Employment Relations Bill - continued        House of Lords
SCHEDULE A1, COLLECTIVE BARGAINING: RECOGNITION - continued
PART VII, LOSS OF INDEPENDENCE - continued
Introduction - continued

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     121. - (1) This Part of this Schedule also applies if-
 
 
    (a) the parties have agreed that a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit,
 
    (b) the CAC has specified to the parties under paragraph 45(2) the method by which they are to conduct collective bargaining, and
 
    (c) the parties have not agreed in writing to replace the method or that paragraph 45(3) shall not apply.
      (2) In such a case references in this Part of this Schedule to the bargaining arrangements are to-
 
 
    (a) the parties' agreement mentioned in sub-paragraph (1)(a), and
 
    (b) anything effective as, or as if contained in, a legally enforceable contract by virtue of paragraph 45.
     122. References in this Part of this Schedule to the parties are to the employer and the union (or unions) concerned.
 
 
Loss of certificate
     123. - (1) This paragraph applies if-
 
 
    (a) only one union is a party, and
 
    (b) under section 7 the Certification Officer withdraws the union's certificate of independence.
      (2) This paragraph also applies if-
 
 
    (a) more than one union is a party, and
 
    (b) under section 7 the Certification Officer withdraws the certificate of independence of each union (whether different certificates are withdrawn on the same or on different days).
      (3) Sub-paragraph (4) shall apply on the day after-
 
 
    (a) the day on which the Certification Officer informs the union (or unions) of the withdrawal (or withdrawals), or
 
    (b) if there is more than one union, and he informs them on different days, the last of those days.
      (4) The bargaining arrangements shall cease to have effect; and the parties shall be taken to agree that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit concerned.
 
 
Certificate re-issued
     124. - (1) This paragraph applies if-
 
 
    (a) only one union is a party,
 
    (b) paragraph 123 applies, and
 
    (c) as a result of an appeal under section 9 against the decision to withdraw the certificate, the Certification Officer issues a certificate that the union is independent.
      (2) This paragraph also applies if-
 
 
    (a) more than one union is a party,
 
    (b) paragraph 123 applies, and
 
    (c) as a result of an appeal under section 9 against a decision to withdraw a certificate, the Certification Officer issues a certificate that any of the unions concerned is independent.
      (3) Sub-paragraph (4) shall apply, beginning with the day after-
 
 
    (a) the day on which the Certification Officer issues the certificate, or
 
    (b) if there is more than one union, the day on which he issues the first or only certificate.
      (4) The bargaining arrangements shall have effect again; and paragraph 123 shall cease to apply.
 
 
Miscellaneous
     125. Parts III to VI of this Schedule shall not apply in the case of the parties at any time when, by virtue of this Part of this Schedule, the bargaining arrangements do not have effect.
 
     126. If-
 
 
    (a) by virtue of paragraph 124 the bargaining arrangements have effect again beginning with a particular day, and
 
    (b) in consequence section 70B applies in relation to the bargaining unit concerned,
  for the purposes of section 70B(3) that day shall be taken to be the day on which section 70B first applies in relation to the unit.
 
  PART VIII
  DETRIMENT
 
Detriment
     127. - (1) A worker has a right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer if the act or failure takes place on any of the grounds set out in sub-paragraph (2).
 
      (2) The grounds are that-
 
 
    (a) the worker acted with a view to obtaining or preventing recognition of a union (or unions) by the employer under this Schedule;
 
    (b) the worker indicated that he supported or did not support recognition of a union (or unions) by the employer under this Schedule;
 
    (c) the worker acted with a view to securing or preventing the ending under this Schedule of bargaining arrangements;
 
    (d) the worker indicated that he supported or did not support the ending under this Schedule of bargaining arrangements;
 
    (e) the worker influenced or sought to influence the way in which votes were to be cast by other workers in a ballot arranged under this Schedule;
 
    (f) the worker influenced or sought to influence other workers to vote or to abstain from voting in such a ballot;
 
    (g) the worker voted in such a ballot;
 
    (h) the worker proposed to do, failed to do, or proposed to decline to do, any of the things referred to in paragraphs (a) to (g).
      (3) A ground does not fall within sub-paragraph (2) if it constitutes-
 
 
    (a) a breach by the worker of his worker's contract with his employer, or
 
    (b) an unreasonable act or omission by the worker.
      (4) This paragraph does not apply if the worker is an employee and the detriment amounts to dismissal within the meaning of the Employment Rights Act 1996.
 
      (5) A worker may present a complaint to an employment tribunal on the ground that he has been subjected to a detriment in contravention of this paragraph.
 
      (6) Apart from the remedy by way of complaint as mentioned in sub-paragraph (5), a worker has no remedy for infringement of the right conferred on him by this paragraph.
 
     128. - (1) An employment tribunal shall not consider a complaint under paragraph 127 unless it is presented-
 
 
    (a) before the end of the period of 3 months starting with the date of the act or failure to which the complaint relates or, if that act or failure is part of a series of similar acts or failures (or both), the last of them, or
 
    (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.
      (2) For the purposes of sub-paragraph (1)-
 
 
    (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;
 
    (b) a failure to act shall be treated as done when it was decided on.
      (3) For the purposes of sub-paragraph (2), in the absence of evidence establishing the contrary an employer must be taken to decide on a failure to act-
 
 
    (a) when he does an act inconsistent with doing the failed act, or
 
    (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.
     129. On a complaint under paragraph 127 it shall be for the employer to show the ground on which he acted or failed to act.
 
     130. - (1) If the employment tribunal finds that a complaint under paragraph 127 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 act or failure 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 act or failure which infringed his right.
 
      (3) The loss shall be taken to include-
 
 
    (a) any expenses reasonably incurred by the complainant in consequence of the act or failure complained of, and
 
    (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure.
      (4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.
 
      (5) If the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
 
 
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Prepared 17 June 1999