(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.
(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.
(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.
(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).
(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.
(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.
(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.
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.
(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”.
(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.
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.
(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.
(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.
(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.
(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.
(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.
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).
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).
(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).
(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.
(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.
(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.
(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.
(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.