Protections for Striking Employees

Previous position

177.     Sections 26 to 28 contain provisions that increase the protections given to employees by section 238A of the 1992 Act. That section, which was inserted by the Employment Relations Act 1999, provides protections to employees if they are dismissed for taking lawfully organised official industrial action (protected industrial action). The section made it unfair to dismiss an employee for this reason (1) during the eight week period following the start of the protected industrial action, (2) after this period where the employee's participation in the action had ceased within the 8-week period, or (3) after this period where the employee's participation had not ceased before the end of the period unless the employer has taken reasonable procedural steps to resolve the dispute with the union. The section lists a number of matters to which regard must be had when determining whether reasonable procedural steps have been taken. These include whether either the employer or the union have refused an offer to use the services of a conciliator or mediator. One tribunal case has been brought under this jurisdiction (Mr J Davis v Friction Dynamics). One issue raised by the case, which occurred in controversial circumstances, was how section 238A applied where the employees taking protected industrial action were locked out while taking it. A second issue was whether the employer had engaged fully in the conciliation process or was merely going through the motions to comply with the requirements of the section.

Dismissal where employees taking protected industrial action locked out

178.     Section 26 amends the protections for striking employees in section 238A of the 1992 Act by changing the length and scope of the protected period currently specified in the section. It does this by extending the period from 8 to 12 weeks and by providing for 'locked-out' days to be disregarded when determining the length of the period. As a result of the amendments made by this section, the period will in effect end when 84 days have passed since the start of the action on which no lock-out has occurred. This means, for example, that where a lock-out occurred on two days, the total period of protection becomes 86 days.

179.     Subsection (2) introduces the term "protected period" into section 238A.

180.     Subsection (3) inserts four new subsections, (7A) to (7D), into section 238A of the 1992 Act that have the effect of lengthening the period of protection when a lock- out occurs. New subsection (7A) states that the total length of the "protected period" equals the "basic period" plus any "extension period".

181.     New subsection (7B) defines the basic period as 12 weeks beginning with the first day of protected industrial action. New subsection (7C) defines the extension period. It means that the total period of protection is extended beyond the basic 12 week period by one day for each day on which the employee was locked out that occurred either within the basic period or within an extension period.

182.     New subsection (7D) ensures that the period of protected industrial action can begin even though a lock-out might be in force on that day.

Date of dismissal

183.     Section 27 amends section 238A of the 1992 Act by substituting "the date of the dismissal" for the words "it takes place" (referring to when the dismissal takes place) at each place where they occur in the section, and then defining the expression "the date of dismissal" in the same way as it is defined for the purposes of section 238 by section 238(5). The effect is that for the purposes of section 238A "the date of the dismissal" means:

• the date on which the employer's notice was given, where the employee's contract of employment was terminated by notice, and

• in any other case the effective date of termination.

184.     The effect is to ensure that where section 238A applies in relation to a dismissal with notice the dismissal is treated as occurring when the notice is given and not when the period of notice expires.

Dismissal after end of protected period

185.     Section 28(1) inserts a new subsection (6)(e) into section 238A of the 1992 Act, introducing new matters to which the tribunal is to have particular regard when assessing whether the employer has taken reasonable procedural steps to resolve the dispute with the union. The duty to have regard to those matters applies where the parties have accepted that the services of a conciliator or mediator will be used. The matters themselves are set out in new section 238B which subsection (2) inserts into the 1992 Act.

New Section 238B

186.     Subsections (2) to (5) of new section 238B set out the procedural actions that the employer and the union should take where they have agreed that conciliation or mediation services will be used. The issue of whether the employer and union have taken the actions set out is a matter to which the tribunal is to have particular regard.

187.     Subsection (2) sets out the first matter, which is whether the conciliation or mediation meetings have been attended, on behalf of the employer and union, by an "appropriate person". Under subsection (6), an appropriate person is, in the case of the employer, a person who has the authority to settle the matter on behalf of the employer or a person authorised by such a person to make recommendations to him or her with regard to the settlement of the matter. In the case of the union, an "appropriate person" is a person responsible for handling the matter subject to the conciliation or mediation on behalf of the union.

188.     Subsection (3) sets out the second matter, which is whether the employer and union have co-operated with the conciliator or mediator in the making of arrangements to set up meetings.

189.     Subsection (4) sets out the third matter, which is whether the employer and union carried out any actions that they agreed with the conciliator or mediator to take. An additional requirement in subsection (7) is whether those actions were carried out in a timely manner.

190.     Subsection (5) sets out the fourth matter, which is whether the employer and union answered reasonable questions put to them at meetings with all of the parties present. This formulation recognises that there will be occasions when either party should be entitled to refuse to give a response to a question.

191.     Subsections (8) and (9) place limitations on the evidence that the conciliator or mediator may be required to give to the tribunal when it is considering the matters referred to in section 238A(6)(e). These provide, among other things, that confidential information passed by either party to the conciliator or mediator ought not be disclosed to the tribunal without the party's consent.

PART THREE: RIGHTS OF TRADE UNION MEMBERS, WORKERS AND EMPLOYEES

Inducements and detriments in respect of membership etc. of independent trade unions

192.     The general effect of sections 146 and 152 of the 1992 Act as they are at present is to make it unlawful for employers to subject employees to detriment (section 146) or dismiss them (section 152) on grounds of their union membership (or non-membership) or on grounds of taking part in union activities "at an appropriate time".

193.     In July 2002 the European Court of Human Rights delivered its judgment in the case of Wilson & the National Union of Journalists, Palmer, Wyeth & the National Union of Rail, Maritime & Transport Workers, Doolan & others v United Kingdom [2002] IRLR 568 ("Wilson and Palmer") (a summary of the judgment can be found at http://www.echr.coe.int/Eng/Press/2002/july/WilsonandOthersjudepress.htm). The Court concluded that UK trade union law was incompatible with Article 11 of the European Convention on Human Rights (freedom of association) in that where a trade union was recognised by an employer for the purposes of collective bargaining about the terms and conditions of a group of employees, the law did not prevent the employer from offering inducements to the employees in the group to persuade them to surrender their collective representation and have their terms settled instead by negotiations between each individual employee and the employer. The Government believes that the principle underlying the decision of the Court extends beyond the facts in Wilson and Palmer and is applicable to a number of other comparable circumstances. The purpose of sections 29 to 32 is therefore to secure that these provisions deal not only with the facts in Wilson and Palmer but also with the other circumstances considered by the Government to be comparable.

Inducements relating to union membership or activities

194.     Section 29 inserts new sections 145A to 145F into the 1992 Act.

New section 145A

195.     Subsection (1) of the new section gives a worker the right not to have an offer made to him by his employer where the employer's sole or main purpose is to induce the worker to do or not do certain things. The things are (1) not to be or seek to become a member of an independent trade union, (2) not to take part in the activities of an independent trade union at 'an appropriate time', (3) not to make use of the services of a trade union at 'an appropriate time', and (4) to be or become a member of a trade union.

196.     All the limbs of this right are new but while the first, second and fourth limbs reflect the matters covered by the right not to be subjected to detriment already contained in section 146 of the 1992 Act, the third limb relating to making use of union services is entirely new.

197.     Subsection (2) defines the term 'an appropriate time' for the purposes of the rights given by subsection (1). The effect of the definition, which is based on the definition used in the section 146(2) of the 1992 Act as amended by sections 30 and 31, is that the limbs of the right relating to taking part in union activities and making use of trade union services apply where the worker takes part in the activities or makes use of the services outside the worker's working hours, or during them at a time when, in accordance with arrangements agreed with the employer or consent given by the employer, it is permissible for him to do so.

198.     Subsection (3) defines the term "working hours" used in the definition of "an appropriate time". Working hours means any time when the worker is required to be at work by the contract under which he works.

199.     Subsection (4)(a) defines "trade union services" to mean services made available to a worker by an independent trade union by virtue of his membership of the union. Subsection (4)(b) states that references to a worker making use of trade union services include "consenting to the raising of a matter on his behalf by an independent trade union of which he is a member", so ensuring that a worker consenting to his union raising a matter is regarded as making use of union services.

New section 145B

200.     In general terms, new section 145B gives a new right to a worker who is a member of an independent trade union seeking recognition from or recognised by the employer not to have an offer made to him where similar offers are made to other workers and the sole or main purpose of the employer in making the offers is to secure that the terms of the workers will not, or will no longer, be determined by a collective agreement negotiated with the union.

201.     Subsections (1) and (2) of the new section 145B have the effect that a worker who is a member of an independent trade union recognised by, or seeking recognition from, his employer for the purpose of collective bargaining has the right not to have an offer made to him by his employer if (1) his acceptance of the offer, together with the acceptance by other workers of similar offers, would have the result ('the prohibited result') that the workers terms and conditions will not, or no longer, be determined by collective agreement negotiated by or on behalf of the union, and (2) the employer's sole or main purpose in making the offers is to achieve that result.

202.     Subsection (3) has the effect that it is immaterial to the operation of the new right whether the offers are made to the workers simultaneously.

203.     Subsection (4) provides that having terms of employment determined by collective agreement is not to be regarded as making use of a trade union service for the purposes of the new section 145A, or sections 146 or 152 in their form as amended by the Act. This removes the possibility of conflict between new sections 145A and 145B and ensures consistency in the interpretation of new section 145A and sections 146 and 152.

New section 145C

204.     New section 145C sets out the time limit for bringing tribunal proceedings for contravention of the rights in new sections 145A and 145B. Paragraph (a) of the new section provides that a tribunal shall not consider a complaint unless it is presented within three months of the day that the offer was made or, where the offer is part of a series of similar offers, the date when the last was made. However, paragraph (b) of the new section allows a tribunal to consider a complaint presented later where it is satisfied that it was not reasonably practicable for the complaint to be presented within the normal three-month period.

New section 145D

205.     New section 145D contains provisions as to how complaints under new sections 145A and 145B are to be considered by an employment tribunal.

206.     Subsections (1) and (2) provide that on a complaint under new section 145A or 145B it shall be for the employer to show what his sole or main purpose in making the offer was.

207.     Subsection (3) states that in determining whether the employer made an offer or the purpose for which he did so, the tribunal shall take no account of any pressure applied to the employer by the organisation of any industrial action or the threat of such action, and that the question shall be determined as if no such pressure had been applied. The wording of subsection (3) is based on section 148(2), which is the corresponding provision relating to detriment claims under section 146.

208.     Subsection (4) relates only to an offer that is alleged to have contravened new section 145B. The subsection requires that in determining whether the employer's sole or main purpose in making offers was to achieve the prohibited result, the matters to be taken into account by the tribunal must include any evidence showing (1) that when the offers were made the employer had recently changed or sought to change, or did not wish to use, arrangements agreed with the union for collective bargaining, (2) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining, or (3) that offers were made only to particular workers and were made with the sole or main purpose of rewarding those particular workers for their high level of performance or of retaining them because of their special value to the employer.

New section 145E

209.     New section 145E contains the remedies that apply where an employment tribunal finds that there has been a contravention of one of the new rights given by sections 145A and 145B.

210.     Subsections (1) and (2) have the effect that if the tribunal finds a complaint to be well-founded it is to make a declaration to that effect and make an award to be paid by the employer to the worker in respect of the offer complained of.

211.     Subsection (3) has the effect that the award to be paid to the worker is a fixed sum of £2,500 but that the award can be subject to a reduction or increase under the provisions of the Employment Act 2002.

212.     Subsection (4) relates to offers in contravention of sections 145A or 145B that have been accepted. Subsection (4)(a) has the effect that if the acceptance of the offer resulted in the worker agreeing to vary his terms of employment later, the employer cannot enforce the agreement to vary or recover any sum paid or other asset transferred that constituted the inducement.

213.     Subsection (4)(b) has the effect that if the acceptance of the offer resulted in variations of the worker's terms of employment nothing in new sections 145A or 145B makes the variations unenforceable by either the employer or the worker.

214.     Under section 146 as it is at present, an employee already has the right not to have action taken against him by his employer that subjects him to detriment where the ground for taking the action is membership or non-membership of a trade union or taking part in the activities of a trade union. It should be noted that section 146, as amended by section 30 of the Act, will include the right not to be subjected to detriment on the ground of making use of "trade union services" (as defined in section 146 as amended) or of a failure to accept an offer made in contravention of new section 145A or 145B.

215.      Subsection (5) makes it clear that neither the rights given by new sections 145A and 145B nor the remedies contained in new section 145E prejudice any right conferred on a worker by section 146 or 149 of the 1992 Act. This ensures that any worker who is subjected to a detriment because he has not accepted an offer that is unlawful under new section 145A or 145B is able to complain to an employment tribunal both under section 146 and under new section 145A or 145B. This ability for the worker to claim under both the sections relevant to his circumstances means that his refusal of the offer need not have the result that he loses out financially. It also means that the incentive for workers to accept an offer that contravenes section 145A or 145B is reduced.

216.     Subsection (6) provides that in ascertaining compensation under section 149, no reduction may be made on the ground that a complainant contributed to his loss by accepting or not accepting an offer contravening section 145A or 145B or that the complainant has received or is entitled to receive an award in respect of such a contravention.

New section 145F

217.     New section 145F contains interpretative and other supplementary provisions, and is modelled on section 151 of the 1992 Act as amended by sections 30 and 31 of the Act. Subsection (1) provides that references to "being or becoming a member of a trade union" include references to being or becoming a member of a particular branch or section of that union or of one of a number of particular branches or sections of the union.

218.     Subsection (2) ensures, consistently with subsection (1), that references to "taking part in the activities of a trade union" and to "services made available by a trade union by virtue of membership of the union" include taking part in the activities of and the services made available by a particular branch or section of the union or one of a number of particular branches or sections. This ensures that the rights conferred by new section 145A apply where it is a branch of the union that is involved rather than the union itself.

219.     Subsection (3) defines the meaning of "worker" and "employer" for the purposes of sections 145A to 145E. "Worker" is defined as an individual who works or normally works:

• under a contract of employment; or

• 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; or

• in employment under or for the purposes of a government department (except the armed forces) where the employment is not under a contract mentioned in above.

Sections 145A to 145E are drafted so that a worker who has a right conferred on him by section 145A or 145B can bring a complaint in respect of a breach of that right even if he does not bring it while he is still a worker. "Employer" is defined as the person for whom the worker works, or, in the case of a former worker, the person for whom he worked.

220.     Subsection (4) provides that the remedy for an infringement of the rights conferred on an individual by sections 145A to145E is by way of a complaint to an employment tribunal in accordance with Part III of the 1992 Act, and not otherwise.

Extension of protection against detriment for union membership etc.

221.     Section 30. Section 146 of the 1992 Act (detriment on grounds related to union membership or activities) currently confers rights only on employees, that is to say, individuals who are working under a contract of employment or, where the employment has ceased, were doing so.

222.     The effect of section 30 is to extend the rights conferred by section 146 to "workers". Subsection (8) inserts into section 151 the same definitions of "worker" and "employer" as are used for the purposes of sections 145A to 145E (see paragraph 219 above).

223.     Subsections (1) to (5) amend section 146 of the 1992 Act to substitute the term "worker" for the term "employee" and ensure that the section works properly in relation to circumstances where the individual is a worker but not an employee.

224.     Subsection (6) inserts a new subsection (5A) into section 146 providing that the section does not apply where the worker (that is the worker mentioned in subsection (1), (2C) or (3) of section 146) is an employee and the detriment he suffers is dismissal. The reason is that where an employee is dismissed for reasons that correspond to the grounds mentioned in section 146 he is able to claim unfair dismissal under section 152 of the 1992 Act (which section 32 amends to cover dismissal for use of union services or the refusal of an offer infringing new section 145A or 145B).

Detriment for use of union services or refusal of inducement

225.     Section 31. The general effect of section 146 as it was before the amendments made by the Act, is that an employee has the right not to have action taken against him by his employer that subjects him to any detriment where the ground for taking the action is membership of an independent trade union, non-membership of any trade union or taking part in the activities of an independent trade union at an appropriate time. Section 31 amends section 146 to add to the grounds on which "workers", as defined in section 151 (as amended by section 30) have the right not to be subjected to any detrimental action.

226.     Subsection (2) amends subsection (1) of section 146 and has the effect that a worker has the right not to be subjected to any detriment by an act (including a deliberate failure) done by his employer for the purpose of preventing or deterring him from making use of trade union services at "an appropriate time" or penalising him for doing so.

227.     Subsection (3) amends subsection (2) of section 146 to extend the meaning of "an appropriate time" already contained in the section to the use of trade union services. The result is that the definition of "an appropriate time" used here is the same as that used in the new section 145A(2) inserted by section 29.

228.     Subsection (4) inserts new subsections (2A) to (2D) into section 146.

229.     New subsection (2A)(a) defines "trade union services" to mean services made available to a worker by an independent trade union by virtue of his membership of the union. Subsection (2A)(b) states that references to a worker's making use of trade union services include "consenting to the raising of a matter on his behalf by an independent trade union of which he is a member", so ensuring that a worker consenting to his union raising a matter is regarded as making use of union services.

230.     New subsection (2B) has the effect that if an independent trade union raises a matter on behalf a worker who is a member of the union, with or without his consent, penalizing him for that is to be treated as penalising him for making use of union services.

231.     New subsection (2C) gives a worker the right not to be subjected to any detriment by an act (including a deliberate failure) done by his employer because of the worker's failure to accept an offer infringing the worker's rights under new section 145A or 145B inserted by section 29.

232.     New subsection (2D) has the effect that where a worker is not given a benefit that he would have been given had he accepted an offer infringing his rights under section 145A or 145B, the failure by the employer to give him the benefit shall be taken to subject him to a detriment. This ensures that a worker treated in this way can complain to an employment tribunal not only about the making of the offer that infringed his rights but also about the detriment resulting from the failure to give him the benefit contained in the offer.

233.     Subsection (5) repeals subsections (3) to (5) of section 148 of the 1992 Act (consideration of complaint under 146 of the 1992 Act). Subsections (3) to (5) of the 1992 Act had the effect that where an employee was subjected to a detriment by an act, or deliberate failure to act, by his employer this was not caught by section 146 if the employer's purpose was "to further a change in the relationship with all or any class of his employees". This expression covered the case where an employer made an offer for the purpose of inducing employees to give up a right to have their terms of employment determined under a collective agreement, that is to say the situation that arose in Wilson and Palmer, and therefore meant that section 146 did not give any protection to employees in that situation.

234.     Subsections (6) and (7) replace the part of section 51(1) relating to taking part in the activities of a trade union with a new subsection (1A) of section 151 securing that references in sections 146 to 150 to "taking part in the activities of a trade union" and to "services made available by a trade union by virtue of membership of the union" relate to taking part in the activities of and the services made available by a particular branch or section of the union or one of a number of particular branches or sections. This ensures that the interpretation to be given to these expressions in sections 146 to 150 is consistent with that to be given to them in new sections 145A to 145E (inserted by section 29) by virtue of new section 145F.

235.     Subsection (8) repeals section 17 of the Employment Relations Act 1999. Section 17 of the 1999 Act provided a power for the Secretary of State to make regulations to protect workers against dismissal and detriment for refusing to enter into an individual contract which includes terms different from those in a collective agreement which would otherwise apply. Section 17 was never commenced and has been superseded by sections 31 and 32.