may apply.

(3)Where a person who is a participant in a scheme under section 1 of that Act by reference to his employment by the Commissioner becomes the Commissioner, the Treasury may determine that his service as the Commissioner shall be treated for the purposes of the scheme as service as an employee of the Commissioner; and his rights under the scheme shall not be affected by the preceding provisions of this Part.

(4)The Commissioner is not required to effect insurance under the [1969 c. 57.] Employers' Liability (Compulsory Insurance) Act 1969.

270Financial provisions

(1)The Commissioner may, with the approval of the Secretary of State, make such provision as he considers appropriate for the payment by him to those who apply for assistance of sums in respect of travelling and other expenses incurred by them in connection with their applications.

(2)The Secretary of State shall pay to the Commissioner such sums as he may determine are required by the Commissioner for the purpose of carrying out his functions.

(3)The consent of the Treasury is required for the giving of an approval under subsection (1) or the making of a determination under subsection (2).

271Annual report and accounts

(1)As soon as reasonably practicable after the end of a financial year the Commissioner shall prepare a report on his activities during that year and shall send a copy of it to the Secretary of State.

The Secretary of State shall lay a copy of the report before each House of Parliament.

(2)The Commissioner shall keep proper accounts and proper records in relation to the accounts, and shall prepare in respect of each financial year a statement of accounts in such form as the Secretary of State may, with the approval of the Treasury, direct.

(3)The Commissioner shall, not later than 30th November following the end of the financial year to which the statement relates, send copies of the statement to the Secretary of State and to the Comptroller and Auditor General.

(4)The Comptroller and Auditor General shall examine, certify and report on each such statement and shall lay a copy of the statement and of his report before each House of Parliament.

Supplementary

272Meaning of “financial year”

In this Part “financial year” means the twelve months ending with 31st March.

Part VIIMiscellaneous and general

Crown employment, etc.

273Crown employment

(1)The provisions of this Act have effect (except as mentioned below) in relation to Crown employment and persons in Crown employment as in relation to other employment and other workers or employees.

(2)The following provisions are excepted from subsection (1)—

  • section 87(3) (power of court to make order in respect of employer’s failure to comply with duties as to union contributions);

  • sections 184 and 185 (remedy for failure to comply with declaration as to disclosure of information);

  • Chapter II of Part IV (procedure for handling redundancies).

(3)In this section “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by an enactment.

(4)For the purposes of the provisions of this Act as they apply in relation to Crown employment or persons in Crown employment—

(a)“employee” and “contract of employment” mean a person in Crown employment and the terms of employment of such a person (but subject to subsection (5) below);

(b)“dismissal” means the termination of Crown employment;

(c)“redundancy” means the existence of such circumstances as, in accordance with any arrangements for the time being in force as mentioned in section 111(3) of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 are treated as equivalent to redundancy in relation to Crown employment;

(d)the reference in 182(1)(e) (disclosure of information for collective bargaining: restrictions on general duty) to the employer’s undertaking shall be construed as a reference to the national interest; and

(e)any other reference to an undertaking shall be construed, in relation to a Minister of the Crown, as a reference to his functions or (as the context may require) to the department of which he is in charge, and in relation to a government department, officer or body shall be construed as a reference to the functions of the department, officer or body or (as the context may require) to the department, officer or body.

(5)Sections 137 to 143 (rights in relation to trade union membership: access to employment) apply in relation to Crown employment otherwise than under a contract only where the terms of employment correspond to those of a contract of employment.

(6)This section has effect subject to section 274 (armed forces) and section 275 (exemption on grounds of national security).

274Armed forces

(1)Section 273 (application of Act to Crown employment) does not apply to service as a member of the naval, military or air forces of the Crown.

(2)But that section applies to employment by an association established for the purposes of Part VI of the [1980 c. 9.] Reserve Forces Act 1980 (territorial, auxiliary and reserve forces associations) as it applies to employment for the purposes of a government department.

275Exemption on grounds of national security

(1)Section 273 (application of Act to Crown employment) does not apply to employment in respect of which there is in force a certificate issued by or on behalf of a Minister of the Crown certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or, at a time specified in the certificate, was) required to be excepted from that section for the purpose of safeguarding national security.

(2)A document purporting to be such a certificate shall, unless the contrary is proved, be deemed to be such a certificate.

276Further provision as to Crown application

(1)Section 138 (refusal of service of employment agency on grounds related to union membership), and the other provisions of Part III applying in relation to that section, bind the Crown so far as they relate to the activities of an employment agency in relation to employment to which those provisions apply.

This does not affect the operation of those provisions in relation to Crown employment by virtue of section 273.

(2)Sections 144 and 145 (prohibition of union membership requirements) and sections 186 and 187 (prohibition of union recognition requirements) bind the Crown.

House of Lords and House of Commons staff

277House of Lords staff

(1)Sections 137 to 143 (rights in relation to trade union membership: access to employment) apply in relation to employment as a relevant member of the House of Lords staff as in relation to other employment.

(2)Nothing in any rule of law or the law or practice of Parliament prevents a person from bringing before an industrial tribunal proceedings of any description under those sections which could be brought before such a tribunal in relation to other employment.

(3)A “relevant member of the House of Lords staff” means a member of the House of Lords staff appointed by the Clerk of the Parliaments or the Gentleman Usher of the Black Rod.

(4)In relation to employment as such a member references to employment include employment otherwise than under a contract if the terms of that employment correspond to those of a contract of employment; and related expressions shall be construed accordingly.

(5)For the purposes of sections 137 to 143 the holder for the time being of the office of Clerk of the Parliaments or Gentleman Usher of the Black Rod is the employer in relation to employment to which a person is appointed by the holder of that office; and anything done, before or after he took office, in relation to a person seeking such employment shall be treated as done by him.

(6)If the House of Lords resolves at any time that any provision of subsection (3) or (5) should be amended in its application to any employment as a member of the staff of that House, Her Majesty may by Order in Council amend that provision accordingly.

Any such Order—

(a)may contain such incidental, supplementary or transitional provisions as appear to Her Majesty to be appropriate, and

(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament.

278House of Commons staff

(1)The provisions of this Act (except those specified below) apply in relation to employment as a relevant member of the House of Commons staff as in relation to other employment.

(2)The following provisions are excepted from subsection (1)—

  • sections 184 and 185 (remedy for failure to comply with declaration as to disclosure of information),

  • Chapter II of Part IV (procedure for handling redundancies).

(3)In this section “relevant member of the House of Commons staff” has the same meaning as in section 139 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978.

(4)For the purposes of the other provisions of this Act as they apply by virtue of this section—

(a)“employee” and “contract of employment” include a relevant member of the House of Commons staff and the terms of employment of any such member (but subject to subsection (5) below);

(b)“dismissal” includes the termination of any such member’s employment;

(c)the reference in 182(1)(e) (disclosure of information for collective bargaining: restrictions on general duty) to the employer’s undertaking shall be construed as a reference to the national interest or, if the case so requires, the interests of the House of Commons; and

(d)any other reference to an undertaking shall be construed as a reference to the House of Commons.

(5)Sections 137 to 143 (access to employment) apply by virtue of this section in relation to employment otherwise than under a contract only where the terms of employment correspond to those of a contract of employment.

(6)Subsections (4) to (9) of section 139 of the Employment Protection (Consolidation) Act 1978 (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of this section.

Health service practitioners

279Health service practitioners

In this Act “worker” includes an individual regarded in his capacity as one who works or normally works or seeks to work as a person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made—

(a)by a Family Health Services Authority under section 29, 35, 38 or 41 of the [1977 c. 49.] National Heath Service Act 1977, or

(b)by a Health Board under section 19, 25, 26, or 27 of the [1978 c. 29.] National Health Service (Scotland) Act 1978;

and “employer”, in relation to such an individual, regarded in that capacity, means that authority or board.

Police service

280Police service

(1)In this Act “employee” or “worker” does not include a person in police service; and the provisions of sections 137 and 138 (rights in relation to trade union membership: access to employment) do not apply in relation to police service.

(2)“Police service” means service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable.

Excluded classes of employment

281Part-time employment

(1)Sections 168 and 170 (time off for trade union duties and activities) do not apply to employment under a contract which normally involves employment for less than sixteen hours weekly.

(2)If the employee’s relations with his employer cease to be governed by a contract which normally involve work for sixteen hours or more weekly and become governed by a contract which normally involves employment for eight hours or more, but less than sixteen hours, weekly, the employee shall nevertheless for a period of 26 weeks be treated for the purposes of this section as if his contract normally involved employment for sixteen hours or more weekly.

(3)In computing that period of 26 weeks no account shall be taken of any week—

(a)during which the employee is in fact employed for sixteen hours or more;

(b)during which the employee takes part in a strike (as defined by paragraph 24 of Schedule 13 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978); or

(c)during which there is no contract of employment but which by virtue of paragraph 9(1) of that Schedule counts in computing a period of continuous employment.

(4)An employee whose relations with his employer are governed by a contract of employment which normally involves employment for eight hours or more, but less than sixteen hours, weekly shall nevertheless, if he had been continuously employed for a period of five years or more be treated for the purposes of this section as if his contract normally involved employment for sixteen hours or more weekly.

(5)Section 151 of and Schedule 13 to the Employment Protection (Consolidation) Act 1978 (computation of period of continuous employment), and any provision modifying or supplementing that section or Schedule for the purposes of that Act, apply for the purposes of this section; and references in this section to weeks are to weeks within the meaning of that Schedule.

(6)An employee’s normal working hours for the purposes of this section shall be calculated in accordance with Part I of Schedule 14 to that Act.

282Short-term employment

(1)The provisions of Chapter II of Part IV (procedure for handling redundancies) do not apply to employment—

(a)under a contract for a fixed term of three months or less, or

(b)under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

where the employee has not been continuously employed for a period of more than three months.

(2)Section 151 of and Schedule 13 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (computation of period of continuous employment), and any provision modifying or supplementing that section or Schedule for the purposes of that Act, apply for the purposes of this section.

283Mariners

(1)The provisions of Chapter II of Part IV (procedure for handling redundancies) do not apply to employment as a merchant seaman.

(2)For this purpose employment as a merchant seaman means employment as master or as a member of the crew of a sea-going ship, including an apprentice or trainee employed on any such ship and employment as a radio officer on such a ship.

284Share fishermen

The following provisions of this Act do not apply to employment as master or as member of the crew of a fishing vessel where the employee is remunerated only by a share in the profits or gross earnings of the vessel—

  • In Part III (rights in relation to trade union membership and activities)—

  • sections 137 to 143 (access to employment),

  • sections 146 to 151 (action short of dismissal), and

  • sections 168 to 173 (time off for trade union duties and activities;

  • In Part IV, Chapter II (procedure for handling redundancies).

285Employment outside Great Britain

(1)The following provisions of this Act do not apply to employment where under his contract of employment an employee works, or in the case of a prospective employee would ordinarily work, outside Great Britain—

  • In Part III (rights in relation to trade union membership and activities)—

  • sections 137 to 143 (access to employment),

  • sections 146 to 151 (action short of dismissal), and

  • sections 168 to 173 (time off for trade union duties and activities;

  • In Part IV, Chapter II (procedure for handling redundancies).

(2)For the purposes of subsection (1) employment on board a ship registered in the United Kingdom shall be treated as employment where under his contract a person ordinarily works in Great Britain unless—

(a)the ship is registered at a port outside Great Britain, or

(b)the employment is wholly outside Great Britain, or

(c)the employee or, as the case may be, the person seeking employment or seeking to avail himself of a service of an employment agency, is not ordinarily resident in Great Britain.

286Power to make further provision as to excluded classes of employment

(1)This section applies in relation to the following provisions—

  • In Part III (rights in relation to trade union membership and activities), sections 146 to 151 (action short of dismissal),

  • In Part IV, Chapter II (procedure for handling redundancies), and

  • In Part V (industrial action), section 237 (dismissal of those taking part in unofficial industrial action).

(2)The Secretary of State may by order made by statutory instrument provide that any of those provisions—

(a)shall not apply to persons or to employment of such classes as may be prescribed by the order, or

(b)shall apply to persons or employments of such classes as may be prescribed by the order subject to such exceptions and modifications as may be so prescribed,

and may vary or revoke any of the provisions of sections 281 to 285 above (excluded classes of employment) so far as they relate to any such provision.

(3)Any such order shall be made by statutory instrument and may contains such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.

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

Offshore employment

287Offshore employment

(1)In this Act “offshore employment” means employment for the purposes of activities—

(a)in the territorial waters of the United Kingdom, or

(b)connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or

(c)connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.

(2)Her Majesty may by Order in Council provide that—

(a)the provisions of this Act, and

(b)any Northern Ireland legislation making provision for purposes corresponding to any of the purposes of this Act,

apply, to such extent and for such purposes as may be specified in the Order and with or without modification, to or in relation to a person in offshore employment or, in relation to sections 137 to 143 (access to employment), a person seeking such employment.

(3)An Order in Council under this section—

(a)may make different provision for different cases;

(b)may provide that the enactments to which this section applies, as applied, apply—

(i)to individuals whether or not they are British subjects, and

(ii)to bodies corporate whether or not they are incorporated under the law of a part of the United Kingdom,

and apply notwithstanding that the application may affect the activities of such an individual or body outside the United Kingdom;

(c)may make provision for conferring jurisdiction on any court or class of court specified in the Order, or on industrial tribunals, in respect of offences, causes of action or other matters arising in connection with offshore employment;

(d)may provide that the enactments to which this section applies apply in relation to a person in offshore employment in a part of the areas referred to in subsection (1)(a) and (b);

(e)may exclude from the operation of section 3 of the [1878 c. 73.] Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under the enactments to which this section applies in connection with offshore employment;

(f)may provide that such proceedings shall not be brought without such consent as may be required by the Order;

(g)may modify or exclude any of sections 281 to 285 (excluded classes of employment) or any corresponding provision of Northern Ireland legislation.

(4)Any jurisdiction conferred on a court or tribunal under this section is without prejudice to jurisdiction exercisable apart from this section, by that or any other court or tribunal.

(5)In this section—

  • “cross-boundary petroleum field” means a petroleum field that extends across the boundary between the United Kingdom sector of the continental shelf and a foreign sector;

  • “foreign sector of the continental shelf” means an area outside the territorial waters of any state, within which rights with respect to the sea-bed and subsoil and their natural resources are exercisable by a state other than the United Kingdom;

  • “petroleum field” means a geological structure identified as an oil or gas field by the Order in Council concerned; and

  • “United Kingdom sector of the continental shelf” means the areas designated under section 1(7) of the [1964 c. 29.] Continental Shelf Act 1964.

Contracting out, &c.

288Restriction on contracting out

(1)Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of this Act, or

(b)to preclude a person from bringing—

(i)proceedings before an industrial tribunal or the Central Arbitration Committee under any provision of this Act, or

(ii)an application to the Employment Appeal Tribunal under section 67 (remedy for infringement of right not to be unjustifiably disciplined) or section 176 (compensation for unreasonable exclusion or expulsion).

(2)Subsection (1) does not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under—

(a)section 133(2) or (3) of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (general provisions as to conciliation), or

(b)section 134(1), (2) or (3) of that Act (conciliation in case of unfair dismissal).

(3)Subsection (1) does not apply—

(a)to such an agreement as is referred to in section 185(5)(b) or (c) to the extent that it varies or supersedes an award under that section;

(b)to any provision in a collective agreement excluding rights under Chapter II of Part IV (procedure for handling redundancies), if an order under section 198 is in force in respect of it.

289Employment governed by foreign law

For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

Industrial tribunal proceedings

290General provisions as to conciliation

The provisions of section 133(2) to (6) of the Employment Protection (Consolidation) Act 1978 (general provisions as to functions of conciliation officers) have effect in relation to industrial tribunal proceedings, and claims which could be the subject of industrial tribunal proceedings, arising out of a contravention or alleged contravention of any of the following provisions of this Act—

(a)section 64 (right of trade union member not to be unjustifiably disciplined);

(b)section 137 or 138 (refusal of employment or service of employment agency on grounds related to union membership);

(c)section 146 (action short of dismissal on grounds related to union membership or activities);

(d)section 168, 169 or 170 (time off for trade union duties and activities);

(e)section 174 (unreasonable exclusion or expulsion from union where employment subject to union membership agreement);

(f)section 188 (failure to consult trade union representatives on proposed redundancies);

(g)section 190 (entitlement under protective award).

291Right of appeal from industrial tribunal

(1)An appeal lies to the Employment Appeal Tribunal on any question of law or fact arising from a decision of, or arising in proceedings before, an industrial tribunal under section 174 (right not to be unreasonably excluded or expelled from trade union).

(2)An appeal lies to the Employment Appeal Tribunal on any question of law arising from a decision of, or arising in proceedings before, an industrial tribunal under any other provision of this Act.

(3)No other appeal lies from a decision of an industrial tribunal under this Act; and section 11 of the [1992 c. 53.] Tribunals and Inquiries Act 1992 (appeals from certain tribunals to High Court or Court of Session) does not apply to proceedings before an industrial tribunal under this Act.

Other supplementary provisions

292Death of employee or employer

(1)This section has effect in relation to the following provisions so far as they confer rights on employees or make provision in connection therewith—

(a)sections 146 to 151 (action short of dismissal taken on grounds related to union membership or activities);

(b)sections 168 to 173 (time off for trade union duties and activities);

(c)sections 188 to 198 (procedure for handling redundancies).

(2)Where the employee or employer dies, tribunal proceedings may be instituted or continued by a personal representative of the deceased employee or, as the case may be, defended by a personal representative of the deceased employer.

(3)If there is no personal representative of a deceased employee, tribunal proceedings or proceedings to enforce a tribunal award may be instituted or continued on behalf of his estate by such other person as the industrial tribunal may appoint, being either—

(a)a person authorised by the employee to act in connection with the proceedings before his death, or

(b)the widower, widow, child, father, mother, brother or sister of the employee.

In such a case any award made by the industrial tribunal shall be in such terms and shall be enforceable in such manner as may be prescribed.

(4)Any right arising under any of the provisions mentioned in subsection (1) which by virtue of this section accrues after the death of the employee in question shall devolve as if it had accrued before his death.

(5)Any liability arising under any of those provisions which by virtue of this section accrues after the death of the employer in question shall be treated for all purposes as if it had accrued immediately before his death.

293Regulations

(1)The Secretary of State may by regulations prescribe anything authorised or required to be prescribed for the purposes of this Act.

(2)The regulations may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.

(3)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

294Reciprocal arrangements with Northern Ireland

(1)If provision is made by Northern Ireland legislation for purposes corresponding to the purposes of any provision of this Act re-enacting a provision of the [1975 c. 71.] Employment Protection Act 1975 or the [1978 c. 44.] Employment Protection (Consolidation) Act 1978, the Secretary of State may, with the consent of the Treasury, make reciprocal arrangements with the appropriate Northern Ireland authority for co-ordinating the relevant provisions of this Act with the corresponding Northern Ireland provisions so as to secure that they operate, to such extent as may be provided by the arrangements, as a single system.

(2)The Secretary of State may make regulations for giving effect to any such arrangements.

(3)The regulations may make different provision for different cases and may contain such supplementary, incidental and transitional provisions as appear to the Secretary of State to be necessary or expedient.

(4)The regulations may provide that the relevant provisions of this Act shall have effect in relation to persons affected by the arrangements subject to such modifications and adaptations as may be specified in the regulations, including provisions—

(a)for securing that acts, omission and events having any effect for the purposes of the Northern Ireland legislation have a corresponding effect for the purposes of the relevant provisions of this Act (but not so as to confer a right to double payment in respect of the same act, omission or event, and

(b)for determining, in cases where rights accrue both under the relevant provisions of this Act and under the Northern Ireland legislation, which of this rights is available to the person concerned.

(5)In this section “the appropriate Northern Ireland authority” means such authority as is specified in that behalf in the Northern Ireland legislation.

(6)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Interpretation

295Meaning of “employee” and related expressions

(1)In this Act—

  • “contract of employment” means a contract of service or of apprenticeship,

  • “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment, and

  • “employer”, in relation to an employee, means the person by whom the employee is (or, where the employment has ceased, was) employed.

(2)Subsection (1) has effect subject to section 235 and other provisions conferring a wider meaning on “contract of employment” or related expressions.

296Meaning of “worker” and related expressions

(1)In this Act “worker” means an individual who works, or normally works or seeks to work—

(a)under a contract of employment, or

(b)under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or

(c)in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above.

(2)In this Act “employer”, in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work.

297Associated employers

For the purposes of this Act any two employers shall be treated as associated if—

(a)one is a company of which the other (directly or indirectly) has control, or

(b)both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

298Minor definitions: general

In this Act, unless the context otherwise requires—

  • “act” and “action” each includes omission, and references to doing an act or taking action shall be construed accordingly;

  • “contravention” includes a failure to comply, and cognate expressions shall be construed accordingly;

  • “dismiss”, “dismissal” and “effective date of termination”, in relation to an employee, shall be construed in accordance with section 55 of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978;

  • “post” means a postal service which—

    (a)

    is provided by the Post Office or under a licence granted under section 68 of the [1981 c. 38.] British Telecommunications Act 1981, or

    (b)

    does not by virtue of an order made under section 69 of that Act (suspension of postal privilege) infringe the exclusive privilege conferred on the Post Office by section 66(1) of that Act;

  • “tort”, as respects Scotland, means delict, and cognate expressions shall be construed accordingly.

299Index of defined expressions

In this Act the expressions listed below are defined by or otherwise fall to be construed in accordance with the provisions indicated—

ACASsection 247(1)
act and actionsection 298
advertisement (in sections 137 to 143)section 143(1)
appropriately qualified actuary (in sections 38 to 41)section 42
associated employersection 297
branch or section (of trade union)section 119
collective agreement and collective bargainingsection 178(1)
the Commissionersection 266
contract of employment
—generallysection 295(1)
—in sections 226 to 234section 235
—in relation to Crown employmentsection 273(4)(a)
—in relation to House of Lords or House of Commons staffsections 277(4) and 278(4)(a)
contraventionsection 298
the court (in Part I)section 121
date of the ballot (in Part V)section 246
dismiss and dismissal
—generallysection 298
—in relation to Crown employmentsection 273(4)(c)
—in relation to House of Commons staffsection 278(4)(b)
effective date of terminationsection 298
employee
—generallysection 295(1)
—in relation to Crown employmentsection 273(4)(a)
—in relation to House of Commons staffsection 278(4)(a)
—excludes police servicesection 280
employer
—in relation to an employeesection 295(1)
—in relation to a workersection 296(2)
—in relation to health service practitionerssection 279
employment and employment agency (in sections 137 to 143)section 143(1)
executive (of trade union)section 119
financial year (in Part VI)section 272
general secretarysection 119
independent trade union (and related expressions)section 5
list
—of trade unionssection 2
—of employers' associationssection 123
Northern Ireland union (in Part I)section 120
not protected (in sections 222 to 226)section 219(4)
officer
—of trade unionsection 119
—of employers' associationsection 136
official (of trade union)section 119
offshore employmentsection 287
place of work (in Part V)section 246
political fundsection 82(1)(a)
political resolutionsection 82(1)(a)
postsection 298
prescribedsection 293(1)
presidentsection 119
recognised, recognition and related expressionssection 178(3)
redundancy (in Part IV, Chapter II)
—generallysection 195
—in relation to Crown employmentsection 273(4)(d)
representative (of trade union) (in Part IV, Chapter II)section 196
rules (of trade union)section 119
strike (in Part V)section 246
tort (as respects Scotland)section 298
trade dispute
—in Part IVsection 218
—in Part Vsection 244
trade unionsection 1
undertaking (of employer)
—in relation to Crown employmentsection 273(4)(e) and (f)
—in relation to House of Commons staffsection 278(4)(c) and (d)
worker
—generallysection 296(1)
—includes health service practitionerssection 279
—excludes police servicesection 280
working hours (in Part V)section 246

Final provisions

300Repeals, consequential amendments, transitional provisions and savings

(1)The enactments specified in Schedule 1 are repealed to the extent specified.

(2)The enactments specified in Schedule 2 are amended in accordance with that Schedule, the amendments being consequential on the provisions of this Act.

(3)Schedule 3 contains transitional provisions and savings.

301Extent

(1)This Act extends to England and Wales and Scotland.

(2)The following provisions of this Act extend to Northern Ireland—

(a)sections 13 and 14 (provisions as to property held in trust for trade union), and section 129 (application of provisions to employers' associations) so far as it applies those sections;

(b)Chapter VI of Part I (application of funds for political objects), except sections 86 to 88 (duties of employer who deducts union contributions), for the purposes of the application of that Chapter to trade unions or unincorporated employers' associations having their head or main office outside Northern Ireland;

(c)section 287 (offshore employment);

(d)section 294 (reciprocal arrangements with Northern Ireland);

(e)Schedule 1 (repeals) so far as it relates to enactments which extend to Northern Ireland, other than the [1875 c. 86.] Conspiracy and Protection of Property Act 1875;

(f)Schedules 2 and 3 (consequential amendments, transitional provisions and savings), so far as they relate to enactments which extend to Northern Ireland;

but this Act does not otherwise extend there.

(3)Subsection (2)(b) does not affect the operation of Article 67(3) to (5) of the [S.I. 1992/807 (N.I. 5)] Industrial Relations (Northern Ireland) Order 1992 (application of Northern Ireland law to contributions by members in Northern Ireland); and the closing words of that subsection do not affect the operation in relation to persons or property in Northern Ireland of any provision of Chapter VII of Part I (amalgamations and similar matters) which is capable of so applying as part of the law of England and Wales or Scotland.

302Commencement

This Act comes into force at the end of the period of three months beginning with the day on which it is passed.

303Short title

This Act may be cited as the Trade Union and Labour Relations (Consolidation) Act 1992.

SCHEDULES

Section 300(1).

SCHEDULE 1Repeals

ChapterShort titleExtent of repeal
38 & 39 Vict. c. 86.Conspiracy and Protection of Property Act 1875.Sections 3, 5, 7, 15 and 16.
59 & 60 Vict. c. 25.Friendly Societies Act 1896.Section 22(2) and (3).
2 & 3 Geo.5 c. 30.Trade Union Act 1913.The whole Act.
9 & 10 Geo.5 c. 69.Industrial Courts Act 1919.The whole Act.
9 & 10 Geo.6 c. 52.Trade Disputes and Trade Unions Act 1946.The whole Act.
11 & 12 Geo.6 c. 39.Industrial Assurance and Friendly Societies Act 1948.

In section 6—

(a)

in subsection (1), the words “or a trade union or employers' association”;

(b)

in subsection (2), the words from “and by virtue of section 2” to “trade unions”.

Section 16(4).
Section 23(1)(d).
1964 c. 24.Trade Union (Amalgam-ations, &c.) Act 1964.The whole Act.
1970 c. 36.Merchant Shipping Act 1970.Section 42(1).
In Schedule 3, paragraph 1.
1972 c. 59.Administration of Justice (Scotland) Act 1972.Section 3(3).
1974 c. 46.Friendly Societies Act 1974.In Schedule 9, paragraphs 1 and 12.
1974 c. 52.Trade Union and Labour Relations Act 1974.The whole Act.
1975 c. 71.Employment Protection Act 1975.Sections 1 to 10.
Sections 17 to 21.
Sections 99 to 108.
Section 110.
Sections 117 to 119.
Sections 121 to 123.
Section 124(1)(b).
In section 125(1), the words from the beginning to “this Act and”.
Sections 126 to 128.

In section 129—

(a)

in subsection (5), the words from the beginning to “section 123(3) above,”;

(b)

in subsection (6), the words “Sections 127 and 128 above and”.

Schedule 1.
Schedule 12.

In Schedule 16—

(a)

Part III;

(b)

in Part IV, paragraphs 2, 3, 7, 10, 13 and 16.

In Schedule 17, paragraphs 1 to 6
1976 c. 7.Trade Union and Labour Relations (Amendment) Act 1976.The whole Act.
1976 c. 74.Race Relations Act 1976.Schedule 3.
1977 c. 45.Criminal Law Act 1977.Section 1(3).
Section 5(11).
In section 63(2), the references to sections 5 and 7 of the Conspiracy and Protection of Property Act 1875.
1977 c. 49.National Health Service Act 1977.In Schedule 15, paragraph 62.
1978 c. 29.National Health Service (Scotland) Act 1978.In Schedule 16, paragraph 39.
1978 c. 36.House of Commons (Administration) Act 1978.

In Schedule 2—

(a)

in paragraph 1, the words “and section 122 of the Employment Protection Act 1975”;

(b)

paragraph 5.

1978 c. 44.Employment Protection (Consolidation) Act 1978.Sections 23 to 28.
Section 30(3).
Section 58.
In section 59, the words from “either” to “or” at the end of paragraph (a).
Sections 62 and 62A.

In section 64—

(a)

in subsection (1), the words “Subject to subsection (3),”;

(b)

subsection (3).

In section 64A(2), the words from “or if it is shown” to the end.
Section 67(3).
Section 72A.
Section 73(4A) and (4B).
Section 75A.
Sections 76A to 79.
In section 132(1)(b), the words from “or in pursuance of an award” to the end.

In section 133(1)—

(a)

in paragraph (a), the words “23, 27, 28,”;

(b)

in paragraph (b), the words from “of section 99 or” to “1975 or”;

(c)

paragraphs (d), (f) and (g).

In section 136—

(a)

in subsection (1), paragraphs (c) and (g);

(b)

subsections (2) and (3);

(c)

in subsection (5), the words from “or under section 2” to the end.

In section 146(4), the words “27, 28”.
In section 149(2), the words “58, 58A”, “73(4B),” and “75A(7)”.

In Schedule 2—

(a)

in paragraph 2(2), the words “or 58”;

(b)

in paragraphs 2(4) and 6(3), the words “58(3) to (12), 58A,”.

In Schedule 16, paragraphs 2, 5, 18 and 23.
1978 c. 46.Employment (Continental Shelf) Act 1978.Section 1(1).
1980 c. 9.Reserve Forces Act 1980.In Schedule 9, paragraph 15.
1980 c. 42.Employment Act 1980.Sections 1 to 5.
Sections 15 and 16.
Section 19.
In section 20(1), the definitions of “the 1974 Act” and “the 1975 Act”.

In Schedule 1—

(a)

paragraphs 2 to 7;

(b)

in paragraph 17, the words from “and after paragraph (c)” to the end;

(c)

paragraphs 19, 21(b) and 24.

1980 c. 53.Health Services Act 1980.In Schedule 1, paragraph 25.
1982 c. 9.Agricultural Training Board Act 1982.Section 11(3).
1982 c. 10.Industrial Training Act 1982.In Schedule 3, paragraph 6.
1982 c. 23.Oil and Gas (Enterprise) Act 1982.In Schedule 3, paragraph 25.
1982 c. 46.Employment Act 1982.Sections 2 to 19.
Section 22(4) and (5).
Schedule 1.
In Schedule 2, paragraph 6(1).
In Schedule 3, paragraphs 10 to 13, 17 to 20, 24, 27(2)(a) and (3)(a).
1984 c. 49.Trade Union Act 1984.The whole Act.
1985 c. 9.Companies Consolidation (Consequential Provisions) Act 1985.In Schedule 2, the entry relating to the Trade Union and Labour Relations Act 1974.
1986 c. 48.Wages Act 1986.In section 1(6), the words from “and where a certificate” to the end.
Section 5(3A).
1986 c. 64.Public Order Act 1986.In Schedule 2, paragraph 1.
1987 c. 43.Consumer Protection Act 1987.In Schedule 4, paragraph 8.
1988 c. 19.Employment Act 1988.Sections 1 to 23.
Section 30.

In section 32—

(a)

in subsection (1), all the definitions except those of “the 1973 Act” and “modifications”;

(b)

subsection (2).

In section 34—

(a)

subsections (2) and (3);

(b)

in subsection (6), paragraphs (a) and (b) and the words following paragraph (c).

Schedule 1.
In Schedule 3, paragraphs 1 to 6.
1989 c. 38.Employment Act 1989.Section 14.
In Schedule 6, paragraph 19.
In Schedule 9, paragraph 2.
1989 c. 40.Companies Act 1989.Section 124.
1990 c. 38.Employment Act 1990.Sections 1 to 12.
In section 18(1), the paragraphs relating to sections 11 and 12.
Schedule 1.
In Schedule 2, paragraphs 1(2), 2 and 3.
S.I. 1992/807 (N.I. 5)Industrial Relations (Northern Ireland) Order 1992.Article 67(2).

Section 300(2).

SCHEDULE 2Consequential amendments

Parliamentary Commissioner Act 1967 (c. 13)

1Schedule 2 to the Parliamentary Commissioner Act 1967 (departments and authorities subject to investigation) shall continue to have effect with the following entry (originally inserted by paragraph 12 of Schedule 1 to the [1988 c. 19.] Employment Act 1988)—

Office of the Commissioner for the Rights of Trade Union Members.

Transport Act 1968 (c. 73)

2In section 63(6) of the Transport Act 1968 (objections to grant of HGV operators' licences: definitions), in the definition of “trade union” for “the Trade Union Act 1913” substitute “the Trade Union and Labour Relations (Consolidation) Act 1992”.

Equal Pay Act 1970 (c. 41)

3(1)The Equal Pay Act 1970 is amended as follows.

(2)In section 1 (requirement of equal treatment for men and women), after subsection (10) insert—

(10A)This section applies in relation to service as a relevant member of the House of Commons staff as in relation to service for the purposes of a Minister of the Crown or government department, and accordingly applies as if references to a contract of employment included references to the terms of service of such a member.

In this subsection “relevant member of the House of Commons staff” has the same meaning as in section 139 of the Employment Protection (Consolidation) Act 1978; and subsections (4) to (9) of that section (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of this section..

(3)Sections 5 and 7 (reference of questions as to agricultural wages orders or service pay) shall continue to have effect with the amendments originally made by paragraph 13(2) and (3) of Part IV of Schedule 16 to the [1975 c. 71.] Employment Protection Act 1975, substituting the words “Central Arbitration Committee” and “Committee” for references to the former Industrial Arbitration Board.

House of Commons Disqualification Act 1975 (c. 24)

4(1)The House of Commons Disqualification Act 1975 is amended as follows.

(2)Part II of Schedule 1 (bodies of which all members are disqualified under that Act) shall continue to have effect with the following entries (originally inserted by paragraph 16(2) of Part IV of Schedule 16 to the Employment Protection Act 1975)—

The Central Arbitration Committee.

The Council of the Advisory, Conciliation and Arbitration Service.

The Employment Appeal Tribunal..

(3)In Part III of Schedule 1 (other disqualifying offices), for the entry inserted by paragraph 16(3) of Part IV of Schedule 16 to the Employment Protection Act 1975 substitute—

Certification Officer or any assistant certification officer..

(4)That Part shall also continue to have effect with the following entry (originally inserted by paragraph 13 of Schedule 1 to the [1988 c. 19.] Employment Act 1988)—

Commissioner for the Rights of Trade Union Members.; and Part III of Schedule 1 to the [1975 c. 25.] Northern Ireland Assembly Disqualification Act 1975 shall continue to have effect with a corresponding entry.

Social Security Pensions Act 1975 (c. 60)

5In section 31 of the Social Security Pensions Act 1975 (contracting-out certificates), in subsection (8) (meaning of “independent trade union”, &c.) for “the Trade Union and Labour Relations Act 1974” substitute “the Trade Union and Labour Relations (Consolidation) Act 1992”.

Sex Discrimination Act 1975 (c. 65)

6In Part VIII of the Sex Discrimination Act 1975 (supplementary provisions), after section 85 (application to Crown) insert—

85AApplication to House of Commons staff

(1)Parts II and IV apply to an act done by an employer of a relevant member of the House of Commons staff, and to service as such a member, as they apply to an act done by and to service for the purposes of a Minister of the Crown or government department, and accordingly apply as if references to a contract of employment included references to the terms of service of such a member.

(2)In this section “relevant member of the House of Commons staff” has the same meaning as in section 139 of the Employment Protection (Consolidation) Act 1978; and subsections (4) to (9) of that section (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of Parts II and IV as they apply by virtue of this section..

Race Relations Discrimination Act 1976 (c. 74)

7In Part X of the Race Relations Act 1976 (supplementary provisions), after section 75 (application to Crown) insert—

75AApplication to House of Commons staff

(1)Parts II and IV apply to an act done by an employer of a relevant member of the House of Commons staff, and to service as such a member, as they apply to an act done by and to service for the purposes of a Minister of the Crown or government department, and accordingly apply as if references to a contract of employment included references to the terms of service of such a member.

(2)In this section “relevant member of the House of Commons staff” has the same meaning as in section 139 of the Employment Protection (Consolidation) Act 1978; and subsections (4) to (9) of that section (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of Parts II and IV as they apply by virtue of this section..

Aircraft and Shipbuilding Industries Act 1977 (c. 3)

8(1)The Aircraft and Shipbuilding Industries Act 1977 is amended as follows.

(2)In section 6 (machinery for settling terms and conditions of employment), in subsection (2)(b) (resolution of trade disputes) for “within the meaning of the Employment Protection Act 1975” substitute “within the meaning of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(3)In section 56(1) (interpretation), in the definition of “relevant trade union”—

(a)for “as defined in section 30(1) of the Trade Union and Labour Relations Act 1974” substitute “within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992”, and

(b)for “as defined by section 126(1) of the Employment Protection Act 1975” substitute “within the meaning of that Act”.

Patents Act 1977 (c. 37)

9In section 40 of the Patents Act 1977 (compensation for employees for certain inventions), in subsection (6) in the definition of “relevant collective agreement” for “the Trade Union and Labour Relations Act 1974” substitute “the Trade Union and Labour Relations (Consolidation) Act 1992”.

House of Commons (Administration) Act 1978 (c. 36)

10In Schedule 1 to the House of Commons (Administration) Act 1978 (the House of Commons Commission), in paragraph 5 (delegation of functions) for sub-paragraph (6) substitute—

(6)In sub-paragraph (5) “trade union”, and “recognised” in relation to a trade union, have the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992..

Employment Protection (Consolidation) Act 1978 (c. 44)

11In section 29 of the Employment Protection (Consolidation) Act 1978 (time off for public duties), in subsection (4)(b) (regard to be had to time off permitted under other provisions), for “sections 27 and 28” substitute “sections 168 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (time off for trade union duties and activities)”.

12In section 30 of the Employment Protection (Consolidation) Act 1978 (supplementary provisions as to tribunal proceedings)—

(a)in subsection (1), for paragraphs (a) and (b) substitute “a complaint under section 29 that an employer has failed to permit an employee to take time off”;

(b)in subsection (2) for “any complaint mentioned in subsection (1)(a)” substitute “such a complaint”; and

(c)omit subsection (3).

13For section 32 of the Employment Protection (Consolidation) Act 1978 (provisions supplementary to ss.27 to 31A) substitute—

32Meaning of “working hours”

For the purposes of sections 29 to 31A the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work..

14In section 57 of the Employment Protection (Consolidation) Act 1978 (general provisions as to fairness of dismissal), in subsection (3) for “subject to sections 58 to 62” substitute “subject to sections 59 to 61, and to sections 152, 153 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 (provisions as to dismissal on ground of trade union membership or activities or in connection with industrial action),”.

15In section 71(2) of the Employment Protection (Consolidation) Act 1978 (compensation for failure to comply with order for reinstatement or re-engagement), in paragraph (b) for the words from the beginning to “or in which” substitute “unless”.

16For section 72 of the Employment Protection (Consolidation) Act 1978 (compensation for unfair dismissal) substitute—

72Compensation for unfair dismissal

Where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) the award shall consist of—

(a)a basic award calculated in accordance with section 73, and

(b)a compensatory award calculated in accordance with section 74..

17In section 73 of the Employment Protection (Consolidation) Act 1978 (calculation of basic award), for subsection (7C) substitute—

(7C)Subsection (7B) does not apply where the reason or principal reason for the dismissal was that the employee was redundant..

18(1)Section 122 of the Employment Protection (Consolidation) Act 1978 (employee’s rights on insolvency of employer) is amended as follows.

(2)In subsection (2)(a) for “section 101 of the Employment Protection Act 1975” substitute “section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(3)In subsection (4)—

(a)in paragraph (c) for “section 27(3) or 31(3) or 31A(4)” substitute “section 31(3) or 31A(4) or under section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992”; and

(b)in paragraph (d) for “section 101 of the Employment Protection Act 1975” substitute “section 189 of that Act”.

19In section 132(1) of the Employment Protection (Consolidation) Act 1978 (recoupment of unemployment benefit or income support: payments to which the section applies)—

(a)in paragraph (b) omit “or in pursuance of an award under section 103 of the Employment Protection Act 1975”,

(b)after that paragraph insert—

(bb)payments by employers to employees under sections 146 to 151 or 168 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992, or in pursuance of an award under section 192 of that Act;,

(c)in paragraph (c) after “mentioned in paragraph (b)” insert “or (bb)”, and

(d)in the closing words, for “section 101 of the said Act of 1975” substitute “section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

20In section 135 of the Employment Protection (Consolidation) Act 1978 (constitution of Employment Appeal Tribunal), in subsection (3) (representatives of employers and workers) for “the Trade Union and Labour Relations Act 1974” substitute “the Trade Union and Labour Relations (Consolidation) Act 1992”.

21(1)Section 153 of the Employment Protection (Consolidation) Act 1978 (interpretation) is amended as follows.

(2)In subsection (1) (general definitions)—

(a)in the definition of “collective agreement”, for “section 30(1) of the Trade Union and Labour Relations Act 1974” substitute “section 178(1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992”;

(b)in the definition of “employers' association”, for “the Trade Union and Labour Relations Act 1974” substitute “the Trade Union and Labour Relations (Consolidation) Act 1992”;

(c)in the definition of “official”, for “the meaning given by section 30(1) of the Trade Union and Labour Relations Act 1974” substitute “the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992”;

(d)for the definition of “successor” substitute—

“successor”, in relation to the employer of an employee, means (subject to subsection (4A) below) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking or of part of the undertaking for the purposes of which the employee was employed, has become the owner of the undertaking or of that part of it, as the case may be;;

(e)in the definition of “trade dispute” for “section 29 of the said Act of 1974” substitute “section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992”;

(f)in the definition of “trade union” for “section 28 of the said Act of 1974” substitute “section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(3)After subsection (4) insert—

(4A)The definition of “successor” in subsection (1) above has effect (subject to the necessary modifications) in relation to a case where—

(a)the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

(b)the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as it has effect where the previous owner and the new owner are wholly different persons..

22In Part I of Schedule 2 to the Employment Protection (Consolidation) Act 1978 (supplementary provisions as to maternity: unfair dismissal), in paragraph 2(1), in the substituted subsection (3) for the words from “subject to sections 58(1)” to “62” substitute “subject to sections 59 to 61, and to sections 152, 153 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 (provisions as to dismissal on ground of trade union membership or activities or in connection with industrial action),”.

23In Schedule 3 to the Employment Protection (Consolidation) Act 1978 (rights of employee in period of notice), in paragraph 5 (leave of absence) for “section 27, 28, 29, 31 or 31A” substitute “section 29, 31 or 31A of this Act or section 168 or 170 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

24(1)Schedule 9 to the Employment Protection (Consolidation) Act 1978 (general provisions as to industrial tribunals) is amended as follows.

(2)In paragraph 2(1) (dismissal of complaint where action taken for purpose of safeguarding national security), for “under section 24 or 67” substitute— under—

(a)section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (action short of dismissal on grounds related to union membership or activities), or

(b)section 67 of this Act (unfair dismissal),.

(3)In paragraph 8 (constitution of tribunal for certain cases) for “section 77 or 79” substitute “section 161, 165 or 166 of the Trade Union and Labour Relations (Consolidation) Act 1992 (application for interim relief or arising out of order for interim relief)”.

25In Schedule 11 to the Employment Protection (Consolidation) Act 1978 (general provisions as to Employment Appeal Tribunal)—

(a)in paragraph 18 (particular matters with respect to which rules may be made), in paragraphs (aa) and (d), and

(b)in paragraph 21A (enforcement of awards), in sub-paragraphs (1) and (3),

for “section 5 of the Employment Act 1980 or section 5 of the Employment Act 1988” substitute “section 67 or 176 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

Crown Agents Act 1979 (c. 43)

26In Schedule 1 to the Crown Agents Act 1979 (supplementary provisions as to Crown Agents), in paragraph 15 (machinery for settling terms and conditions of employment), in sub-paragraph (2)(b) (resolution of trade disputes) for “within the meaning of the Employment Protection Act 1975” substitute “within the meaning of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992”.

Agricultural Training Board Act 1982 (c. 9)

27In section 12 of the Agricultural Training Board Act 1982 (short title, extent and commencement), before subsection (2) (extent) insert—

(1A)Section 287(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (power to extend provisions to offshore employment) applies to the provisions of this Act as to the provisions of that Act.; and in subsection (2) after “This Act” insert “, except subsection (1A) above,”.

Industrial Training Act 1982 (c. 10)

28In section 21 of the Industrial Training Act 1982 (short title, extent and commencement), before subsection (2) (extent) insert—

(1A)Section 287(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (power to extend provisions to offshore employment) applies to the provisions of this Act as to the provisions of that Act.; and in subsection (2) for “Paragraph 4 of Schedule 3 to this Act extends” substitute “Subsection (1A) above and paragraph 4 of Schedule 3 extend”.

Oil and Gas (Enterprise) Act 1982 (c. 23)

29(1)Schedule 3 to the Oil and Gas (Enterprise) Act 1982 (consequential amendments) is amended as follows.

(2)For paragraph 40 substitute—

40(1)Section 137 of the Employment Protection (Consolidation) Act 1978 (power to extend employment legislation) is amended as follows.

(2)For subsection (2) substitute—

(2)This section applies to employment for the purposes of—

(a)any activities in the territorial waters of the United Kingdom, and

(b)any such activities as are mentioned in section 23(2) of the Oil and Gas (Enterprise Act) 1982 in waters within subsection (6)(b) or (c) of that section..

(3)After paragraph 44 add—

Trade Union and Labour Relations (Consolidation) Act 1992 (c. 00)

45(1)Section 287 of the Trade Union and Labour Relations (Consolidation) Act 1992 (offshore employment) is amended as follows.

(2)For subsection (1) substitute—

(1)In this Act “offshore employment” means employment for the purposes of—

(a)any activities in the territorial waters of the United Kingdom, and

(b)any such activities as are mentioned in section 23(2) of the Oil and Gas (Enterprise Act) 1982 in waters within subsection (6)(b) or (c) of that section..

(3)Omit subsection (5)..

(4)The paragraph inserted by sub-paragraph (3) above is subject to section 38(2) of the Oil and Gas (Enterprise) Act 1982 (power to bring provisions into force by order).

Employment Act 1982 (c. 46)

30In section 21 of the Employment Act 1982 (interpretation, &c.), for subsection (1) substitute—

(1)In this Act “the 1978 Act” means the Employment Protection (Consolidation) Act 1978..

Insurance Companies Act 1982 (c. 50)

31In section 2(2) of the Insurance Companies Act 1982 (exceptions from requirement of authorisation under that Act), and in section 15(3) of that Act (exceptions from regulatory provisions), for “assigned to them by section 28 of the Trade Union and Labour Relations Act 1974” substitute “respectively assigned by section 1 and section 122(1) of the Trade Union and Labour Relations (Consolidation) Act 1992”.

Value Added Tax Act 1983 (c. 55)

32In Schedule 6 to the Value Added Tax Act 1983 (exemptions), in Note (2) to Group 9 (trade unions and professional bodies) for “section 28(1) of the Trade Union and Labour Relations Act 1974” substitute “section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

Insolvency Act 1986 (c. 45)

33In Schedule 6 to the Insolvency Act 1986 (preferential debts), in paragraph 13(2) (sums treated as remuneration)—

(a)in paragraph (c) for the words from “section 27(3)” to “of that Act” substitute “section 31(3) or 31A(4) of that Act (looking for work, etc.; ante-natal care) or under section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 (trade union duties)”; and

(b)in paragraph (d) for “section 101 of the Employment Protection Act 1975” substitute “section 189 of the latter Act”.

Wages Act 1986 (c. 48)

34(1)The Wages Act 1986 is amended as follows.

(2)In section 7(1) (meaning of “wages”)—

(a)in paragraph (c) for “section 77 of that Act” substitute “section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992”; and

(b)in paragraph (d) for “that Act” substitute “the Employment Protection (Consolidation) Act 1978”.

(3)In Schedule 2 (constitution, &c. of wages councils), in paragraph 2(1)(b) (appointment of workers' representatives) for “Trade Union and Labour Relations Act 1974” substitute “Trade Union and Labour Relations (Consolidation) Act 1992”.

Building Societies Act 1986 (c. 53)

35In section 7(4)(c)(iii) of the Building Societies Act 1986 (shares held and deposits made by or on behalf of trade union) for “Trade Union and Labour Relations Act 1974” substitute “Trade Union and Labour Relations (Consolidation) Act 1992”.

Sex Discrimination Act 1986 (c. 59)

36In section 6 of the Sex Discrimination Act 1986 (application of provisions to collective agreements), in subsection (6) (meaning of “collective agreement”) for the words from “section 29(1)” to “trade dispute)” substitute “section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992”.

Income and Corporation Taxes Act 1988 (c. 1)

37In section 467 of the Income and Corporation Taxes Act 1988 (exemption for trade unions and employers' associations), in subsection (4)—

(a)in paragraph (a), for “section 8 of the Trade Union and Labour Relations Act 1974” substitute “section 2 of the Trade Union and Labour Relations (Consolidation) Act 1992”, and

(b)in paragraph (b) for “section 8 of the Trade Union and Labour Relations Act 1974” substitute “section 123 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

Local Government Act 1988 (c. 9)

38In section 17 of the Local Government Act 1988 (local and other public authority contracts: exclusion of non-commercial considerations), in subsection (8)—

(a)in the definition of “industrial dispute”, for “the Trade Union and Labour Relations Act 1974” substitute “Part V of the Trade Union and Labour Relations (Consolidation) Act 1992”, and

(b)in the closing words, for “Trade Union and Labour Relations Act 1974” substitute “Trade Union and Labour Relations (Consolidation) Act 1992”.

Local Government and Housing Act 1989 (c. 42)

39(1)In section 12 of the Local Government and Housing Act 1989 (conflict of interest in staff negotiations), subsection (2) (definitions) is amended as follows.

(2)For the definition of “member” substitute—

“member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of its constituent or affiliated trade unions;.

(3)In the definition of “official” and “trade union” for “the Trade Union and Labour Relations Act 1974” substitute “the Trade Union and Labour Relations (Consolidation) Act 1992”.

Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992 No. 807 (N.I. 5))

40(1)The Industrial Relations (Northern Ireland) Order 1992 is amended as follows.

(2)In Article 5 (lists of trade unions and employers' associations)—

(a)in paragraph (5)(a) for “either list maintained under section 8 of the Trade Union and Labour Relations Act 1974” substitute “the list of trade unions or the list of employers' associations kept under the Trade Union and Labour Relations (Consolidation) Act 1992”;

(b)in paragraph (11) for “or employers' associations maintained under section 8 of the Trade Union and Labour Relations Act 1974” substitute “or the list of employers' associations kept under the Trade Union and Labour Relations (Consolidation) Act 1992” and for “subsection (10) of that section” substitute “section 2(5) or 123(5) of that Act”.

(3)In Article 6 (certification as independent trade union), in paragraphs (12) and (13) for “section 8 of the Employment Protection Act 1975” substitute “section 6 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(4)In Article 12 (returns by trade unions and employers' associations outside Northern Ireland), in paragraph (1) for “section 11 of the Trade Union and Labour Relations Act 1974” substitute “section 32 of the Trade Union and Labour Relations (Consolidation) Act 1992” and for “subsection (2)” substitute “subsection (1)”.

(5)In Article 44 (ballots authorising or endorsing industrial action), in paragraph (1)(b) for “section 10(1) of the Trade Union Act 1984” substitute “section 226(1) of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(6)In Article 46 (interpretation), in paragraph (1), in the definition of “offshore worker” for “section 127 of the Employment Protection Act 1975” substitute “section 287 of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(7)In Article 65 (collection of union dues by employer), in paragraph (6)(a) for “the Trade Union Act 1913” substitute “Chapter VI of Part I of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(8)In Article 67 (relationship of Part VIII with law in Great Britain)—

(a)omit paragraph (2);

(b)in paragraph (3) for “any such trade union” substitute “a trade union having its head or main office outside Northern Ireland” and for “section 3 of the Trade Union Act 1913” substitute “section 71(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992”;

(c)in paragraph (4) for “the Trade Union Act 1913” substitute “Chapter VI of Part I of the Trade Union and Labour Relations (Consolidation) Act 1992”.

(9)In Article 81 (interpretation), in paragraph (4) for “Trade Union and Labour Relations Act 1974” substitute “Trade Union and Labour Relations (Consolidation) Act 1992” and for “section 8” substitute “section 2”.

Section 300(3).

SCHEDULE 3Transitional provisions and savings

Continuity of the law

1(1)The repeal and re-enactment of provisions in this Act does not affect the continuity of the law.

(2)Anything done (including subordinate legislation made), or having effect as done, under a provision reproduced in this Act has effect as if done under the corresponding provision of this Act.

(3)References (express or implied) in this Act or any other enactment, instrument or document to a provision of this Act shall, so far as the context permits, be construed as including, in relation to times, circumstances and purposes before the commencement of this Act, a reference to corresponding earlier provisions.

(4)A reference (express or implied) in any enactment, instrument or other document to a provision reproduced in this Act shall be construed, so far as is required for continuing its effect, and subject to any express amendment made by this Act, as being, or as the case may required including, a reference to the corresponding provision of this Act.

General saving for old transitional provisions and savings

2(1)The repeal by this Act of a transitional provision or saving relating to the coming into force of a provision reproduced in this Act does not affect the operation of the transitional provision or saving, in so far as it is not specifically reproduced in this Act but remains capable of having effect in relation to the corresponding provision of this Act.

(2)The repeal by this Act of an enactment previously repealed subject to savings does not affect the continued operation of those savings.

(3)The repeal by this Act of a saving on the previous repeal of an enactment does not affect the operation of the saving in so far as it is not specifically reproduced in this Act but remains capable of having effect.

Effect of repeal of 1946 Act

3The repeal by this Act of the [1946 c. 52.] Trade Disputes and Trade Unions Act 1946 shall not be construed as reviving in any respect the effect of the [1927 c. 22.] Trade Disputes and Trade Unions Act 1927.

Pre-1974 references to registered trade unions or employers' associations

4(1)Any reference in an enactment passed, or instrument made under an enactment, before 16th September 1974—

(a)to a trade union or employers' association registered under—

(i)the Trade Union Acts 1871 to 1964, or

(ii)the [1971 c. 72.] Industrial Relations Act 1971, or

(b)to an organisation of workers or an organisation of employers within the meaning of the Industrial Relations Act 1971,

shall be construed as a reference to a trade union or employers' association within the meaning of this Act.

(2)Subsection (1) does not apply to any enactment relating to income tax or corporation tax.

Enforceability of collective agreements

5Section 179 of this Act (enforceability of collective agreements) does not apply to a collective agreement made on or after 1st December 1971 and before 16th September 1974.

Trade unions and employers' associations ceasing to be incorporated by virtue of 1974 Act

6(1)The repeal by this Act of section 19 of the [1974 c. 52.] Trade Union and Labour Relations Act 1974 (transitional provisions for trade unions and employers' associations ceasing to be incorporated) does not affect—

(a)the title to property which by virtue of that section vested on 16th September 1974 in “the appropriate trustees” as defined by that section, or

(b)any liability, obligation or right affecting such property which by virtue of that section became a liability, obligation or right of those trustees.

(2)A certificate given by the persons who on that date were the president and general secretary of a trade union or employers' association, or occupied positions equivalent to that of president and general secretary, that the persons named in the certificate are the appropriate trustees of the union or association for the purposes of section 19(2) of the Trade Union and Labour Relations Act 1974 is conclusive evidence that those persons were the appropriate trustees for those purposes.

(3)A document which purports to be such a certificate shall be taken to be such a certificate unless the contrary is proved.

References to former Industrial Arbitration Board

7Any reference to the former Industrial Arbitration Board in relation to which section 10(2) of the [1975 c. 71.] Employment Protection Act 1975 applied immediately before the commencement of this Act shall continue to be construed as a reference to the Central Arbitration Committee.

Effect of political resolution passed before 1984 amendments

8A resolution under section 3 of the [1913 c. 30.] Trade Union Act 1913, or rule made for the purposes of that section, in relation to which section 17(2) of the [1984 c. 49.] Trade Union Act 1984 applied immediately before the commencement of this Act shall continue to have effect as if for any reference to the political objects to which section 3 of the 1913 Act formerly applied there were substituted a reference to the objects to which that section applied as amended by the 1984 Act.

Persons elected to trade union office before 1988 amendments

9(1)In relation to a person who was, within the period of five years ending with 25th July 1989, elected to a position to which the requirements of section 1 of the Trade Union Act 1984 were extended by virtue of section 12(1) of the Employment Act 1988—

(a)the references in section 46(1)(a) and 58(2)(a) to satisfying the requirements of Chapter IV of Part I shall be disregarded, and

(b)the period of five years mentioned in section 46(1)(b) shall be calculated from the date of that election.

(2)Sub-paragraph (1) does not apply if the only persons entitled to vote in the election were themselves persons holding positions to which Chapter IV of Part I would have applied had that Chapter been in force at the time.

10In relation to a person who was elected to a position to which Chapter IV of Part I applies before 26th July 1989, the reference in section 58(2)(a) (exemption of persons nearing retirement) to satisfying the requirements of that Chapter—

(a)shall not be construed as requiring compliance with any provision corresponding to a provision of section 13 or 15 of the [1988 c. 19.] Employment Act 1988 (additional requirements as to elections) which was not then in force, and

(b)in relation to an election before the commencement of section 14(2) of that Act (postal ballots) shall be construed as requiring compliance with section 3 of the Trade Union Act 1984 (non-postal ballots).

Qualification to act as auditor of trade union or employers' association

11(1)Nothing in section 34 (eligibility for appointment as auditor) affects the validity of any appointment as auditor of a trade union or employers' association made before 1st October 1991 (when section 389 of the [1985 c. 6.] Companies Act 1985 was repealed and replaced by the provisions of Part II of the [1989 c. 40.] Companies Act 1989).

(2)A person who is not qualified as mentioned in section 34(1) may act as auditor of a trade union in respect of an accounting period if—

(a)the union was registered under the Trade Union Acts 1871 to 1964 on 30th September 1971,

(b)he acted as its auditor in respect of the last period in relation to which it was required to make an annual return under section 16 of the [1871 c. 31.] Trade Union Act 1871,

(c)he has acted as its auditor in respect of every accounting period since that period, and

(d)he retains an authorisation formerly granted by the Board of Trade or the Secretary of State under section 16(1)(b) of the [1948 c. 38.] Companies Act 1948 (adequate knowledge and experience, or pre-1947 practice).

Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992/807 (N.I. 5))

12(1)The following provisions have effect only if, or to the extent that, the relevant provisions of the Industrial Relations (Northern Ireland) Order 1992 (“the 1992 Order”) are not in force when this Act comes into force; and they shall cease to have effect when those provisions come into force.

(2)If the repeal by the 1992 Order of the enactments relating to the registration of trade unions and unincorporated employers' associations is not in force, then, in Part I of this Act, for section 120 (Northern Ireland unions) substitute—

120Northern Ireland trade unions

(1)In this Part a “Northern Ireland union” means a trade union within the meaning of the enactments relating to trade unions in Northern Ireland—

(a)which is, or for the purpose of any of those enactments is deemed to be, registered in Northern Ireland, or

(b)whose principal office is situated in Northern Ireland.

(2)The “enactments relating to trade unions in Northern Ireland” means the Trade Union Acts 1871 to 1965, as for the time being in force in Northern Ireland, and any Northern Ireland legislation (whenever passed or made) by which those Acts or any provisions of them are amended or superseded..

(3)If the provisions of Part X of the 1992 Order (amalgamations, etc.) are not in force, then, in section 9 of the [1965 c. 2 (N.I.).] Trade Union (Amalgamations, &c.) Act (Northern Ireland) Act 1965 (application of Act to amalgamation or transfer of engagements involving Great Britain union), for subsection (2) substitute—

(2)In this Act “Great Britain union” means a trade union or employers' association within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992—

(a)whose name is entered in the list of trade unions or employers' associations under that Act, or

(b)which has its principal office in Great Britain..

(4)If the repeal by the 1992 Order of any of the following enactments is not in force, nothing in Schedule 1 shall be construed as affecting the application of that enactment as part of the law of Northern Ireland—

(a)the [1896 c. 25.] Friendly Societies Act 1896;

(b)the [1913 c. 30.] Trade Union Act 1913 as it applies in relation to a trade union or unincorporated employers' association which has its head or main office in Northern Ireland;

(c)the [1919 c. 69.] Industrial Courts Act 1919.

Use of existing forms, &c.

13Any document made, served or issued on or after the commencement of this Act which contains a reference to an enactment repealed by this Act shall be construed, except so far as a contrary intention appears, as referring or, as the context may require, including a reference to the corresponding provision of this Act.

Saving for power to vary or revoke

14The power of the Secretary of State by further order to vary or revoke the [S.I. 1982/953.] Funds for Trade Union Ballots Order 1982 extends to so much of section 115(2)(a) as reproduces the effect of Article 2 of that order.

TABLE OF DERIVATIONS

The following abbreviations are used in this Table:—

1875Conspiracy and Protection of Property Act 1875 (c. 86).
1913Trade Union Act 1913 (2 & 3 Geo.5 c. 30).
1919Industrial Courts Act 1919 (c. 69).
1964Trade Union (Amalgamations, &c.) Act 1964 (c. 24).
1971Industrial Relations Act 1971 (c. 72).
1974Trade Union and Labour Relations Act 1974 (c. 52).
1975Employment Protection Act 1975 (c. 71).
1976Trade Union and Labour Relations (Amendment) Act 1976 (c. 7).
1978Employment Protection (Consolidation) Act 1978 (c. 44).
1980Employment Act 1980 (c. 42).
1982Employment Act 1982 (c. 46).
1984Trade Union Act 1984 (c. 49).
1988Employment Act 1988 (c. 19).
1989Employment Act 1989 (c. 38).
1990Employment Act 1990 (c. 38).
ProvisionDerivation
Part I, Chapter I.
11913 s.2(1); 1964 s.9(1) “trade union”; 1974 s.28(1), Sch.3 paras.2(2), 10(8); 1975 s.126(1) “trade union”; 1978 s.153(1); 1980 s.3(9); 1982 s.18(2); 1984 ss.9(1), 10(5); 1988 ss.18(2), 32(1); 1990 ss.7(5), 8(7).
2(1)1974 s.8(1), (2); 1975 Sch.16 Pt.III, para.1.
(2), (3)1974 s.8(9); 1975 Sch.16 Pt.III, paras.1 and 4.
(4), (5), (6)1974 s.8(10); 1975 Sch.16 Pt.III, paras.1 and 5.
3(1)1974 s.8(3); 1975 Sch.16 Pt.III para.1.
(2)1974 s.8(4); 1975 Sch.16 Pt.III para.1.
(3)1974 s.8(3); 1975 Sch.16 Pt.III para.1.
(4)1974 s.8(5); 1975 Sch.16 Pt.III para.1.
4(1), (2)1974 s.8(6); 1975 Sch.16 Pt.III, para.1.
(3)1974 s.8(6A); 1975 Sch.16 Pt.III, paras.1 and 2.
51974 s.30(1) “independent trade union”; 1975 s.126(1) “independent trade union”, “independence” and “independent”; 1978 s.153(1) “independent trade union”.
6(1)1975 s.8(1), (2).
(2), (3)1975 s.8(3), (4).
(4)1975 s.8(6).
(5)1975 s.8(5)(a),(b).
(6)1975 s.8(5)(c).
7(1)1975 s.8(7).
(2)1975 s.8(3), (8).
(3)1975 s.8(6), (8).
(4)1975 s.8(5)(a),(b), (8).
(5)1975 s.8(5)(c), (8).
(6)1975 s.8(10).
8(1) to (3)1975 s.8(11).
(4), (5)1975 s.8(12).
9(1)1974 s.8(7); 1975 Sch.16 Pt.III, para.3; 1978 s.136(3), Sch.16 para.18.
(2)1975 s.8(9).
(3)1974 s.8(7); 1975 s.8(9), Sch.16 Pt.III para.3.
(4)1974 s.8(7); 1975 s.8(9), Sch.16 Pt.III para.3; 1978 s.136(3), Sch.16 paras.18 and 23(3).
Part I, Chapter II.
10(1), (2)1974 s.2(1)(a), (c), (d).
(3)1974 s.2(2), (3); Interpretation Act 1978 (c. 30) s.17(2)(a); Companies Consolidation (Consequential Provisions) Act 1985 (c. 9) Sch.2.
11(1), (2)1974 s.2(5).
12(1)1974 s.2(1)(b).
(2)1974 s.2(1)(e).
(3)drafting.
13(1)1974 s.4(1), (2), (3).
(2)1974 s.4(1).
(3)1974 s.4(3).