1999 Chapter 26

© Crown Copyright 1999

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These notes refer to the Employment Relations Act 1999 which received Royal Assent on 27 July 1999 (c.26)

Employment Relations Act 1999

EXPLANATORY NOTES

INTRODUCTION

1.     These notes relate to the Employment Relations Act which received Royal Assent on 27 July 1999. They have been prepared by the Department of Trade and Industry in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The majority of the provisions of this Act form part of a package of reforms to employment and trade union law outlined in the Government's White Paper, Fairness at Work, published in May 1998 (Cm 3968) and developed in the light of consultation, as announced by the Secretary of State for Trade and Industry on 17 December 1998 (Commons Hansard WA cols 692-693).

4.     The Act comprises:

• new statutory procedures for the recognition and derecognition of trade unions for collective bargaining, to apply when unions and employers are unable to reach agreement voluntarily, and a requirement for employers to inform and consult unions recognised under the statutory procedure on their training policies and plans;

• changes to the law on trade union membership, to prevent discrimination by omission and the blacklisting of people on grounds of trade union membership or activities;

• changes to the law on industrial action, in particular to certain aspects of the ballot requirements and to enable dismissed strikers to complain of unfair dismissal in certain circumstances;

• new rights and changes in family-related employment rights, aimed at making it easier for workers to balance the demands of work and the family;

• a new right for workers to be accompanied in certain disciplinary and grievance hearings;

• other changes in individual employment rights; and

• other, miscellaneous provisions.

5.     Most of the Act consists of amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") and the Employment Rights Act 1996 ("the 1996 Act"). With a few exceptions (notably provisions relating to the National Minimum Wage), the Act does not generally extend to Northern Ireland. Section 46(2), however, provides for an Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 to be subject to the negative rather than the affirmative resolution procedure and to be made only for purposes corresponding to those of this Act.

Trade union recognition and derecognition

6.     The Act gives effect to the Government's proposals for a new system of trade union recognition, as set out in Chapter 4 of Fairness at Work. These were informed by discussions between the CBI and TUC and further developed in the light of the consultation on the White Paper, as announced on 17 December 1998. The statutory procedure for which the Act provides is intended for use only if attempts to reach a voluntary agreement on recognition fail and to act as a means of resolving the dispute without recourse to industrial action.

Trade unions and individual employment rights related to trade unions

7.     The Act contains provisions on three other matters to do with trade unions and related individual employment rights:

• to protect workers against discrimination by omission on the grounds of trade union membership or non-membership or trade union activities;

• to protect workers against blacklisting on the grounds of trade union membership or activities; and

• to remove the requirement for trade unions in certain circumstances to identify to employers those workers who will be balloted or called out on industrial action.

8.     Although the Act will not affect the right of employers and employees to agree individual contracts, even where a union is recognised for collective bargaining in respect of the bargaining unit where the employees work, it does provide for employees to be protected against being forced into accepting individual contracts in such circumstances.

9.     The Act contains provisions aimed at clarifying and simplifying the present law on industrial action ballots and notice in a number of respects.

Family-related employment rights

10.     In Chapter 5 of Fairness at Work, the Government set out proposals aimed at helping employees to combine work and family life satisfactorily by simplifying and extending existing maternity rights and introducing new rights to three months' parental leave for men and women when they have a baby or adopt a child and to time off for urgent family reasons, in line with the provisions of the Parental Leave Directive. The Act implements these proposals by conferring basic rights to maternity and parental leave and to time off for dependants and giving the Secretary of State powers to make regulations on the details of maternity and parental leave. The regulations will be made following public consultation.

Right to be accompanied in disciplinary and grievance hearings

11.     The Act provides that employees should have the right to be accompanied by a fellow employee or trade union representative of their choice in disciplinary and grievance procedures.

Other rights of individuals

12.     The Act:

a)     provides in certain circumstances for employees to be protected from dismissal for taking part in lawfully organised official industrial action;

b)     prohibits the use of waivers for unfair dismissal but not redundancy payments in fixed term contracts;

c)     contains regulation-making powers for the Secretary of State to ensure that part-time workers receive no less favourable treatment than full-time workers. (It is intended that there should be further public consultation on the regulations, which will be brought into force by April 2000 in order to implement the Part-Time Work Directive);

d)     exempts residential members of religious and other similar communities from the National Minimum Wage Act 1998, giving effect to a recommendation from the Low Pay Commission; and

e)     contains order-making powers for the Secretary of State to extend the coverage of some or all existing employment rights by regulation to specified categories of individual.

Other, miscellaneous provisions

13.     The Act makes a number of provisions on institutional matters:

a)     The new statutory recognition and derecognition procedures create a new role for the Central Arbitration Committee. The Act amends the arrangements for the appointment of CAC members and for the proceedings of the CAC in respect of cases under the new procedures.

b)     The Act abolishes the Commissioner for the Rights of Trade Union Members (CRTUM) and the Commissioner for Protection Against Unlawful Industrial Action (CPAUIA). (The Commissioners' main functions are to provide assistance to individuals taking or contemplating certain legal proceedings against unions or union officials.) The Act gives new powers to the Certification Officer to hear complaints involving most aspects of the law where CRTUM is currently empowered to provide assistance.

c)     The Act provides that the general duty of ACAS should be "to promote the improvement of industrial relations", repealing the current emphasis given by the 1992 Act to ACAS's functions in relation to the settlement of trade disputes.

d)     The Act provides for the annual reports of ACAS, the CAC and the Certification Officer to be produced on a financial rather than calendar year basis.

14.     The Act also:

a)     provides statutory authority for the Secretary of State to make funding available to assist and develop partnerships at work;

b)     amends and extends the order-making power in the Employment Agencies Act 1973 under which the Secretary of State regulates the industry, amends the prohibition on charging fees to people seeking work, amends and extends the range of premises that may be entered by inspectors, lengthens the time limit for prosecutions under the 1973 Act, and provides for information obtained under the compulsory powers in the 1973 Act to be disclosed for the purposes of any criminal proceedings and not just those relating to offences under that Act;

c)     removes limits restricting certain employment rights, broadly, to those who ordinarily work in Great Britain;

d)     increases the limit on the compensatory award for unfair dismissal from £12,000 to £50,000, consolidates the existing system of special and additional awards into a single award to apply in cases where an employer fails to comply with a re-employment order, and provides that compensation will not be subject to the monetary limit where an individual has been dismissed unfairly under the provisions of the Public Interest Act 1998 or for reasons relating to health and safety matters;

e)     gives the Secretary of State a power to make regulations requiring employees to be given the same protections in specified circumstances falling outside the scope of the EC Acquired Rights Directive as they have under the UK's implementing legislation in circumstances which do fall within the scope of that Directive;

f)     provides for Inland Revenue officers to be able to pass information obtained in respect of tax and national insurance contributions to their National Minimum Wage colleagues and others for use in enforcing the NMW;

g)     makes a technical amendment to the School Standards and Framework Act 1998 to reflect the reduction in June 1999 of the unfair dismissal qualifying period from two years to one year; and

h)     amends the law under which Ministers can exclude Crown servants from certain employment rights on grounds of national security, giving staff of the security and intelligence services in particular better access to employment tribunals.

COMMENTARY ON SECTIONS

Trade unions

15.     Section 1 and Schedule 1 establish new statutory procedures for the recognition and derecognition of trade unions as entitled to conduct collective bargaining on behalf of particular groups of workers, and for the right of workers to take part in these processes without fear of detriment or dismissal. Section 1 inserts a new Schedule A1, as contained in Schedule 1 to the Act, into the 1992 Act. References to paragraphs, sub-paragraphs and Parts in what follows are references to the paragraphs, sub-paragraphs and Parts of the new Schedule A1 to the 1992 Act.

16.     The statutory process for recognition of a union to conduct collective bargaining on behalf of a particular group of workers is set out in Part I. The procedure gives the union and employer the opportunity to agree an appropriate group of workers (referred to as the bargaining unit) and whether the union should represent them in collective bargaining, but if no agreement is reached there is a mechanism for the Central Arbitration Committee (CAC) to decide on the appropriate bargaining unit or whether the union should be recognised, or both.

The Central Arbitration Committee is established under sections 259-265 of the 1992 Act. Sections 24-25 of the Act amend the arrangements for the appointment of CAC members and for the proceedings of the CAC in respect of its functions under the new Schedule A1.

17.     Part II deals with agreements to recognise a union which are made after a formal application for statutory recognition under Part I. It also contains a procedure for unions or employers to obtain an imposed bargaining method if the agreed method is not honoured. With the exception of Parts II and VI, voluntary recognition is unaffected by the Act.

18.     Part III sets out procedures which may be followed if a union is recognised through the statutory process and, as a result of a change in the employer's business, either the union or the employer believes the bargaining unit has changed. It also deals with cases where the bargaining unit has ceased to exist.

19.     Part IV deals with the derecognition of a union whose recognition resulted from a declaration by the CAC but which was not recognised "automatically" on the basis that more than 50% of the bargaining unit were union members. The derecognition of "automatically" recognised unions is dealt with in Part V.

20.     Part VI provides for workers to be able to invoke the statutory derecognition procedure where an employer has voluntarily recognised a union which does not have a certificate of independence. Part VII sets out the effect of a union recognised through the statutory process losing its certificate of independence.

21.     Part VIII provides protection for workers against detriment arising from participation or non-participation in activities relating to recognition or derecognition. Part IX contains general provisions and powers for the Secretary of State to issue guidance on or to amend certain procedures.

22.     In dealing with cases under the new Schedule A1, the CAC is required by paragraph 171 to have regard to the object of encouraging and promoting fair and efficient practices in the workplace (so far as is consistent with its other obligations under the Schedule).

23.     The following is a paragraph by paragraph index to the new Schedule A1:

Paragraph	Page
		Part I Recognition:
		Introduction
1	22	Union may request recognition
2	22	Definitions
3	22	Definition of collective bargaining
		Request for recognition
4	22	Request to employer: paragraphs 4-8 apply
5	22	Employer must receive request
6	23	Union must have certificate of independence
7	23	Employer must have >= 21 workers
8	23	Form of request
9	23	Power for Secretary of State to prescribe form of requests
10	24	Parties agree: consequences
11	24	Employer rejects request: consequences
12	24	Negotiations fail: consequences
		Acceptance of applications
13	25	CAC must acknowledge receipt
14	25	Competing applications
15	26	Preliminary tests
16	26	Withdrawal of application: consequences
17	26	Notice to cease consideration of application: consequences
		Appropriate bargaining unit
18	27	CAC to help parties agree
19	27	CAC decides appropriate bargaining unit
		Union recognition
20	28	Appropriate unit differs from proposed unit: tests of validity
21	28	Appropriate unit same as proposed unit: application proceeds
22	28	Automatic recognition
23	29	Ballot if no automatic recognition
24	29	Holding of ballot - period for withdrawal
25	29	Details of ballot
26	30	Employer's three duties to cooperate with ballot
27	31	Penalties for non-cooperation
28	31	Allocation of ballot costs
29	32	Results of ballot: consequences
		Consequences of recognition
30	33	Negotiation of bargaining method
31	33	CAC specifies bargaining method
32	33	Method not carried out: consequences
		General provisions about applications
33	34	Form of application to CAC
34	34	Notification of employer
35	34	Application may not cover workers already represented by union
36	34	Sufficient support (10% & likely majority)
37	35	More than one union: proof of cooperation
38	35	Competing application
39	36	3 year bar: application accepted in previous 3 years
40	36	3 year bar: declaration that union is not recognised
41	36	3 year bar: declaration that union is derecognised
42	37	Substantially similar bargaining units
		General provisions about validity
43	37	Definitions
44	37	Application may not cover workers already represented by union
45	37	Sufficient support (10% & likely majority)
46	38	Competing application
47	38	3 year bar: application accepted in previous 3 years
48	38	3 year bar: declaration that union is not recognised
49	38	3 year bar: declaration that union is derecognised
50	39	Substantially similar bargaining units
51	39	Competing applications: effect on accepted applications
		Part II Voluntary Recognition
52	39	Agreements for recognition: Definition
		Other interpretation
53	40	Definitions
54	40	Definition of collective bargaining
55	41	Determination of type of agreement: agreement for recognition?
		Termination of agreement for recognition
56	41	How the agreement may be terminated
57	41	Effect of termination
		Application to CAC to specify method
58	41	Period for negotiation about bargaining method
59	42	Method not carried out : application to CAC
60	42	Admissibility of application
61	43	Form of application
		CAC's response to application
62	43	Decision on admissibility
63	43	Determination of bargaining method
		Part III Changes Affecting Bargaining Unit
		Introduction
64	44	Part III applies to union recognised via Part I or III
65	44	Definition of 'parties'
		Either party believes unit no longer appropriate
66	45	Either party may apply to CAC
67	45	Evidence that unit has changed
68	45	Acceptance of application
69	46	Parties agree new unit
70	46	CAC must decide changes to original unit
71	47	Unit continues to be appropriate: consequence
72	47	CAC decides unit has changed: consequences
73	47	Workers falling outside agreed unit(s)
		Employer believes unit has ceased to exist
74	47	Employer must give valid notice
75	48	Union disagrees with notice
76	48	Acceptance of application
77	49	Acceptance of application: consequences
78	49	Unit still exists: parties agree new unit
79	50	Unit still exists: CAC decides changes to original unit
80	50	CAC decides unit has changed: consequences
81	51	Workers falling outside agreed unit(s)
		Position where CAC decides new unit
82	51	Procedure for dealing with new unit(s)
83	51	New unit contains workers covered by other statutory recognition
84	52	New unit contains workers covered by voluntary recognition
85	53	Assessment of support
86	53	Test of sufficient support
87	53	Automatic recognition
88	54	Ballot if no automatic recognition
89	54	Ballot: conduct and consequences
		Residual workers
90	55	Workers falling outside new unit(s)
91	55	Effect on statutory outside unit
92	56	Applications under this Part: form and admissibility
93	56	Withdrawal of applications: when it is allowed
94	57	Meaning of collective bargaining: definitions for use in Part III
95	57	Method of collective bargaining: legal enforceability
		Part IV Derecognition: General
		Introduction
96	58	Part IV applies to union recognised via Part I or III
97	58	3 year period before derecognition possible
98	58	Definition of 'parties'
		Employer employs fewer than 21 workers
99	58	Employer may give notice
100	59	Validity of notice
101	59	Union disagrees with notice
102	60	Acceptance of union's application
103	60	Acceptance of application: consequences
		Employer's request to end arrangements
104	61	Employer may request derecognition
105	61	Negotiation periods
106	62	Union rejects or fails to respond to request
107	62	Negotiations fail
108	62	Form of application
109	62	3 year bar on re-application
110	62	Test of sufficient support
111	63	Acceptance of application by CAC
		Workers' request to end arrangements
112	63	Workers may request derecognition
113	63	3 year bar on re-application
114	64	Test of sufficient support
115	64	Acceptance of application by CAC
116	64	Negotiation period
		Ballot on derecognition
117	64	Ballot procedures
118	66	Employer's 3 duties to cooperate with ballot
119	66	Penalties for non-cooperation
120	67	Allocation of ballot costs
121	67	Results of ballot: consequences
		Part V Derecognition Where Recognition Automatic
		Introduction
122	68	Application if bargaining method agreed, para 22 recognition
123	68	Application if bargaining method imposed, para 22 recognition
124	68	Application if recognition via paragraph 87
125	69	3 year period before derecognition possible
126	69	Definition of 'parties'
		Employer's request to end arrangements
127	69	Employer may request derecognition
128	69	Negotiation periods
129	69	Form of application
130	69	3 year bar on re-application
131	70	Test of union membership
132	70	Validity of application
133	70	Ballot on derecognition: procedure if application is valid
		Part VI Derecognition Where Union Not Independent
		Introduction
134	70	Part VI applies if non-independent union recognised
135	71	Definitions of 'parties', 'bargaining unit'
136	71	Definition of collective bargaining
		Workers' request to end arrangements
137	71	Admissibility of application
138	71	Union must not have certificate of independence
139	71	Test of sufficient support
140	71	Test of outstanding application for certificate of independence
141	71	Acceptance of application
142	72	Negotiation period
143	72	CAC to suspend work if union has outstanding application
144	72	Action if union is independent
145	73	Action if union is not independent
146	73	Action if union gains independence during process
147	74	Ballot on derecognition: procedure if negotiations fail
148	74	Derecognition: other cases: independent union recognised
		Part VII Loss of independence
		Introduction
149	74	Part VII applies to union recognised via Part I or III
150	75	Part VII applies to union recognised via Part II
151	75	Definition of 'parties'
152	75	Loss of certificate: consequences
153	75	Certificate re-issued: consequences
		Miscellaneous
154	76	Parts III-VI do not apply if union has lost independence
155	76	Effect on requirement to consult on training
		Part VIII Detriment
		Detriment
156	76	Right not to suffer detriment for actions under this Schedule
157	77	Complaint to employment tribunal
158	77	Employer must show grounds for action or failure to act
159	77	Compensation
160	78	Termination of contract if not a contract of employment
161	78	Dismissal: unfair for actions under this Schedule
162	79	Selection for redundancy: unfair for actions under this Schedule
163	79	Employees with fixed-term contracts: cannot waive rights
164	79	Exclusion of requirement as to qualifying period
165	79	Meaning of worker's contract
		Part IX General
166	79	Power to amend: Secretary of State may amend paragraph 22/87
167	79	Guidance: Secretary of State may issue guidance on paragraph 22/87
168	80	Method of conducting collective bargaining: Secretary of State may specify
169	80	Directions about certain applications: derecognition applications
170	80	Notice of declarations: CAC must give notice to the parties
171	80	CAC's general duty
172	81	General interpretation