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

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Certificate re-issued
     153. - (1) This paragraph applies if-
 
 
    (a) only one union is a party,
 
    (b) paragraph 152 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 152 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 152 shall cease to apply.
 
 
Miscellaneous
     154. 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.
 
     155. If-
 
 
    (a) by virtue of paragraph 153 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
     156. - (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 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.
 
     157. - (1) An employment tribunal shall not consider a complaint under paragraph 156 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.
     158. On a complaint under paragraph 156 it shall be for the employer to show the ground on which he acted or failed to act.
 
     159. - (1) If the employment tribunal finds that a complaint under paragraph 156 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.
 
     160. - (1) If the employment tribunal finds that a complaint under paragraph 156 is well-founded and-
 
 
    (a) the detriment of which the worker has complained is the termination of his worker's contract, but
 
    (b) that contract was not a contract of employment,
  any compensation awarded under paragraph 159 must not exceed the limit specified in sub-paragraph (2).
 
      (2) The limit is the total of-
 
 
    (a) the sum which would be the basic award for unfair dismissal, calculated in accordance with section 119 of the Employment Rights Act 1996, if the worker had been an employee and the contract terminated had been a contract of employment, and
 
    (b) the sum for the time being specified in section 124(1) of that Act which is the limit for a compensatory award to a person calculated in accordance with section 123 of that Act.
 
Dismissal
     161. - (1) For the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the dismissal was made-
 
 
    (a) for a reason set out in sub-paragraph (2), or
 
    (b) for reasons the main one of which is one of those set out in sub-paragraph (2).
      (2) The reasons are that-
 
 
    (a) the employee acted with a view to obtaining or preventing recognition of a union (or unions) by the employer under this Schedule;
 
    (b) the employee indicated that he supported or did not support recognition of a union (or unions) by the employer under this Schedule;
 
    (c) the employee acted with a view to securing or preventing the ending under this Schedule of bargaining arrangements;
 
    (d) the employee indicated that he supported or did not support the ending under this Schedule of bargaining arrangements ;
 
    (e) the employee 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 employee influenced or sought to influence other workers to vote or to abstain from voting in such a ballot;
 
    (g) the employee voted in such a ballot;
 
    (h) the employee 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 reason does not fall within sub-paragraph (2) if it constitutes an unreasonable act or omission by the employee.
 
 
Selection for redundancy
     162. For the purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason or principal reason for the dismissal 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 falling within paragraph 161(2).
 
Employees with fixed-term contracts
     163. Section 197(1) of the Employment Rights Act 1996 (fixed-term contracts) does not prevent Part X of that Act from applying to a dismissal which is regarded as unfair by virtue of paragraph 161 or 162.
 
 
Exclusion of requirement as to qualifying period
     164. Sections 108 and 109 of the Employment Rights Act 1996 (qualifying period and upper age limit for unfair dismissal protection) do not apply to a dismissal which by virtue of paragraph 161 or 162 is regarded as unfair for the purposes of Part X of that Act.
 
 
Meaning of worker's contract
     165. References in this Part of this Schedule to a worker's contract are to the contract mentioned in paragraph (a) or (b) of section 296(1) or the arrangements for the employment mentioned in paragraph (c) of section 296(1).
 
  PART IX
  GENERAL
 
Power to amend
     166. - (1) If the CAC represents to the Secretary of State that paragraph 22 or 87 has an unsatisfactory effect and should be amended, he may by order amend it with a view to rectifying that effect.
 
      (2) He may amend it in such way as he thinks fit, and not necessarily in a way proposed by the CAC (if it proposes one).
 
      (3) An order under this paragraph shall be made by statutory instrument.
 
      (4) No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.
 
 
Guidance
     167. - (1) The Secretary of State may issue guidance to the CAC on the way in which it is to exercise its functions under paragraph 22 or 87.
 
      (2) The CAC must take into account any such guidance in exercising those functions.
 
      (3) However, no guidance is to apply with regard to an application made to the CAC before the guidance in question was issued.
 
      (4) The Secretary of State must-
 
 
    (a) lay before each House of Parliament any guidance issued under this paragraph, and
 
    (b) arrange for any such guidance to be published by such means as appear to him to be most appropriate for drawing it to the attention of persons likely to be affected by it.
 
Method of conducting collective bargaining
     168. - (1) After consulting ACAS the Secretary of State may by order specify for the purposes of paragraphs 31(3) and 63(2) a method by which collective bargaining might be conducted.
 
      (2) If such an order is made the CAC-
 
 
    (a) must take it into account under paragraphs 31(3) and 63(2), but
 
    (b) may depart from the method specified by the order to such extent as the CAC thinks it is appropriate to do so in the circumstances.
      (3) An order under this paragraph shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
 
 
Directions about certain applications
     169. - (1) The Secretary of State may make to the CAC directions as described in sub-paragraph (2) in relation to any case where-
 
 
    (a) two or more applications are made to the CAC,
 
    (b) each application is a relevant application,
 
    (c) each application relates to the same bargaining unit, and
 
    (d) the CAC has not accepted any of the applications.
      (2) The directions are directions as to the order in which the CAC must consider the admissibility of the applications.
 
      (3) The directions may include-
 
 
    (a) provision to deal with a case where a relevant application is made while the CAC is still considering the admissibility of another one relating to the same bargaining unit;
 
    (b) other incidental provisions.
      (4) A relevant application is an application under paragraph 101, 106, 107, 112 or 128.
 
 
Notice of declarations
     170. - (1) If the CAC issues a declaration under this Schedule it must notify the parties of the declaration and its contents.
 
      (2) The reference here to the parties is to-
 
 
    (a) the union (or unions) concerned and the employer concerned, and
 
    (b) if the declaration is issued in consequence of an application by a worker or workers, the worker or workers making it.
 
CAC's general duty
     171. In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.
 
 
General interpretation
     172. - (1) References in this Schedule to the CAC are to the Central Arbitration Committee.
 
      (2) For the purposes of this Schedule in its application to a part of Great Britain a working day is a day other than-
 
 
    (a) a Saturday or a Sunday,
 
    (b) Christmas day or Good Friday, or
 
    (c) a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in that part of Great Britain."
 
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Prepared 9 July 1999