Office of Public Sector Information
78.The Cadet Forces comprise of the Combined Cadet Force, Sea Cadet Corps, Army Cadet Force and Air Training Corps. Each is a separate national youth organisation supported by its own charity.
79.The Cadet Forces do not form part of the Armed Forces or the Reserve Forces, although some CFAVs may be serving members of the Armed Forces or the Reserve Forces.
80.Voluntary workers are a special class of workers who are exempt from the NMW. Section 14 amends section 44 of NMWA 1998 to broaden the type of expenses which can be paid to voluntary workers without triggering entitlement to the NMW to include expenses which are incurred in order to enable the voluntary worker to perform his duties and are reasonably so incurred.
81.As with expenses incurred in the performance of duties, both expenses which have actually been incurred or expenses which have been reasonably estimated as likely to be or to have been so incurred can be paid to voluntary workers without triggering entitlement to the NMW.
82.New subsection (1A)(c) provides that accommodation expenses cannot be paid to voluntary workers. The effect of this amendment is to maintain the existing treatment of accommodation expenses under NMWA 1998. Whilst accommodation expenses cannot be paid, under 44(1)(b) of NMWA 1998 such accommodation as is reasonable in the circumstances of the employment can be provided directly to voluntary workers without triggering entitlement to the NMW.
83.Currently all offences under EAA 1973 are summary only offences and therefore triable only in the magistrates’ court. Section 15 provides that certain offences committed under EAA 1973 shall be triable either on indictment in the Crown Court or summarily by the magistrates’ court. The effect of this section is to increase the penalty available to the court where the offence results in conviction on indictment. Where the offences are tried in the Crown Court there is no limit on the fine that can be imposed.
84.This section also amends the maximum fine that can be imposed by a magistrates’ court on conviction from a fine not exceeding level 5 on the standard scale to a fine not exceeding “the statutory maximum”. At present, the statutory maximum fine is £5,000 in England and Wales and from 10 December 2007 it was increased to £10,000 for offences tried in Scotland.
85.The offences that will become triable either way under this section are:
failure to comply with a prohibition order under section 3B of EAA 1973;
contravention of or failure to comply with any regulations made under EAA 1973. Currently the regulations made under EAA 1973 are contained in the Conduct of Employment Agencies and Employment Businesses Regulations 2003(8); as amended by the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007(9); and
requesting or receiving (either directly or indirectly) a fee for providing work-finding services under section 6 of EAA 1973 (except where this is permitted under Conduct of Employment Agencies and Employment Businesses Regulations 2003 as amended).
86.Section 16 strengthens the powers of inspection for inspectors appointed under section 9 of EAA 1973.
87.Subsection (2) extends the powers of inspection available under section 9(1)(b) to enable an inspector of the Employment Agency Standards Inspectorate specifically to request financial records and documents that are held on the inspected premises which he may reasonably require to inspect to ensure compliance with EAA 1973. This is in addition to the power already contained in EAA 1973 permitting an inspector to inspect any records or documents kept as required by EAA 1973 or the Conduct of Employment Agencies and Employment Businesses Regulations 2003, as amended.
88.Subsection (4) substitutes a new power. Currently under section 9(1A) of EAA 1973 an inspector may require any person on the inspected premises to inform him where a record, document or information is kept and to make arrangements, where reasonably practicable, for that record, document or information to be inspected or furnished to the inspector at the premises. This power is replaced by a new power enabling an inspector by notice in writing to require the person carrying on the employment agency or employment business to furnish him with a record, document or information at such time and place as the inspector may specify.
89.The effect of this amendment is to place the requirement to furnish the required record, document or information on the person carrying on the employment agency or employment business rather than on the person present on the premises at the time of the inspection (who may not have access to the record or document or sufficient knowledge to supply the information). Enabling the inspector to specify the place at which the person carrying on the business must furnish the record, document or information will mean that the inspector will not need to revisit the inspected premises but can inspect the record, document or information at a convenient place of his choice.
90.Subsection (5) inserts two new powers into section 9 of EAA 1973 by inserting new subsections (1AA), (1AB) and (1AC). Where a person carrying on an employment agency or employment business fails to furnish the inspector with a record, document or information specified in a written notice, and where the inspector has reasonable cause to believe that the record, document or information is kept by a person concerned with, or formerly concerned with, the carrying on of the employment agency or employment business an inspector may by notice in writing require that person to furnish the record, document or information at such time and place as he may specify.
91.Additionally, where the record, document or information is kept by a bank (as defined by the Financial Services and Markets Act 2000) an inspector may by notice in writing require the bank to furnish the record, document or information at such time and place as he may specify.
92.Subsection (6) taken together with subsection (3) replaces the power to take copies of records and documents inspected pursuant to EAA 1973 with a power to take copies of records and documents inspected pursuant to EAA 1973 and copies of financial records and financial documents inspected in order to ascertain whether the provisions of EAA 1973 have been complied with. This wider power reflects the wider range of records and documents that an inspector may inspect. Under this wider power an inspector may remove any record or document from the premises where it is inspected in order to take a copy of it but it must be returned as soon as is reasonably practical. This will enable an inspector to take away a record or document for the purpose of taking a copy before returning it rather than, as is currently the case, relying on copying facilities at the business premises.
93.Subsection (8) creates the offence of obstructing an inspector in the exercise of his powers under section 9 or of contravening a requirement under section 9. A person guilty of the offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale. This subsection amends section 9(3) and extends the offence to the new powers granted by section 16.
94.Section 17 provides that where an offence under EAA 1973 is committed by a partnership in Scotland, and where it is proved that the offence concerned has been committed with the consent or connivance of a partner, or is attributable to the neglect of a partner, then the partner as well as the partnership shall be guilty of the offence and prosecuted.
95.This reflects a difference between English and Scottish law. Under Scottish law a partnership is a separate legal entity, distinct from the partners who make up the partnership. This is not the case under English law.
96.Section 17 therefore enables any partners who have consented to or connived at the offence, or whose neglect has caused the offence, to be prosecuted as well as the partnership.
97.No provision was made in EAA 1973 for Scottish partnerships as until the late 1980s specific provision tended not to be made in legislation for offences committed by Scottish partnerships as it was considered that none was necessary.
98.Section 18 removes the restrictions in section 15 NMWA 1998 and section 9 EAA 1973 that prevent officers appointed under the NMWA 1998 and officers appointed under the EAA 1973 from sharing information for the purpose of their respective enforcement functions under these Acts. Currently HMRC is appointed to enforce the NMW and the Employment Agency Standards Inspectorate is appointed to enforce employment agency standards.
99.Section 174 of TULRCA 1992 provides a right for individuals not to be excluded or expelled from membership of a trade union, unless the exclusion or expulsion is for a reason specified by the section. Section 174(2)(d) makes it unlawful for a trade union to expel or exclude a person on the sole or main ground of “protected conduct” of that person. Sections 174(4A) and 174(4B) define “protected conduct” as membership or former membership of a political party. Section 176 of TULRCA 1992 provides remedies where the employment tribunal finds that a trade union has breached this right.
100.Section 19 retains the concept of “protected conduct” set out in sections 174 and 176 of TULRCA 1992, but amends these sections in response to the judgment made on 27th February 2007 by the European Court of Human Rights in the case of Aslef v UK (Application no.11002/05).
101.In the Aslef v UK case, the trade union had a policy to prohibit members of the British National Party from belonging to its union. An Employment Tribunal upheld a complaint under section 174 by a union member who was expelled for being a member of the British National Party. The union then complained to the European Court of Human Rights, which found that, in being prevented from expelling a member on grounds of political party membership, the union’s Convention right of association had been infringed.
102.Section 19 therefore amends section 174 of TULRCA 1992 to allow a trade union to expel or exclude an individual on the basis of their membership or former membership of a political party. Subsection (2) inserts new subsections (4C) – (4H) which set out the circumstances in which a trade union may expel or exclude on this basis.
103.New subsection (4C) further qualifies the definition of “protected conduct” under subsection (4A). This enables trade unions to expel or exclude individuals who belong or who have belonged to a particular political party, if membership of that political party is contrary to the rules or objectives of the trade union.
104.New subsections (4D) and (4E) provide that the relevant union “objectives” (but not rules) have to be reasonably ascertainable. If an individual is excluded from a union because he is or was a member of a political party, it must be reasonably practicable for the relevant objective to be ascertained by a person working in the same trade, industry or profession as the excluded individual at the time of their conduct. If an individual is expelled from a union on such grounds, it must be reasonably practicable for the relevant objective to be ascertained by a member of the union at the time of their conduct.
105.New subsection (4F) provides that expulsion or exclusion from a trade union remains unlawful if any of the three conditions in subsection (4G) are met. These conditions are:
The decision to exclude or expel does not comply with the union’s rules;
The decision is taken unfairly; and
Loss of union membership would cause the individual to lose his livelihood or suffer other exceptional hardship.
106.Subsection (4H) sets out the circumstances in which a decision is taken unfairly for the purposes of subsection (4G)(b). This has the effect that an individual must be given notice of the proposal to expel or exclude him (including reasons) and a fair opportunity to make representations, which the union must consider fairly.
107.Subsection (3) of section 19 amends section 176 of TULRCA 1992 to achieve consistency between the sections 174 and 176 of the 1992 Act, in line with the changes made to section 174 by new subsections (4D) and (4E). This is achieved by changing the corresponding test of what is ascertainable which is used in section 176.
108.The repeals Schedule lists those repeals which are explicitly mentioned in the sections. It also contains some consequential repeals, in particular, of legislation which inserts provisions which are themselves being repealed. The extent of the repeals is described at relevant points of the main commentary. Each Part of the Schedule will be commenced at the same time as the section or sections to which it relates.
109.Section 22 provides for the commencement of different provisions at different times. Sections 1 to 7 relating to dispute resolution, sections 8, 9, 11 and 12 relating to the NMW (arrears payable in cases of non-compliance, notices of underpayment, penalties for offences and powers to investigate criminal offences), section 18 relating to information-sharing between officers appointed to enforce employment agency standards and officers appointed to enforce the NMW and section 19 relating to trade union membership will come into force on such a date as the Secretary of State may by order appoint. Sections 10, 13 and 14 relating to the NMW (powers of officers to take copies of records, CFAVs and Voluntary workers) will come into force two months after Royal Assent. Sections 15 to 17 relating to employment agencies will come into force on 6 April 2009. The remaining provisions come into force on the day of Royal Assent.
110.The following table sets out the dates and Hansard references for each stage of this Act’s passage through Parliament.
| Stage | Date | Hansard reference |
|---|---|---|
| House of Lords | ||
| Introduction | 6 December 2007 | Vol. 696 Col 1818 |
| Second Reading | 7 January 2008 | Vol. 697 Cols. 636 – 648 and 662 - 701 |
| Committee | 4 February 2008 25 February 2008 13 March 2008 3 April 2008 |
Vol. 698 Col GC437 - 494 Vol. 699 Col GC65 - 114 Vol. 699 Col GC257 - 318 Vol. 700 Col GC171 - 196 |
| Report | 19 May 2008 | Vol. 701 Cols. 1251 - 1305 |
| Third Reading | 2 June 2008 | Vol. 702 Cols. 13 - 29 |
| House of Commons | ||
| Introduction | 3 June 2008 | No Debate |
| Second Reading | 14 July 2008 | Vol. 479 Cols. 39 - 108 |
| Committee | 14 October 2008 14 October 2008 16 October 2008 16 October 2008 |
Employment Bill [Lords] Public Bill Committee |
| Report and Third Reading | 4 November 2008 | Vol. 482 Cols. 151 - 226 |
| Lords consideration of Commons amendments | 13 November 2008 | Vol. 705 Cols. 801 - 804 |
| Royal Assent – 13 November 2008 | House of Lords Hansard Vol. 705 Col. 832 House of Commons Hansard Vol. 482 Col. 1005 |
Employment Act 2008