Employment Rights Bill

A Bill to make provision to amend the law relating to employment rights; to make provision about procedure for handling redundancies; to make provision about the treatment of workers involved in the supply of services under certain public contracts; to provide for duties to be imposed on employers in relation to equality; to amend the definition of “employment business” in the Employment Agencies Act 1973; to provide for the establishment of the School Support Staff Negotiating Body and the Social Care Negotiating Bodies; to amend the Seafarers’ Wages Act 2023; to make provision for the implementation of international agreements relating to maritime employment; to make provision about trade unions, industrial action, employers’ associations and the functions of the Certification Officer; to make provision about the enforcement of legislation relating to the labour market; and for connected purposes.

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4 Sep 2025
Ping: Pong
Bill 301 2024-25 (Lords Amendments)
(169 amendments)
Date Debate
Tuesday 28th October 2025 Consideration of Commons amendments and / or reasons
Monday 15th September 2025 Consideration of Lords amendments
23 Jul 2025
Lords: Third
HL Bill 129 (as amended on Report)
(1 amendments)
Date Debate
Wednesday 3rd September 2025 3rd reading
24 Jun 2025
Lords: Report
HL Bill 113 (as amended in Committee)
(223 amendments)
Date Debate
Monday 21st July 2025 Report stage part two
Monday 21st July 2025 Report stage part one
Wednesday 16th July 2025 Report stage
Monday 14th July 2025 Report stage part two
Monday 14th July 2025 Report stage part one
14 Mar 2025
Lords: Committee
HL Bill 81 (as brought from the Commons)
(730 amendments)
Date Debate
Wednesday 18th June 2025 Committee stage part two
Wednesday 18th June 2025 Committee stage part one
Monday 16th June 2025 Committee stage: Part 2
Monday 16th June 2025 Committee stage: Part 1
Tuesday 10th June 2025 Committee stage part two
Tuesday 10th June 2025 Committee stage part two
Thursday 5th June 2025 Committee stage
Tuesday 3rd June 2025 Committee stage part one
Tuesday 3rd June 2025 Committee stage part two
Wednesday 21st May 2025 Committee stage
Monday 19th May 2025 Committee stage part two
Monday 19th May 2025 Committee stage part one
Tuesday 13th May 2025 Committee stage: Part 2
Tuesday 13th May 2025 Committee stage: Part 1
Thursday 8th May 2025 Committee stage
Tuesday 29th April 2025 Committee stage part two
Tuesday 29th April 2025 Committee stage part one
27 Jan 2025
Commons: Report
Bill 163 2024-25 (as amended in Public Bill Committee)
(792 amendments)
Date Debate
Wednesday 12th March 2025 Report stage (day 2)
Tuesday 11th March 2025 Report stage (day 1) continued
Tuesday 11th March 2025 Report stage (day 1)
10 Oct 2024
Commons: Committee
Bill 011 2024-25 (as introduced)
(278 amendments)
Date Debate
Thursday 16th January 2025 Committee stage: 21st Sitting
Tuesday 14th January 2025 Committee stage: 20th sitting
Tuesday 14th January 2025 Committee stage: 19th sitting
Thursday 9th January 2025 Committee stage: 18th Sitting
Thursday 9th January 2025 Committee stage: 17th Sitting
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Tuesday 7th January 2025 Committee stage: 15th Sitting
Tuesday 17th December 2024 Committee stage: 14th Sitting
Tuesday 17th December 2024 Committee stage: 13th Sitting
Thursday 12th December 2024 Committee stage: 12th Sitting
Thursday 12th December 2024 Committee stage: 11th Sitting
Tuesday 10th December 2024 Committee stage: Tenth Sitting
Tuesday 10th December 2024 Committee stage: Ninth Sitting
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Thursday 28th November 2024 Committee stage: 4th Sitting
Thursday 28th November 2024 Committee stage: 3rd Sitting
Tuesday 26th November 2024 Committee stage: 2nd sitting
Tuesday 26th November 2024 Committee stage: 1st sitting

Relevant Documents

Bill PDF
HL Bill 129 (as amended on Report)
Latest Amendments
HL Bill 129 Running list of amendments - 28 August 2025
Explanatory Note
HL Bill 81 Explanatory Notes
Impact Assessment
Economic Analysis and Summary Impact Assessment from the Department for Business and Trade

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Page 1

Part 1

 

Employment rights

 

Zero hours workers, etc

 
1
Right to guaranteed hours
 
 
(1)
Part 2A of the Employment Rights Act 1996 (zero hours workers) is amended
5
 
as follows.
 
 
(2)
In the Part heading, at the end insert “and similar”.
 

Page 2

 
(3)
Before section 27A insert—
 

Chapter 1

 
 
Exclusivity terms and other restrictions
 
 
(4)
After section 27B insert—
 

Chapter 2

5
 
Right to guaranteed hours
 
 
Guaranteed hours offers
 
27BA
Right for qualifying workers to be offered guaranteed hours
 
 
(1)
If requested by an employee, an employer must make a guaranteed
 
 
hours offer to a worker in accordance with section 27BB after the end
10
 
of every period—
 
 
(a)
that is a reference period in relation to that worker and that
 
 
employer, and
 
 
(b)
in relation to which the worker is a qualifying worker of the
 
 
employer.
15
 
(2)
Section 27BD makes provision for exceptions to this duty, including
 
 
in certain cases where the worker ceases to be employed by the
 
 
employer.
 
 
(3)
A worker is a qualifying worker of an employer in relation to a
 
 
reference period if—
20
 
(a)
during the reference period the worker was employed by the
 
 
employer under one or more worker’s contracts (whether or
 
 
not continuously) and either—
 
 
(i)
the worker’s contract was, or the worker’s contracts
 
 
were, a zero hours contract or entered into in accordance
25
 
with a zero hours arrangement, or
 
 
(ii)
the worker’s contract, or the worker’s contracts (taken
 
 
together), required the employer, or were entered into
 
 
in accordance with an arrangement that required the
 
 
employer, to make work available to the worker during
30
 
the reference period for a number of hours (“the
 
 
minimum number of hours”) not exceeding a specified
 
 
number of hours,
 
 
(b)
during the reference period the worker worked under the
 
 
worker’s contract or the worker’s contracts (taken together)
35
 
for a number of hours (the “reference period hours”),
 
 
(c)
where paragraph (a) (ii) applies, the reference period hours
 
 
exceeded the minimum number of hours,
 

Page 3

 
(d)
the reference period hours satisfy such conditions (or, where
 
 
paragraph (a) (ii) applies, such further conditions) as to number,
 
 
regularity or otherwise as are specified, and
 
 
(e)
when the worker worked the reference period hours, it was
 
 
not as an excluded worker or an agency worker (but see Part
5
 
1 of Schedule A1 for provision about guaranteed hours and
 
 
agency workers).
 
 
(4)
In relation to a worker and the worker’s employer, each of the
 
 
following is a “reference period”—
 
 
(a)
the initial reference period, and
10
 
(b)
each subsequent reference period.
 
 
(5)
“The initial reference period”, in relation to a worker and the worker’s
 
 
employer, means the period—
 
 
(a)
beginning with—
 
 
(i)
where the worker is employed by the employer on the
15
 
day on which subsection (1) comes into force (“the
 
 
commencement day”), the commencement day, or
 
 
(ii)
where the worker is not so employed, the first day after
 
 
the commencement day on which the worker is
 
 
employed by the employer, and
20
 
(b)
ending with the specified day.
 
 
(6)
A “subsequent reference period”, in relation to a worker and the
 
 
worker’s employer, means a period beginning and ending with the
 
 
specified days.
 
 
(7)
See paragraph 6 (4) of Schedule A1 for provision about when the initial
25
 
reference period is not a reference period in relation to a worker who
 
 
is a former agency worker and that worker’s employer.
 
 
(8)
For the purposes of this Chapter—
 
 
(a)
references to a “qualifying worker” are to a worker who is a
 
 
qualifying worker of an employer in relation to a reference
30
 
period by virtue of subsection (3) , and
 
 
(b)
the reference period in relation to which the worker is a
 
 
qualifying worker of the employer is referred to as “the relevant
 
 
reference period”.
 
 
(9)
If, during a reference period—
35
 
(a)
a worker was employed by an employer under one or more
 
 
worker’s contracts of the type described in subsection (3) (a) (i)
 
 
and one or more worker’s contracts of the type described in
 
 
subsection (3) (a) (ii) , and
 
 
(b)
the hours that the worker worked under the worker’s contract,
40
 
or the worker’s contracts, that are of the type described in
 
 
subsection (3) (a) (ii) did not exceed the minimum number of
 
 
hours,
 

Page 4

 
the worker’s contract, or the worker’s contracts, that are of the type
 
 
described in subsection (3) (a) (ii) are to be disregarded in the application
 
 
of this Chapter (other than this subsection) in relation to the worker
 
 
and the reference period (and accordingly that worker’s contract, or
 
 
those worker’s contracts, are to be treated as not existing).
5
 
(10)
Subsection (11) applies where—
 
 
(a)
a worker’s contract or arrangement requires an employer to
 
 
make work available to a worker for a number of hours, and
 
 
(b)
some or all of those hours may be made available either on
 
 
days falling within a reference period or on days falling within
10
 
another period (all of the days on which the hours may be so
 
 
made available together forming the “longer period”).
 
 
In subsection (11) , “the unassigned hours” are the hours that may be
 
 
made available at any time during the longer period as described in
 
 
paragraph (b) .
15
 
(11)
Where this subsection applies—
 
 
(a)
subsection (3) (a) (ii) is to apply as if the contract or arrangement
 
 
required the employer to make work available to the worker
 
 
during the reference period for the apportioned number of the
 
 
unassigned hours (in addition to any other hours that the
20
 
employer is required to make available to the worker during
 
 
the reference period);
 
 
(b)
“the apportioned number” of the unassigned hours is—
 
 
H × D 1 D 2
 
 
where—
25
 
H is the number of the unassigned hours,
 
 
D1 is the number of days in the reference period that fall
 
 
within the longer period, and
 
 
D2 is the number of days in the longer period.
 
 
(12)
Where there is more than one longer period in relation to the same
30
 
reference period, subsection (11) is to be applied separately in relation
 
 
to each longer period.
 
 
(13)
Nothing in this Chapter prevents an employer from making one or
 
 
more other offers to a qualifying worker, to vary the worker’s terms
 
 
and conditions of employment or enter into a new worker’s contract,
35
 
at the same time as making a guaranteed hours offer.
 
 
(14)
Regulations made under subsection (3) (d) , (5) or (6) may, in particular,
 
 
include provision to take account of time when a worker does not
 
 
work for a specified reason.
 

Page 5

 
(15)
In this section, “excluded worker” means a worker who is of a specified
 
 
description.
 
27BB
Requirements relating to a guaranteed hours offer
 
 
(1)
An offer by an employer to a qualifying worker is a guaranteed hours
 
 
offer for the purposes of this Chapter if it is an offer—
5
 
(a)
to vary the worker’s terms and conditions of employment (but
 
 
see subsection (6) ), or
 
 
(b)
to enter into a new worker’s contract,
 
 
and the terms and conditions as varied or (as the case may be) the
 
 
new worker’s contract will require the employer to provide the
10
 
qualifying worker with work, and the qualifying worker to do work,
 
 
for a number of hours that reflects the reference period hours in the
 
 
relevant reference period.
 
 
(2)
The Secretary of State may by regulations provide that an offer by an
 
 
employer to a qualifying worker is a guaranteed hours offer for the
15
 
purposes of this Chapter only if it also satisfies the condition in
 
 
subsection (3) .
 
 
(3)
The condition referred to in subsection (2) is that—
 
 
(a)
the offer sets out—
 
 
(i)
the days of the week, and the times on those days, when
20
 
the offered number of hours are to be provided and
 
 
worked, or
 
 
(ii)
a working pattern of days, and times of day, by
 
 
reference to which the offered number of hours are to
 
 
be provided and worked, and
25
 
(b)
those days and times reflect, or that pattern reflects, when the
 
 
qualifying worker worked the reference period hours in the
 
 
relevant reference period.
 
 
(4)
Where no regulations are in force under subsection (2) that apply in
 
 
relation to an offer by an employer to a qualifying worker, the offer
30
 
is a guaranteed hours offer for the purposes of this Chapter only if it
 
 
also proposes terms and conditions relating to when the offered
 
 
number of hours are to be provided and worked (which need not be
 
 
on particular days of the week, or at particular times on those days,
 
 
or by reference to a particular working pattern of days or times of
35
 
day).
 
 
(5)
The Secretary of State may by regulations make provision about how
 
 
it is to be determined—
 
 
(a)
whether an offer reflects the number of hours worked by a
 
 
qualifying worker during a reference period;
40
 
(b)
where regulations are in force under subsection (2) that apply
 
 
in relation to an offer, whether the offer reflects when hours
 
 
were worked by a qualifying worker during a reference period.
 

Page 6

 
(6)
A guaranteed hours offer may take the form of an offer to vary a
 
 
qualifying worker’s terms and conditions of employment (as opposed
 
 
to an offer to enter into a new worker’s contract) only if—
 
 
(a)
the qualifying worker worked for the employer under a
 
 
worker’s contract at the beginning of the relevant reference
5
 
period,
 
 
(b)
the qualifying worker is still working for the employer under
 
 
that worker’s contract on the day the offer is made, and
 
 
(c)
the qualifying worker did not work for the employer under
 
 
any other worker’s contract during the period beginning with
10
 
the first day of the relevant reference period and ending with
 
 
the day the offer is made.
 
 
(7)
A guaranteed hours offer that takes the form of an offer to vary a
 
 
qualifying worker’s terms and conditions of employment—
 
 
(a)
must propose the removal of any term that provides for the
15
 
contract to terminate by virtue of a limiting event unless, if the
 
 
contract were entered into on the day the offer is made, it
 
 
would be reasonable for it to be entered into as a limited-term
 
 
contract;
 
 
(b)
may not propose any other variation of the worker’s terms and
20
 
conditions of employment (other than what is required by or
 
 
under subsections (1) and (2) or subsections (1) and (4) ).
 
 
(8)
A guaranteed hours offer that takes the form of an offer to enter into
 
 
a new worker’s contract—
 
 
(a)
must not propose a new worker’s contract that is a limited-term
25
 
contract unless it is reasonable for it to be entered into as such
 
 
a contract, and
 
 
(b)
must (in addition to what is required by or under subsections
 
 
(1) and (2) or subsections (1) and (4) ) propose terms and
 
 
conditions of employment—
30
 
(i)
that, taken as a whole, are no less favourable than the
 
 
terms and conditions of employment relating to matters
 
 
other than working hours and length of employment
 
 
that the qualifying worker had when working for the
 
 
employer during the relevant reference period, or
35
 
(ii)
where section 27BC applies, that comply with subsection
 
 
(2) of that section.
 
 
(9)
For the purposes of this section it is reasonable for a worker’s contract
 
 
of a qualifying worker to be entered into as a limited-term contract
 
 
only if—
40
 
(a)
it is reasonable for the qualifying worker’s employer to consider
 
 
that the worker is only needed to perform a specific task and
 
 
the contract provides for termination when the task has been
 
 
performed,
 

Page 7

 
(b)
it is reasonable for the qualifying worker’s employer to consider
 
 
that the worker is only needed until the occurrence of an event
 
 
(or the failure of an event to occur) and the contract provides
 
 
for termination on the occurrence of the event (or the failure
 
 
of the event to occur), or
5
 
(c)
it is reasonable for the qualifying worker’s employer to consider
 
 
that there is only a temporary need of a specified description
 
 
(not falling within paragraph (a) or (b) ) for the qualifying
 
 
worker to do work under the contract and the contract is to
 
 
expire at a time when it is reasonable for the employer to
10
 
consider that the temporary need will come to an end.
 
 
(10)
A guaranteed hours offer—
 
 
(a)
must be made by no later than the specified day,
 
 
(b)
must be made in the specified form and manner, and
 
 
(c)
must be accompanied by specified information relating to the
15
 
offer.
 
 
(11)
The Secretary of State may by regulations make provision about when
 
 
a guaranteed hours offer is to be treated as having been made.
 
 
(12)
In this section, “reference period hours”, in relation to a qualifying
 
 
worker and a relevant reference period, has the same meaning as in
20
 
section 27BA (3) .
 
27BC
Requirements relating to a guaranteed hours offer: supplementary
 
 
(1)
This section applies where—
 
 
(a)
a guaranteed hours offer made by an employer to a qualifying
 
 
worker takes the form of an offer to enter into a new worker’s
25
 
contract, and
 
 
(b)
during the relevant reference period—
 
 
(i)
the qualifying worker worked for the employer under
 
 
more than one worker’s contract and did not have the
 
 
same terms and conditions of employment relating to
30
 
matters other than working hours and length of
 
 
employment under those worker’s contracts, or
 
 
(ii)
the qualifying worker worked for the employer under
 
 
only one worker’s contract but there was a variation
 
 
during the relevant reference period of the qualifying
35
 
worker’s terms and conditions of employment relating
 
 
to matters other than working hours and length of
 
 
employment.
 
 
(2)
Where this section applies, the guaranteed hours offer may propose
 
 
terms and conditions of employment (in addition to what is required
40
 
by or under section 27BB (1) and (2) or section 27BB (1) and (4) ) that,
 
 
taken as a whole, are less favourable than the most favourable terms
 
 
and conditions of employment relating to matters other than working
 

Page 8

 
hours and length of employment that the qualifying worker had when
 
 
working for the employer during the relevant reference period, but
 
 
only if—
 
 
(a)
those proposed terms and conditions, taken as a whole, are no
 
 
less favourable than the least favourable terms and conditions
5
 
relating to matters other than working hours and length of
 
 
employment that the qualifying worker had when working for
 
 
the employer during the relevant reference period, and
 
 
(b)
the proposal of those terms by the employer constitutes a
 
 
proportionate means of achieving a legitimate aim.
10
 
(3)
If an employer relies on subsection (2) when making a guaranteed
 
 
hours offer to a qualifying worker, the employer must give to the
 
 
qualifying worker a notice that—
 
 
(a)
states that the employer has done so, and
 
 
(b)
explains how the proposed terms and conditions constitute a
15
 
proportionate means of achieving a legitimate aim.
 
 
(4)
A notice under subsection (3) must be given by no later than the same
 
 
day, and in the same form and manner, as the guaranteed hours offer
 
 
(see section 27BB (10) ).
 
 
27BD
Guaranteed hours offer: exceptions to duty to make offer and
20
 
withdrawal of offer
 
 
(1)
The duty imposed by section 27BA (1) on an employer in relation to
 
 
a qualifying worker does not apply if during the relevant reference
 
 
period or the offer period there is a relevant termination of—
 
 
(a)
the worker’s contract under which the qualifying worker has
25
 
been working for the employer, or
 
 
(b)
the arrangement in accordance with the terms of which the
 
 
qualifying worker has been working for the employer.
 
 
(2)
A guaranteed hours offer made by an employer to a qualifying worker
 
 
is to be treated as having been withdrawn if during the response
30
 
period there is a relevant termination of—
 
 
(a)
the worker’s contract under which the qualifying worker has
 
 
been working for the employer, or
 
 
(b)
the arrangement in accordance with the terms of which the
 
 
qualifying worker has been working for the employer.
35
 
(3)
Where a qualifying worker works for an employer under more than
 
 
one worker’s contract, or in accordance with the terms of more than
 
 
one arrangement, during—
 
 
(a)
the relevant reference period,
 
 
(b)
the offer period, or
40
 
(c)
the response period,
 

Page 9

 
the references in subsections (1) and (2) to the worker’s contract or
 
 
(as the case may be) the arrangement are to the worker’s contract
 
 
under which, or (as the case may be) the arrangement in accordance
 
 
with the terms of which, the qualifying worker last worked for the
 
 
employer before the end of the period in question.
5
 
(4)
There is a relevant termination of a worker’s contract entered into
 
 
between a qualifying worker and an employer if—
 
 
(a)
the qualifying worker terminates (with or without notice) the
 
 
worker’s contract otherwise than in circumstances in which
 
 
the worker is entitled to terminate it without notice by reason
10
 
of the employer’s conduct,
 
 
(b)
the employer terminates (with or without notice) the worker’s
 
 
contract and—
 
 
(i)
the employer’s reason for doing so (or, if more than
 
 
one, the employer’s principal reason for doing so) is a
15
 
qualifying reason, and
 
 
(ii)
in the circumstances (including the size and
 
 
administrative resources of the employer’s undertaking)
 
 
the employer acts reasonably in treating the reason (or
 
 
the principal reason) as a sufficient reason for
20
 
terminating the contract, or
 
 
(c)
the worker’s contract terminates by virtue of a limiting event
 
 
and it was reasonable for the contract to have been entered
 
 
into as a limited-term contract.
 
 
(5)
There is a relevant termination of an arrangement entered into between
25
 
a qualifying worker and an employer if—
 
 
(a)
the qualifying worker or the employer terminates the
 
 
arrangement and the termination is equivalent to a termination
 
 
falling within subsection (4) (a) or (b) , or
 
 
(b)
the arrangement was not intended to be permanent and the
30
 
termination of it is equivalent to a termination falling within
 
 
subsection (4) (c) .
 
 
(6)
The Secretary of State may by regulations make provision for the duty
 
 
imposed by section 27BA (1) not to apply in relation to a reference
 
 
period, or for a guaranteed hours offer that has been made to be
35
 
treated as having been withdrawn, in other specified circumstances.
 
 
(7)
In exercising the power under subsection (6) the Secretary of State
 
 
must, in particular, have regard to—
 
 
(a)
the benefit to workers of receiving a guaranteed hours offer
 
 
under this Chapter, and
40
 
(b)
the desirability of preventing this Chapter from having a
 
 
significant adverse effect on employers who are dealing with
 
 
exceptional circumstances.
 

Page 10

 
(8)
Where, by virtue of subsection (2) , a guaranteed hours offer made by
 
 
an employer to a qualifying worker is treated as having been
 
 
withdrawn, the employer must, by no later than the end of the
 
 
response period, give a notice to the qualifying worker stating this to
 
 
be the case.
5
 
(9)
Where, by virtue of regulations under subsection (6) —
 
 
(a)
an employer who would otherwise have been subject to the
 
 
duty imposed by section 27BA (1) in relation to a qualifying
 
 
worker and a particular reference period is not required to
 
 
make a guaranteed hours offer to the qualifying worker, or
10
 
(b)
a guaranteed hours offer made by an employer to a qualifying
 
 
worker is treated as having been withdrawn,
 
 
the employer must give a notice to the qualifying worker that states
 
 
which provision of the regulations has produced the effect referred to
 
 
in paragraph (a) or (b) (as the case may be).
15
 
(10)
A notice under subsection (9) must be given by an employer to a
 
 
qualifying worker—
 
 
(a)
where it is required to be given by virtue of paragraph (a) of
 
 
that subsection, by no later than the end of the offer period;
 
 
(b)
where it is required to be given by virtue of paragraph (b) of
20
 
that subsection, by no later than the end of the response period.
 
 
(11)
The Secretary of State may by regulations make provision about—
 
 
(a)
the form and manner in which a notice under subsection (8)
 
 
or (9) must be given;
 
 
(b)
when a notice under subsection (8) or (9) is to be treated as
25
 
having been given.
 
 
(12)
For the purposes of subsection (4) (c) (and subsection (5) (b) , which
 
 
applies subsection (4) (c) )—
 
 
(a)
subsection (9) of section 27BB (when it is reasonable for a
 
 
worker’s contract to be entered into as a limited-term contract)
30
 
applies as it applies for the purposes of that section;
 
 
(b)
it is to be presumed, unless the contrary is shown, that it was
 
 
not reasonable for the worker’s contract to have been entered
 
 
into as a limited-term contract if the work done by the
 
 
qualifying worker under the worker’s contract was of the same
35
 
or a similar nature as the work done under another worker’s
 
 
contract under which the qualifying worker worked for the
 
 
employer—
 
 
(i)
where the period in question is the relevant reference
 
 
period, during that period;
40
 
(ii)
where the period in question is the offer period, during
 
 
that period or the relevant reference period;
 

Page 11

 
(iii)
where the period in question is the response period,
 
 
during that period, the relevant reference period or the
 
 
offer period.
 
 
(13)
In this section—
 
 
“the offer period” , in relation to a qualifying worker and the
5
 
qualifying worker’s employer, means the period beginning
 
 
with the day after the day on which the relevant reference
 
 
period ends and ending with—
 
 
(a)
the day on which a guaranteed hours offer is made to
 
 
the qualifying worker by the employer, or
10
 
(b)
if no guaranteed hours offer is made before the day
 
 
specified under section 27BB (10) (a) as the last day on
 
 
which the employer may make such an offer to the
 
 
qualifying worker, that last day;
 
 
“qualifying reason” means—
15
 
(a)
a reason of the type mentioned in section 98(1)(b), or
 
 
(b)
in relation to a worker who was not an employee
 
 
immediately before ceasing to be employed, a reason
 
 
that would be of the type mentioned in section 98(1)(b)
 
 
if references in that provision and in section 98(2) and
20
 
(3) to an employee were references to a worker;
 
 
“the response period” , in relation to a guaranteed hours offer
 
 
made to a qualifying worker, means the period—
 
 
(a)
beginning with the day after the day on which the offer
 
 
is made, and
25
 
(b)
ending with the specified day.
 
27BE
Acceptance or rejection of a guaranteed hours offer
 
 
(1)
Where an employer makes a guaranteed hours offer to a qualifying
 
 
worker and the offer is not treated as having been withdrawn by
 
 
virtue of section 27BD (2) or regulations under section 27BD (6) , the
30
 
qualifying worker may, by giving notice to the employer before the
 
 
end of the response period, accept or reject the offer.
 
 
(2)
Where the guaranteed hours offer takes the form of an offer to vary
 
 
the qualifying worker’s terms and conditions of employment and the
 
 
qualifying worker gives notice under subsection (1) accepting the offer,
35
 
the variation (assuming the worker’s contract that was in force when
 
 
the guaranteed hours offer was made is still in force) is to be treated
 
 
as taking effect on the day after the day on which notice is given (but
 
 
this is subject to subsection (6) ).
 
 
(3)
If the guaranteed hours offer takes the form of an offer to vary the
40
 
qualifying worker’s terms and conditions of employment but the
 
 
worker’s contract that was in force when the guaranteed hours offer
 
 
was made ceases to be in force during the response period—
 

Page 12

 
(a)
the qualifying worker may (if the offer is not treated as having
 
 
been withdrawn by virtue of section 27BD (2) or regulations
 
 
under section 27BD (6) ) still give notice under subsection (1)
 
 
accepting the offer, and
 
 
(b)
if the qualifying worker does so—
5
 
(i)
the qualifying worker and the employer are to be
 
 
treated as entering into a worker’s contract on the day
 
 
after the day on which notice is given (but this is subject
 
 
to subsection (6) ), and
 
 
(ii)
the terms of the contract are to be treated as being the
10
 
terms of the worker’s contract that was in force when
 
 
the guaranteed hours offer was made as varied in
 
 
accordance with the terms of the offer.
 
 
(4)
Where the guaranteed hours offer takes the form of an offer to enter
 
 
into a new worker’s contract and the qualifying worker gives notice
15
 
under subsection (1) accepting the offer—
 
 
(a)
the qualifying worker and the employer are to be treated as
 
 
entering into a worker’s contract in the terms of the offer on
 
 
the day after the day on which notice is given (but this is
 
 
subject to subsection (6) ), and
20
 
(b)
that worker’s contract is to be treated as replacing any other
 
 
worker’s contract entered into between the qualifying worker
 
 
and the employer that is in force on that day.
 
 
(5)
But where, by virtue of subsection (4)(b), a new worker’s contract
 
 
replaces another worker’s contract of a qualifying worker who is an
25
 
employee—
 
 
(a)
that is not to be treated for the purposes of this Act as breaking
 
 
the continuity of a period of employment of the qualifying
 
 
worker;
 
 
(b)
the worker’s contract that is replaced is not to be treated for
30
 
the purposes of Part 10 as having terminated.
 
 
(6)
A qualifying worker and an employer may agree, for the purposes of
 
 
subsection (2) , (3) or (4) , that the variation of the qualifying worker’s
 
 
terms and conditions of employment is to be treated as taking effect,
 
 
or (as the case may be) the new worker’s contract is to be treated as
35
 
being entered into, on a later day than the day mentioned in the
 
 
subsection (and, in subsection (4) (b) , the reference to “that day” is then
 
 
to be read as a reference to the later agreed day).
 
 
(7)
If a qualifying worker to whom a guaranteed hours offer has been
 
 
made does not give notice under subsection (1) before the end of the
40
 
response period, the qualifying worker is to be treated as having
 
 
rejected the offer.
 
 
(8)
The Secretary of State may by regulations make provision about—
 

Page 13

 
(a)
the form and manner in which notice under subsection (1)
 
 
must be given by a qualifying worker to an employer;
 
 
(b)
when notice given by a qualifying worker to an employer under
 
 
subsection (1) is to be treated as having been given.
 
 
(9)
In this section, “the response period” has the same meaning as in
5
 
section 27BD .
 
 
(10)
Where—
 
 
(a)
an employer is permitted by section 27BY (3) to withdraw a
 
 
guaranteed hours offer (withdrawal of offer following
 
 
incorporation of terms of collective agreement), and
10
 
(b)
the employer withdraws the offer by giving notice under that
 
 
section,
 
 
subsection (1) of this section ceases to apply in relation to the offer
 
 
when the notice is given.
 
 
Information
15
27BF
Information about rights conferred by Chapter 2
 
 
(1)
An employer who employs a worker who it is reasonable to consider
 
 
might become a qualifying worker of the employer in relation to a
 
 
reference period (whether the initial reference period, or a subsequent
 
 
reference period, as defined in section 27BA ) must take reasonable
20
 
steps, within the initial information period, to ensure that the worker
 
 
is aware of specified information relating to the rights conferred on
 
 
workers by this Chapter.
 
 
(2)
An employer who is subject to the duty in subsection (1) in relation
 
 
to a worker must take reasonable steps to ensure that, after the end
25
 
of the initial information period, the worker continues to have access
 
 
to the specified information referred to in that subsection at all times
 
 
when—
 
 
(a)
the worker is employed by the employer, and
 
 
(b)
it is reasonable to consider that the worker might become (or
30
 
might again become) a qualifying worker of the employer in
 
 
relation to a reference period.
 
 
(3)
“The initial information period”, in relation to a worker and the
 
 
worker’s employer, means the period of two weeks beginning with—
 
 
(a)
where the worker is employed by the employer on the day on
35
 
which section 27BA (1) comes into force (“the commencement
 
 
day”), the commencement day, or
 
 
(b)
where the worker is not so employed, the first day after the
 
 
commencement day on which the worker is employed by the
 
 
employer.
40

Page 14

 
(4)
But where, on the day referred to in subsection (3) (a) or (b) , it was
 
 
not reasonable to consider that the worker might become a qualifying
 
 
worker of the employer in relation to any reference period, subsection
 
 
(3) is to be read as if it provided for “the initial information period”
 
 
to mean the period of two weeks beginning with the day on which it
5
 
becomes reasonable so to consider.
 
 
Enforcement
 
27BG
Complaints to employment tribunals: grounds
 
 
(1)
A worker may present a complaint to an employment tribunal that—
 
 
(a)
the duty imposed by section 27BA (1) applies to the worker’s
10
 
employer in relation to the worker and a particular reference
 
 
period, but
 
 
(b)
by the end of the last day of the offer period, the employer
 
 
has not made an offer to vary the worker’s terms and
 
 
conditions of employment or to enter into a new worker’s
15
 
contract in compliance (or purported compliance) with that
 
 
duty (whether because the employer does not consider that
 
 
the worker is a qualifying worker in relation to the reference
 
 
period or for any other reason).
 
 
(2)
A worker may present a complaint to an employment tribunal that—
20
 
(a)
the duty imposed by section 27BA (1) applies to the worker’s
 
 
employer in relation to the worker and a particular reference
 
 
period, but
 
 
(b)
the offer that the employer has made to the worker in relation
 
 
to that reference period to vary the worker’s terms and
25
 
conditions of employment or to enter into a new worker’s
 
 
contract is not a guaranteed hours offer as described in—
 
 
(i)
where regulations are in force under subsection (2) of
 
 
section 27BB that apply in relation to the offer,
 
 
subsections (1) and (3) of that section (read with any
30
 
regulations in force under subsection (5) (a) or (b) of
 
 
that section), or
 
 
(ii)
where no regulations are in force under subsection (2)
 
 
of section 27BB that apply in relation to the offer,
 
 
subsections (1) and (4) of that section (read with any
35
 
regulations in force under subsection (5) (a) of that
 
 
section).
 
 
(3)
A worker may present a complaint to an employment tribunal that—
 
 
(a)
the duty imposed by section 27BA (1) applies to the worker’s
 
 
employer in relation to the worker and a particular reference
40
 
period, but
 
 
(b)
the guaranteed hours offer that the employer has made to the
 
 
worker in relation to that reference period—
 

Page 15

 
(i)
takes the form of an offer to vary the worker’s terms
 
 
and conditions of employment where that is prohibited
 
 
by section 27BB (6) ,
 
 
(ii)
does not comply with section 27BB (7) , or
 
 
(iii)
does not comply with section 27BB (8) .
5
 
(4)
A worker may present a complaint to an employment tribunal that—
 
 
(a)
the duty imposed by section 27BA (1) applies to the worker’s
 
 
employer in relation to the worker and a particular reference
 
 
period, but
 
 
(b)
the guaranteed hours offer that the employer has made to the
10
 
worker in relation to that reference period is on terms requiring
 
 
the employer to provide, and the worker to do, less work than
 
 
would have been the case if the employer had not, during that
 
 
reference period—
 
 
(i)
limited (by whatever means, including termination of
15
 
a worker’s contract or an arrangement) the number of
 
 
hours of work made available to the worker, or
 
 
(ii)
decided to make work available to the worker in the
 
 
way that the employer did,
 
 
for the sole or main purpose of being able to comply with the
20
 
duty by making such a reduced offer.
 
 
(5)
A worker may present a complaint to an employment tribunal that
 
 
the duty imposed by section 27BA (1) would have applied to the
 
 
worker’s employer in relation to the worker and a particular reference
 
 
period if the employer had not, during that reference period—
25
 
(a)
limited (by whatever means, including termination of a
 
 
worker’s contract or an arrangement) the number of hours of
 
 
work made available to the worker, or
 
 
(b)
decided to make work available to the worker in the way that
 
 
the employer did,
30
 
for the sole or main purpose of preventing the worker from satisfying,
 
 
in relation to that reference period, one or more of the conditions in
 
 
section 27BA (3) (b) to (d) .
 
 
(6)
A complaint under subsection (2) , (3) or (4) —
 
 
(a)
may be presented whether or not the offer in question has been
35
 
accepted by the worker, but
 
 
(b)
may not be presented in relation to an offer that is—
 
 
(i)
treated as having been withdrawn by virtue of section
 
 
27BD (2) or regulations under section 27BD (6) , or
 
 
(ii)
withdrawn in accordance with section 27BY (3)
40
 
(withdrawal of offer following incorporation of terms
 
 
of collective agreement).
 
 
(7)
A worker may present a complaint to an employment tribunal that
 
 
the worker’s employer—
 

Page 16

 
(a)
has failed to give to the worker a notice under section 27BD (8)
 
 
or (9) ;
 
 
(b)
has given to the worker a notice under section 27BD (8) or (9) (b)
 
 
in circumstances in which the employer should not have done
 
 
so;
5
 
(c)
has given to the worker a notice in purported compliance with
 
 
section 27BD (9) that does not refer to any provision of the
 
 
regulations or refers to the wrong provision.
 
 
(8)
A worker may present a complaint to an employment tribunal that
 
 
the worker’s employer has failed to comply with—
10
 
(a)
the duty imposed by section 27BF (1) ;
 
 
(b)
the duty imposed by section 27BF (2) .
 
 
(9)
In this section “the last day of the offer period”, in relation to a
 
 
reference period, means the day specified under section 27BB (10) (a)
 
 
as the last day on which a guaranteed hours offer may be made in
15
 
relation to that reference period.
 
27BH
Complaints to employment tribunals: time limits
 
 
(1)
An employment tribunal must not consider a complaint under section
 
 
27BG (1) unless it is presented before the end of the period of six
 
 
months beginning with the day after the last day of the offer period
20
 
(as defined in section 27BG (9) ).
 
 
(2)
An employment tribunal must not consider a complaint under section
 
 
27BG (2) unless it is presented before the end of the period of six
 
 
months beginning with the day after the day when the offer referred
 
 
to in that provision is made.
25
 
(3)
An employment tribunal must not consider a complaint under section
 
 
27BG (3) or (4) unless it is presented before the end of the period of
 
 
six months beginning with the day after the day when the guaranteed
 
 
hours offer referred to in that provision is made.
 
 
(4)
An employment tribunal must not consider a complaint under section
30
 
27BG (5) unless it is presented before the end of the period of six
 
 
months beginning with the day after what would have been the last
 
 
day of the offer period (as defined in section 27BG (9) ) if the duty
 
 
imposed by section 27BA (1) had applied.
 
 
(5)
An employment tribunal must not consider a complaint under section
35
 
27BG (7) (a) relating to a notice unless it is presented before the end of
 
 
the period of six months beginning with the day after the day on or
 
 
before which the notice should have been given (see section 27BD (8)
 
 
and (10) ).
 
 
(6)
An employment tribunal must not consider a complaint under section
40
 
27BG (7) (b) or (c) relating to a notice unless it is presented before the
 

Page 17

 
end of the period of six months beginning with the day after the day
 
 
on which the notice is given.
 
 
(7)
An employment tribunal must not consider a complaint under section
 
 
27BG (8) (a) unless it is presented before the end of the period of six
 
 
months beginning with the day after the last day of the initial
5
 
information period (see section 27BF (3) and (4) ).
 
 
(8)
An employment tribunal must not consider a complaint under section
 
 
27BG (8) (b) unless it is presented before the end of the period of six
 
 
months beginning with the day on which the worker first becomes
 
 
aware of the failure to which the complaint relates.
10
 
(9)
But, if the employment tribunal is satisfied that it was not reasonably
 
 
practicable for a complaint under section 27BG to be presented before
 
 
the end of the relevant period of six months, the tribunal may consider
 
 
the complaint if it is presented within such further period as the
 
 
tribunal considers reasonable.
15
 
(10)
Section 207B (extension of time limits to facilitate conciliation before
 
 
institution of proceedings) applies for the purposes of subsections (1)
 
 
to (8) .
 
27BI
Remedies
 
 
(1)
Where an employment tribunal finds a complaint under section 27BG
20
 
well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 
 
(b)
may make an award of compensation to be paid by the
 
 
employer to the worker.
 
 
(2)
The amount of compensation under subsection (1) (b) is to be such
25
 
amount, not exceeding the permitted maximum, as the tribunal
 
 
considers just and equitable in all the circumstances to compensate
 
 
the worker for any financial loss sustained by the worker which is
 
 
attributable to the matter complained of.
 
 
(3)
In ascertaining the financial loss sustained, the tribunal must apply
30
 
the same rule concerning the duty of a person to mitigate their loss
 
 
as applies to damages recoverable under the common law of England
 
 
and Wales or (as the case may be) Scotland.
 
 
(4)
For the purposes of subsection (2) , “the permitted maximum” is—
 
 
(a)
where the complaint is under section 27BG (1) , (2) , (3) , (7) or
35
 
(8) , such number of weeks’ pay as the Secretary of State may
 
 
specify in regulations;
 
 
(b)
where the complaint is under section 27BG (4) or (5) , such
 
 
amount as the Secretary of State may specify in regulations.
 

Page 18

 
(5)
In calculating a week’s pay for the purposes of determining the
 
 
permitted maximum for an award of compensation to a worker who
 
 
is not an employee, Chapter 2 of Part 14 is to apply as if—
 
 
(a)
references in that Chapter and in section 234 (normal working
 
 
hours) to an employee were references to a worker;
5
 
(b)
references in that Chapter and in section 234 to a contract of
 
 
employment were references to a worker’s contract;
 
 
(c)
“week” meant—
 
 
(i)
in relation to a worker whose remuneration is calculated
 
 
weekly by a week ending with a day other than a
10
 
Saturday, a week ending with that other day, and
 
 
(ii)
in relation to any other worker, a week ending with
 
 
Saturday.”
 
2
Shifts: rights to reasonable notice
 
 
After section 27BI of the Employment Rights Act 1996 (inserted by section 1
15
 
) insert—
 

Chapter 3

 
 
Shifts: rights to reasonable notice
 
27BJ
Right to reasonable notice of a shift
 
 
(1)
An employer must give to a worker reasonable notice of a shift that
20
 
the employer requests or requires the worker to work if—
 
 
(a)
the worker is (or is to be) employed by the employer under a
 
 
zero hours contract, or
 
 
(b)
the worker is (or is to be) employed by the employer under a
 
 
worker’s contract of a specified description that requires the
25
 
employer to make some work available to the worker but does
 
 
not provide on what days and at what times, or in accordance
 
 
with what pattern of days and times, that work is to be done
 
 
by the worker,
 
 
and the shift is to be worked under the contract referred to in
30
 
paragraph (a) or (b) .
 
 
(2)
An employer must give to a worker reasonable notice of a shift that
 
 
the employer requests or requires the worker to work if—
 
 
(a)
the worker is (or is to be) employed by the employer under a
 
 
worker’s contract of a specified description that requires the
35
 
employer to make some work available to the worker,
 
 
(b)
the contract provides on what days and at what times, or in
 
 
accordance with what pattern of days and times, that work, or
 
 
some of that work, is to be done by the worker, and
 

Page 19

 
(c)
the shift is to be worked under that contract but no part of it
 
 
corresponds to the time of a shift provided for by the contract
 
 
as described in paragraph (b) .
 
 
(3)
An employer must give to an individual reasonable notice of a shift
 
 
that the employer requests the individual to work if—
5
 
(a)
the individual would, if they worked the shift, be employed
 
 
by the employer under a worker’s contract, and
 
 
(b)
the worker’s contract would be entered into in accordance with
 
 
a zero hours arrangement that is in place between the employer
 
 
and the individual.
10
 
(4)
It is to be presumed, unless the contrary is shown, that notice of a
 
 
shift is not reasonable notice for the purposes of subsections (1) to (3)
 
 
if it is given less than a specified amount of time before the shift is
 
 
due to start.
 
 
(5)
Regulations under subsection (1) (b) or (2) (a) may, in particular, specify
15
 
a description of worker’s contract by reference to—
 
 
(a)
it being a worker’s contract that entitles a worker to be paid
 
 
no more than a specified amount;
 
 
(b)
it being a worker’s contract that requires an employer to make
 
 
work available to a worker for no more than a specified number
20
 
of hours.
 
 
(6)
Where—
 
 
(a)
the conditions in subsection (2) (a) and (b) are met in relation
 
 
to a worker and a worker’s contract,
 
 
(b)
the worker is to work (or is working) a shift under that contract
25
 
all or part of which corresponds to the time of a shift (a
 
 
“guaranteed shift”) provided for by the contract as described
 
 
in subsection (2) (b) ,
 
 
(c)
the employer requests or requires the worker to start earlier,
 
 
or end later, than is provided for by the contract (as described
30
 
in subsection (2) (b) ) in relation to the guaranteed shift, and
 
 
(d)
the earlier start or later end is to result in an additional number
 
 
of hours being worked above the number of hours to be worked
 
 
in the guaranteed shift,
 
 
the additional hours are to be treated for the purposes of this Chapter
35
 
as a separate shift (and accordingly as one that meets the condition
 
 
in subsection (2) (c) ).
 
 
(7)
For the purposes of this Chapter—
 
 
“employer” , in relation to an individual and a shift, includes a
 
 
person by whom the individual would be (or would have been)
40
 
employed if the individual worked the shift;
 
 
“worker” , in relation to a shift, includes an individual who would
 
 
be (or would have been) a worker if the individual worked
 
 
the shift.
 

Page 20

 
(8)
In this section, “notice of a shift” means notice of how many hours
 
 
are to be worked and when the shift is to start and end.
 
27BK
Right to reasonable notice of cancellation of or change to a shift
 
 
(1)
Subsection (2) applies in relation to an employer and a worker where—
 
 
(a)
the employer has given notice of a shift to the worker,
5
 
(b)
the shift is one that the worker was entitled to reasonable notice
 
 
of under section 27BJ (1) , (2) or (3) , and
 
 
(c)
where the shift is one that the employer has requested (rather
 
 
than required) the worker to work, the worker has agreed to
 
 
work it.
10
 
(2)
The employer must give reasonable notice to the worker of—
 
 
(a)
the cancellation of the shift by the employer;
 
 
(b)
any change requested or required by the employer consisting
 
 
of—
 
 
(i)
a change to when the shift is to start or end;
15
 
(ii)
a reduction in the number of hours to be worked during
 
 
the shift because of a break in the shift;
 
 
(but this is subject to section 27BM ).
 
 
(3)
It is to be presumed, unless the contrary is shown, that—
 
 
(a)
notice of the cancellation of a shift is not reasonable notice for
20
 
the purposes of subsection (2) if it is given less than a specified
 
 
amount of time before the shift would have started (if the shift
 
 
had not been cancelled);
 
 
(b)
notice of a change to when a shift is to start is not reasonable
 
 
notice for the purposes of subsection (2) if it is given less than
25
 
a specified amount of time before the earlier of—
 
 
(i)
when the shift would have started (if the shift had not
 
 
been changed), and
 
 
(ii)
when the shift is due to start (having been changed);
 
 
(c)
notice of any other change to a shift is not reasonable notice
30
 
for the purposes of subsection (2) if it is given—
 
 
(i)
less than a specified amount of time before the shift is
 
 
due to start;
 
 
(ii)
on or after the start of the shift.
 
 
(4)
In this section, “notice of a shift” has the same meaning as in section
35
 
27BJ .
 
27BL
Sections
 
 
(1)
None of the duties imposed by sections 27BJ and 27BK applies in
 
 
relation to a shift that would be (or would have been) worked, or is
 
 
being worked, by a worker as an agency worker (but see Part 2 of
40

Page 21

 
Schedule A1 for provision about rights of agency workers to reasonable
 
 
notice in relation to shifts).
 
 
(2)
Where a worker suggests working a shift and the employer agrees to
 
 
the suggestion—
 
 
(a)
the duties imposed by section 27BJ (1) , (2) and (3) do not apply
5
 
in relation to the shift as suggested by the worker, but
 
 
(b)
the duty imposed by section 27BK (2) applies (even though the
 
 
conditions in section 27BK (1) have not been met).
 
 
(3)
Section 27BJ (6) applies for the purposes of subsection (2) of this section
 
 
as if section 27BJ (6) (c) referred to what the worker suggests rather
10
 
than what the employer requests or requires.
 
 
(4)
In sections 27BJ and 27BK , references to a request to work a shift made
 
 
by an employer to a worker include a request (a “multi-worker
 
 
request”) made by the employer to the worker and one or more others
 
 
in circumstances where the employer does not need the shift to be
15
 
worked by all of those to whom the request is made.
 
 
(5)
For the purposes of section 27BK , where an employer has made a
 
 
multi-worker request to a worker in relation to a shift, references to
 
 
the cancellation of the shift include the worker not being needed to
 
 
work the shift because one or more others have agreed to work it.
20
 
(6)
The Secretary of State may by regulations make provision about—
 
 
(a)
the form and manner in which notice under sections 27BJ and
 
 
27BK must be given;
 
 
(b)
when notice under those sections is to be treated as having
 
 
been given.
25
27BM
Interaction with Chapter 4
 
 
(1)
Where an employer—
 
 
(a)
is required to make a payment to a worker under section 27BP
 
 
in relation to a shift that the employer cancels, moves or curtails
 
 
at short notice, or
30
 
(b)
would have been required to make such a payment in relation
 
 
to the shift but for provision made under section 27BR (1) (c) ,
 
 
nothing in section 27BK (2) is to be taken to have applied in relation
 
 
to the cancellation, movement or curtailment of the shift that gave rise
 
 
to, or would have given rise to, the requirement to make the payment.
35
 
(2)
Terms used in this section have the same meaning as in section 27BP .
 
27BN
Complaints to employment tribunals
 
 
(1)
A worker may present a complaint to an employment tribunal that
 
 
the worker’s employer has failed to comply with a duty imposed by
 
 
section 27BJ or 27BK .
40

Page 22

 
(2)
Where, in determining whether a complaint under this section is
 
 
well-founded, the tribunal must determine whether reasonable notice
 
 
has been given, the tribunal must have regard, in particular, to such
 
 
of the specified matters as are appropriate in the circumstances.
 
 
(3)
An employment tribunal must not consider a complaint under this
5
 
section unless it is presented before the end of the period of six months
 
 
beginning with—
 
 
(a)
where the complaint is that the employer failed to comply with
 
 
a duty imposed by section 27BJ (1) , (2) or (3) in relation to a
 
 
shift, the day on which the shift was due to start;
10
 
(b)
where the complaint is that the employer failed to comply with
 
 
the duty imposed by section 27BK (2) in relation to the
 
 
cancellation of a shift, the day on which the shift would have
 
 
started (if the shift had not been cancelled);
 
 
(c)
where the complaint is that the employer failed to comply with
15
 
the duty imposed by section 27BK (2) in relation to a change
 
 
to a shift, the day on which the shift as changed was due to
 
 
start or, where the shift was changed on or after its start, the
 
 
day on which the shift started.
 
 
(4)
But, if the employment tribunal is satisfied that it was not reasonably
20
 
practicable for a complaint to be presented before the end of the
 
 
relevant period of six months, the tribunal may consider the complaint
 
 
if it is presented within such further period as the tribunal considers
 
 
reasonable.
 
 
(5)
Section 207B (extension of time limits to facilitate conciliation before
25
 
institution of proceedings) applies for the purposes of subsection (3) .
 
27BO
Remedies
 
 
(1)
Where an employment tribunal finds a complaint under section 27BN
 
 
well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
30
 
(b)
may make an award of compensation to be paid by the
 
 
employer to the worker.
 
 
(2)
The amount of compensation under subsection (1) (b) in relation to a
 
 
complaint is to be such amount, not exceeding the specified amount,
 
 
as the tribunal considers just and equitable in all the circumstances to
35
 
compensate the worker for any financial loss sustained by the worker
 
 
which is attributable to the matter complained of.
 
 
(3)
In ascertaining the financial loss sustained, the tribunal must apply
 
 
the same rule concerning the duty of a person to mitigate their loss
 
 
as applies to damages recoverable under the common law of England
40
 
and Wales or (as the case may be) Scotland.”
 

Page 23

3
Right to payment for cancelled, moved and curtailed shifts
 
 
After section 27BO of the Employment Rights Act 1996 (inserted by section
 
 
2 ) insert—
 

Chapter 4

 
 
Right to payment for cancelled, moved and curtailed shifts
5
27BP
Right to payment for a cancelled, moved or curtailed shift
 
 
(1)
An employer must make a payment of a specified amount to a worker
 
 
each time that the employer cancels, moves or curtails at short notice
 
 
a qualifying shift—
 
 
(a)
that the employer has informed the worker they are required
10
 
to work,
 
 
(b)
that the employer has requested the worker to work and the
 
 
worker has agreed to work, or
 
 
(c)
that the worker has suggested working and the employer has
 
 
agreed to the worker working,
15
 
(but see section 27BR for exceptions to this duty).
 
 
(2)
A shift is a “qualifying shift”, in relation to a worker and an employer,
 
 
if it would be (or would have been) worked, or is being worked, by
 
 
the worker for the employer under—
 
 
(a)
a zero hours contract,
20
 
(b)
a worker’s contract entered into in accordance with a zero
 
 
hours arrangement, or
 
 
(c)
a worker’s contract of a specified description that requires the
 
 
employer to make some work available to the worker but does
 
 
not provide on what days and at what times, or in accordance
25
 
with what pattern of days and times, that work is to be done
 
 
by the worker.
 
 
(3)
A shift is also a “qualifying shift”, in relation to a worker and an
 
 
employer, if—
 
 
(a)
it would be (or would have been) worked, or is being worked,
30
 
by the worker for the employer under a worker’s contract of
 
 
a specified description that requires the employer to make some
 
 
work available to the worker,
 
 
(b)
the contract provides on what days and at what times, or in
 
 
accordance with what pattern of days and times, that work, or
35
 
some of that work, is to be done by the worker, and
 
 
(c)
no part of the shift corresponds to the time of a shift provided
 
 
for by the contract as described in paragraph (b) .
 
 
(4)
Where—
 
 
(a)
the conditions in subsection (3) (a) and (b) are met in relation
40
 
to a shift,
 

Page 24

 
(b)
all or part of the shift corresponds to the time of a shift (a
 
 
“guaranteed shift”) provided for by the contract as described
 
 
in subsection (3) (b) ,
 
 
(c)
the employer requests or requires, or the worker suggests, that
 
 
the worker starts earlier, or ends later, than is provided for by
5
 
the contract (as described in subsection (3) (b) ) in relation to
 
 
the guaranteed shift, and
 
 
(d)
the earlier start or later end is to result in an additional number
 
 
of hours being worked above the number of hours to be worked
 
 
in the guaranteed shift,
10
 
the additional hours are to be treated for the purposes of this Chapter
 
 
as a separate shift (and accordingly as a “qualifying shift”).
 
 
(5)
A payment that an employer is required to make under subsection
 
 
(1) must be made by no later than the specified day.
 
 
(6)
Where notice of cancellation has been given in advance of the short
15
 
notice period as defined by subsection (7) , the employer is not required
 
 
to make payment under subsection (1) .
 
 
(7)
For the purposes of this Chapter, “short notice” means—
 
 
(a)
in relation to the cancellation of a shift, notice given less than
 
 
48 hours before the shift would have started (if the shift had
20
 
not been cancelled);
 
 
(b)
in relation to the movement of a shift, or the movement and
 
 
curtailment (at the same time) of a shift, notice given—
 
 
(i)
less than a specified amount of time before the earlier
 
 
of when the shift would have started (if the shift had
25
 
not been moved, or moved and curtailed) and when
 
 
the shift is due to start (having been moved, or moved
 
 
and curtailed);
 
 
(ii)
on or after the start of the shift;
 
 
(c)
in relation to the curtailment of a shift where there is a change
30
 
to when the shift is to start (but there is no movement of the
 
 
shift), notice given less than a specified amount of time before
 
 
the earlier of—
 
 
(i)
when the shift would have started (if there had not
 
 
been the change), and
35
 
(ii)
when the shift is due to start (the change having been
 
 
made);
 
 
(d)
in relation to the curtailment of a shift where there is no change
 
 
to when the shift is to start, notice given—
 
 
(i)
less than a specified amount of time before the shift is
40
 
due to start;
 
 
(ii)
on or after the start of the shift.
 

Page 25

 
(8)
The Secretary of State may by regulations make provision about when
 
 
notice of the cancellation, movement or curtailment of a shift is to be
 
 
treated as having been given by an employer to a worker.
 
 
(9)
For the purposes of this Chapter—
 
 
“employer” , in relation to an individual and a shift, includes a
5
 
person by whom the individual would be (or would have been)
 
 
employed if the individual worked the shift;
 
 
“worker” , in relation to a shift, includes an individual who would
 
 
be (or would have been) a worker if the individual worked
 
 
the shift.
10
 
(10)
For the purposes of this Chapter, references to the movement of a
 
 
shift (however expressed)—
 
 
(a)
are to any change to the time at which the shift is to start that
 
 
is a change of more than a specified amount of time;
 
 
(b)
include—
15
 
(i)
where a shift is in two or more parts, a change of more
 
 
than a specified amount of time to the time at which
 
 
the second (or a subsequent) part is to start, and
 
 
(ii)
a division of a shift into two or more parts where the
 
 
time between the parts is more than a specified amount
20
 
of time,
 
 
but only if the change or division (as the case may be) results
 
 
in the shift ending later.
 
 
(11)
In this Chapter, references to a request to work a shift made by an
 
 
employer to a worker include a request (a “multi-worker request”)
25
 
made by the employer to the worker and one or more others in
 
 
circumstances where the employer does not need the shift to be worked
 
 
by all of those to whom the request is made.
 
 
(12)
For the purposes of this Chapter, where an employer has made a
 
 
multi-worker request to a worker in relation to a shift, references to
30
 
the cancellation of the shift (however expressed) include the worker
 
 
not being needed to work the shift because one or more others have
 
 
agreed to work it.
 
27BQ
Regulations under section
 
 
(1)
Regulations under section 27BP (1) may not specify an amount to be
35
 
paid to a worker in relation to the cancellation, movement or
 
 
curtailment of a shift that exceeds—
 
 
(a)
where the shift is cancelled, the amount of remuneration to
 
 
which the worker would have been entitled had they worked
 
 
the hours that will not be worked because of the cancellation;
40
 
(b)
where the shift is moved, or moved and curtailed (at the same
 
 
time), and no part of the shift as moved, or as moved and
 
 
curtailed, corresponds to the time of the shift (“the original
 

Page 26

 
shift”) before it was moved, or moved and curtailed, the
 
 
amount of remuneration to which the worker would have been
 
 
entitled had they worked the original shift;
 
 
(c)
where the shift is moved, or moved and curtailed (at the same
 
 
time), and part of the shift as moved, or as moved and
5
 
curtailed, corresponds to the time of the original shift (but part
 
 
does not), the amount of remuneration to which the worker
 
 
would have been entitled had they worked the part of the
 
 
original shift that does not correspond to the shift as moved,
 
 
or as moved and curtailed;
10
 
(d)
where the shift is—
 
 
(i)
curtailed but not moved, or
 
 
(ii)
moved and curtailed (at the same time) and the shift
 
 
as moved and curtailed is to start and end within the
 
 
time of the original shift,
15
 
the amount of remuneration to which the worker would have
 
 
been entitled had they worked the hours that will not be
 
 
worked because of the curtailment, or the movement and
 
 
curtailment.
 
 
(2)
Regulations under section 27BP (1) may, in particular, include provision
20
 
specifying different amounts depending on the amount of notice that
 
 
was given of the cancellation, movement or curtailment.
 
 
(3)
Regulations under section 27BP (2) (c) or (3) (a) may, in particular, specify
 
 
a description of worker’s contract by reference to—
 
 
(a)
it being a worker’s contract that entitles a worker to be paid
25
 
no more than a specified amount;
 
 
(b)
it being a worker’s contract that requires an employer to make
 
 
work available to a worker for no more than a specified number
 
 
of hours.
 
 
(4)
Regulations under section 27BP (7) may not specify an amount of time
30
 
that exceeds 7 days.
 
 
27BR
Exceptions to duty to make payment for a cancelled, moved or
 
 
curtailed shift
 
 
(1)
The requirement to make a payment under section 27BP (1) does not
 
 
apply—
35
 
(a)
in relation to a shift that would be (or would have been)
 
 
worked, or is being worked, by a worker as an agency worker
 
 
(but see Part 3 of Schedule A1 for provision about rights of
 
 
agency workers to payment for cancelled, moved and curtailed
 
 
shifts);
40
 
(b)
in relation to the cancellation, movement or curtailment of a
 
 
shift that an employer has requested a worker to work, unless
 
 
the worker reasonably believed, whether on agreeing to work
 

Page 27

 
the shift or at some later time before the cancellation, movement
 
 
or curtailment, that they would be needed to work the shift;
 
 
(c)
in other specified circumstances.
 
 
(2)
Where, by virtue of regulations made under subsection (1) (c) , an
 
 
employer is not required to make a payment to a worker in relation
5
 
to a shift under section 27BP (1) , the employer must give a notice to
 
 
the worker that—
 
 
(a)
states which provision of the regulations has produced the
 
 
effect that the employer is not required to make the payment,
 
 
and
10
 
(b)
explains why the employer was entitled to rely on that
 
 
provision.
 
 
(3)
But subsection (2) (b) does not require an employer to disclose—
 
 
(a)
any information the disclosure of which by the employer would
 
 
contravene the data protection legislation (but in determining
15
 
whether a disclosure would do so, the duty imposed by that
 
 
subsection is to be taken into account);
 
 
(b)
any information that is commercially sensitive;
 
 
(c)
any information the disclosure of which by the employer would
 
 
constitute a breach of a duty of confidentiality owed by the
20
 
employer to any other person.
 
 
(4)
In subsection (3) (a) “the data protection legislation” has the same
 
 
meaning as in the Data Protection Act 2018 (see section 3(9) of that
 
 
Act).
 
 
(5)
The Secretary of State may by regulations make provision about—
25
 
(a)
the form and manner in which a notice under this section must
 
 
be given;
 
 
(b)
the day on or before which it must be given;
 
 
(c)
when a notice under this section is to be treated as having been
 
 
given.
30
 
(6)
The duty in subsection (2) is to be taken not to have applied if—
 
 
(a)
the employer pays to the worker an amount in relation to a
 
 
number of hours that is at least equal to the amount of the
 
 
payment that the employer would have been required to make
 
 
to the worker under section 27BP (1) in relation to the same
35
 
number of hours but for regulations made under subsection
 
 
(1) (c) , and
 
 
(b)
the payment is made on or before the day on which the
 
 
payment under section 27BP (1) would have had to be made if
 
 
the employer had been required to make it.
40
 
(7)
Subsection (4) of section 27BS applies for the purposes of subsection
 
 
(6) of this section as it applies for the purposes of subsections (2) and
 
 
(3) of that section.
 

Page 28

27BS
Contractual remuneration
 
 
(1)
The right of a worker to receive a payment from an employer under
 
 
section 27BP (1) does not affect any right of the worker in relation to
 
 
remuneration under a worker’s contract entered into between the
 
 
worker and the employer (“contractual remuneration”).
5
 
(2)
Any contractual remuneration paid to a worker by an employer in
 
 
relation to a number of hours goes towards discharging any liability
 
 
of the employer to make a payment to the worker under section
 
 
27BP (1) in relation to the same hours.
 
 
(3)
Any payment made by an employer to a worker under section 27BP (1)
10
 
in relation to a number of hours goes towards discharging any liability
 
 
of the employer to pay contractual remuneration to the worker in
 
 
relation to the same hours.
 
 
(4)
For the purposes of subsections (2) and (3) , the hours to which a
 
 
payment under section 27BP (1) relates are—
15
 
(a)
where a shift has been cancelled, the hours that would have
 
 
been worked if the shift had not been cancelled;
 
 
(b)
where a shift has been moved, or moved and curtailed (at the
 
 
same time), and no part of the shift as moved, or as moved
 
 
and curtailed, corresponds to the time of the shift (“the original
20
 
shift”) before it was moved, or moved and curtailed, the hours
 
 
that would have been worked during the original shift;
 
 
(c)
where a shift has been moved, or moved and curtailed (at the
 
 
same time), and part of the shift as moved, or as moved and
 
 
curtailed, corresponds to the time of the original shift (but part
25
 
does not), the hours that would have been worked during the
 
 
part of the original shift that does not correspond to the shift
 
 
as moved, or as moved and curtailed;
 
 
(d)
where a shift has been—
 
 
(i)
curtailed but not moved, or
30
 
(ii)
moved and curtailed (at the same time) and the shift
 
 
as moved and curtailed is to start and end within the
 
 
time of the original shift,
 
 
the hours that would have been worked if the shift had not
 
 
been curtailed, or moved and curtailed.
35
27BT
Complaints to employment tribunal
 
 
(1)
A worker may present a complaint to an employment tribunal that
 
 
the worker’s employer—
 
 
(a)
has failed to make the whole or any part of a payment that
 
 
the employer is liable to make to the worker under section
40
 
27BP (1) ;
 
 
(b)
has unreasonably failed to give to the worker a notice under
 
 
section 27BR (2) ;
 

Page 29

 
(c)
has given to the worker a notice in purported compliance with
 
 
section 27BR (2) that—
 
 
(i)
does not refer to any provision of the regulations;
 
 
(ii)
does not contain an explanation or contains an
 
 
explanation that is inadequate or untrue.
5
 
(2)
An employment tribunal must not consider a complaint under
 
 
subsection (1) (a) relating to a payment unless it is presented before
 
 
the end of the period of six months beginning with the day after the
 
 
day on or before which the payment should have been made (see
 
 
section 27BP (5) ).
10
 
(3)
An employment tribunal must not consider a complaint under
 
 
subsection (1) (b) relating to a notice unless it is presented before the
 
 
end of the period of six months beginning with the day after the day
 
 
on or before which the notice should have been given (see section
 
 
27BR (5) (b) ).
15
 
(4)
An employment tribunal must not consider a complaint under
 
 
subsection (1) (c) relating to a notice unless it is presented before the
 
 
end of the period of six months beginning with the day after the day
 
 
on which the notice is given.
 
 
(5)
But, if the employment tribunal is satisfied that it was not reasonably
20
 
practicable for a complaint under this section to be presented before
 
 
the end of the relevant period of six months, the tribunal may consider
 
 
the complaint if it is presented within such further period as the
 
 
tribunal considers reasonable.
 
 
(6)
Section 207B (extension of time limits to facilitate conciliation before
25
 
institution of proceedings) applies for the purposes of subsections (2)
 
 
to (4) .
 
27BU
Remedies
 
 
(1)
Where an employment tribunal finds a complaint under section
 
 
27BT (1) (a) well-founded, the tribunal must—
30
 
(a)
make a declaration to that effect, and
 
 
(b)
order the employer to pay to the worker the amount of the
 
 
payment under section 27BP (1) which it finds is due to the
 
 
worker.
 
 
(2)
Where an employment tribunal finds a complaint under section
35
 
27BT (1) (b) or (c) well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 
 
(b)
may order the employer to make a payment to the worker of
 
 
such amount, not exceeding the specified amount, as the
 
 
tribunal considers just and equitable in all the circumstances.
40

Page 30

 
(3)
But an employment tribunal may not make an order under subsection
 
 
(2) (b) relating to a notice given in purported compliance with section
 
 
27BR (2) if the tribunal makes an order under subsection (1) (b) relating
 
 
to the same payment to which the notice related.
 
 
(4)
In determining—
5
 
(a)
whether to make an order under subsection (2) (b) , and
 
 
(b)
if so, how much to order the employer to pay,
 
 
an employment tribunal must have regard, in particular, to the
 
 
seriousness of the matter complained of.”
 
4
Agency workers: guaranteed hours and rights relating to shifts
10
 
(1)
After section 27BU of the Employment Rights Act 1996 (inserted by section
 
 
3 ) insert—
 

Chapter 5

 
 
Agency workers: guaranteed hours and rights relating to shifts
 
27BV
Agency workers
15
 
(1)
In this Part, “agency worker” means an individual—
 
 
(a)
who has a worker’s contract or an arrangement with a
 
 
work-finding agency by virtue of which the individual is (or
 
 
is to be) supplied to work for and under the supervision and
 
 
direction of another person,
20
 
(b)
who does not do (or is not to do) the work under a worker’s
 
 
contract with the other person, and
 
 
(c)
who is not (or is not to be) a party to a contract under which
 
 
the individual undertakes to do the work for another party to
 
 
the contract whose status is, by virtue of the contract, that of
25
 
a client or customer of any profession or business undertaking
 
 
carried on by the individual.
 
 
(2)
In this Part—
 
 
(a)
references to an agency worker include, where the context
 
 
requires, a former agency worker, and
30
 
(b)
where that is the case, references in relation to the agency
 
 
worker to a work-finding agency, and references (however
 
 
expressed) to a person for and under the supervision and
 
 
direction of whom the agency worker works, are to be read
 
 
accordingly.
35
 
(3)
An individual is an “agency worker” for the purposes of this Part—
 
 
(a)
whether the individual is (or is to be) supplied to work for
 
 
and under the supervision and direction of another person—
 
 
(i)
by the work-finding agency referred to in subsection
 
 
(1) (a) , or
40

Page 31

 
(ii)
by a person other than the work-finding agency;
 
 
(b)
whether the individual is (or is to be) paid, for work done for
 
 
and under the supervision and direction of another person—
 
 
(i)
by the work-finding agency referred to in subsection
 
 
(1) (a) , or
5
 
(ii)
by a person other than the work-finding agency.
 
 
(4)
In this Part, “work-finding agency” means a person carrying on the
 
 
business (whether or not with a view to profit and whether or not in
 
 
conjunction with any other business) of finding, or seeking to find,
 
 
work for individuals to do for and under the supervision and direction
10
 
of other persons (but not in the employment of those other persons).
 
 
(5)
Part 1 of Schedule A1 contains provision about guaranteed hours and
 
 
agency workers.
 
 
(6)
Part 2 of Schedule A1 contains provision about rights of agency
 
 
workers to reasonable notice in relation to shifts.
15
 
(7)
Part 3 of Schedule A1 contains provision about rights of agency
 
 
workers to payment for shifts that are cancelled, moved or curtailed
 
 
at short notice.”
 
 
(2)
Schedule 1 inserts Schedule A1 into the Employment Rights Act 1996.
 
5
Collective agreements: contracting out
20
 
(1)
The Employment Rights Act 1996 is amended as follows.
 
 
(2)
After section 27BV (inserted by section 4 ) insert—
 

Chapter 6

 
 
Collective agreements: contracting out
 
27BW
Zero hours workers, etc
25
 
(1)
This section applies in relation to—
 
 
(a)
a duty imposed on an employer in respect of a worker, and
 
 
(b)
a right conferred on a worker in respect of an employer,
 
 
by or under any provision of Chapter 2, 3 or 4.
 
 
(2)
The duty or right is excluded if—
30
 
(a)
the worker is employed by the employer under a worker’s
 
 
contract (“the contract”),
 
 
(b)
a relevant collective agreement contains—
 
 
(i)
terms that expressly exclude the duty or right, and
 
 
(ii)
terms that expressly replace the excluded duty or right,
35
 
(c)
the terms within paragraph (b) (ii) are incorporated into the
 
 
contract, and
 

Page 32

 
(d)
the employer notifies the worker in writing of the incorporation
 
 
and effect of those terms.
 
 
(3)
A relevant collective agreement is a collective agreement that is—
 
 
(a)
in writing, and
 
 
(b)
made by or on behalf of—
5
 
(i)
one or more trade unions which each have a certificate
 
 
of independence, and
 
 
(ii)
the worker’s employer.
 
27BX
Agency workers
 
 
(1)
This section applies in relation to—
10
 
(a)
a duty imposed on a hirer or a work-finding agency in respect
 
 
of an agency worker, and
 
 
(b)
a right conferred on an agency worker in respect of a hirer or
 
 
a work-finding agency,
 
 
by or under any provision of Chapter 5 (including Schedule A1 ).
15
 
(2)
The duty or right is excluded if—
 
 
(a)
the agency worker is supplied to work for and under the
 
 
supervision and direction of the hirer by virtue of a worker’s
 
 
contract (“the contract”) that the agency worker has with
 
 
another person (“the other party”),
20
 
(b)
a relevant collective agreement contains—
 
 
(i)
terms that expressly exclude the duty or right, and
 
 
(ii)
terms that expressly replace the excluded duty or right,
 
 
(c)
the terms within paragraph (b) (ii) are incorporated into the
 
 
contract, and
25
 
(d)
the other party notifies the agency worker in writing of the
 
 
incorporation and effect of those terms.
 
 
(3)
A relevant collective agreement is a collective agreement that is—
 
 
(a)
in writing, and
 
 
(b)
made by or on behalf of—
30
 
(i)
one or more trade unions which each have a certificate
 
 
of independence, and
 
 
(ii)
the other party.
 
27BY
Supplementary provision
 
 
(1)
For the purposes of sections 27BW and 27BX , it does not matter
35
 
whether—
 
 
(a)
terms in a collective agreement that expressly replace a duty
 
 
or right relate to the same subject matter as the duty or right,
 
 
or
 

Page 33

 
(b)
a collective agreement ceases to be in force after the terms
 
 
mentioned in section 27BW (2) (b) (ii) or 27BX (2) (b) (ii) are
 
 
incorporated into the contract (within the meaning of section
 
 
27BW or 27BX , as the case may be), provided the terms
 
 
continue to be incorporated.
5
 
(2)
Where the duty to make a guaranteed hours offer under Chapter 2 or
 
 
5 is excluded by virtue of terms that are incorporated into a contract
 
 
with a worker or, as the case may be, an agency worker, as mentioned
 
 
in section 27BW (2) (c) or 27BX (2) (c) , during the offer period, the duty
 
 
ceases to apply.
10
 
(3)
Where—
 
 
(a)
the duty to make a guaranteed hours offer under Chapter 2 or
 
 
5 is excluded by virtue of terms that are incorporated into a
 
 
contract with a worker or, as the case may be, an agency
 
 
worker, as mentioned in section 27BW (2) (c) or 27BX (2) (c) ,
15
 
(b)
a guaranteed hours offer has already been made in compliance
 
 
with the duty, and
 
 
(c)
the worker or agency worker has not accepted the offer,
 
 
the person who made the offer may withdraw it during the response
 
 
period by giving a notice to the worker or agency worker.
20
 
(4)
The notice must include a statement to the effect that the offer is
 
 
withdrawn in consequence of the exclusion of the duty to make a
 
 
guaranteed hours offer as a result of the incorporation into the worker’s
 
 
or agency worker’s contract, as mentioned in section 27BW (2) (c) or
 
 
27BX (2) (c) , of terms contained in a collective agreement that expressly
25
 
replace that duty.
 
 
(5)
A worker or an agency worker to whom a notice is given in reliance
 
 
on subsection (3) may present a complaint to an employment tribunal
 
 
that subsection (3) did not permit the notice to be given.
 
 
(6)
Where a complaint is presented under subsection (5) —
30
 
(a)
by a worker, sections 27BH and 27BI apply in relation to the
 
 
complaint as they apply in relation to a complaint under section
 
 
27BG (7) (b) ;
 
 
(b)
by an agency worker, paragraphs 10 and 11 of Schedule A1
 
 
apply in relation to the complaint as they apply in relation to
35
 
a complaint under paragraph 8 (7) (b) of that Schedule.
 
 
(7)
Subsection (8) applies where—
 
 
(a)
the duty to make a guaranteed hours offer under Chapter 2 or
 
 
5 is excluded by virtue of terms that are incorporated into a
 
 
contract with a worker or, as the case may be, an agency
40
 
worker, as mentioned in section 27BW (2) (c) or 27BX (2) (c) , and
 
 
(b)
the duty ceases to be excluded as a result of the terms ceasing
 
 
to be incorporated into the contract (including where the
 
 
contract ceases to be in force).
 

Page 34

 
(8)
In applying Chapter 2 or 5 for the purposes of the duty after it has
 
 
ceased to be excluded—
 
 
(a)
in any case where there was a reference period in relation to
 
 
the duty as it had effect before being excluded, that reference
 
 
period is to be disregarded;
5
 
(b)
in relation to a worker and the worker’s employer—
 
 
(i)
section 27BA (5) (a) has effect as if for sub-paragraphs
 
 
(i) and (ii) there were substituted—
 
 
“(i)
where the worker is employed by
 
 
the employer on the day (“the
10
 
effective day”) after the day on
 
 
which terms cease to be
 
 
incorporated as mentioned in
 
 
section 27BY (7) (b) , the effective
 
 
day, or
15
 
(ii)
where the worker is not so
 
 
employed, the first day after the
 
 
effective day on which the worker
 
 
is employed by the employer,
 
 
and”;
20
 
(ii)
section 27BF (3) has effect as if for paragraphs (a) and
 
 
(b) there were substituted—
 
 
“(a)
where the worker is employed by the
 
 
employer on the day (“the effective day”)
 
 
after the day on which terms cease to be
25
 
incorporated as mentioned in section
 
 
27BY (7) (b) , the effective day, or
 
 
(b)
where the worker is not so employed,
 
 
the first day after the effective day on
 
 
which the worker is employed by the
30
 
employer.”;
 
 
(c)
in relation to an agency worker and a hirer for and under the
 
 
supervision and direction of whom the agency worker works,
 
 
paragraph 1 (5) (a) of Schedule A1 has effect as if for
 
 
sub-paragraphs (i) and (ii) there were substituted—
35
 
“(i)
where the agency worker is working for
 
 
and under the supervision and direction
 
 
of the hirer on the day (“the effective
 
 
day”) after the day on which terms cease
 
 
to be incorporated as mentioned in
40
 
section 27BY (7) (b) , the effective day, or
 
 
(ii)
where the agency worker is not so
 
 
working, the first day after the effective
 
 
day on which the agency worker is
 
 
working for and under the supervision
45
 
and direction of the hirer, and”;
 

Page 35

 
(d)
in relation to an agency worker and the work-finding agency
 
 
with which the agency worker has a worker’s contract or an
 
 
arrangement by virtue of which the agency worker is (or is to
 
 
be) supplied to work for and under the supervision and
 
 
direction of a hirer, paragraph 7 (3) of Schedule A1 has effect
5
 
as if for paragraphs (a) and (b) there were substituted—
 
 
“(a)
where the worker’s contract or arrangement is
 
 
in force on the day (“the effective day”) after the
 
 
day on which terms cease to be incorporated as
 
 
mentioned in section 27BY (7) (b) , the effective
10
 
day, or
 
 
(b)
where it is not in force on the effective day, the
 
 
first day after the effective day on which it is in
 
 
force.”
 
27BZ
Regulations
15
 
(1)
The Secretary of State may by regulations make further provision for
 
 
the purposes of section 27BW or 27BX .
 
 
(2)
The regulations may, in particular, make provision about—
 
 
(a)
the effect on a duty in Chapters 2 to 5 of terms being or ceasing
 
 
to be incorporated as mentioned in section 27BW (2) (c) or
20
 
27BX (2) (c) ,
 
 
(b)
the form and manner in which a notice under section 27BY (3)
 
 
is to be given, and
 
 
(c)
when a notice under section 27BY (3) is to be treated as having
 
 
been given.
25
27BZ1
Interpretation
 
 
(1)
Terms used in this Chapter that are used in—
 
 
(a)
Chapters 2 to 4 (rights relating to zero hours workers, etc), or
 
 
(b)
Chapter 5 (including Schedule A1 ) (rights relating to agency
 
 
workers),
30
 
have the same meaning as in those Chapters or that Chapter (including
 
 
that Schedule).
 
 
(2)
In this Chapter, “certificate of independence” means a certificate issued
 
 
under section 6 of the Trade Union and Labour Relations
 
 
(Consolidation) Act 1992.
35
 
(3)
In section 203 (restrictions on contracting out), in subsection (2), before
 
 
paragraph (a) insert—
 
 
“(za)
does not apply to terms of a collective agreement or contract
 
 
that exclude a duty or right by virtue of provision made by or
 
 
under Chapter 6 of Part 2A,”.
40

Page 36

6
Amendments relating to sections
 
 
(1)
After section 27BZ1 of the Employment Rights Act 1996 (inserted by section
 
 
5 ) insert—
 

Chapter 7

 
 
General
5
27BZ2
Interpretation
 
 
(1)
In this Part—
 
 
“agency worker” has the meaning given by section 27BV ;
 
 
“arrangement” (when used by itself and not as part of the
 
 
expression “zero hours arrangement”) means an arrangement
10
 
(whether contractual or non-contractual) other than a worker’s
 
 
contract;
 
 
“specified” means specified in, or determined in accordance with,
 
 
regulations made by the Secretary of State;
 
 
“work-finding agency” has the meaning given by section 27BV ;
15
 
“zero hours arrangement” means an arrangement under which—
 
 
(a)
an employer and an individual agree terms on which
 
 
the individual will do any work where the employer
 
 
makes it available to the individual and the individual
 
 
agrees to do it, but
20
 
(b)
the employer is not required to make any work available
 
 
to the individual, nor the individual required to accept
 
 
it,
 
 
and in this Part “employer”, in relation to a zero hours
 
 
arrangement, is to be read accordingly;
25
 
“zero hours contract” means a contract of employment or other
 
 
worker’s contract under which—
 
 
(a)
the undertaking to do work is an undertaking to do so
 
 
conditionally on the employer making work available
 
 
to the worker, and
30
 
(b)
there is no certainty that any such work will be made
 
 
available to the worker.
 
 
(2)
For the purposes of this Part—
 
 
(a)
a person who is, or is treated as, an employer makes work
 
 
available to a worker or other individual if they request or
35
 
require the individual to do it;
 
 
(b)
references to work and doing work include references to
 
 
services and performing them.
 
27BZ3
Regulations
 
 
(1)
Regulations under this Part may—
40

Page 37

 
(a)
make different provision for different purposes;
 
 
(b)
make provision subject to exceptions.
 
 
(2)
Regulations under this Part may provide that a reference in the
 
 
regulations to a provision of legislation is to be read as a reference to
 
 
that provision as amended from time to time.”
5
 
(2)
Schedule 2 contains consequential amendments relating to sections 1 to 5 .
 
7
Repeal of Workers (Predictable Terms and Conditions) Act 2023
 
 
The Workers (Predictable Terms and Conditions) Act 2023 is repealed.
 
8
Exclusivity terms in zero hours arrangements
 
 
(1)
Section 27B of the Employment Rights Act 1996 (power to make further
10
 
provision in relation to zero hours workers) is amended as follows.
 
 
(2)
In subsection (1), for “their contracts or arrangements” substitute “their
 
 
worker’s contracts or their arrangements”.
 
 
(3)
In subsection (2)(b), omit “non-contractual”.
 
 
(4)
In subsection (4)—
15
 
(a)
in the words before paragraph (a)—
 
 
(i)
omit “non-contractual”;
 
 
(ii)
after “arrangement”, in the second place it occurs, insert
 
 
“(whether contractual or non-contractual)”;
 
 
(b)
in the words after paragraph (b), omit “non-contractual”.
20
 
(5)
In subsection (5)(a)(ii), omit “non-contractual”.
 
 
(6)
In subsection (6)—
 
 
(a)
after “provision for” insert “—
 
 
(a)
;
 
 
(b)
after “does not apply” insert—
25
 
“(b)
exclusivity terms in prescribed categories of zero hours
 
 
arrangements that are contractual arrangements to be
 
 
unenforceable”;
 
 
(c)
at the end of the subsection insert “or (as the case may be) an
 
 
individual is restricted from doing any work otherwise than under a
30
 
worker’s contract entered into in accordance with the zero hours
 
 
arrangement.”
 

Page 38

Flexible working

 
9
Right to request flexible working
 
 
(1)
Part 8A of the Employment Rights Act 1996 (flexible working) is amended
 
 
in accordance with subsections (2) to (6) .
 
 
(2)
Section 80G (employer’s duties in relation to application for change to working
5
 
hours, etc) is amended in accordance with subsections (3) to (5) .
 
 
(3)
In subsection (1), for paragraph (b) substitute—
 
 
“(b)
may refuse the application only if—
 
 
(i)
the employer considers that the application should be
 
 
refused on a ground or grounds listed in subsection
10
 
(1ZA), and
 
 
(ii)
it is reasonable for the employer to refuse the
 
 
application on that ground or those grounds.
 
 
“(1ZA)
The grounds mentioned in subsection (1)(b) are—
 
 
(a)
the burden of additional costs;
15
 
(b)
detrimental effect on ability to meet customer demand;
 
 
(c)
inability to re-organise work among existing staff;
 
 
(d)
inability to recruit additional staff;
 
 
(e)
detrimental impact on quality;
 
 
(f)
detrimental impact on performance;
20
 
(g)
insufficiency of work during the periods the employee proposes
 
 
to work;
 
 
(h)
planned structural changes;
 
 
(i)
any other grounds specified by the Secretary of State in
 
 
regulations.”
25
 
(4)
After subsection (1ZA) insert—
 
 
“(1ZB)
If an employer refuses an application under section 80F, the notification
 
 
under subsection (1)(aa) must—
 
 
(a)
state the ground or grounds for refusing the application, and
 
 
(b)
explain why the employer considers that it is reasonable to
30
 
refuse the application on that ground or those grounds.”
 
 
(5)
After subsection (1D) insert—
 
 
“(1E)
The steps which an employer must take in order to comply with
 
 
subsection (1)(aza) include, among others, any steps specified in
 
 
regulations made by the Secretary of State.”
35
 
(6)
In section 80H (complaints to employment tribunals), in subsection (1)(a), for
 
 
“comply with” substitute “act in accordance with”.
 

Page 39

 
(7)
In section 202 of the Employment Rights Act 1996 (national security), in
 
 
subsection (2), after paragraph (e) insert—
 
 
“(eza)
Part 8A,”.
 

Statutory sick pay

 
10
Statutory sick pay in Great Britain: removal of waiting period
5
 
(1)
Part 11 of the Social Security Contributions and Benefits Act 1992 (statutory
 
 
sick pay) is amended as follows.
 
 
(2)
In section 151(1) (employer’s liability), for “sections 152 to 154” substitute
 
 
“sections 153 and 154”.
 
 
(3)
In section 152 (period of incapacity for work)—
10
 
(a)
omit subsection (1);
 
 
(b)
in subsection (2), for the words from “any” to “is” substitute “a period
 
 
of one day which is, or of two or more consecutive days each of which
 
 
is,”.
 
 
(4)
In section 153(1) (period of entitlement), for “second” substitute “first”.
15
 
(5)
In section 154(1) (qualifying days), for “third” substitute “second”.
 
 
(6)
In section 155 (limitations on entitlement), omit subsection (1).
 
 
(7)
In section 156(2) (notification of incapacity for work), omit paragraph (b) (and
 
 
the “or” at the end of paragraph (a)).
 
11
Statutory sick pay in Great Britain: lower earnings limit etc
20
 
(1)
Part 11 of the Social Security Contributions and Benefits Act 1992 (statutory
 
 
sick pay) is amended as follows.
 
 
(2)
In section 157 (rates of payment), for subsection (1) substitute—
 
 
“(1)
The weekly rate of statutory sick pay that an employer must pay to
 
 
an employee is the lower of—
25
 
(a)
£118.75, and
 
 
(b)
80% of the employee’s normal weekly earnings.”
 
 
(3)
In Schedule 11 (circumstances in which periods of entitlement to statutory
 
 
sick pay do not arise), in paragraph 2, omit paragraph (c) (lower earnings
 
 
limit).
30
12
Statutory sick pay in Northern Ireland: removal of waiting period
 
 
(1)
Part 11 of the Social Security Contributions and Benefits (Northern Ireland)
 
 
Act 1992 (statutory sick pay) is amended as follows.
 

Page 40

 
(2)
In section 147(1) (employer’s liability), for “sections 148 to 150” substitute
 
 
“sections 149 and 150”.
 
 
(3)
In section 148 (period of incapacity for work)—
 
 
(a)
omit subsection (1);
 
 
(b)
in subsection (2), for the words from “any” to “is” substitute “a period
5
 
of one day which is, or of two or more consecutive days each of which
 
 
is,”.
 
 
(4)
In section 149(1) (period of entitlement), for “second” substitute “first”.
 
 
(5)
In section 150(1) (qualifying days), for “third” substitute “second”.
 
 
(6)
In section 151 (limitations on entitlement), omit subsection (1).
10
 
(7)
In section 152(2) (notification of incapacity for work), omit paragraph (b) (and
 
 
the “or” at the end of paragraph (a)).
 
13
Statutory sick pay in Northern Ireland: lower earnings limit etc
 
 
(1)
Part 11 of the Social Security Contributions and Benefits (Northern Ireland)
 
 
Act 1992 (statutory sick pay) is amended as follows.
15
 
(2)
In section 153 (rate of payment), for subsection (1) substitute—
 
 
“(1)
The weekly rate of statutory sick pay that an employer must pay to
 
 
an employee is the lower of—
 
 
(a)
£118.75, and
 
 
(b)
80% of the employee’s normal weekly earnings.”
20
 
(3)
In Schedule 11 (circumstances in which periods of entitlement to statutory
 
 
sick pay do not arise), in paragraph 2, omit paragraph (c) (lower earnings
 
 
limit).
 

Tips and gratuities, etc

 
14
Policy about allocating tips etc: consultation and review
25
 
(1)
Section 27I of the Employment Rights Act 1996 (written policy about allocation
 
 
of tips etc) is amended as follows.
 
 
(2)
After subsection (2) insert—
 
 
“(2A)
Before producing the first version of the written policy for a place of
 
 
business, an employer must consult—
30
 
(a)
representatives of an independent trade union recognised by
 
 
the employer in respect of workers who are likely to be affected
 
 
by the policy, or representatives appointed or elected by those
 
 
workers and having authority to receive information and to
 
 
be consulted about the policy on behalf of those workers, or
35

Page 41

 
(b)
if there are no such trade union or worker representatives,
 
 
workers who are likely to be affected by the policy.”
 
 
(3)
After subsection (3) insert—
 
 
“(3A)
Where an employer makes a written policy available to workers at a
 
 
place of business under this section, the employer must review the
5
 
policy from time to time.
 
 
(3B)
A review must be carried out—
 
 
(a)
at least once during the period of three years beginning with
 
 
the first day on which the first version of the policy is made
 
 
available (including where that day precedes the coming into
10
 
force of this subsection), and
 
 
(b)
after that, no more than three years after the completion of the
 
 
previous review.
 
 
(3C)
An employer must consult persons as described in subsection (2A) as
 
 
part of every review of the written policy.”
15
 
(4)
After subsection (6) insert—
 
 
“(7)
An employer who has carried out a consultation required by this
 
 
section in relation to a written policy for a place of business must
 
 
make a summary of the views expressed in the consultation available
 
 
in anonymised form to all workers of the employer at the place of
20
 
business.
 
 
(8)
In this section “recognised”, in relation to a trade union, has the same
 
 
meaning as in the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (see section 178 of that Act).”
 

Entitlements to leave

25
15
Parental leave: removal of qualifying period of employment
 
 
In section 76 of the Employment Rights Act 1996 (entitlement to parental
 
 
leave), in subsection (1), omit paragraph (a) (and the “and” after it).
 
16
Paternity leave: removal of qualifying period of employment
 
 
(1)
In section 80A of the Employment Rights Act 1996 (entitlement to paternity
30
 
leave: birth)—
 
 
(a)
in subsection (1), omit paragraph (a);
 
 
(b)
in subsection (6A), omit paragraph (a).
 
 
(2)
In section 80B of that Act (entitlement to paternity leave: adoption)—
 
 
(a)
in subsection (1), omit paragraph (a);
35
 
(b)
in subsection (6C), omit paragraph (a).
 

Page 42

17
Ability to take paternity leave following shared parental leave
 
 
(1)
In section 80A of the Employment Rights Act 1996 (entitlement to paternity
 
 
leave: birth)—
 
 
(a)
omit subsection (4A);
 
 
(b)
in subsection (6A), omit paragraph (c).
5
 
(2)
In section 80B of that Act (entitlement to paternity leave: adoption)—
 
 
(a)
omit subsection (4A);
 
 
(b)
in subsection (6C), omit paragraph (c).
 
 
(3)
In section 171ZE of the Social Security Contributions and Benefits Act 1992
 
 
(rate and period of statutory paternity pay), in subsection (3A), omit paragraph
10
 
(b) (and the “or” before it).
 
 
(4)
In consequence of the amendments made by subsections (1)(a) and (2)(a), in
 
 
section 118 of the Children and Families Act 2014, omit subsections (6) and
 
 
(7).
 
18
Bereavement leave
15
 
(1)
The Employment Rights Act 1996 is amended in accordance with subsections
 
 
(2) to (11) .
 
 
(2)
In Chapter 4 of Part 8, in the heading, for “Parental bereavement leave”
 
 
substitute “Bereavement leave”.
 
 
(3)
In section 80EA (parental bereavement leave)—
20
 
(a)
in subsection (1), for “bereaved parent” substitute “bereaved person”;
 
 
(b)
for subsection (2) substitute—
 
 
“(2)
For the purposes of subsection (1) an employee is a “bereaved
 
 
person” if the employee satisfies specified conditions as to
 
 
relationship with a person who has died.”;
25
 
(c)
in subsection (3), for “The conditions” substitute “In a case where the
 
 
person who has died is a child, the conditions”;
 
 
(d)
after subsection (3) insert—
 
 
“(3A)
For the purposes of subsection (1) an employee is also a
 
 
“bereaved person” if—
30
 
(a)
the employee has suffered a pregnancy loss of a
 
 
specified kind, or
 
 
(b)
the employee satisfies specified conditions as to
 
 
relationship with—
 
 
(i)
a person who has suffered a pregnancy loss of
35
 
a specified kind, or
 
 
(ii)
a child who had been expected to be born had
 
 
a pregnancy loss of a specified kind not
 
 
occurred.”;
 
 
(e)
in subsection (4)(a), omit “in respect of a child”;
40

Page 43

 
(f)
in subsection (5), before “a child” insert “the death of”;
 
 
(g)
after subsection (5) insert—
 
 
“(5A)
Provision under subsection (4)(a) must secure that, where an
 
 
employee is entitled to leave under this section otherwise than
 
 
in respect of the death of a child, the employee is entitled to
5
 
at least one week’s leave.”;
 
 
(h)
in subsection (6), for “the date of the child’s death” substitute “the
 
 
specified day”;
 
 
(i)
for subsection (7) substitute—
 
 
“(7)
The regulations must secure that, where an employee is eligible
10
 
under subsection (1) as the result of the death of more than
 
 
one person, the employee is entitled to leave in respect of each
 
 
person.”;
 
 
(j)
in subsection (9)—
 
 
(i)
in the definition of “child”, after “stillbirths” insert “after
15
 
twenty-four weeks of pregnancy”;
 
 
(ii)
after the definition of “child” insert—
 
 
““live birth” means the birth of a child born alive;
 
 
“pregnancy loss” means—
 
 
(a)
the ending of a pregnancy after less than
20
 
twenty-four weeks of pregnancy in any way
 
 
other than by a live birth, or
 
 
(b)
the failure of an embryo to become implanted
 
 
following a transfer carried out in the course of
 
 
providing treatment services within the meaning
25
 
of the Human Fertilisation and Embryology Act
 
 
1990;
 
 
“specified” means specified in the regulations;”;
 
 
(k)
in the heading, for “Parental bereavement” substitute “Bereavement”.
 
 
(4)
In section 47C (rights not to suffer detriment: leave for family and domestic
30
 
reasons), in subsection (2)(cb), omit “parental”.
 
 
(5)
In section 75I (rights during and after shared parental leave), in subsection
 
 
(3)(f), omit “parental”.
 
 
(6)
In section 80C (rights during and after paternity leave), in subsections (2)(bb)
 
 
and (4)(bb), omit “parental”.
35
 
(7)
In section 80EG (rights during and after neonatal care leave), in subsection
 
 
(2)(f), omit “parental”.
 
 
(8)
In section 88 (termination of employment: employments with normal working
 
 
hours)—
 
 
(a)
in subsection (1)(c), for “parental bereavement leave,” substitute
40
 
“bereavement leave,”;
 

Page 44

 
(b)
in subsection (2), for “parental bereavement pay”, in the first place it
 
 
occurs, substitute “bereavement pay”.
 
 
(9)
In section 89 (termination of employment: employments without normal
 
 
working hours)—
 
 
(a)
in subsection (3)(b), for “parental bereavement leave,” substitute
5
 
“bereavement leave,”;
 
 
(b)
in subsection (4), for “parental bereavement pay”, in the first place it
 
 
occurs, substitute “bereavement pay”.
 
 
(10)
In section 99 (unfair dismissal: leave for family reasons), in subsection (3)(cb),
 
 
omit “parental”.
10
 
(11)
In section 235(1) (other definitions)—
 
 
(a)
before the definition of “business” insert—
 
 
““bereavement leave” means leave under section 80EA;”;
 
 
(b)
omit the definition of “parental bereavement leave”.
 
 
(12)
In Schedule 5 to the Income Tax (Earnings and Pensions) Act 2003 (enterprise
15
 
management incentives), in paragraph 26(3)(b), for “parental bereavement
 
 
leave” substitute “bereavement leave”.
 
 
(13)
In the Income Tax Act 2007—
 
 
(a)
in section 186A (enterprise investment schemes: the number of
 
 
employees requirement), in subsection (4)(b)(i), for “parental
20
 
bereavement” substitute “bereavement”;
 
 
(b)
in section 257DJ (seed enterprise investment schemes: the number of
 
 
employees requirement), in subsection (4)(b)(i), for “parental
 
 
bereavement” substitute “bereavement”;
 
 
(c)
in section 257MH (tax relief for social investments: the number of
25
 
employees requirement), in subsection (4)(b)(i), for “parental
 
 
bereavement” substitute “bereavement”;
 
 
(d)
in section 297A (venture capital trusts: the number of employees
 
 
requirement), in subsection (4)(b)(i), for “parental bereavement”
 
 
substitute “bereavement”.
30
 
(14)
In the Schedule to the Parental Bereavement (Leave and Pay) Act 2018, omit
 
 
paragraphs 25(2), 26(2) and 28(a).
 
19
Special constables: right to time off for public duties
 
 
(1)
The Employment Rights Act 1996 is amended is follows.
 
 
(2)
In section 50 (Right to time off for public duties), after subsection (1) insert—
35
 
“(1A)
An employer shall permit an employee who is a special constable,
 
 
appointed in accordance with section 27 of the Police Act 1996, section
 
 
9 of the Police and Fire Reform (Scotland) Act 2012 or section 25 of
 
 
the Railways and Transport Safety Act 2003, to take time off during
 

Page 45

 
the employee’s working hours for the purpose of performing their
 
 
duties.
 
 
(1B)
In section (1A), “duties” means any activity under the direction of a
 
 
chief officer of police.”.
 

Protection from harassment and discrimination

5
20
Employers to take all reasonable steps to prevent sexual harassment
 
 
In section 40A of the Equality Act 2010 (employer duty to prevent sexual
 
 
harassment of employees), in subsection (1), before “reasonable steps” insert
 
 
“all”.
 
21
Harassment by third parties
10
 
In section 40 of the Equality Act 2010 (employees and applicants: harassment),
 
 
after subsection (1) insert—
 
 
“(1A)
An employer (A) must not permit a third party to harass a person (B)
 
 
who is an employee of A.
 
 
(1B)
For the purposes of subsection (1A), A permits a third party to harass
15
 
B only if—
 
 
(a)
the third party harasses B in the course of B’s employment by
 
 
A, and
 
 
(b)
A failed to take all reasonable steps to prevent the third party
 
 
from doing so.
20
 
(1C)
In this section “third party” means a person other than—
 
 
(a)
A, or
 
 
(b)
an employee of A.”
 
22
Sexual harassment: power to make provision about “reasonable steps”
 
 
(1)
The Equality Act 2010 is amended as follows.
25
 
(2)
In Part 5 (work), in Chapter 1 (employment, etc), after section 40A insert—
 
“40B
Prevention of sexual harassment: power to specify “reasonable steps”
 
 
(1)
Regulations may specify steps that are to be regarded as “reasonable”
 
 
for the purpose of determining whether, for the purposes of this Act,
 
 
an employer (A) has taken, or failed to take, all reasonable steps to
30
 
prevent sexual harassment of an employee of A (see, in particular,
 
 
sections 40 and 40A and section 109).
 
 
(2)
The steps that may be specified in regulations under this section
 
 
include, among others—
 
 
(a)
carrying out assessments of a specified description;
35
 
(b)
publishing plans or policies of a specified description;
 

Page 46

 
(c)
steps relating to the reporting of sexual harassment;
 
 
(d)
steps relating to the handling of complaints.
 
 
(3)
Regulations under this section that specify any steps may require an
 
 
employer to have regard to specified matters when taking those steps.
 
 
(4)
In this section—
5
 
“sexual harassment” means harassment of the kind described in
 
 
section 26(2) (unwanted conduct of a sexual nature);
 
 
“specified” means specified in the regulations.”
 
 
(3)
In Part 16 (general and miscellaneous), in section 208(5) (regulations subject
 
 
to affirmative procedure), after paragraph (a) insert—
10
 
“(aa)
regulations under section 40B (prevention of sexual harassment:
 
 
power to specify “reasonable steps”);”.
 
23
Protection of disclosures relating to sexual harassment
 
 
(1)
Part 4A of the Employment Rights Act 1996 (protected disclosures) is amended
 
 
as follows.
15
 
(2)
In section 43B (disclosures qualifying for protection), in subsection (1), after
 
 
paragraph (d) insert—
 
 
“(da)
that sexual harassment has occurred, is occurring or is likely
 
 
to occur,”.
 
 
(3)
In section 43L(1) (other interpretative provisions), after the definition of “the
20
 
relevant failure” insert—
 
 
““sexual harassment” means harassment of the kind described in section
 
 
26(2) of the Equality Act 2010 (unwanted conduct of a sexual nature).”
 
24
Contractual duties of confidentiality relating to harassment and discrimination
 
 
(1)
The Employment Rights Act 1996 is amended as follows.
25
 
(2)
After section 202 insert—
 
 
“Harassment and discrimination: contractual duties of confidentiality
 
 
202A
Contractual duties of confidentiality relating to harassment and
 
 
discrimination
 
 
(1)
Any provision in an agreement between an employer and a worker
30
 
of the employer (whether a worker’s contract or not) is void in so far
 
 
as it purports to preclude the worker from making—
 
 
(a)
an allegation of, or a disclosure of information relating to,
 
 
relevant harassment or discrimination, or
 
 
(b)
an allegation, or a disclosure of information, relating to the
35
 
response of an employer of the worker to—
 

Page 47

 
(i)
relevant harassment or discrimination, or
 
 
(ii)
the making of an allegation or disclosure within
 
 
paragraph (a) .
 
 
(2)
Harassment or discrimination is “relevant” for the purposes of
 
 
subsection (1) if—
5
 
(a)
the harassment or discrimination consists of, or is alleged to
 
 
consist of, conduct engaged in by—
 
 
(i)
an employer of the worker, or
 
 
(ii)
another worker of such an employer, or
 
 
(b)
the person who is, or is alleged to be, the victim of the
10
 
harassment or discrimination is—
 
 
(i)
the worker, or
 
 
(ii)
another worker of an employer of the worker.
 
 
(3)
Subsection (1) does not apply to provision in an agreement (an
 
 
“excepted agreement”) that satisfies such conditions as the Secretary
15
 
of State may specify by regulations.
 
 
(4)
But the Secretary of State may by regulations provide that any
 
 
provision in an excepted agreement is void in so far as it purports to
 
 
preclude the worker from making an allegation or disclosure within
 
 
subsection (1) (a) or (b) —
20
 
(a)
to a specified description of person;
 
 
(b)
for a specified purpose;
 
 
(c)
in specified circumstances.
 
 
(5)
The Secretary of State may by regulations—
 
 
(a)
provide for this section to have effect as if references to a
25
 
worker included a specified description of individual who is
 
 
not a worker as defined by section 230(3) but who—
 
 
(i)
works or worked, or is or was provided with work
 
 
experience or training, in specified circumstances, or
 
 
(ii)
has entered into, or works or worked under, a relevant
30
 
contract of a specified description;
 
 
(b)
make provision as to who is to be regarded as an employer of
 
 
such an individual for the purposes of this section.
 
 
(6)
In subsection (5) , “relevant contract” means any contract, other than
 
 
a contract of employment, whether express or implied and (if express)
35
 
whether oral or in writing, by which an individual undertakes to do
 
 
or perform (whether personally or otherwise) any work or services
 
 
for another party to the contract whose status is by virtue of the
 
 
contract that of a client or customer of any profession or business
 
 
undertaking carried on by the individual.
40
 
(7)
Regulations under this section may—
 
 
(a)
make different provision for different purposes;
 

Page 48

 
(b)
make consequential provision.
 
 
(8)
For the purposes of this section, the holding, otherwise than under a
 
 
contract of employment, of the office of constable or an appointment
 
 
as a police cadet is to be treated as employment by the relevant officer
 
 
under a contract of employment.
5
 
“The relevant officer” has the meaning given by section 43KA(2).
 
 
(9)
Nothing in this section affects the operation of any other enactment
 
 
or rule of law by virtue of which provision in an agreement may be
 
 
void.
 
 
(10)
In this section—
10
 
“discrimination” means discrimination within section 13 , or any
 
 
of sections 15 to 19A , of the Equality Act 2010 ;
 
 
“harassment” means harassment of the kind described in
 
 
subsection (1) , (2) or (3) of section 26 of that Act ;
 
 
“specified” means specified in the regulations.”
15
 
(3)
In section 192 (2) (provisions of Act which have effect in relation to armed
 
 
forces)—
 
 
(a)
omit the “and” at the end of paragraph (e) ;
 
 
(b)
for paragraph (f) substitute—
 
 
“(f)
this Part, apart from section 202A , and
20
 
(g)
Parts 14 and 15.”
 
 
(4)
In section 193 (provisions of Act which do not apply in relation to the security
 
 
services), for “section 47B” substitute “sections 47B and 202A ”.
 
 
(5)
In section 194 (2) (provisions of Act which have effect in relation to House of
 
 
Lords staff)—
25
 
(a)
omit the “and” at the end of paragraph (g) ;
 
 
(b)
for paragraph (h) substitute—
 
 
“(h)
this Part, apart from section 202A , and
 
 
(i)
Parts 14 and 15.”
 
 
(6)
In section 195 (2) (provisions of Act which have effect in relation to House of
30
 
Commons staff)—
 
 
(a)
omit the “and” at the end of paragraph (g) ;
 
 
(b)
for paragraph (h) substitute—
 
 
“(h)
this Part, apart from section 202A , and
 
 
(i)
Parts 14 and 15.”
35
 
(7)
In section 236 (3) (regulations subject to affirmative procedure), after “125(7)”
 
 
insert “, 202A ”.
 

Page 49

Dismissal

 
 
25
Right not to be unfairly dismissed: reduction of qualifying period and
 

introduction of initial period of employment

 
 
Schedule 3 contains provision—
 
 
(a)
reducing the qualifying period of employment for unfair dismissal
5
 
and introducing provisions in respect of an initial period of
 
 
employment, and
 
 
(b)
making further consequential amendments.
 
26
Dismissal during pregnancy
 
 
(1)
Part 5B of the Employment Rights Act 1996 (redundancy during a protected
10
 
period of pregnancy) is amended as follows.
 
 
(2)
Section 49D (redundancy during a protected period of pregnancy) is amended
 
 
in accordance with subsections (3) to (5) .
 
 
(3)
In the heading, after “Redundancy” insert “or dismissal”.
 
 
(4)
After subsection (1) insert—
15
 
“(1A)
The Secretary of State may, by regulations, make provision about
 
 
dismissal (other than by reason of redundancy) during, or after, a
 
 
protected period of pregnancy.”
 
 
(5)
In subsection (3), after “subsection (1)” insert “or (1A) ”.
 
 
(6)
After section 49D insert—
20
“49E
Section 49D: supplemental
 
 
Regulations under section 49D may—
 
 
(a)
make provision about notices to be given, evidence to be
 
 
produced and other procedures to be followed by employees
 
 
and employers;
25
 
(b)
make provision for the consequences of failure to give notices,
 
 
to produce evidence or to comply with other procedural
 
 
requirements;
 
 
(c)
make provision for the consequences of failure to act in
 
 
accordance with a notice given by virtue of paragraph (a);
30
 
(d)
make special provision for cases where an employee has a right
 
 
which corresponds to a right under section 49D and which
 
 
arises under a contract of employment or otherwise;
 
 
(e)
make provision modifying the effect of Chapter 2 of Part 14
 
 
(calculation of a week’s pay) in relation to an employee who
35
 
is or has been absent from work during, or after, a protected
 
 
period of pregnancy;
 
 
(f)
make provision applying, modifying or excluding an enactment,
 
 
in such circumstances as may be specified and subject to any
 

Page 50

 
conditions specified, in relation to a person during, or after, a
 
 
protected period of pregnancy;
 
 
(g)
make different provision for different cases or circumstances.”
 
 
(7)
In the heading of Part 5B, after “Redundancy” insert “or dismissal”.
 
27
Dismissal following period of statutory family leave
5
 
(1)
Part 8 of the Employment Rights Act 1996 (leave for family reasons) is
 
 
amended as follows.
 
 
(2)
In section 74 (maternity leave: redundancy and dismissal), in subsection (2),
 
 
after “during” insert “, or after,”.
 
 
(3)
In section 75C (adoption leave: redundancy and dismissal), in subsection
10
 
(1)(b), after “during” insert “, or after,”.
 
 
(4)
In section 75J (shared parental leave: redundancy and dismissal), in subsection
 
 
(1)(b), after “during” insert “, or after,”.
 
 
(5)
In section 80D (paternity leave: special cases)—
 
 
(a)
in subsection (1A)(b), after “bereaved employee” insert “, or dismissal
15
 
of a bereaved employee (other than by reason of redundancy),”;
 
 
(b)
in subsection (3)(b), for the words from “where” to the end substitute
 
 
“where the relevant person dies.
 
 
“In paragraph (b) “the relevant person” means the person by reference
 
 
to whom the employee satisfied the conditions specified by virtue of
20
 
subsection (1)(c) of that section so as to entitle the employee to that
 
 
leave.”
 
 
(6)
In section 80EH (neonatal care leave: special cases), in subsection (1)(b), after
 
 
“during” insert “or after”.
 
28
Dismissal for failing to agree to variation of contract, etc
25
 
(1)
The Employment Rights Act 1996 is amended as follows.
 
 
(2)
Part 10 (unfair dismissal) is amended as set out in subsections (3) to (5) .
 
 
(3)
Before section 105 insert—
 
“104I
Contracts of employment: restricted variations
 
 
(1)
An employee who is dismissed is to be regarded for the purposes of
30
 
this Part as unfairly dismissed if—
 
 
(a)
the employee was employed for the purposes of a business
 
 
carried on by the employer, and
 
 
(b)
the reason (or, if more than one, the principal reason) for the
 
 
dismissal is a reason within subsection (2) or (3) .
35
 
(2)
The reason within this subsection is that—
 

Page 51

 
(a)
the employer sought to vary the employee’s contract of
 
 
employment to make a restricted variation (see subsection (5) ),
 
 
and
 
 
(b)
the employee—
 
 
(i)
did not agree to the restricted variation, or
5
 
(ii)
where the employer sought to make more than one
 
 
variation, did not agree to a number of variations that
 
 
included the restricted variation.
 
 
(3)
The reason within this subsection is to enable the employer to employ
 
 
another person, or to re-engage the employee, under a varied contract
10
 
of employment to carry out the same duties, or substantially the same
 
 
duties, as the employee carried out before being dismissed.
 
 
(4)
For the purposes of subsection (3) , a contract of employment is a
 
 
“varied” contract of employment if—
 
 
(a)
the terms of the contract are not the same as the terms of the
15
 
contract of employment under which the employee worked
 
 
before being dismissed, and
 
 
(b)
one or more of the differences between the two sets of terms
 
 
constitutes a restricted variation (see subsection (5) );
 
 
and, in a case where subsection (3) applies, any reference in this section
20
 
to the restricted variation is to be read accordingly.
 
 
(5)
In this section “restricted variation” means any of the following—
 
 
(a)
a reduction of, or removal of an entitlement to, any sum
 
 
payable to an employee in connection with the employment
 
 
(but see subsection (6) );
25
 
(b)
where the amount of any sum payable to an employee in
 
 
connection with the employment is determined by reference
 
 
to a measure of the amount of work done by the employee
 
 
(including a measure referable to results achieved by the
 
 
employee), a variation of that measure;
30
 
(c)
a variation of any term or condition relating to pensions or
 
 
pension schemes;
 
 
(d)
a variation of the number of hours which an employee is
 
 
required to work;
 
 
(e)
a variation of the timing or duration of a shift which meets
35
 
such conditions as may be specified in regulations made by
 
 
the Secretary of State;
 
 
(f)
a reduction in the amount of time off which an employee is
 
 
entitled to take;
 
 
(g)
a variation of a description specified in regulations made by
40
 
the Secretary of State;
 
 
(h)
the inclusion in a contract of employment of a term enabling
 
 
the employer to make any variation within any of the preceding
 
 
paragraphs without the employee’s agreement.
 

Page 52

 
(6)
The Secretary of State may by regulations provide that a reference in
 
 
subsection (5) to a sum payable to an employee in connection with
 
 
the employment does not include a reference to—
 
 
(a)
a sum payable in respect of—
 
 
(i)
any expenses incurred by an employee;
5
 
(ii)
any expenses of a specified description incurred by an
 
 
employee;
 
 
(iii)
any expenses incurred by an employee other than
 
 
expenses of a specified description;
 
 
(b)
a payment or benefit in kind, a payment or benefit in kind of
10
 
a specified description, or a payment or benefit in kind other
 
 
than one of a specified description.
 
 
In this subsection “specified” means specified in the regulations.
 
 
(7)
In the case of an employer that is not a local authority, subsection (1)
 
 
does not apply in relation to an employee if the employer shows that—
15
 
(a)
the reason for the restricted variation was to eliminate, prevent
 
 
or significantly reduce, or significantly mitigate the effect of,
 
 
any financial difficulties which at the time of the dismissal
 
 
were affecting, or were likely in the immediate future to affect—
 
 
(i)
the employer’s ability to carry on the business as a
20
 
going concern, or
 
 
(ii)
where the employer is a public sector employer, the
 
 
financial sustainability of carrying out the employer’s
 
 
statutory functions, and
 
 
(b)
in all the circumstances the employer could not reasonably
25
 
have avoided the need to make the restricted variation.
 
 
(8)
In the case of an employer that is a local authority, subsection (1) does
 
 
not apply in relation to an employee if—
 
 
(a)
at the time of the dismissal, a relevant intervention direction
 
 
has effect in relation to the authority,
30
 
(b)
the relevant intervention direction—
 
 
(i)
specifies that the reason, or one of the reasons, for the
 
 
giving of the direction is that the authority is
 
 
undergoing financial difficulties, and
 
 
(ii)
contains provision relating to the financial management
35
 
or financial governance of the authority, and
 
 
(c)
the authority shows that—
 
 
(i)
the reason for the restricted variation was to eliminate
 
 
or significantly reduce, or significantly mitigate the
 
 
effect of, any of the financial difficulties referred to in
40
 
paragraph (b) (i) , and
 
 
(ii)
in all the circumstances the authority could not
 
 
reasonably have avoided the need to make the restricted
 
 
variation.
 

Page 53

 
(9)
In determining whether—
 
 
(a)
in the case of a public sector employer (other than a local
 
 
authority), subsection (7) (b) is met, or
 
 
(b)
in the case of a local authority, subsection (8) (c) (ii) is met,
 
 
an employment tribunal must apply the same principles as would be
5
 
applied by a court on an application for judicial review.
 
 
(10)
Where the employer shows that the conditions in paragraphs (a) and
 
 
(b) of subsection (7) are met, or (where the employer is a local
 
 
authority) the conditions in paragraphs (a) , (b) and (c) of subsection
 
 
(8) are met, the matters that must be considered in determining the
10
 
question whether the dismissal is fair or unfair include the following—
 
 
(a)
any consultation carried out by the employer with the employee
 
 
about varying the employee’s contract of employment;
 
 
(b)
if the employee is of a description in respect of which an
 
 
independent trade union is recognised by the employer, any
15
 
consultation carried out by the employer with that trade union;
 
 
(c)
if the employee is not of a description in respect of which an
 
 
independent trade union is recognised by the employer, any
 
 
consultation carried out by the employer with any other person
 
 
representing the interests of the employee that, at the time of
20
 
the dismissal, had authority to receive information and to be
 
 
consulted about the dismissal on the employee’s behalf;
 
 
(d)
anything offered to the employee by the employer in return
 
 
for agreeing to the restricted variation;
 
 
(e)
any matters specified for the purposes of this subsection in
25
 
regulations made by the Secretary of State.
 
 
(11)
In this section—
 
 
“English local authority” means—
 
 
(a)
a county council or district council in England;
 
 
(b)
a London borough council;
30
 
(c)
the Greater London Authority;
 
 
(d)
the Council of the Isles of Scilly;
 
 
(e)
the Common Council of the City of London in its
 
 
capacity as a local authority, a police authority or a port
 
 
health authority;
35
 
(f)
a combined authority established under section 103 of
 
 
the Local Democracy, Economic Development and
 
 
Construction Act 2009;
 
 
(g)
a combined county authority established under section
 
 
9(1) of the Levelling-up and Regeneration Act 2023;
40
 
“local authority” means—
 
 
(a)
an English local authority,
 
 
(b)
a Welsh local authority, or
 
 
(c)
a Scottish local authority;
 

Page 54

 
“public sector employer” means a person that—
 
 
(a)
is wholly or mainly funded from public funds,
 
 
(b)
is under a statutory duty to carry out any functions of
 
 
a public nature, and
 
 
(c)
so far as carrying out those functions, does not operate
5
 
on a commercial basis;
 
 
“recognised” , in relation to a trade union, has the same meaning
 
 
as in the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (see section 178 of that Act);
 
 
“relevant intervention direction” means—
10
 
(a)
in the case of an English local authority, a direction
 
 
under section 15(5) or (6)(a) of the Local Government
 
 
Act 1999 (powers to deal with failure to comply with
 
 
duties relating to best value authorities);
 
 
(b)
in the case of a Welsh local authority, a direction under
15
 
section 106 or 107 of the Local Government and
 
 
Elections (Wales) Act 2021 (asc 1) (intervention powers
 
 
of Welsh Ministers);
 
 
(c)
in the case of a Scottish local authority, an enforcement
 
 
direction under section 24 of the Local Government in
20
 
Scotland Act 2003 (asp 1) relating wholly or partly to
 
 
a failure of the authority to comply with its duties under
 
 
section 1 of that Act (local authorities’ duty to secure
 
 
best value);
 
 
“Scottish local authority” means a council constituted under
25
 
section 2 of the Local Government etc. (Scotland) Act 1994;
 
 
“statutory duty” means a duty imposed by or under any
 
 
enactment, including—
 
 
(a)
a Measure or Act of the National Assembly for Wales
 
 
or an Act of Senedd Cymru, and
30
 
(b)
an Act of the Scottish Parliament;
 
 
“statutory functions” , in relation to a public sector employer,
 
 
means functions of a public nature which the employer is under
 
 
a statutory duty to carry out;
 
 
“Welsh local authority” means—
35
 
(a)
a county council or county borough council in Wales;
 
 
(b)
a corporate joint committee established under Part 5 of
 
 
the Local Government and Elections (Wales) Act 2021.
 
 
(12)
The reference in subsection (8) (a) to a relevant intervention direction
 
 
includes a relevant intervention direction given before the day on
40
 
which the Employment Rights Act 2025 was passed.
 
104J
Contracts of employment: variations that are not restricted variations
 
 
(1)
This section applies to the dismissal of an employee if—
 

Page 55

 
(a)
the employee was employed for the purposes of a business
 
 
carried on by the employer, and
 
 
(b)
the reason (or, if more than one, the principal reason) for the
 
 
dismissal is a reason within subsection (2) or (3) .
 
 
(2)
The reason within this subsection is that—
5
 
(a)
the employer sought to vary the employee’s contract of
 
 
employment,
 
 
(b)
the variation was not a restricted variation or, where the
 
 
employer sought to make more than one variation, none of the
 
 
variations was a restricted variation, and
10
 
(c)
the employee did not agree to the variation.
 
 
(3)
The reason within this subsection is to enable the employer to employ
 
 
another person, or to re-engage the employee, under a varied contract
 
 
of employment to carry out the same duties, or substantially the same
 
 
duties, as the employee carried out before being dismissed.
15
 
(4)
For the purposes of subsection (3) , a contract of employment is a
 
 
“varied” contract of employment if—
 
 
(a)
the terms of the contract are not the same as the terms of the
 
 
contract of employment under which the employee worked
 
 
before being dismissed, and
20
 
(b)
none of the differences between the two sets of terms
 
 
constitutes a restricted variation;
 
 
and, in a case where subsection (3) applies, any reference in this section
 
 
to the variation is to be read accordingly.
 
 
(5)
The matters that must be considered in determining the question
25
 
whether the dismissal is fair or unfair include the following—
 
 
(a)
the reason for the variation;
 
 
(b)
any consultation carried out by the employer with the employee
 
 
about varying the employee’s contract of employment;
 
 
(c)
if the employee is of a description in respect of which an
30
 
independent trade union is recognised by the employer, any
 
 
consultation carried out by the employer with that trade union;
 
 
(d)
if the employee is not of a description in respect of which an
 
 
independent trade union is recognised by the employer, any
 
 
consultation carried out by the employer with any other person
35
 
representing the interests of the employee that, at the time of
 
 
the dismissal, had authority to receive information and to be
 
 
consulted about the dismissal on the employee’s behalf;
 
 
(e)
anything offered to the employee by the employer in return
 
 
for agreeing to the variation;
40
 
(f)
any matters specified for the purposes of this subsection in
 
 
regulations made by the Secretary of State.
 
 
(6)
In this section—
 

Page 56

 
“recognised” , in relation to a trade union, has the same meaning
 
 
as in the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (see section 178 of that Act);
 
 
“restricted variation” has the same meaning as in section 104I .
 
 
104K
Redundancy: replacement of employees with people who are not
5
 
employees
 
 
(1)
An employee who is dismissed is to be regarded for the purposes of
 
 
this Part as unfairly dismissed if—
 
 
(a)
the employee was employed for the purposes of a business
 
 
carried on by the employer, and
10
 
(b)
the reason (or, if more than one, the principal reason) for the
 
 
dismissal is to enable the employer to replace the employee
 
 
with an individual who is not an employee of the employer.
 
 
(2)
For the purposes of this section—
 
 
(a)
an employer replaces an employee with an individual who is
15
 
not an employee of the employer if (and only if)—
 
 
(i)
the individual, or the individual taken together with
 
 
one or more employees of the employer or other
 
 
individuals, is to carry out activities, in pursuance of a
 
 
relevant contract, for the purposes of the employer’s
20
 
business,
 
 
(ii)
those activities are the same, or substantially the same,
 
 
activities as the employee, or the employee taken
 
 
together with one or more other employees of the
 
 
employer, carried out before being dismissed, and
25
 
(iii)
the employee’s dismissal is not wholly or mainly
 
 
attributable to the fact that the requirements of the
 
 
employer’s business for those activities to be carried
 
 
out have ceased or diminished or are expected to cease
 
 
or diminish;
30
 
and any reference in this section to replacing an employee is
 
 
to be read accordingly;
 
 
(b)
a reference to replacing an employee with an individual who
 
 
is not an employee of the employer includes the case where
 
 
the individual is the one who has been dismissed;
35
 
(c)
“relevant contract”, in relation to an employer, means a contract,
 
 
other than a contract of employment, to which the employer
 
 
is a party (whether or not the individual carrying out activities
 
 
in pursuance of the contract is a party to it).
 
 
(3)
In the case of an employer that is not a local authority, subsection (1)
40
 
does not apply in relation to an employee if the employer shows that—
 
 
(a)
the reason for the replacement was to eliminate, prevent or
 
 
significantly reduce, or significantly mitigate the effect of, any
 

Page 57

 
financial difficulties which at the time of the dismissal were
 
 
affecting, or were likely in the immediate future to affect—
 
 
(i)
the employer’s ability to carry on the business as a
 
 
going concern, or
 
 
(ii)
where the employer is a public sector employer, the
5
 
financial sustainability of carrying out the employer’s
 
 
statutory functions, and
 
 
(b)
in all the circumstances the employer could not reasonably
 
 
have avoided the need to replace the employee.
 
 
(4)
In the case of an employer that is a local authority, subsection (1) does
10
 
not apply in relation to an employee if—
 
 
(a)
at the time of the dismissal, a relevant intervention direction
 
 
has effect in relation to the authority,
 
 
(b)
the relevant intervention direction—
 
 
(i)
specifies that the reason, or one of the reasons, for the
15
 
giving of the direction is that the authority is
 
 
undergoing financial difficulties, and
 
 
(ii)
contains provision relating to the financial management
 
 
or financial governance of the authority, and
 
 
(c)
the authority shows that—
20
 
(i)
the reason for the replacement was to eliminate or
 
 
significantly reduce, or significantly mitigate the effect
 
 
of, any of the financial difficulties referred to in
 
 
paragraph (b) (i) , and
 
 
(ii)
in all the circumstances the authority could not
25
 
reasonably have avoided the need to replace the
 
 
employee.
 
 
(5)
In determining whether—
 
 
(a)
in the case of a public sector employer (other than a local
 
 
authority), subsection (3) (b) is met, or
30
 
(b)
in the case of a local authority, subsection (4) (c) (ii) is met,
 
 
an employment tribunal must apply the same principles as would be
 
 
applied by a court on an application for judicial review.
 
 
(6)
Where the employer shows that the conditions in paragraphs (a) and
 
 
(b) of subsection (3) are met, or (where the employer is a local
35
 
authority) the conditions in paragraphs (a) , (b) and (c) of subsection
 
 
(4) are met, the matters that must be considered in determining the
 
 
question whether the dismissal is fair or unfair include the following—
 
 
(a)
any consultation carried out by the employer with the employee
 
 
about replacing the employee;
40
 
(b)
if the employee is of a description in respect of which an
 
 
independent trade union is recognised by the employer, any
 
 
consultation carried out by the employer with that trade union;
 

Page 58

 
(c)
if the employee is not of a description in respect of which an
 
 
independent trade union is recognised by the employer, any
 
 
consultation carried out by the employer with any other person
 
 
representing the interests of the employee that, at the time of
 
 
the dismissal, had authority to receive information and to be
5
 
consulted about the dismissal on the employee’s behalf;
 
 
(d)
any matters specified for the purposes of this subsection in
 
 
regulations made by the Secretary of State.
 
 
(7)
In this section—
 
 
“contract” means a contract whether express or implied and (if
10
 
it is express) whether oral or in writing;
 
 
“English local authority” means—
 
 
(a)
a county council or district council in England;
 
 
(b)
a London borough council;
 
 
(c)
the Greater London Authority;
15
 
(d)
the Council of the Isles of Scilly;
 
 
(e)
the Common Council of the City of London in its
 
 
capacity as a local authority, a police authority or a port
 
 
health authority;
 
 
(f)
a combined authority established under section 103 of
20
 
the Local Democracy, Economic Development and
 
 
Construction Act 2009;
 
 
(g)
a combined county authority established under section
 
 
9(1) of the Levelling-up and Regeneration Act 2023;
 
 
“local authority” means—
25
 
(a)
an English local authority,
 
 
(b)
a Welsh local authority, or
 
 
(c)
a Scottish local authority;
 
 
“public sector employer” means a person that—
 
 
(a)
is wholly or mainly funded from public funds,
30
 
(b)
is under a statutory duty to carry out any functions of
 
 
a public nature, and
 
 
(c)
so far as carrying out those functions, does not operate
 
 
on a commercial basis;
 
 
“recognised” , in relation to a trade union, has the same meaning
35
 
as in the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (see section 178 of that Act);
 
 
“relevant intervention direction” means—
 
 
(a)
in the case of an English local authority, a direction
 
 
under section 15(5) or (6)(a) of the Local Government
40
 
Act 1999 (powers to deal with failure to comply with
 
 
duties relating to best value authorities);
 
 
(b)
in the case of a Welsh local authority, a direction under
 
 
section 106 or 107 of the Local Government and
 

Page 59

 
Elections (Wales) Act 2021 (asc 1) (intervention powers
 
 
of Welsh Ministers);
 
 
(c)
in the case of a Scottish local authority, an enforcement
 
 
direction under section 24 of the Local Government in
 
 
Scotland Act 2003 (asp 1) relating wholly or partly to
5
 
a failure of the authority to comply with its duties under
 
 
section 1 of that Act (local authorities’ duty to secure
 
 
best value);
 
 
“Scottish local authority” means a council constituted under
 
 
section 2 of the Local Government etc. (Scotland) Act 1994;
10
 
“statutory duty” means a duty imposed by or under any
 
 
enactment, including—
 
 
(a)
a Measure or Act of the National Assembly for Wales
 
 
or an Act of Senedd Cymru, and
 
 
(b)
an Act of the Scottish Parliament;
15
 
“statutory functions” , in relation to a public sector employer,
 
 
means functions of a public nature which the employer is under
 
 
a statutory duty to carry out;
 
 
“Welsh local authority” means—
 
 
(a)
a county council or county borough council in Wales;
20
 
(b)
a corporate joint committee established under Part 5 of
 
 
the Local Government and Elections (Wales) Act 2021.
 
 
(8)
The reference in subsection (4) (a) to a relevant intervention direction
 
 
includes a relevant intervention direction given before the day on
 
 
which the Employment Rights Act 2025 was passed.”
25
 
(4)
In section 105 (redundancy), in the heading, after “Redundancy” insert “: other
 
 
cases”.
 
 
(5)
In section 108 (qualifying period of employment), in subsection (3), before
 
 
paragraph (h) insert—
 
 
“(go)
subsection (1) of section 104I (read with subsections (7) and (8)
30
 
of that section) applies,
 
 
(gp)
subsection (1) of section 104K (read with subsections (3) and
 
 
(4) of that section) applies,”.”
 
 
(6)
In section 236 (orders and regulations), in subsection (3) (regulations subject
 
 
to affirmative procedure), after “99,” insert “104I, 104J (5) (f) , 104K (6) (d) ,”.
35
29
Regulations to protect whistleblowers
 
 
(1)
The Secretary of State must, by regulations, make provision to—
 
 
(a)
extend the circumstances in which an employee is considered unfairly
 
 
dismissed after making a protected disclosure, and
 
 
(b)
require employers to take reasonable steps to investigate any disclosure
40
 
made to them under section 43C of the Employment Rights Act 1996.
 

Page 60

 
(2)
Regulations made under subsection 1 apply to any employer with—
 
 
(a)
50 or more employees,
 
 
(b)
an annual business turnover or annual balance sheet total of £10 million
 
 
or more,
 
 
(c)
operations in financial services, or
5
 
(d)
vulnerabilities in other respects to money laundering or terrorist
 
 
financing.
 
 
(3)
When making regulations under subsection (1)(b), the Secretary of State must
 
 
set out in statutory guidance what “reasonable steps” should include.
 
 
(4)
The Secretary of State must make regulations under this section within six
10
 
months of the day on which this Act is passed.
 
 
(5)
Regulations under this section are subject to the negative resolution procedure.
 
30
Right to be accompanied by a certified professional companion
 
 
(1)
Section 10 of the Employment Relations Act 1999 (right to be accompanied)
 
 
is amended as follows.
15
 
(2)
In subsection (3), after paragraph (b) insert—
 
 
“(ba)
a person who has been reasonably certified in writing by a
 
 
professional body as having experience of, or as having received
 
 
training in, acting as a worker’s companion at disciplinary or
 
 
grievance hearings, or”.
20
 
(3)
After subsection (7) insert—
 
 
“(8)
In this section, “professional body” means any organisation which is
 
 
authorised by regulations made by statutory instrument.”.
 
 
(4)
In section 42 of the Employment Relations Act 1999 (orders and regulations),
 
 
after “3,” insert “10(8),”.
25
31
Definition of seasonal work
 
 
(1)
In making regulations under Part 1 of this Act, the Secretary of State must
 
 
have regard to the specific characteristics and requirements of seasonal work
 
 
as defined in subsection (2).
 
 
(2)
“Seasonal work” means work that—
30
 
(a)
is performed during a particular period or periods of the year,
 
 
(b)
recurs substantially in the same periods each year,
 
 
(c)
is directly linked to a predictable and temporary increase in demand
 
 
for labour during those periods,
 
 
(d)
includes work in sectors where such patterns are common, including
35
 
but not limited to—
 
 
(i)
agriculture and horticulture,
 
 
(ii)
the creative industries, including theatre and live performance,
 

Page 61

 
(iii)
retail,
 
 
(iv)
hospitality, and
 
 
(v)
tourism and events, and
 
 
(e)
is entered into for a fixed duration not exceeding 26 weeks to meet
 
 
the temporary demand.
5
32
Consultation on Part 1
 
 
(1)
The Secretary of State must initiate a consultation on the effects of the
 
 
provisions in Part 1 of this Act.
 
 
(2)
As part of the consultation under subsection (1), the Secretary of State must
 
 
ensure that views are specifically sought from at least 500 small and
10
 
medium-sized enterprises (SMEs).
 
 
(3)
The Secretary of State must lay before each House of Parliament, within 18
 
 
weeks of the initiation referred to in subsection (1), a report on the outcome
 
 
of that consultation, including a summary of responses received from SMEs.
 

Part 2

15

Other matters relating to employment

 

Procedure for handling redundancies

 
33
Collective redundancy: extended application of requirements
 
 
(1)
Chapter 2 of Part 4 of the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (procedure for handling redundancies) is amended as follows.
20
 
(2)
In section 188 (duty of employer to consult representatives)—
 
 
(a)
before subsection (1) insert—
 
 
“(A1)
Subsection (1) applies where an employer is proposing to
 
 
dismiss as redundant within a period of 90 days or less—
 
 
(a)
at least the threshold number of employees (see section
25
 
195A ), or
 
 
(b)
20 or more employees at one establishment.”;
 
 
(b)
in subsection (1), for the words from “Where” to “the employer”
 
 
substitute “The employer”;
 
 
(c)
in subsection (1A), for “(1)” substitute “(A1)”;
30
 
(d)
after subsection (2) insert—
 
 
“(2A)
This section does not require the employer to—
 
 
(a)
consult all of the appropriate representatives together,
 
 
or
 
 
(b)
undertake the consultation with a view to reaching the
35
 
same agreement with all of the appropriate
 
 
representatives.”;
 

Page 62

 
(e)
in subsection (4)—
 
 
(i)
in paragraph (c), at the beginning insert “where the employees
 
 
whom it is proposed to dismiss as redundant are at only one
 
 
establishment,”;
 
 
(ii)
after paragraph (c) insert—
5
 
“(ca)
where the employees whom it is proposed to
 
 
dismiss as redundant are at more than one
 
 
establishment—
 
 
(i)
the total number of employees of any
 
 
such description employed by the
10
 
employer, and
 
 
(ii)
details of the establishments at which
 
 
those employees are employed,”.
 
 
(3)
In section 193 (duty of employer to notify Secretary of State of certain
 
 
redundancies)—
15
 
(a)
omit subsection (1);
 
 
(b)
before subsection (2) insert—
 
 
“(1A)
Subsection (2) applies where an employer is proposing to
 
 
dismiss as redundant within a period of 90 days or less—
 
 
(a)
at least the threshold number of employees (see section
20
 
195A ), or
 
 
(b)
20 or more employees at one establishment.”;
 
 
(c)
in subsection (2)—
 
 
(i)
for the words from “An employer” to “period” substitute “The
 
 
employer”;
25
 
(ii)
omit paragraphs (a) and (b);
 
 
(d)
after subsection (2) insert—
 
 
“(2A)
The notice must be given—
 
 
(a)
before the employer gives notice to terminate an
 
 
employee’s contract of employment in respect of any
30
 
of the dismissals;
 
 
(b)
at least 30 days before the first of the dismissals takes
 
 
effect, or, where the employer is proposing to dismiss
 
 
100 or more employees as mentioned in subsection (1A),
 
 
at least 45 days before the first of the dismissals takes
35
 
effect.”;
 
 
(e)
in subsection (3), for “(1) or (2)” substitute “(1A)”;
 
 
(f)
in subsection (4)(a), omit the words from “in relation to the
 
 
establishment” to the end;
 
 
(g)
in subsection (6), omit “(1) or”;
40
 
(h)
in subsection (7), for “(1)” substitute “(2)”.
 
 
(4)
In section 193A (redundancies of ships’ crew)—
 
 
(a)
in subsection (1)(a), omit “193(1) or”;
 

Page 63

 
(b)
in subsection (2), for “section 193(1) or (2)” substitute “section 193(2)”.
 
 
(5)
After section 195 insert—
 
“195A
Construction of references to threshold number of employees
 
 
(1)
In this Chapter references to the threshold number of employees are
 
 
references to the number of employees determined in accordance with
5
 
regulations made by the Secretary of State under this section.
 
 
(2)
Regulations under this section may (among other things) provide that
 
 
the number is—
 
 
(a)
a specified number;
 
 
(b)
a number determined by reference to a specified percentage
10
 
of employees;
 
 
(c)
a number that is the highest or lowest of two or more numbers,
 
 
whether those numbers are specified numbers, determined by
 
 
reference to a specified percentage of employees, or determined
 
 
in another way specified in the regulations.
15
 
(3)
But the regulations may not provide in any case for the threshold
 
 
number of employees to be lower than 20.
 
 
(4)
For the purposes of determining a number by reference to a specified
 
 
percentage of employees, the regulations may make provision for
 
 
determining how many employees an employer has, including (among
20
 
other things)—
 
 
(a)
provision about the time by reference to which that
 
 
determination is to be made;
 
 
(b)
provision excluding employees of a specified description from
 
 
being taken into account in that determination.
25
 
(5)
Regulations under this section may make different provision for
 
 
different purposes, including (among other things)—
 
 
(a)
different provision in respect of different provisions of this
 
 
Chapter;
 
 
(b)
different provision in respect of different descriptions of
30
 
employer.
 
 
(6)
Regulations under this section may contain such incidental,
 
 
supplementary or transitional provision as appears to the Secretary
 
 
of State to be necessary or expedient.
 
 
(7)
Regulations under this section are to be made by statutory instrument.
35
 
(8)
A statutory instrument containing regulations under this section
 
 
(whether alone or with other provision) may not be made unless a
 
 
draft of the instrument is laid before and approved by a resolution of
 
 
each House of Parliament.
 
 
(9)
In this section “specified” means specified in the regulations.”
40

Page 64

 
(6)
In section 197 (power to vary provisions), in subsection (1)—
 
 
(a)
in paragraph (a), for “188(2) and 193(1)” substitute “188(1A) and
 
 
193(2A)(b)”;
 
 
(b)
in the words after paragraph (b), for “188(2) and 193(1)” substitute
 
 
“188(1A) and 193(2A)(b)”.
5
 
(7)
In section 198A (employees being transferred to the employer from another
 
 
undertaking)—
 
 
(a)
in subsection (1)(b), for the words from “20 or more employees” to
 
 
“or less,” substitute “within a period of 90 days or less—
 
 
“(i)
at least the threshold number of employees (see
10
 
section 195A ), or
 
 
(ii)
20 or more employees at one establishment,”;
 
 
(b)
in subsection (4)(a)—
 
 
(i)
for “and as if” substitute “and, where relevant, as if”;
 
 
(ii)
for “(1)(b)” substitute “(1)(b)(ii)”.
15
34
Collective redundancy consultation: protected period
 
 
(1)
Chapter 2 of Part 4 of the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (procedure for handling redundancies) is amended as follows.
 
 
(2)
In section 189 (duty to consult representatives: complaint and protective
 
 
award), in subsection (4), in the words after paragraph (b), for “90” substitute
20
 
“180”.
 
 
(3)
In section 197 (power to vary provisions), in subsection (1)(b), for “periods”
 
 
substitute “period”.
 
35
Collective redundancy notifications: ships’ crew
 
 
(1)
In the Trade Union and Labour Relations (Consolidation) Act 1992, section
25
 
193A is amended in accordance with subsections (2) to (5) .
 
 
(2)
For the heading substitute “Application of section 193 in certain cases involving
 
 
redundancies of ships’ crew”.
 
 
(3)
In subsection (1)—
 
 
(a)
in the words before paragraph (a), for “has effect subject to this section”
30
 
substitute “applies with the modifications set out in subsections (2)
 
 
and (3)”;
 
 
(b)
in paragraph (b)—
 
 
(i)
at the beginning insert “some or all of”;
 
 
(ii)
for “vessel” substitute “ship”.
35
 
(4)
In subsection (2)—
 
 
(a)
before “to the competent authority” insert “, so far as relating to the
 
 
members of crew of a ship within subsection (1)(b),”;
 

Page 65

 
(b)
for “vessel” substitute “ship”;
 
 
(c)
for “instead of” substitute “as well as”.
 
 
(5)
After subsection (2) insert—
 
 
“(3)
Where this subsection applies, section 193 is to be read as if references
 
 
in subsections (4) and (6) to a notice were to the notice that is required
5
 
to be given to the Secretary of State.
 
 
(4)
In this section “ship” includes—
 
 
(a)
any kind of vessel used in navigation, and
 
 
(b)
hovercraft.”
 
 
(6)
In section 285 of the Trade Union and Labour Relations (Consolidation) Act
10
 
1992 (employment outside Great Britain)—
 
 
(a)
in subsection (1B), after “United Kingdom” insert “or a GB-linked
 
 
ship”;
 
 
(b)
after subsection (2) insert—
 
 
“(3)
In this section, “GB-linked ship” means a ship providing a
15
 
service—
 
 
(a)
for the carriage of persons or goods, with or without
 
 
vehicles, and
 
 
(b)
that is within subsection (4) or (5) .
 
 
(4)
A service is within this subsection if it is operated between a
20
 
place in Great Britain and another place in the United Kingdom.
 
 
(5)
A service is within this subsection if—
 
 
(a)
ships providing the service entered a harbour in Great
 
 
Britain on at least 120 occasions in the period of 12
 
 
months ending with the day when the redundancy
25
 
proposal in question is settled by the employer, or
 
 
(b)
if the service has been provided for less than 12 months
 
 
before that day, ships providing the service entered a
 
 
harbour in Great Britain on at least 10 occasions in each
 
 
month for which the service has been provided.
30
 
(6)
But a service is not within subsection (5) if the service—
 
 
(a)
is for the purpose of leisure or recreation, or
 
 
(b)
is provided by a fishing vessel.
 
 
(7)
In this section—
 
 
“harbour” has the same meaning as in the Harbours Act
35
 
1964;
 
 
“ship” has the same meaning as in section 193A (see
 
 
subsection (4) of that section).”
 

Page 66

Public sector outsourcing: protection of workers

 
36
Public sector outsourcing: protection of workers
 
 
(1)
The Procurement Act 2023 is amended as follows.
 
 
(2)
After Part 5 insert—
 

Part 5A

5
 
Outsourcing: protection of workers
 
83A
Application of this Part
 
 
(1)
This Part provides for a Minister of the Crown, the Scottish Ministers
 
 
and the Welsh Ministers to make provision for the protection of
 
 
workers in relation to relevant outsourcing contracts (see section 83B ).
10
 
(2)
Accordingly, in this Part, “appropriate authority”—
 
 
(a)
means—
 
 
(i)
a Minister of the Crown,
 
 
(ii)
the Scottish Ministers, or
 
 
(iii)
the Welsh Ministers, and
15
 
(b)
does not include a Northern Ireland department.
 
 
(3)
In addition to the restrictions in section 113, a Minister of the Crown—
 
 
(a)
may exercise a power under this Part for the purpose of
 
 
regulating devolved Scottish authorities only in relation to joint
 
 
or centralised procurement under a reserved procurement
20
 
arrangement;
 
 
(b)
may not exercise a power under this Part for the purpose of
 
 
regulating joint or centralised procurement under a devolved
 
 
Scottish procurement arrangement.
 
 
(4)
The Scottish Ministers—
25
 
(a)
may only exercise a power under this Part for the purpose of
 
 
regulating—
 
 
(i)
devolved Scottish authorities, or
 
 
(ii)
procurement under a devolved Scottish procurement
 
 
arrangement;
30
 
(b)
may not exercise a power under this Part for the purpose of
 
 
regulating—
 
 
(i)
joint or centralised procurement under a reserved
 
 
procurement arrangement, or
 
 
(ii)
joint or centralised procurement under a devolved
35
 
Welsh procurement arrangement.
 
 
(5)
In addition to the restrictions in section 111, the Welsh Ministers—
 

Page 67

 
(a)
may exercise a power under this Part for the purpose of
 
 
regulating devolved Scottish authorities only in relation to joint
 
 
or centralised procurement under a devolved Welsh
 
 
procurement arrangement;
 
 
(b)
may not exercise a power under this Part for the purpose of
5
 
regulating joint or centralised procurement under a devolved
 
 
Scottish procurement arrangement.
 
 
(6)
This Part does not apply in relation to—
 
 
(a)
a private utility;
 
 
(b)
a person referred to in regulation 4(1)(b) of the Utilities
10
 
Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49);
 
 
(c)
a devolved Welsh authority listed in Schedule 1 of the Social
 
 
Partnership and Public Procurement (Wales) Act 2023 (asc 1);
 
 
(d)
procurement under a transferred Northern Ireland procurement
 
 
arrangement, except to the extent that the procurement—
15
 
(i)
is carried out by a devolved Scottish authority, and
 
 
(ii)
is not joint or centralised;
 
 
(e)
a transferred Northern Ireland authority, except in relation to—
 
 
(i)
procurement under a reserved procurement
 
 
arrangement,
20
 
(ii)
procurement under a devolved Scottish procurement
 
 
arrangement, or
 
 
(iii)
procurement under a devolved Welsh procurement
 
 
arrangement.
 
 
(7)
For the purposes of this section, procurement under a procurement
25
 
arrangement is “joint or centralised” if as part of that procurement
 
 
arrangement a contract is to be awarded following a procedure or
 
 
other selection process carried out—
 
 
(a)
jointly by a devolved Scottish authority and another contracting
 
 
authority which is not a devolved Scottish authority, or
30
 
(b)
by a centralised procurement authority or equivalent body.
 
83B
Relevant outsourcing contracts
 
 
(1)
In this Part, “relevant outsourcing contract” means a contract in relation
 
 
to which conditions A to C are met.
 
 
(2)
Condition A is met where the contract—
35
 
(a)
is a public contract under this Act, or
 
 
(b)
is a contract regulated by Scottish procurement legislation.
 
 
(3)
Condition B is met where the contract—
 
 
(a)
is a contract for the supply of services that include the
 
 
performance of functions that are or have previously been
40
 
performed by the contracting authority, or
 
 
(b)
is—
 

Page 68

 
(i)
in the case of a public contract, a framework for the
 
 
future award of a contract referred to in paragraph (a),
 
 
or
 
 
(ii)
in the case of a contract regulated by Scottish
 
 
procurement legislation, a framework agreement the
5
 
purpose of which is to establish the terms governing a
 
 
contract referred to in paragraph (a).
 
 
(4)
Condition C is met where the functions referred to in subsection (3) (a)
 
 
are, or are expected to be, performed by individuals (“transferring
 
 
workers”) who—
10
 
(a)
in performing the functions, are employed by the supplier or
 
 
a sub-contractor under a worker’s contract, and
 
 
(b)
were employed by the contracting authority under a worker’s
 
 
contract in performing functions of the same kind.
 
 
(5)
For the purposes of this Part—
15
 
(a)
“contract regulated by Scottish procurement legislation” means
 
 
a contract the procurement of which by a devolved Scottish
 
 
authority is regulated by Scottish procurement legislation;
 
 
(b)
in relation to a contract regulated by Scottish procurement
 
 
legislation—
20
 
(i)
“contracting authority” means a devolved Scottish
 
 
authority that is a contracting authority within the
 
 
meaning of the relevant Scottish procurement legislation;
 
 
(ii)
“framework agreement” has the same meaning as in
 
 
the relevant Scottish procurement legislation;
25
 
(iii)
“supplier” means an economic operator within the
 
 
meaning of the relevant Scottish procurement legislation;
 
 
(iv)
“the relevant Scottish procurement legislation” means
 
 
the Scottish procurement legislation regulating the
 
 
procurement of the contract.
30
 
83C
Power to specify provision for inclusion in relevant outsourcing
 
 
contracts
 
 
(1)
An appropriate authority may by regulations specify provision to be
 
 
included in a relevant outsourcing contract for the purpose of ensuring
 
 
that—
35
 
(a)
transferring workers of a specified description are treated no
 
 
less favourably as workers of the supplier or a sub-contractor
 
 
than they were as workers of the contracting authority, and
 
 
(b)
workers of the supplier or a sub-contractor who are not
 
 
transferring workers and are of a specified description are
40
 
treated no less favourably than those transferring workers.
 
 
(2)
In carrying out the procurement of a relevant outsourcing contract,
 
 
the contracting authority must—
 

Page 69

 
(a)
take all reasonable steps to ensure that provision specified
 
 
under subsection (1) is included in the contract;
 
 
(b)
where provision specified under subsection (1) is included in
 
 
the contract, take all reasonable steps to secure that such
 
 
provision is complied with.
5
 
(3)
Subsection (2) does not apply—
 
 
(a)
where the contracting authority or the relevant outsourcing
 
 
contract is of a specified description, or
 
 
(b)
in specified circumstances.
 
 
(4)
In this section, “specified” means specified in regulations made by an
10
 
appropriate authority.
 
83D
Code of practice on relevant outsourcing contracts
 
 
(1)
An appropriate authority must prepare and publish a code of practice
 
 
containing guidance to contracting authorities for the purpose of
 
 
ensuring that, where a contracting authority carries out the
15
 
procurement of a relevant outsourcing contract—
 
 
(a)
transferring workers of a description specified in the code are
 
 
treated no less favourably as workers of the supplier or a
 
 
sub-contractor than they were as workers of the contracting
 
 
authority, and
20
 
(b)
workers of the supplier or a sub-contractor who are not
 
 
transferring workers and are of a description specified in the
 
 
code are treated no less favourably than those transferring
 
 
workers.
 
 
(2)
An appropriate authority—
25
 
(a)
may amend or replace a code published by it under subsection
 
 
(1) , and
 
 
(b)
must publish any amended or replacement code.
 
 
(3)
A code published under subsection (1) or (2) must—
 
 
(a)
in the case of a code published by a Minister of the Crown, be
30
 
laid before Parliament;
 
 
(b)
in the case of a code published by the Scottish Ministers, be
 
 
laid before the Scottish Parliament;
 
 
(c)
in the case of a code published by the Welsh Ministers, be laid
 
 
before Senedd Cymru.
35
 
(4)
In carrying out the procurement of a relevant outsourcing contract,
 
 
the contracting authority must have regard to the code of practice for
 
 
the time being published under subsection (1) or (2) .
 
 
(5)
This section does not require an appropriate authority to do anything
 
 
which the authority does not have power to do (see section 83A and
40
 
Part 11).
 

Page 70

83E
Interpretation of this Part
 
 
(1)
In this Part—
 
 
“appropriate authority” has the meaning given in section 83A (2) ;
 
 
“contract regulated by Scottish procurement legislation” has the
 
 
meaning given in section 83B (5) (a) ;
5
 
“relevant outsourcing contract” has the meaning given in section
 
 
83B ;
 
 
“transferring worker” , in relation to a relevant outsourcing
 
 
contract, has the meaning given in section 83B (4) ;
 
 
“worker” and “worker’s contract” have the same meaning as in
10
 
the Employment Rights Act 1996 (see section 230 of that Act).
 
 
(2)
For the purposes of this Part, in relation to a contract regulated by
 
 
Scottish procurement legislation, “contracting authority”, “framework
 
 
agreement”, “supplier” and “the relevant Scottish procurement
 
 
legislation” have the meaning given in section 83B (5) (b) .
15
83F
Power of Scottish Ministers to amend this Part
 
 
The Scottish Ministers may by regulations modify section 83A , 83B or
 
 
83E in consequence of a modification of Scottish procurement
 
 
legislation.”
 
 
(3)
In section 2 (contracting authorities), after subsection (1) insert—
20
 
“(1A)
But see also section 83B (5) (b) (i) (which provides for “contracting
 
 
authority” to have an extended meaning in relation to certain contracts
 
 
regulated under Part 5A (outsourcing: protection of workers)).”
 
 
(4)
In section 122 (regulations)—
 
 
(a)
in subsection (4) (regulations of Ministers of the Crown subject to
25
 
affirmative procedure), after paragraph (i) insert—
 
 
“(ia)
section 83C (provision for inclusion in relevant
 
 
outsourcing contracts);”;
 
 
(b)
in subsection (10) (regulations of Welsh Ministers subject to affirmative
 
 
procedure), after paragraph (g) insert—
30
 
“(ga)
section 83C (provision for inclusion in relevant
 
 
outsourcing contracts);”;
 
 
(c)
in subsection (14) (regulations of Scottish Ministers subject to
 
 
affirmative procedure), before paragraph (a) insert—
 
 
“(za)
section 83C (provision to be included in relevant
35
 
outsourcing contracts);
 
 
(zb)
section 83F (power to amend section 83A , 83B or 83E );”.
 

Page 71

 
(5)
In section 123 (interpretation), in subsection (1), in the definition of
 
 
“appropriate authority”, at the end insert—
 
 
“(but see section 83A (2) for a different meaning of “appropriate authority” in
 
 
Part 5A (outsourcing: protection of workers));”.
 
 
(6)
In section 124 (index of defined expressions), for the entry for “appropriate
5
 
authority” substitute—
 
 
“appropriate authority (except in Part 5A)
 
 
section 123
 
 
appropriate authority (in Part 5A)
 
 
section 83A”.
 
 
(7)
In Schedule 9A (procurement by devolved Scottish authorities), at the
 
 
appropriate place insert—
10
 
“Part 5A (outsourcing: protection of
 
 
workers)”.
 

Duties of employers relating to equality

 
37
Equality action plans
 
 
(1)
The Equality Act 2010 is amended as follows.
15
 
(2)
In Part 5 (work), in Chapter 3 (equality of terms), after section 78 insert—
 
 
“Equality action plans
 
78A
Equality action plans
 
 
(1)
Regulations may require employers to—
 
 
(a)
develop and publish a plan (an “equality action plan”) showing
20
 
the steps that the employers are taking in relation to their
 
 
employees with regard to prescribed matters related to gender
 
 
equality, and
 
 
(b)
publish prescribed information relating to the plan.
 
 
(2)
This section does not apply to—
25
 
(a)
an employer with fewer than 250 employees;
 
 
(b)
a public authority, other than—
 
 
(i)
a public authority specified in Part 1 of Schedule 19, or
 
 
(ii)
a public authority specified in Part 4 of Schedule 19
 
 
with the letter “D” included after the entry.
30
 
(3)
For the purposes of subsection (1) , a matter is related to gender
 
 
equality if it is related to advancing equality of opportunity between
 
 
male and female employees.
 

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(4)
Accordingly, matters related to gender equality include—
 
 
(a)
addressing the gender pay gap, and
 
 
(b)
supporting employees going through the menopause.
 
 
(5)
The regulations may, among other things, make provision about—
 
 
(a)
the content of a plan;
5
 
(b)
the form and manner in which a plan or information is to be
 
 
published;
 
 
(c)
when and how frequently a plan or information is to be
 
 
published or revised;
 
 
(d)
requirements for senior approval before a plan or information
10
 
is published;
 
 
(e)
descriptions of employers;
 
 
(f)
descriptions of employee;
 
 
(g)
descriptions of information.
 
 
(6)
The regulations may not require an employer, after the first publication
15
 
of information, to publish information more frequently than at intervals
 
 
of 12 months.
 
 
(7)
The regulations may make provision for a failure to comply with the
 
 
regulations to be enforced, otherwise than as an offence, by such means
 
 
as are prescribed.
20
 
(8)
The reference to a failure to comply with the regulations includes a
 
 
reference to a failure by a person acting on behalf of an employer.
 
 
(9)
A Minister of the Crown must consult—
 
 
(a)
the Commission, before making regulations under this section
 
 
that apply to a public authority, and
25
 
(b)
the Welsh Ministers, before making regulations under this
 
 
section that apply to a public authority specified in Part 4 of
 
 
Schedule 19 with the letter “D” included after the entry.”
 
 
(3)
In Part 16 (general and miscellaneous), in section 208(5) (regulations subject
 
 
to affirmative procedure), after paragraph (b) insert—
30
 
“(ba)
regulations under section 78A (equality action plans);”.
 
38
Provision of information relating to outsourced workers
 
 
(1)
The Equality Act 2010 is amended as follows.
 
 
(2)
In section 78 (gender pay gap information), after subsection (3) insert—
 
 
“(3A)
Regulations under subsection (3)(d) may, among other things, make
35
 
provision, in a case where an employer is a principal in relation to an
 
 
individual who is a contract worker, requiring publication of the
 
 
identity of the person who has contracted with the principal for the
 
 
supply of the individual.
 

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(3B)
In subsection (3A) , “principal” and “contract worker” have the meaning
 
 
that they have in section 41 (see section 41(5) and (7)).”
 
 
(3)
In section 153 (power to impose specific duties on public authorities), after
 
 
subsection (1) insert—
 
 
“(1A)
Regulations under subsection (1) may, among other things, make
5
 
provision, in a case where an employer is a principal in relation to an
 
 
individual who is a contract worker, requiring publication of the
 
 
identity of the person who has contracted with the principal for the
 
 
supply of the individual.
 
 
(1B)
In subsection (1A) , “principal” and “contract worker” have the meaning
10
 
that they have in section 41 (see section 41(5) and (7)).”
 
 
(4)
In section 154 (power to impose specific duties: cross-border public authorities),
 
 
after subsection (3) insert—
 
 
“(3A)
Regulations under this section made by a Minister of the Crown may,
 
 
among other things, make provision, in a case where an employer is
15
 
a principal in relation to an individual who is a contract worker,
 
 
requiring publication of the identity of the person who has contracted
 
 
with the principal for the supply of the individual.
 
 
(3B)
In subsection (3A) , “principal” and “contract worker” have the meaning
 
 
that they have in section 41 (see section 41(5) and (7)).”
20

Annual leave records

 
39
Duty to keep records relating to annual leave
 
 
(1)
The Working Time Regulations 1998 (S.I. 1998/1833) are amended as follows.
 
 
(2)
In Part 2 (rights and obligations concerning working time), after regulation
 
 
16A insert—
25
 
“Records relating to annual leave entitlement
 
 
16B.
(1)
An employer must—
 
 
(a)
keep records which are adequate to show whether the employer has
 
 
complied with the entitlements conferred by regulations 13(1), 13A(1),
 
 
15B(2) and 16(1) and the requirements in regulations 14(2) and (6)
30
 
and 15E(2);
 
 
(b)
retain such records for six years from the date on which they were
 
 
made.
 
 
(2)
The records referred to in paragraph (1)(a) may be created, maintained
 
 
and kept in such manner and format as the employer reasonably thinks fit.”
35
 
(3)
In regulation 29 (offences), in paragraph (1), after “the relevant requirements”
 
 
insert “or with regulation 16B(1)”.
 

Page 74

 
(4)
In regulation 29C (restriction on institution of proceedings in England and
 
 
Wales)—
 
 
(a)
the existing provision becomes paragraph (1);
 
 
(b)
after that paragraph insert—
 
 
“(2)
But paragraph (1) does not prevent the Secretary of State from
5
 
instituting proceedings in England and Wales for an offence
 
 
under regulation 29(1) in respect of a failure to comply with
 
 
regulation 16B(1) (duty to keep records).”
 

Employment businesses

 
40
Extension of regulation of employment businesses
10
 
In section 13 of the Employment Agencies Act 1973 (interpretation), for
 
 
subsection (3) substitute—
 
 
“(3)
For the purposes of this Act “employment business” means the business
 
 
(whether or not carried on with a view to profit and whether or not
 
 
carried on in conjunction with any other business) of participating in
15
 
employment arrangements.
 
 
(3A)
“Employment arrangements” means arrangements under which persons
 
 
who are, or are intended to be, in the employment of a person are, or
 
 
are intended to be, supplied to act for, and under the control of,
 
 
another person in any capacity.
20
 
(3B)
“Participating in” employment arrangements means doing any of the
 
 
following in connection with the arrangements—
 
 
(a)
being an employer of the persons who are, or are intended to
 
 
be, supplied under the arrangements;
 
 
(b)
paying for, or receiving or forwarding payment for, the services
25
 
of those persons, in consideration of directly or indirectly
 
 
receiving a fee from those persons;
 
 
(c)
supplying those persons (whether or not under the
 
 
arrangements);
 
 
(d)
taking steps with a view to doing anything mentioned in
30
 
paragraphs (a) to (c).”
 

Page 75

Part 3

 

Pay and conditions in particular sectors

 

Chapter 1

 

School support staff

 
41
Pay and conditions of school support staff in England
5
 
Schedule 4 contains provision establishing the School Support Staff Negotiating
 
 
Body.
 

Chapter 2

 

Social care workers

 

Social Care Negotiating Bodies

10
42
Power to establish Social Care Negotiating Body
 
 
(1)
For the purposes of this Chapter, the Secretary of State may by regulations
 
 
provide for there to be a body in England known as the Adult Social Care
 
 
Negotiating Body for England.
 
 
(2)
For the purposes of this Chapter, the Welsh Ministers may, with the agreement
15
 
of the Secretary of State, by regulations provide for there to be a body in
 
 
Wales known as the Social Care Negotiating Body for Wales.
 
 
(3)
For the purposes of this Chapter, the Scottish Ministers may, with the
 
 
agreement of the Secretary of State, by regulations provide for there to be a
 
 
body in Scotland known as the Social Care Negotiating Body for Scotland.
20
 
(4)
Any power of the Welsh Ministers or the Scottish Ministers to make
 
 
regulations under the remaining provisions of this Chapter may not be
 
 
exercised without the agreement of the Secretary of State.
 
 
(5)
In this Chapter—
 
 
“the appropriate authority” —
25
 
(a)
in relation to the Adult Social Care Negotiating Body for
 
 
England, means the Secretary of State;
 
 
(b)
in relation to the Social Care Negotiating Body for Wales, means
 
 
the Welsh Ministers;
 
 
(c)
in relation to the Social Care Negotiating Body for Scotland,
30
 
means the Scottish Ministers;
 
 
“Negotiating Body” means a body established by regulations under this
 
 
section.
 

Page 76

43
Membership, procedure, etc of Negotiating Body
 
 
(1)
Where the appropriate authority provides for there to be a Negotiating Body
 
 
under section 42 , the authority may by regulations make further provision
 
 
about the Negotiating Body.
 
 
(2)
The provision that may be made by regulations under this section includes,
5
 
among other things—
 
 
(a)
provision about membership of the Negotiating Body, including
 
 
(among other things)—
 
 
(i)
provision about the appointment of members;
 
 
(ii)
provision about the number of members, or the number of
10
 
members of a specified description, which the Negotiating
 
 
Body is to have (see also subsection (3));
 
 
(iii)
provision about the termination of appointments;
 
 
(b)
provision for the appointment of a person to chair the Negotiating
 
 
Body, including (among other things) provision for that person to be,
15
 
or not to be, a person of a specified description;
 
 
(c)
provision about how the Negotiating Body makes its decisions;
 
 
(d)
provision for the Negotiating Body to keep records of a specified
 
 
description;
 
 
(e)
provision for the payment of fees or expenses by the appropriate
20
 
authority to members of the Negotiating Body;
 
 
(f)
provision for staff or facilities to be provided to the Negotiating Body
 
 
by the appropriate authority;
 
 
(g)
provision about reports, including (among other things) provision
 
 
requiring the Negotiating Body to publish reports at specified times
25
 
or about specified matters.
 
 
(3)
Regulations under this section—
 
 
(a)
must provide that the persons appointed as members of the
 
 
Negotiating Body include—
 
 
(i)
officials of one or more trade unions that represent the interests
30
 
of social care workers;
 
 
(ii)
persons representing the interests of employers of social care
 
 
workers;
 
 
(b)
may provide for other descriptions of person to be appointed as
 
 
members of the Negotiating Body.
35
 
(4)
Regulations under this section may provide that the validity of anything done
 
 
by the Negotiating Body is not affected by a vacancy or a defective
 
 
appointment.
 
 
(5)
Regulations under this section may amend any enactment in consequence of
 
 
the establishment of the Negotiating Body.
40
 
(6)
In this section “specified” means specified in the regulations.
 

Page 77

44
Matters within Negotiating Body’s remit
 
 
(1)
For the purposes of this Chapter, the matters within a Negotiating Body’s
 
 
remit are matters that relate to any of the following—
 
 
(a)
the remuneration of relevant social care workers, or of relevant social
 
 
care workers of a specified description;
5
 
(b)
terms and conditions of employment of relevant social care workers,
 
 
or of relevant social care workers of a specified description;
 
 
(c)
any other specified matters relating to employment as a relevant social
 
 
care worker, or as a relevant social care worker of a specified
 
 
description.
10
 
(2)
In subsection (1)—
 
 
“relevant social care worker” , in relation to a Negotiating Body, means
 
 
a social care worker employed in, or in connection with, the provision
 
 
of social care in the area for which the Negotiating Body is established;
 
 
“specified” means specified in regulations made by the appropriate
15
 
authority.
 
45
Meaning of “social care worker”
 
 
(1)
In this Chapter “social care worker” means—
 
 
(a)
in relation to England, a person who is employed wholly or mainly
 
 
in, or in connection with, the provision of social care to individuals
20
 
aged 18 or over;
 
 
(b)
in relation to Wales or Scotland, a person who is employed wholly or
 
 
mainly in, or in connection with, the provision of social care to any
 
 
individual.
 
 
(2)
For the purposes of subsection (1), “social care” includes any form of personal
25
 
care or other practical assistance provided for individuals who, by reason of
 
 
age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs,
 
 
or any other similar circumstances, are in need of such care or other assistance.
 

Consideration of matters by Negotiating Body

 
46
Consideration of matters by Negotiating Body
30
 
(1)
The appropriate authority may by regulations make provision about the
 
 
consideration by a Negotiating Body of matters within its remit.
 
 
(2)
The provision that may be made by regulations under this section includes,
 
 
among other things—
 
 
(a)
provision about the circumstances in which the Negotiating Body may,
35
 
or must, consider a matter within its remit, including (among other
 
 
things) provision requiring it to consider any matter referred to it by
 
 
the appropriate authority;
 

Page 78

 
(b)
provision specifying, or enabling the appropriate authority to specify,
 
 
factors to which the Negotiating Body may, or must, have regard
 
 
when considering a matter;
 
 
(c)
provision specifying, or enabling the appropriate authority to specify,
 
 
conditions that must be met in relation to any agreement reached by
5
 
the Negotiating Body about a matter, including (among others)
 
 
conditions relating to funding;
 
 
(d)
provision requiring members of the Negotiating Body to provide the
 
 
Negotiating Body with information, or information of a specified
 
 
description, for the purposes of enabling it to consider, or reach an
10
 
agreement about, a matter;
 
 
(e)
provision requiring the Negotiating Body, if it reaches an agreement
 
 
about a matter, to submit the agreement to the appropriate authority;
 
 
(f)
provision requiring the Negotiating Body to take any specified steps
 
 
before a date notified to it by the appropriate authority.
15
 
(3)
In this section “specified” means specified in the regulations.
 
47
Reconsideration by Negotiating Body
 
 
(1)
The appropriate authority may by regulations provide that, in a case where
 
 
a Negotiating Body submits an agreement to the appropriate authority, the
 
 
authority may refer the agreement back to the Negotiating Body for
20
 
reconsideration, or may do so in specified circumstances.
 
 
(2)
The appropriate authority may by regulations make provision about what
 
 
happens where an agreement is referred back to a Negotiating Body as
 
 
mentioned in subsection (1) .
 
 
(3)
The provision that may be made by regulations under subsection (2) includes,
25
 
among other things—
 
 
(a)
provision requiring the Negotiating Body to reconsider the agreement;
 
 
(b)
provision specifying, or enabling the appropriate authority to specify,
 
 
factors to which the Negotiating Body may, or must, have regard
 
 
when reconsidering the agreement;
30
 
(c)
provision specifying, or enabling the appropriate authority to specify,
 
 
conditions that must be met in relation to any revised agreement
 
 
reached by the Negotiating Body about a matter, including (among
 
 
others) conditions relating to funding;
 
 
(d)
provision requiring members of the Negotiating Body to provide the
35
 
Negotiating Body with information, or information of a specified
 
 
description, for the purposes of enabling it to reconsider the agreement;
 
 
(e)
provision specifying steps which the Negotiating Body may or must
 
 
take after reconsidering the agreement, including, in particular,
 
 
submitting the original agreement, or a revised agreement, to the
40
 
appropriate authority;
 
 
(f)
provision requiring the Negotiating Body to take any specified steps
 
 
before a date notified to it by the appropriate authority.
 

Page 79

 
(4)
In this section “specified” means specified in the regulations.
 
48
Failure to reach an agreement
 
 
(1)
The appropriate authority may by regulations make provision about cases
 
 
where a Negotiating Body is unable to reach an agreement about a matter.
 
 
(2)
The provision that may be made by regulations under this section includes,
5
 
among other things—
 
 
(a)
provision for resolving disagreements about any matter;
 
 
(b)
provision conferring functions on the appropriate authority or a person
 
 
specified in the regulations;
 
 
(c)
provision requiring the Negotiating Body to act in accordance with a
10
 
decision of the appropriate authority or a person specified in the
 
 
regulations.
 

Giving effect to agreements of Negotiating Body

 
49
Power to ratify agreements
 
 
(1)
This section applies if a Negotiating Body submits an agreement to the
15
 
appropriate authority in accordance with regulations under section 46 or 47 .
 
 
(2)
The appropriate authority may make regulations ratifying the agreement—
 
 
(a)
in full, or
 
 
(b)
to the extent specified in the regulations.
 
50
Effect of regulations ratifying agreement
20
 
(1)
This section applies if the appropriate authority makes regulations under
 
 
section 49 ratifying (to any extent) an agreement submitted by a Negotiating
 
 
Body.
 
 
(2)
If the agreement relates to a social care worker’s remuneration, the social care
 
 
worker’s remuneration is to be determined and paid in accordance with the
25
 
agreement.
 
 
(3)
A provision of the agreement that relates to any other term or condition of
 
 
a social care worker’s employment has effect as a term of the social care
 
 
worker’s contract.
 
 
(4)
A term of that contract has no effect to the extent that it makes provision that
30
 
is prohibited by, or is otherwise inconsistent with, the agreement.
 
 
(5)
Subsections (2) to (4) —
 
 
(a)
do not apply in relation to a term or condition of a social care worker’s
 
 
employment if, and to the extent that, giving effect to the agreement
 
 
would alter the term or condition to the social care worker’s detriment;
35
 
(b)
do not prevent the terms and conditions of a social care worker’s
 
 
employment from including a term or condition that is more favourable
 

Page 80

 
to the social care worker than that which would otherwise have effect
 
 
by virtue of those subsections.
 

Power of appropriate authority to deal with matters

 
51
Power of appropriate authority to deal with matters
 
 
(1)
This section applies where—
5
 
(a)
a Negotiating Body notifies the appropriate authority that it has been
 
 
unable to reach an agreement on a matter referred to it, and
 
 
(b)
any other specified conditions are met.
 
 
In paragraph (b) “specified” means specified in regulations made by the
 
 
appropriate authority.
10
 
(2)
The appropriate authority may by regulations make provision about the
 
 
matter.
 
 
(3)
Regulations under subsection (2) may provide that the regulations are to have
 
 
effect for determining the terms and conditions of employment of social care
 
 
workers to whom the regulations apply.
15
 
(4)
If the regulations make provision within subsection (3) , subsections (5) to (7)
 
 
apply (but see subsection (8) ).
 
 
(5)
If the regulations relate to a social care worker’s remuneration, the social care
 
 
worker’s remuneration is to be determined and paid in accordance with the
 
 
regulations.
20
 
(6)
A provision of the regulations that relates to any other term or condition of
 
 
a social care worker’s employment has effect as a term of the social care
 
 
worker’s contract.
 
 
(7)
A term of that contract has no effect to the extent that it makes provision that
 
 
is prohibited by, or is otherwise inconsistent with, the regulations.
25
 
(8)
Subsections (5) to (7) —
 
 
(a)
do not apply in relation to a term or condition of a social care worker’s
 
 
employment if, and to the extent that, giving effect to the regulations
 
 
would alter the term or condition to the social care worker’s detriment;
 
 
(b)
do not prevent the terms and conditions of a social care worker’s
30
 
employment from including a term or condition that is more favourable
 
 
to the social care worker than that which would otherwise have effect
 
 
by virtue of those subsections.
 

Guidance etc

 
52
Guidance and codes of practice
35
 
(1)
The appropriate authority may by regulations make provision about the
 
 
issuing of guidance or codes of practice by the authority in relation to—
 

Page 81

 
(a)
agreements submitted by a Negotiating Body in accordance with
 
 
regulations under section 46 or 47 ;
 
 
(b)
regulations made by the authority under section 51 .
 
 
(2)
Regulations under this section may, among other things—
 
 
(a)
impose duties on specified persons, or persons of a specified
5
 
description, in relation to any provision of guidance or a code of
 
 
practice;
 
 
(b)
make provision about the consequences of a failure to comply with
 
 
any duty imposed by virtue of paragraph (a).
 
 
(3)
The provision that may be made by virtue of subsection (2) (b) includes, among
10
 
other things, provision for the failure to be taken into account in any
 
 
proceedings before a court or tribunal, including (among other things) for
 
 
the purpose of determining the amount of any financial award.
 
 
(4)
Regulations under this section that by virtue of subsection (2) (b) make
 
 
provision about the consequences of a failure to comply with a duty imposed
15
 
by the regulations in relation to a provision of guidance or a code of practice
 
 
must provide for the guidance or code to be laid before the appropriate
 
 
legislature and subject to the procedure specified.
 
 
(5)
In this section—
 
 
“the appropriate legislature” means—
20
 
(a)
in the case of regulations of the Secretary of State, Parliament;
 
 
(b)
in the case of regulations of the Welsh Ministers, Senedd
 
 
Cymru;
 
 
(c)
in the case of regulations of the Scottish Ministers, the Scottish
 
 
Parliament;
25
 
“specified” means specified in the regulations.
 

Enforcement

 
53
Duty of employers to keep records
 
 
(1)
For the purposes of this Chapter, the Secretary of State may by regulations
 
 
make provision requiring employers—
30
 
(a)
to keep, in a specified form and manner, records of a specified
 
 
description;
 
 
(b)
to preserve those records for a specified period.
 
 
(2)
Regulations under this section may provide for the following provisions of
 
 
the National Minimum Wage Act 1998 to apply, with or without modifications,
35
 
in relation to records which an employer is required to keep and preserve
 
 
by virtue of the regulations—
 
 
(a)
section 10 (worker’s right of access to records);
 
 
(b)
section 11 (failure of employer to allow access to records);
 

Page 82

 
(c)
section 11A (extension of time limit to facilitate conciliation before
 
 
institution of proceedings).
 
 
(3)
Regulations under this section that provide for any of those provisions of
 
 
that Act to apply in relation to such records may provide for section 49 of
 
 
that Act (restrictions on contracting out) to apply, with or without
5
 
modifications, in relation to the application of those provisions by the
 
 
regulations.
 
 
(4)
In this section “specified” means specified in the regulations.
 

Agency workers

 
54
Agency workers who are not otherwise “workers”
10
 
(1)
This section applies in any case where an individual (the “agency worker”)—
 
 
(a)
is supplied by a person (the “agent”) to do work for another (the
 
 
“principal”) under a contract or other arrangements made between
 
 
the agent and the principal,
 
 
(b)
is not, as respects that work, a worker, because of the absence of a
15
 
worker’s contract between the individual and the agent or the
 
 
principal, and
 
 
(c)
is not a party to a contract under which the individual undertakes to
 
 
do the work for another party to the contract whose status is, by virtue
 
 
of the contract, that of a client or customer of any profession or
20
 
business undertaking carried on by the individual.
 
 
(2)
The provisions of this Chapter (other than this section) have effect as if there
 
 
were a worker’s contract for the doing of the work by the agency worker
 
 
made between the agency worker and—
 
 
(a)
whichever of the agent and the principal is responsible for paying the
25
 
agency worker in respect of the work, or
 
 
(b)
if neither the agent nor the principal is so responsible, whichever of
 
 
them pays the agency worker in respect of the work.
 
 
(3)
For the purposes of Part 2 of the Employment Rights Act 1996 (protection of
 
 
wages), as it applies in relation to the entitlements conferred by sections 50 (2)
30
 
and 51 (5) —
 
 
(a)
if at any time the agency worker and the person who, as a result of
 
 
this section, is the person’s employer for the purposes of this Chapter
 
 
would not (apart from this subsection) be regarded as the worker and
 
 
the employer for the purposes of that Part, they are to be so regarded;
35
 
(b)
it is to be assumed that there was a worker’s contract between those
 
 
persons at that time.
 
 
(4)
If there would (in the absence of this section) be no worker’s contract between
 
 
the agency worker and the person who, as a result of this section, is the
 
 
person’s employer for the purposes of this Chapter, for the purpose of
40
 
enforcing any entitlement conferred by section 50 (2) or (3) or 51 (5) or (6) in
 

Page 83

 
civil proceedings on a claim in contract it is to be assumed that there is (or
 
 
was) such a contract between those persons.
 
 
(5)
Any reference in this section to doing work includes a reference to performing
 
 
services, and “work” is to be read accordingly.
 

Supplementary and general

5
55
Regulations under section
 
 
(1)
Regulations under section 49 or 51 may make provision that has retrospective
 
 
effect.
 
 
(2)
Regulations under section 49 or 51 may make provision by reference to—
 
 
(a)
an agreement submitted by a Negotiating Body to the appropriate
10
 
authority, or
 
 
(b)
any other document.
 
 
(3)
If regulations under section 49 or 51 make provision by virtue of subsection
 
 
(2) , they must include provision about the publication of the agreement or
 
 
other document.
15
56
Regulations under this Chapter
 
 
(1)
Regulations under this Chapter may confer a discretion on a person when
 
 
dealing with any matter.
 
 
(2)
Regulations under section 49 are subject to the negative resolution procedure.
 
 
(3)
Regulations under any other provision of this Chapter are subject to the
20
 
affirmative resolution procedure.
 
57
Status of agreements, etc
 
 
The Secretary of State may by regulations provide that—
 
 
(a)
nothing done by a Negotiating Body, or by members of a Negotiating
 
 
Body acting in that capacity, is to be regarded as collective bargaining
25
 
for the purposes of section 178 of the Trade Union and Labour
 
 
Relations (Consolidation) Act 1992;
 
 
(b)
any reference to a collective agreement within the meaning of that Act
 
 
does not include an agreement reached by a Negotiating Body.
 
58
Interpretation of this Chapter
30
 
(1)
In this Chapter—
 
 
“the appropriate authority” has the meaning given by section 42 (5) ;
 
 
“contract of employment” means a contract of service or apprenticeship,
 
 
whether express or implied, and (if it is express) whether oral or in
 
 
writing;
35

Page 84

 
“employer” , in relation to a worker, means the person by whom the
 
 
worker is (or, where the employment has ceased, was) employed;
 
 
“employment” means employment under a worker’s contract; and
 
 
“employed” is to be read accordingly;
 
 
“enactment” means—
5
 
(a)
an Act of Parliament,
 
 
(b)
a Measure or Act of the National Assembly for Wales or an
 
 
Act of Senedd Cymru, or
 
 
(c)
an Act of the Scottish Parliament;
 
 
“Negotiating Body” has the meaning given by section 42 (5) ;
10
 
“official” , in relation to a trade union, has the meaning given by section
 
 
119 of the Trade Union and Labour Relations (Consolidation) Act 1992;
 
 
“social care worker” has the meaning given by section 45 ;
 
 
“trade union” has the meaning given by section 1 of the Trade Union
 
 
and Labour Relations (Consolidation) Act 1992;
15
 
“worker” (except in the phrases “agency worker”, “relevant social care
 
 
worker” and “social care worker”) means an individual who has
 
 
entered into or works under (or, where the employment has ceased,
 
 
worked under)—
 
 
(a)
a contract of employment, or
20
 
(b)
any other contract, whether express or implied and (if it is
 
 
express) whether oral or in writing, whereby the individual
 
 
undertakes to do or perform personally any work or services
 
 
for another party to the contract whose status is not by virtue
 
 
of the contract that of a client or customer of any profession
25
 
or business undertaking carried on by the individual;
 
 
and any reference to a worker’s contract is to be read accordingly.
 
 
(2)
Any reference in this Chapter to an agreement that has been ratified is, in a
 
 
case where the agreement is ratified in part, a reference to so much of the
 
 
agreement as has been ratified.
30

Chapter 3

 

Seafarers

 
59
Seafarers’ wages and working conditions
 
 
Schedule 5 amends the Seafarers’ Wages Act 2023.
 
60
International agreements relating to maritime employment
35
 
(1)
The Merchant Shipping Act 1995 is amended as follows.
 

Page 85

 
(2)
After section 84 insert—
 

Part 3A

 
 
International agreements relating to maritime employment
 
84A
International agreements relating to maritime employment
 
 
(1)
The Secretary of State may by regulations make such provision as the
5
 
Secretary of State considers appropriate for the purpose of giving effect
 
 
to—
 
 
(a)
the Maritime Labour Convention, adopted on 23 February 2006
 
 
by the International Labour Organisation, as it has effect from
 
 
time to time;
10
 
(b)
the Work in Fishing Convention, adopted on 14 June 2007 by
 
 
the International Labour Organisation, as it has effect from
 
 
time to time.
 
 
(2)
The Secretary of State may by regulations make such provision as the
 
 
Secretary of State considers appropriate for the purpose of giving effect
15
 
to an international agreement that has been ratified by the United
 
 
Kingdom, so far as the agreement relates to maritime employment.
 
 
(3)
The power in subsection (2) to give effect to an agreement so far as
 
 
it relates to maritime employment includes power to give effect to
 
 
any amendments of the agreement that relate to maritime employment.
20
 
(4)
For the purposes of this section, a provision relates to maritime
 
 
employment if it relates to the terms and conditions of employment
 
 
or engagement, or working conditions, of masters or seamen.
 
 
(5)
Section 84B makes further provision with respect to the regulations
 
 
that may be made under this section.
25
84B
Regulations under section
 
 
(1)
In subsections (2) to (9) “regulations” means regulations under section
 
 
84A .
 
 
(2)
Regulations—
 
 
(a)
may make provision in terms of approvals given by the
30
 
Secretary of State or another person and in terms of any
 
 
document which the Secretary of State or that other person
 
 
considers relevant;
 
 
(b)
may provide for the cancellation of an approval given in
 
 
pursuance of the regulations and for the alteration of the terms
35
 
of such an approval;
 
 
(c)
must provide for any approval in pursuance of the regulations
 
 
to be given in writing and to specify the date on which it takes
 
 
effect and the conditions (if any) on which it is given.
 

Page 86

 
(3)
Regulations may make provision for—
 
 
(a)
the granting by the Secretary of State or another person of
 
 
exemptions from specified provisions of the regulations for
 
 
classes of case or individual cases, on such terms (if any) as
 
 
the Secretary of State or that other person may specify, and
5
 
(b)
for the alteration or cancellation of such exemptions.
 
 
(4)
Regulations may make provision in respect of the checking or
 
 
monitoring of compliance with any provision of the regulations,
 
 
including (among other things) provision for—
 
 
(a)
the making and keeping of records and the keeping of
10
 
documents;
 
 
(b)
the issue of certificates;
 
 
(c)
the furnishing of information.
 
 
(5)
Regulations may—
 
 
(a)
provide for the detention of a ship in respect of which a
15
 
contravention of the regulations is suspected to have occurred;
 
 
(b)
apply section 284 with or without modifications in relation to
 
 
such detentions.
 
 
(6)
Regulations may provide for the contravention of any provision of
 
 
the regulations to be a criminal offence, but may not provide—
20
 
(a)
for an offence under the regulations to be punishable on
 
 
summary conviction with imprisonment;
 
 
(b)
in relation to Scotland or Northern Ireland—
 
 
(i)
for an offence under the regulations that is triable only
 
 
summarily to be punishable by a fine exceeding level
25
 
5 on the standard scale;
 
 
(ii)
for an offence under the regulations that is triable
 
 
summarily or on indictment to be punishable on
 
 
summary conviction by a fine exceeding the statutory
 
 
maximum;
30
 
(c)
for an offence under the regulations to be punishable on
 
 
conviction on indictment with imprisonment for a term
 
 
exceeding two years.
 
 
(7)
Regulations may provide that, in specified cases, specified persons
 
 
each commit an offence created by regulations in reliance on subsection
35
 
(6) .
 
 
(8)
Regulations may—
 
 
(a)
make different provision for different purposes;
 
 
(b)
provide for references in the regulations to any specified
 
 
document to operate as references to that document as revised
40
 
or re-issued from time to time;
 
 
(c)
provide for the delegation of functions exercisable by virtue of
 
 
the regulations.
 

Page 87

 
(9)
The power to make regulations includes power to make consequential,
 
 
supplementary, incidental or transitional provision.
 
 
(10)
The powers conferred by section 84A to make provision for the purpose
 
 
of giving effect to an agreement or an amendment of an agreement
 
 
include power to provide for the provision to come into force although
5
 
the agreement or amendment has not come into force.
 
 
(11)
But regulations under section 84A may not provide for provision made
 
 
for the purpose of giving effect to an agreement, or an amendment of
 
 
an agreement, to come into force—
 
 
(a)
before the United Kingdom has ratified the agreement, or
10
 
(b)
in a case where—
 
 
(i)
the provision is for the purpose of giving effect to an
 
 
amendment of an agreement, and
 
 
(ii)
the United Kingdom would not be required to give
 
 
effect to the amendment until it had been ratified by
15
 
the United Kingdom,
 
 
before the United Kingdom has ratified the amendment.
 
 
(12)
Nothing in subsections (2) to (10) of this section is to be construed as
 
 
restricting the generality of the powers conferred by section 84A .
 
 
(13)
A statutory instrument which contains (whether alone or with other
20
 
provision) regulations under section 84A (2) may not be made unless
 
 
a draft of the instrument has been laid before, and approved by a
 
 
resolution of, each House of Parliament.”
 
 
(3)
In section 306 (regulations etc), in subsection (2A)(a), after “section” insert
 
 
“ 84A (2) ,”.
25

Chapter 4

 

Industrial undertakings

 
61
Restriction on the employment of children in industrial undertakings
 
 
In section 1 of the Employment of Women, Young Persons, and Children Act
 
 
1920 (restrictions on the employment of women, young persons, and children
30
 
in industrial undertakings), at the end of subsection (1) insert “(but voluntary
 
 
work on a heritage railway or heritage tramway is not employment in an
 
 
industrial undertaking)”.
 

Page 88

Part 4

 

Trade unions and industrial action, etc

 

Right to statement of trade union rights

 
62
Right to statement of trade union rights
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
5
 
in accordance with subsections (2) to (6) .
 
 
(2)
In Part 3 (rights in relation to trade union membership and activities), before
 
 
section 137 (and the italic heading before it) insert—
 
 
“Statement of trade union rights
 
136A
Right to statement of trade union rights
10
 
(1)
A worker’s employer must give the worker a written statement that
 
 
the worker has the right to join a trade union.
 
 
(2)
The statement must be given—
 
 
(a)
at the same time as the employer gives the worker a statement
 
 
under section 1 of the 1996 Act (statement of employment
15
 
particulars);
 
 
(b)
at other prescribed times.
 
 
(3)
The Secretary of State may prescribe—
 
 
(a)
information that must be included in the statement;
 
 
(b)
the form which the statement must take;
20
 
(c)
the manner in which the statement must be given.
 
 
(4)
The information prescribed may include that the worker has rights
 
 
conferred by this Part.
 
 
(5)
For the purposes of this section—
 
 
(a)
“worker” and “employer” have the same meaning as in the
25
 
1996 Act (see section 230 of that Act);
 
 
(b)
in a case where an employer gives a worker a statement under
 
 
section 1 of the 1996 Act in instalments (see section 2(4) of that
 
 
Act), that statement is to be treated as given when the first
 
 
instalment is given;
30
 
(c)
“the 1996 Act” means the Employment Rights Act 1996.
 
 
(6)
Regulations prescribing anything for the purposes of this section (see
 
 
section 293(1)) may make different provision for different purposes.
 
 
(7)
See section 38 of the Employment Act 2002 for the effect of failing to
 
 
give a statement in accordance with this section.”
35
 
(3)
In section 284 (exceptions for share fishermen)—
 

Page 89

 
(a)
after “in the case of” insert “section 136A and”;
 
 
(b)
before “sections 137 to 143” insert—
 
 
“section 136A (right to statement of trade union rights),”.
 
 
(4)
In section 285 (exceptions for employment outside Great Britain)—
 
 
(a)
in subsection (1), before “sections 137 to 143” insert—
5
 
“section 136A (right to statement of trade union rights),”;
 
 
(b)
in subsection (1A), for “Sections 145A to 151” substitute “Section 136A
 
 
, and sections 145A to 151,”.
 
 
(5)
In section 286 (power to provide for other exceptions), before “sections 145A
 
 
to 151” insert “section 136A (right to statement of trade union rights) and”.
10
 
(6)
In section 296 (meaning of “worker”), in subsection (3), after “68(4),” insert
 
 
“ 136A (5) ,”.
 
 
(7)
In section 38 of the Employment Act 2002 (failure to give statement of
 
 
employment particulars etc)—
 
 
(a)
in subsection (2)(b), after “duty to the worker” insert “under section
15
 
136A of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (duty to give a written statement of trade union rights),”;
 
 
(b)
in subsection (3)(b), after “duty to the worker” insert “under section
 
 
136A of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992,”.
20

Right of trade unions to access workplaces

 
63
Right of trade unions to access workplaces
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (6) .
 
 
(2)
In Part 1 (trade unions), before Chapter 5A insert—
25

Chapter 5ZA

 
 
Right of trade unions to access workplaces
 
 
Access agreements: general
 
70ZA
Access agreements
 
 
(1)
This section applies for the purposes of this Chapter.
30
 
(2)
An “access agreement” is an agreement between a qualifying trade
 
 
union and an employer that—
 
 
(a)
provides for one or more officials of the union to physically
 
 
enter a workplace or communicate with workers (or both) for
 
 
any of the access purposes, and
35

Page 90

 
(b)
is entered into under section 70ZD or is treated as having been
 
 
entered into under section 70ZE .
 
 
(3)
A “qualifying trade union” is a trade union that has a certificate of
 
 
independence.
 
 
(4)
“Access” means—
5
 
(a)
physical entry into a workplace;
 
 
(b)
communication with workers.
 
 
(5)
A reference to communication with workers is a reference to
 
 
communication with workers (including the provision of information
 
 
to workers) by any means, whether directly or indirectly.
10
 
(6)
The “access purposes” are—
 
 
(a)
to meet, support, represent, recruit or organise workers
 
 
(whether or not they are members of a trade union);
 
 
(b)
to facilitate collective bargaining.
 
 
(7)
But the access purposes do not include organising industrial action.
15
 
(8)
Sections 70ZB to 70ZF contain provision about entering into access
 
 
agreements.
 
 
(9)
Section 70ZG contains provision about the variation or revocation of
 
 
access agreements.
 
 
(10)
Sections 70ZH to 70ZK contain provision about the enforcement of
20
 
access agreements.
 
 
(11)
Section 70ZL contains general limitations on the provision that may
 
 
be made under this Chapter, including in access agreements.
 
 
Entering into access agreements
 
70ZB
Access requests and response notices
25
 
(1)
A qualifying trade union may give an employer a request for access
 
 
by one or more officials of the union for any of the access purposes.
 
 
(2)
A request under subsection (1) —
 
 
(a)
may request access on one or more occasions;
 
 
(b)
may include the terms on which access is requested (including
30
 
as to what (if any) assistance the employer is requested to
 
 
provide in relation to the access).
 
 
(3)
A request under subsection (1) must—
 
 
(a)
be in the prescribed form;
 
 
(b)
include the prescribed information;
35
 
(c)
be given in the prescribed manner.
 

Page 91

 
(4)
An employer that has been given a request under subsection (1) may
 
 
give the union a notice agreeing with the request or disagreeing with
 
 
the request (in whole or in part).
 
 
(5)
A notice under subsection (4) must—
 
 
(a)
be in the prescribed form;
5
 
(b)
include the prescribed information;
 
 
(c)
be given in the prescribed manner.
 
 
(6)
In this Chapter—
 
 
“access request” means a request under subsection (1) given in
 
 
accordance with subsection (3) ;
10
 
“response notice” means a notice under subsection (4) given in
 
 
accordance with subsection (5) .
 
70ZC
Response period and negotiation period
 
 
In sections 70ZD and 70ZE —
 
 
(a)
“the response period” means a prescribed period beginning
15
 
with the day on which an access request is given;
 
 
(b)
“the negotiation period” means a prescribed period beginning
 
 
with the day on which a response notice is given.
 
70ZD
Entering into access agreement by negotiation
 
 
(1)
An access agreement is entered into under this section if—
20
 
(a)
a qualifying trade union gives an access request to an employer,
 
 
(b)
the employer gives the union a response notice before the end
 
 
of the response period,
 
 
(c)
before the end of the negotiation period, the union and the
 
 
employer agree in writing terms on which officials of the union
25
 
are to have access, and
 
 
(d)
the union and the employer jointly notify the Central
 
 
Arbitration Committee of those terms in the prescribed form
 
 
and manner.
 
 
(2)
See section 70ZE for the case where an access agreement is treated as
30
 
being entered into by virtue of a determination of the Central
 
 
Arbitration Committee.
 
70ZE
Determinations by the Central Arbitration Committee
 
 
(1)
This section applies if a qualifying trade union has given an access
 
 
request to an employer and either—
35
 
(a)
the employer has not given a response notice to the union
 
 
before the end of the response period, or
 
 
(b)
the employer has given a response notice before the end of the
 
 
response period and the negotiation period has ended without
 

Page 92

 
the union and the employer agreeing in writing terms on which
 
 
officials of the union are to have access.
 
 
(2)
The Central Arbitration Committee may, on an application under this
 
 
section, make a determination that officials of the union are or are not
 
 
to have access.
5
 
(3)
If the Central Arbitration Committee makes a determination that
 
 
officials of the union are to have access—
 
 
(a)
the determination must specify the terms on which officials of
 
 
the union are to have access (including as to what (if any)
 
 
assistance the employer must provide in relation to the access),
10
 
and
 
 
(b)
an access agreement containing those terms (and no others) is
 
 
treated as having been entered into between the union and the
 
 
employer.
 
 
(4)
An application for a determination under this section may be made—
15
 
(a)
by the union, in the case referred to in subsection (1) (a) ;
 
 
(b)
by the union or the employer, in the case referred to in
 
 
subsection (1) (b) .
 
 
(5)
An application for a determination under this section—
 
 
(a)
must be in writing and in such form as the Central Arbitration
20
 
Committee may require;
 
 
(b)
may not be made after the end of a prescribed period beginning
 
 
with the day on which the access request is given.
 
 
(6)
In considering an application for a determination under this section,
 
 
the Central Arbitration Committee—
25
 
(a)
may make such enquiries as it sees fit;
 
 
(b)
may make reasonable requests to provide information or
 
 
documents relevant to the application;
 
 
(c)
so far as reasonably practicable, must give any person who it
 
 
considers has a proper interest in the application an opportunity
30
 
to be heard.
 
 
(7)
A determination under this section must—
 
 
(a)
be in writing, and
 
 
(b)
state the reasons for the determination.
 
 
(8)
Section 70ZF makes further provision about determinations under this
35
 
section.
 
 
70ZF
Determinations by the Central Arbitration Committee: further
 
 
provision
 
 
(1)
Subject to regulations under this section, a determination by the Central
 
 
Arbitration Committee under section 70ZE must be consistent with
40
 
the access principles.
 

Page 93

 
(2)
The access principles are—
 
 
(a)
officials of a qualifying trade union should be able to physically
 
 
enter a workplace or communicate with workers (or both) for
 
 
any of the access purposes in any manner that does not
 
 
unreasonably interfere with the employer’s business;
5
 
(b)
an employer should take reasonable steps to facilitate access
 
 
by officials of a qualifying trade union;
 
 
(c)
physical entry into a workplace should not be refused solely
 
 
on the basis that communication with workers by means not
 
 
involving physical entry into a workplace is permitted;
10
 
(d)
communication with workers by means not involving physical
 
 
entry into a workplace should not be refused solely on the
 
 
basis that physical entry into a workplace is permitted;
 
 
(e)
access should be refused entirely only where it is reasonable
 
 
in all the circumstances to do so.
15
 
(3)
The Secretary of State may prescribe terms of an access agreement
 
 
that the Central Arbitration Committee must consider to be terms
 
 
that—
 
 
(a)
would not unreasonably interfere with an employer’s business;
 
 
(b)
would constitute reasonable steps that an employer should
20
 
take to facilitate access;
 
 
(c)
it would be reasonable for a union to comply with.
 
 
(4)
The Secretary of State may prescribe—
 
 
(a)
circumstances in which it is to be regarded as reasonable for
 
 
the Central Arbitration Committee to make a determination
25
 
that officials of a union that has given an access request to an
 
 
employer are not to have access;
 
 
(b)
circumstances in which the Central Arbitration Committee must
 
 
make such a determination.
 
 
(5)
The circumstances referred to in subsection (4) may be prescribed by
30
 
reference to (among other matters)—
 
 
(a)
the description of business carried on by the employer;
 
 
(b)
the number of workers employed by the employer;
 
 
(c)
the number of workers employed by the employer, or of a
 
 
particular description, that are members of the union;
35
 
(d)
a description of workplace;
 
 
(e)
a description of workers;
 
 
(f)
the ability of the employer to facilitate access;
 
 
(g)
avoiding prejudice to the prevention or detection of offences;
 
 
(h)
national security.
40
 
(6)
The Secretary of State may prescribe matters to which the Central
 
 
Arbitration Committee must have regard in considering an application
 
 
for a determination under section 70ZE.
 

Page 94

 
Variation and revocation of access agreements
 
70ZG
Variation and revocation of access agreements
 
 
(1)
The parties to an access agreement may at any time vary or revoke
 
 
the agreement.
 
 
(2)
A variation or revocation of an access agreement must be in writing.
5
 
(3)
An access agreement that is varied under this section continues to
 
 
have effect as an access agreement for the purposes of this Chapter.
 
 
(4)
The effect of an access agreement being revoked is that it ceases to be
 
 
an access agreement for the purposes of this Chapter.
 
 
(5)
A variation or revocation of an access agreement takes effect—
10
 
(a)
only if the parties jointly notify the Central Arbitration
 
 
Committee of the variation or revocation in the prescribed form
 
 
and manner;
 
 
(b)
only in respect of times after the day on which the Central
 
 
Arbitration Committee is so notified.
15
 
Enforcement of access agreements
 
70ZH
Enforcement of access agreements: initial complaint
 
 
(1)
A party to an access agreement may make a complaint to the Central
 
 
Arbitration Committee on the ground that—
 
 
(a)
the other party has breached the agreement;
20
 
(b)
a person that is not a party to the agreement has taken or is
 
 
taking steps to prevent access, or has prevented access, from
 
 
taking place in accordance with the agreement.
 
 
(2)
A complaint under subsection (1) must be made before the end of the
 
 
period of three months beginning with the day on which the matter
25
 
complained of is alleged to have occurred.
 
 
(3)
On a complaint under subsection (1) , the Central Arbitration Committee
 
 
may—
 
 
(a)
vary the agreement;
 
 
(b)
make a declaration that the complaint is or is not well-founded;
30
 
(c)
if it makes a declaration that the complaint is well-founded,
 
 
make an order requiring a person to take any steps specified
 
 
in the order for the purposes of ensuring that access takes place
 
 
in accordance with the agreement.
 
 
(4)
An access agreement that is varied under subsection (3) (a) continues
35
 
to have effect as an access agreement for the purposes of this Chapter.
 

Page 95

 
(5)
An order under subsection (3) (c) may, where it appears to the Central
 
 
Arbitration Committee necessary or appropriate to do so, make
 
 
provision different from that made in the agreement.
 
 
(6)
A declaration or order made by the Central Arbitration Committee
 
 
under this section must—
5
 
(a)
be in writing, and
 
 
(b)
state the reasons for the declaration or order.
 
 
(7)
For the purposes of this section, a reference to a person taking steps
 
 
includes a reference to a person not doing something.
 
70ZI
Enforcement of access agreements: subsequent complaint
10
 
(1)
This section applies where the Central Arbitration Committee has
 
 
made a declaration under section 70ZH (3) that a complaint about a
 
 
person is well-founded.
 
 
(2)
A party to an access agreement may make a complaint to the Central
 
 
Arbitration Committee on any of the following grounds—
15
 
(a)
that the person has, before the end of the relevant period,
 
 
carried out the conduct complained of under section 70ZH
 
 
again;
 
 
(b)
where the complaint under section 70ZH was that the person
 
 
breached the agreement, that the person has, before the end
20
 
of the relevant period, breached the agreement again (whether
 
 
or not in the way complained of under section 70ZH );
 
 
(c)
that the person has breached an order under section 70ZH (3) (c) .
 
 
(3)
In subsection (2) , “the relevant period” means the period of 12 months
 
 
beginning with the date of the declaration.
25
 
(4)
A complaint under subsection (2) must be made before the end of the
 
 
period of three months beginning with the day on which the alleged
 
 
conduct occurs.
 
 
(5)
On a complaint about a person under subsection (2) , the Central
 
 
Arbitration Committee may—
30
 
(a)
make a declaration that the complaint is or is not well-founded;
 
 
(b)
if it makes a declaration that the complaint is well-founded,
 
 
make an order requiring the person to pay an amount to the
 
 
Central Arbitration Committee.
 
 
(6)
An amount payable under subsection (5) (b) may be any amount that
35
 
the Central Arbitration Committee considers appropriate, subject to
 
 
regulations under section 70ZJ .
 
 
(7)
A declaration or order made by the Central Arbitration Committee
 
 
under this section must—
 
 
(a)
be in writing, and
40

Page 96

 
(b)
state the reasons for the declaration or order.
 
 
(8)
A declaration or order made by the Central Arbitration Committee
 
 
under subsection (5) may be relied on (and enforced by the Central
 
 
Arbitration Committee or a party to the access agreement) as if it were
 
 
a declaration or order made by the court.
5
 
(9)
The Central Arbitration Committee must pay into the Consolidated
 
 
Fund any amounts received under subsection (5) (b) .
 
 
(10)
For the purposes of this section, a reference to conduct includes a
 
 
reference to a person not doing something.
 
70ZJ
Power to make provision about amounts payable under section 70ZI
10
 
(1)
The Secretary of State may prescribe that an amount payable under
 
 
section 70ZI (5) (b) —
 
 
(a)
must be at least a prescribed amount;
 
 
(b)
may not exceed a prescribed amount.
 
 
(2)
An amount may be prescribed under subsection (1)(a) or (b)—
15
 
(a)
as a fixed amount;
 
 
(b)
by reference to one or more prescribed factors;
 
 
(c)
as the highest or lowest of two or more prescribed amounts,
 
 
whether prescribed as fixed amounts or by reference to one or
 
 
more prescribed factors.
20
 
(3)
The factors that may be prescribed under subsection (2)(b) or (c)
 
 
include (among others)—
 
 
(a)
the nature of the complaint under section 70ZI (2) against the
 
 
person required to pay the amount (the “liable party”);
 
 
(b)
whether the liable party has previously been subject to a
25
 
complaint under section 70ZH (1) or 70ZI (2) , or a prescribed
 
 
number of such complaints, declared by the Central Arbitration
 
 
Committee to be well-founded;
 
 
(c)
whether the liable party is of a prescribed description;
 
 
(d)
in the case of a liable party that is an undertaking, the turnover
30
 
of the liable party in a prescribed period, including (in
 
 
particular) worldwide, European or United Kingdom turnover;
 
 
(e)
in the case of a liable party that is an employer—
 
 
(i)
the number of workers employed by the liable party,
 
 
or
35
 
(ii)
the number of workers of a prescribed description
 
 
employed by the liable party;
 
 
(f)
in the case of a liable party that is a trade union, the number
 
 
of members that the liable party has.
 

Page 97

 
(4)
The Secretary of State may prescribe matters to which the Central
 
 
Arbitration Committee must have regard in considering what amount
 
 
is payable under section 70ZI (5) (b) .
 
70ZK
Enforcement of access agreements: supplementary provision
 
 
(1)
An access agreement—
5
 
(a)
is enforceable only by means of a complaint under section
 
 
70ZH or 70ZI , and not by any other means;
 
 
(b)
in particular, is to be conclusively presumed not to have been
 
 
intended by the parties to be a legally enforceable contract.
 
 
(2)
Accordingly, where an access agreement is, or is part of, a collective
10
 
agreement, section 179(2) and (3)(a) do not apply to the access
 
 
agreement.
 
 
(3)
A complaint under section 70ZH or 70ZI must be in writing and in
 
 
such form as the Central Arbitration Committee may require.
 
 
(4)
In its consideration of a complaint under section 70ZH or 70ZI , the
15
 
Central Arbitration Committee—
 
 
(a)
may make such enquiries as it sees fit;
 
 
(b)
may make reasonable requests to provide information or
 
 
documents relevant to the complaint;
 
 
(c)
so far as reasonably practicable, must give any person who it
20
 
considers has a proper interest in the complaint an opportunity
 
 
to be heard.
 
 
(5)
The Central Arbitration Committee may draw an adverse inference
 
 
from a person’s failure to comply with any reasonable request to
 
 
provide information or documents relevant to a complaint under
25
 
section 70ZH or 70ZI .
 
 
General limitations on access agreements etc
 
70ZL
General limitations on access agreements etc
 
 
(1)
Nothing in this Chapter requires or authorises any of the following
 
 
(each, a “prohibited activity”)—
30
 
(a)
physical entry by any person into a dwelling;
 
 
(b)
a disclosure of personal data without the consent of the data
 
 
subject;
 
 
(c)
a disclosure of information that would contravene the data
 
 
protection legislation (but, in determining whether a disclosure
35
 
would do so, the provisions of this Chapter are to be taken
 
 
into account).
 
 
(2)
Accordingly—
 

Page 98

 
(a)
a term of an access agreement entered into under section 70ZD
 
 
that requires or authorises a prohibited activity is of no effect
 
 
for the purposes of this Chapter;
 
 
(b)
the Central Arbitration Committee may not specify as a term
 
 
of an access agreement under section 70ZE any term that would
5
 
require or authorise a prohibited activity;
 
 
(c)
the Central Arbitration Committee may not exercise any
 
 
function under sections 70ZH to 70ZK so as to require or
 
 
authorise a prohibited activity.
 
 
(3)
In this section—
10
 
(a)
“consent” has the same meaning as in the UK GDPR (see Article
 
 
4(11) of the UK GDPR);
 
 
(b)
“personal data”, “data subject”, “the data protection legislation”
 
 
and “the UK GDPR” have the same meaning as in the Data
 
 
Protection Act 2018 (see section 3 of that Act).
15
 
Appeals to the Employment Appeal Tribunal
 
70ZM
Appeals to the Employment Appeal Tribunal
 
 
(1)
An appeal lies to the Employment Appeal Tribunal on any question
 
 
of law arising from any determination, declaration or order of, or
 
 
arising in any proceedings before, the Central Arbitration Committee
20
 
under this Chapter.
 
 
(2)
Where the Central Arbitration Committee makes an order under section
 
 
70ZI (5) (b) for a person to pay an amount to the Central Arbitration
 
 
Committee, the person may appeal against the order.
 
 
(3)
On an appeal under subsection (2) , the Employment Appeal Tribunal
25
 
may—
 
 
(a)
quash the order;
 
 
(b)
make an order requiring the person to pay a reduced amount
 
 
to the Central Arbitration Committee;
 
 
(c)
dismiss the appeal.
30
 
(4)
The Central Arbitration Committee must pay into the Consolidated
 
 
Fund any amounts received under subsection (3) (b) .
 
 
Regulations
 
70ZN
Regulations under this Chapter
 
 
Regulations prescribing anything for the purposes of this Chapter (see
35
 
section 293(1)) may make different provision for different purposes.”
 
 
(3)
In section 263 (proceedings of the Central Arbitration Committee)—
 
 
(a)
in subsection (4), omit “or, in Scotland, an oversman”;
 

Page 99

 
(b)
after subsection (6) insert—
 
 
“(6A)
In relation to the discharge of the Committee’s functions under
 
 
section 70ZE —
 
 
(a)
section 263ZA and subsection (6) apply, and
 
 
(b)
subsections (1) to (5) do not apply.”;
5
 
(c)
in subsection (7), before “Schedule A1” insert “section 70ZH or 70ZI
 
 
or”;
 
 
(d)
after subsection (7) insert—
 
 
“(8)
The reference in subsection (7) to the Committee’s functions
 
 
under Schedule A1 does not include a reference to its functions
10
 
under paragraph 166 of that Schedule.”
 
 
(4)
After section 263 insert—
 
“263ZA
Proceedings of the Committee under section
 
 
(1)
For the purpose of discharging its functions under section 70ZE in
 
 
any particular case, the Central Arbitration Committee is to consist
15
 
of—
 
 
(a)
one member of the Committee, or
 
 
(b)
a panel of three members of the Committee,
 
 
as the chairman of the Committee may direct.
 
 
(2)
In deciding what direction to make under subsection (1) , the chairman
20
 
of the Committee must have regard to the complexity of the case, with
 
 
a view to directing that the Committee is to consist of one member
 
 
only in cases which the chairman considers are less complex.
 
 
(3)
For those purposes, the chairman must in particular—
 
 
(a)
consider whether any terms proposed as terms on which
25
 
officials of a qualifying trade union are to have access are
 
 
prescribed under section 70ZF (3) , and
 
 
(b)
consider whether, if any of those terms are so prescribed, that
 
 
fact reduces the complexity of the case, having regard to any
 
 
other terms so proposed.
30
 
(4)
In subsection (3) , “qualifying trade union” and “access” have the same
 
 
meaning as in Chapter 5ZA of Part 1 (see section 70ZA ).
 
 
(5)
The chairman of the Committee may amend a direction under
 
 
subsection (1) at any time.
 
 
(6)
If a direction under subsection (1) is amended—
35
 
(a)
the amendment does not affect anything done by the Committee
 
 
before the amendment;
 
 
(b)
anything done by the Committee before the amendment is to
 
 
be treated as having been done by the Committee as it is
 
 
constituted after the amendment.
40

Page 100

 
(7)
If the Committee consists of one member of the Committee—
 
 
(a)
the member is to be appointed by the chairman of the
 
 
Committee;
 
 
(b)
the member is not required to be the chairman or a deputy
 
 
chairman of the Committee;
5
 
(c)
the member may at the member’s discretion sit in private where
 
 
it appears expedient to do so.
 
 
(8)
If the Committee consists of a panel of three members of the
 
 
Committee—
 
 
(a)
the panel is to be appointed by the chairman of the Committee;
10
 
(b)
the panel is to consist of the following members—
 
 
(i)
the chairman or a deputy chairman of the Committee;
 
 
(ii)
a member of the Committee whose experience is as a
 
 
representative of employers;
 
 
(iii)
a member of the Committee whose experience is as a
15
 
representative of workers;
 
 
(c)
the panel is to be chaired by the chairman or the deputy
 
 
chairman of the Committee;
 
 
(d)
the panel may at the discretion of its chairman sit in private
 
 
where it appears expedient to do so.
20
 
(9)
If—
 
 
(a)
a panel cannot reach a unanimous decision on a question
 
 
arising before it, and
 
 
(b)
a majority of the panel have the same opinion,
 
 
the question is to be decided according to that opinion.
25
 
(10)
If—
 
 
(a)
a panel cannot reach a unanimous decision on a question
 
 
arising before it, and
 
 
(b)
a majority of the panel do not have the same opinion,
 
 
the chairman of the panel may decide the question acting with the
30
 
full powers of an umpire.
 
 
(11)
Subject to the provisions of this section, the Committee may determine
 
 
its own procedure.”
 
 
(5)
In section 263A (proceedings of the Central Arbitration Committee under
 
 
Schedule A1)—
35
 
(a)
for the heading substitute “Proceedings of the Committee: other special
 
 
cases”;
 
 
(b)
in subsection (1), for “under Schedule A1” substitute “in relation to
 
 
which this section applies (see section 263(7))”;
 
 
(c)
in subsection (6), omit “or, in Scotland, an oversman”;
40
 
(d)
omit subsection (8).
 
 
(6)
In section 264 (awards of the Central Arbitration Committee)—
 

Page 101

 
(a)
in the heading, after “Awards” insert “etc”;
 
 
(b)
in subsection (1), after “award,” insert “in any determination,
 
 
declaration, order or other decision of the Committee under Chapter
 
 
5ZA of Part 1,”;
 
 
(c)
after subsection (2) insert—
5
 
“(2A)
Subsection (2) does not apply in relation to Chapter 5ZA of
 
 
Part 1.”
 
 
(7)
In Schedule 1 to the Employment Relations Act 2004 (minor and consequential
 
 
amendments), omit paragraph 15.
 

Trade union recognition

10
64
Trade union recognition
 
 
Schedule 6 amends Schedule A1 to the Trade Union and Labour Relations
 
 
(Consolidation) Act 1992 (collective bargaining: recognition).
 

Trade union finances

 
65
Political funds: requirement to pass political resolution
15
 
In section 73 of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (passing and effect of political resolution)—
 
 
(a)
omit subsection (3);
 
 
(b)
in subsection (4), for “before the end of that period” substitute “a
 
 
political resolution (“the old resolution”) is in force and”.
20
66
Deduction of trade union subscriptions from wages in public sector
 
 
(1)
In the Trade Union and Labour Relations (Consolidation) Act 1992—
 
 
(a)
omit section 116B (restriction on deduction of union subscriptions
 
 
from wages in public sector) and the italic heading before it;
 
 
(b)
in section 296 (meaning of “worker” and related expressions), in
25
 
subsection (3), omit “116B(10),”.
 
 
(2)
In consequence of the amendments made by subsection (1) , omit section 15
 
 
of the Trade Union Act 2016.
 

Facilities provided to trade union representatives and members

 
67
Facilities provided to trade union officials and learning representatives
30
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (6) .
 
 
(2)
In section 168 (time off for carrying out trade union duties)—
 

Page 102

 
(a)
after subsection (3) insert—
 
 
“(3A)
An employer that permits an employee to take time off as
 
 
required by this section must, where requested by the
 
 
employee, provide the employee with such accommodation
 
 
and other facilities for carrying out the duties or undergoing
5
 
the training for which the employee takes time off as is
 
 
reasonable in all the circumstances, having regard to any
 
 
relevant provisions of a Code of Practice issued by ACAS.”;
 
 
(b)
for subsection (4) substitute—
 
 
“(4)
An employee may present a complaint to an employment
10
 
tribunal that the employer has failed—
 
 
(a)
to permit the employee to take time off, or
 
 
(b)
to provide the employee with facilities,
 
 
as required by this section.
 
 
(5)
On a complaint under subsection (4) (a) , it is for the employer
15
 
to show that the amount of time off which the employee
 
 
proposed to take was not a reasonable amount of time off.”
 
 
(3)
In section 168A (time off for union learning representatives)—
 
 
(a)
after subsection (8) insert—
 
 
“(8A)
An employer that permits an employee to take time off as
20
 
required by this section must, where requested by the
 
 
employee, provide the employee with such accommodation
 
 
and other facilities for the purposes for which the employee
 
 
takes time off as is reasonable in all the circumstances, having
 
 
regard to any relevant provisions of a Code of Practice issued
25
 
by ACAS.”;
 
 
(b)
for subsection (9) substitute—
 
 
“(9)
An employee may present a complaint to an employment
 
 
tribunal that the employer has failed—
 
 
(a)
to permit the employee to take time off, or
30
 
(b)
to provide the employee with facilities,
 
 
as required by this section.
 
 
(10)
On a complaint under subsection (9) (a) , it is for the employer
 
 
to show that the amount of time off which the employee
 
 
proposed to take was not a reasonable amount of time off.”
35
 
(4)
In section 172 (remedies), in subsection (2), omit “in failing to permit time
 
 
off to be taken by the employee”.
 
 
(5)
In section 199 (issue of Codes of Practice by ACAS), in subsection (2)(a), after
 
 
“time off” insert “and facilities”.
 
 
(6)
In section 200 (procedure for issue of Code by ACAS), in subsection (3)(a),
40
 
after “time off” insert “and facilities”.
 

Page 103

 
(7)
In section 10 of the Employment Relations Act 1999 (right to be accompanied),
 
 
in subsection (7), for “and (4)” substitute “, (4) and (5)”.
 
68
Facilities for equality representatives
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (10) .
5
 
(2)
After section 168A insert—
 
“168B
Time off for union equality representatives
 
 
(1)
An employer must permit an employee who is—
 
 
(a)
a member of an independent trade union recognised by the
 
 
employer, and
10
 
(b)
an equality representative of the trade union,
 
 
to take time off during the employee’s working hours for any of the
 
 
following purposes.
 
 
(2)
The purposes are—
 
 
(a)
carrying out activities for the purpose of promoting the value
15
 
of equality in the workplace;
 
 
(b)
arranging learning or training on matters relating to equality
 
 
in the workplace;
 
 
(c)
providing information, advice or support to qualifying members
 
 
of the trade union in relation to matters relating to equality in
20
 
the workplace;
 
 
(d)
consulting with the employer on matters relating to equality
 
 
in the workplace;
 
 
(e)
obtaining and analysing information relating to equality in the
 
 
workplace;
25
 
(f)
preparing for any of the things mentioned in paragraphs (a)
 
 
to (e) .
 
 
(3)
Subsection (1) applies only if—
 
 
(a)
the trade union has given the employer notice in writing that
 
 
the employee is an equality representative of the union, and
30
 
(b)
the training condition is met in relation to the employee.
 
 
(4)
The training condition is met if—
 
 
(a)
the employee has undergone sufficient training to enable the
 
 
employee to carry on activities mentioned in subsection (2)
 
 
, and the trade union has given the employer notice in writing
35
 
of that fact,
 
 
(b)
the trade union has in the last six months given the employer
 
 
notice in writing that the employee will be undergoing such
 
 
training, or
 
 
(c)
within six months of the trade union giving the employer notice
40
 
in writing that the employee will be undergoing such training,
 

Page 104

 
the employee has done so, and the trade union has given the
 
 
employer notice of that fact.
 
 
(5)
Only one notice under subsection (4) (b) may be given in respect of
 
 
any one employee.
 
 
(6)
References in subsection (4) to sufficient training to carry out activities
5
 
mentioned in subsection (2) are to training that is sufficient for those
 
 
purposes having regard to any relevant provision of a Code of Practice
 
 
issued by ACAS or the Secretary of State.
 
 
(7)
If an employer is required to permit an employee to take time off
 
 
under subsection (1) , the employer must also permit the employee to
10
 
take time off during the employee’s working hours for the following
 
 
purposes—
 
 
(a)
undergoing training which is relevant to the employee’s
 
 
functions as an equality representative, and
 
 
(b)
where the trade union has in the last six months given the
15
 
employer notice under subsection (4) (b) in relation to the
 
 
employee, undergoing such training as is mentioned in
 
 
subsection (4) (a) .
 
 
(8)
The amount of time off which an employee is to be permitted to take
 
 
under this section and the purposes for which, the occasions on which
20
 
and any conditions subject to which time off may be so taken are those
 
 
that are reasonable in all the circumstances, having regard to any
 
 
relevant provision of a Code of Practice issued by ACAS or the
 
 
Secretary of State.
 
 
(9)
An employer that permits an employee to take time off as required
25
 
by this section must, where requested by the employee, provide the
 
 
employee with such accommodation and other facilities in relation to
 
 
the purposes for which the employee takes time off as is reasonable
 
 
in all the circumstances, having regard to any relevant provisions of
 
 
a Code of Practice issued by ACAS.
30
 
(10)
An employee may present a complaint to an employment tribunal
 
 
that the employer has failed—
 
 
(a)
to permit the employee to take time off, or
 
 
(b)
to provide the employee with facilities,
 
 
as required by this section.
35
 
(11)
On a complaint under subsection (10) (a) , it is for the employer to show
 
 
that the amount of time off which the employee proposed to take was
 
 
not a reasonable amount of time off.
 
 
(12)
For the purposes of this section—
 
 
(a)
a person is an equality representative of a trade union if the
40
 
person is appointed or elected as such in accordance with its
 
 
rules;
 
 
(b)
“equality”, in relation to a workplace, means—
 

Page 105

 
(i)
the elimination of discrimination, harassment and
 
 
victimisation, each of which is to be read in accordance
 
 
with the Equality Act 2010, and of any other conduct
 
 
that is prohibited by or under that Act;
 
 
(ii)
the advancement of equality of opportunity between
5
 
persons who share a relevant protected characteristic
 
 
and persons who do not share it;
 
 
(iii)
the fostering of good relations between persons who
 
 
share a relevant protected characteristic and persons
 
 
who do not share it;
10
 
(c)
“relevant protected characteristic” means age, disability, gender
 
 
reassignment, pregnancy and maternity, race, religion or belief,
 
 
sex or sexual orientation, each of which is to be read in
 
 
accordance with the Equality Act 2010;
 
 
(d)
a reference to qualifying members of the trade union is a
15
 
reference to members of the trade union—
 
 
(i)
who are employees of the employer of a description in
 
 
respect of which the union is recognised by the
 
 
employer, and
 
 
(ii)
in relation to whom it is the function of the equality
20
 
representative to act as such.”
 
 
(3)
In section 169 (payment for time off)—
 
 
(a)
in the heading, for “section 168” substitute “sections 168 to 168B”;
 
 
(b)
in subsection (1), for “or 168A” substitute “, 168A or 168B”.
 
 
(4)
In section 170 (time off for trade union activities)—
25
 
(a)
in subsection (2A), after “learning representative” insert “or an equality
 
 
representative”;
 
 
(b)
in subsection (2B), after “learning representative” insert “or an equality
 
 
representative”;
 
 
(c)
in subsection (2C)—
30
 
(i)
after “applies” insert “—
 
 
“(a)
in relation to a learning representative,”;
 
 
(ii)
at the end insert—
 
 
“(b)
in relation to an equality representative, if the
 
 
equality representative would be entitled to time
35
 
off under subsection (1) of section 168B for the
 
 
purpose of carrying on in relation to the
 
 
employee activities of the kind mentioned in
 
 
subsection (2) of that section.”;
 
 
(d)
in subsection (5)—
40
 
(i)
in paragraph (a), after “learning representative” insert “or an
 
 
equality representative”;
 
 
(ii)
omit the “and” at the end of paragraph (a);
 

Page 106

 
(iii)
after paragraph (b) insert “, and
 
 
“(c)
a person who is an equality representative of a
 
 
trade union acts as such if the person carries on
 
 
the activities mentioned in section 168B(2) in
 
 
that capacity.”
5
 
(5)
In section 171 (time off: time limit for proceedings), in subsection (1), after
 
 
“168A,” insert “168B,”.
 
 
(6)
In section 172 (time off: remedies), in subsection (1), after “168A” insert “,
 
 
168B”.
 
 
(7)
In section 173 (interpretation and other supplementary provisions)—
10
 
(a)
in subsection (1), after “168A” insert “, 168B”;
 
 
(b)
in subsection (2), after “168A,” insert “168B,”;
 
 
(c)
in subsection (3), after “168A” insert “or 168B”.
 
 
(8)
In section 199 (issue of Codes of Practice by ACAS), in subsection (1), after
 
 
“learning representatives” insert “or equality representatives”.
15
 
(9)
In section 200 (procedure for issue of Code by ACAS), in subsection (3)—
 
 
(a)
omit the “or” at the end of paragraph (b);
 
 
(b)
after paragraph (b) insert—
 
 
“(ba)
on the time off and facilities to be permitted to a trade
 
 
union equality representative in accordance with section
20
 
168B (time off for training and carrying out functions
 
 
as an equality representative),
 
 
(bb)
on the training that is sufficient to enable a trade union
 
 
equality representative to carry on the activities
 
 
mentioned in section 168B(2) (activities for which time
25
 
off is to be permitted), or”.
 
 
(10)
In section 203 (issue of Codes of Practice by Secretary of State), in subsection
 
 
(1)(b), after “learning representatives” insert “or equality representatives”.
 
 
(11)
In section 18 of the Employment Tribunals Act 1996 (conciliation: relevant
 
 
proceedings), in subsection (1)(a), after “168A,” insert “168B,”.
30
 
(12)
In section 104 of the Employment Rights Act 1996 (unfair dismissal for
 
 
assertion of statutory rights), in subsection (4)(c), after “168A,” insert “168B,”.
 
69
Facility time: publication requirements and reserve powers
 
 
(1)
In the Trade Union and Labour Relations (Consolidation) Act 1992—
 
 
(a)
omit section 172A (publication requirements in relation to facility time);
35
 
(b)
omit section 172B (reserve powers in relation to facility time).
 
 
(2)
In consequence of the amendments made by subsection (1) , omit sections 13
 
 
and 14 of the Trade Union Act 2016.
 

Page 107

Blacklists

 
70
Blacklists: additional powers
 
 
(1)
Section 3 of the Employment Relations Act 1999 (blacklists) is amended as
 
 
follows.
 
 
(2)
In subsection (1)(b), omit “by employers or employment agencies”.
5
 
(3)
After subsection (2) insert—
 
 
“(2A)
The Secretary of State may make regulations prohibiting—
 
 
(a)
the use of lists which contain details of members of trade
 
 
unions, or persons who have taken part in the activities of
 
 
trade unions, for the purposes of discrimination in relation to
10
 
recruitment or in relation to the treatment of workers;
 
 
(b)
the sale or supply of such lists with a view to being used for
 
 
those purposes.”
 
 
(4)
In subsection (3)—
 
 
(a)
before paragraph (a) insert—
15
 
“(za)
make provision for a person who causes another person
 
 
to do something to be treated as doing that thing;”;
 
 
(b)
in paragraph (e), after “subsection (1)” insert “or (2A)”.
 

Industrial action: ballots

 
71
Industrial action ballots: turnout threshold
20
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (4) .
 
 
(2)
In section 231 (information for members as to result of ballot)—
 
 
(a)
omit paragraph (a);
 
 
(b)
insert “and” at the end of paragraph (d);
25
 
(c)
for paragraph (e) (and the “and” after it) substitute—
 
 
“(e)
the number of spoiled voting papers.”;
 
 
(d)
omit paragraph (f).
 
 
(3)
Omit section 297A (meaning of “voting”).
 
 
(4)
In section 299 (index of defined expressions), omit the entry for “voting”.
30
 
(5)
In consequence of the amendments made by subsections (2) to (4) —
 
 
(a)
in the Trade Union Act 2016—
 
 
(i)
omit section 2;
 
 
(ii)
in Schedule 4, omit paragraphs 12 and 17;
 
 
(b)
in section 72 of this Act, omit subsection (3)(a).
35

Page 108

72
Industrial action ballots: support thresholds
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) and (3).
 
 
(2)
In section 226 (requirement of ballot before action by trade union)—
 
 
(a)
in subsection (2)(a)(iii), for “the required number of persons (see
5
 
subsections (2A) to (2C))” substitute “the majority voting in the ballot”;
 
 
(b)
omit subsections (2A) to (2F).
 
 
(3)
In section 231 (information for members as to result of ballot)—
 
 
(a)
insert “and” at the end of paragraph (e);
 
 
(b)
omit paragraph (g) (and the “and” before it).
10
 
(4)
In consequence of the amendments made by subsection (2), omit section 3 of
 
 
the Trade Union Act 2016.
 
73
Notice of industrial action ballot and sample voting paper for employers
 
 
In section 226A of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (notice of ballot and sample voting paper for employers)—
15
 
(a)
in subsection (2)(c)—
 
 
(i)
in sub-paragraph (i), for the words from “figures” (in the first
 
 
place it occurs) to “arrived at” substitute “number mentioned
 
 
in subsection (2B)”;
 
 
(ii)
in sub-paragraph (ii), for “figures and that explanation”
20
 
substitute “that number”;
 
 
(b)
for subsection (2B) substitute—
 
 
“(2B)
The number is the total number of employees concerned.”;
 
 
(c)
in subsection (2C)—
 
 
(i)
in paragraph (b), omit the words from “and the number” to
25
 
“categories”;
 
 
(ii)
in paragraph (c), omit the words from “and the number” to
 
 
“workplaces”;
 
 
(d)
in subsection (2D), for “figures” substitute “the number”.
 
74
Industrial action ballots: information to be included on voting paper
30
 
(1)
In section 229 of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (information to be included on voting paper), omit subsections (2B) to
 
 
(2D).
 
 
(2)
In consequence of the amendment made by subsection (1), omit section 5 of
 
 
the Trade Union Act 2016.
35

Page 109

75
Period after which industrial action ballot ceases to be effective
 
 
In section 234 of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (period after which industrial action ballot ceases to be effective), in
 
 
subsection (1), for the words from “period” to the end substitute “period of
 
 
12 months beginning with the date of the ballot”.
5
76
Electronic balloting
 
 
(1)
In the Trade Union Act 2016, omit section 4 (provision for electronic balloting
 
 
for industrial action: review and piloting scheme).
 
 
(2)
Subsection (1) does not affect the power of the Secretary of State to make an
 
 
order under section 54 of the Employment Relations Act 2004 (permissible
10
 
means of balloting) in relation to ballots for the purposes of section 226 of
 
 
the Trade Union and Labour Relations (Consolidation) Act 1992 (ballots on
 
 
industrial action).
 

Notice to employers of industrial action

 
77
Notice to employers of industrial action
15
 
(1)
In section 234A of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (notice to employers of industrial action)—
 
 
(a)
in subsection (3B), omit paragraph (b) (but not the “and” after it);
 
 
(b)
in subsection (3C)(b), omit the words from “and the number” to
 
 
“categories”;
20
 
(c)
in subsection (4), for paragraph (b) and the words after paragraph (b)
 
 
substitute—
 
 
“(b)
ending with the tenth day before the day, or before the
 
 
first of the days, specified in the relevant notice.”
 
 
(2)
In consequence of the amendment made by subsection (1)(c), omit section 8
25
 
of the Trade Union Act 2016.
 

Industrial action: picketing

 
78
Union supervision of picketing
 
 
(1)
In the Trade Union and Labour Relations (Consolidation) Act 1992—
 
 
(a)
in section 219 (protection from certain tort liabilities), in subsection
30
 
(3), for the words from “unless” to the end substitute “unless it is done
 
 
in the course of attendance declared lawful by section 220 (peaceful
 
 
picketing)”;
 
 
(b)
omit section 220A (union supervision of picketing).
 
 
(2)
In consequence of the amendments made by subsection (1) , omit section 10
35
 
of the Trade Union Act 2016.
 

Page 110

Protection for taking industrial action

 
79
Protection against detriment for taking industrial action
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) and (3) .
 
 
(2)
In Part 5 (industrial action), after section 236 insert—
5
 
“Protection against detriment
 
236A
Detriment on grounds of industrial action
 
 
(1)
A worker has the right not to be subjected as an individual to
 
 
detriment of a prescribed description by any act, or any deliberate
 
 
failure to act, by the worker’s employer, if the act or failure takes place
10
 
for the sole or main purpose of preventing or deterring the worker
 
 
from taking protected industrial action, or penalising the worker for
 
 
doing so.
 
 
(2)
For that purpose, a worker takes protected industrial action if the
 
 
worker commits an act which, or a series of acts each of which, the
15
 
worker is induced to commit by an act which by virtue of section 219
 
 
is not actionable in tort.
 
 
(3)
But no account may be taken of the repudiation of any act by a trade
 
 
union as mentioned in section 21 in relation to anything which occurs
 
 
before the end of the next working day after the day on which the
20
 
repudiation takes place.
 
 
(4)
Regulations under subsection (1) may prescribe detriment of any
 
 
description (instead of detriment of a specific description).
 
 
(5)
Subsection (1) does not apply where the worker is an employee and
 
 
the detriment in question amounts to dismissal (but see sections 237
25
 
to 239).
 
 
(6)
A worker or former worker may present a complaint to an employment
 
 
tribunal on the ground that the worker or former worker has been
 
 
subjected to a detriment by an employer in contravention of this
 
 
section.
30
 
(7)
A worker or former worker has no other remedy for infringement of
 
 
the right conferred by this section.
 
 
(8)
In this section and sections 236B to 236D —
 
 
“employer” means—
 
 
(a)
in relation to a worker, the person for whom the worker
35
 
works;
 
 
(b)
in relation to a former worker, the person for whom
 
 
the former worker worked;
 

Page 111

 
“worker” means an individual who works, or normally works,
 
 
as mentioned in paragraphs (a) to (c) of section 296(1);
 
 
“working day” means any day which is not a Saturday or Sunday,
 
 
Christmas Day, Good Friday or a bank holiday under the
 
 
Banking and Financial Dealings Act 1971.
5
236B
Time limit for proceedings
 
 
(1)
An employment tribunal may not consider a complaint under section
 
 
236A unless it is presented—
 
 
(a)
before the end of the period of six months beginning with the
 
 
date of the act or failure to which the complaint relates or,
10
 
where that act or failure is part of a series of similar acts or
 
 
failures (or both), the last of them, or
 
 
(b)
where the tribunal is satisfied that it was not reasonably
 
 
practicable for the complaint to be presented before the end of
 
 
that period, within such further period as it considers
15
 
reasonable.
 
 
(2)
For the purposes of subsection (1) —
 
 
(a)
where an act extends over a period, the reference to the date
 
 
of the act is a reference to the last day of that period;
 
 
(b)
a failure to act is to be treated as done when it was decided
20
 
on.
 
 
(3)
For the purposes of subsection (2) , in the absence of evidence
 
 
establishing the contrary, an employer is to be taken to decide on a
 
 
failure to act—
 
 
(a)
when the employer does an act inconsistent with doing the
25
 
failed act, or
 
 
(b)
if the employer has done no such inconsistent act, when the
 
 
period expires within which the employer might reasonably
 
 
have been expected to do the failed act if it was to be done.
 
 
(4)
Section 292A (extension of time limits to facilitate conciliation before
30
 
institution of proceedings) applies for the purposes of subsection (1) (a) .
 
236C
Consideration of complaint
 
 
On a complaint under section 236A it is for the employer to show
 
 
what was the sole or main purpose for which the employer acted or
 
 
failed to act.
35
236D
Remedies
 
 
(1)
Where the employment tribunal finds that a complaint under section
 
 
236A is well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 

Page 112

 
(b)
may make an award of compensation to be paid by the
 
 
employer to the complainant in respect of the act or failure
 
 
complained of.
 
 
(2)
The amount of the compensation awarded is to be an amount which
 
 
the tribunal considers just and equitable in all the circumstances having
5
 
regard to the infringement complained of and to any loss sustained
 
 
by the complainant which is attributable to the act or failure.
 
 
(3)
The loss is to be taken to include—
 
 
(a)
any expenses reasonably incurred by the complainant in
 
 
consequence of the act or failure, and
10
 
(b)
loss of any benefit which the complainant might reasonably
 
 
be expected to have had but for the act or failure.
 
 
(4)
In ascertaining the loss, the tribunal must apply the same rule
 
 
concerning the duty of a person to mitigate loss as applies to damages
 
 
recoverable under the common law of England and Wales or Scotland.
15
 
(5)
Where the tribunal finds that the act or failure complained of was to
 
 
any extent caused or contributed to by action of the complainant, it
 
 
must reduce the amount of the compensation by such proportion as
 
 
it considers just and equitable having regard to that finding.”
 
 
(3)
In section 296 (meaning of “worker”), in subsection (3), for “and 151(1B)”
20
 
substitute “, 151(1B) and 236A (8) ”.
 
 
(4)
In section 18 of the Employment Tribunals Act 1996 (conciliation: relevant
 
 
proceedings), in subsection (1)(a), for “or 192” substitute “, 192 or 236A”.
 
 
(5)
In section 104 of the Employment Rights Act 1996 (unfair dismissal for
 
 
assertion of statutory rights), in subsection (4)(c), for “and 170” substitute “,
25
 
170 and 236A”.
 
80
Protection against dismissal for taking industrial action
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (4) .
 
 
(2)
In section 229 (industrial action ballots: voting paper), in subsection (4), omit
30
 
the words from “if it takes place fewer than” to the end.
 
 
(3)
In section 238A (protection for employees taking part in official industrial
 
 
action)—
 
 
(a)
in subsection (2), omit paragraph (b) (and the “and” before it);
 
 
(b)
omit subsections (3) to (7D);
35
 
(c)
omit subsection (9).
 
 
(4)
Omit section 238B (conciliation and mediation: supplementary provisions).
 
 
(5)
In consequence of the amendments made by subsections (2) to (4) , in the
 
 
Employment Relations Act 2004—
 

Page 113

 
(a)
omit section 26 (dismissal where employees locked out);
 
 
(b)
omit section 27 (date of dismissal);
 
 
(c)
omit section 28 (dismissal after end of protected period);
 
 
(d)
in Schedule 1 (minor and consequential amendments), omit paragraph
 
 
13.
5

Strikes: minimum service levels

 
81
Repeal of provision about minimum service levels
 
 
(1)
In the Trade Union and Labour Relations (Consolidation) Act 1992, omit
 
 
sections 234B to 234G (minimum service levels for certain services).
 
 
(2)
Accordingly, in that Act—
10
 
(a)
in section 219 (protection from tort liabilities), in subsection (4), for
 
 
the words from “to”, in the first place it occurs, to “steps);” substitute
 
 
“to—
 
 
“(a)
sections 222 to 225 (action excluded from protection),
 
 
(b)
section 226 (requirement of ballot before action by trade
15
 
union), and
 
 
(c)
section 234A (requirement of notice to employer of
 
 
industrial action);”;
 
 
(b)
in section 234A (notice to employers of industrial action), in subsection
 
 
(3)—
20
 
(i)
at the end of paragraph (a), insert “and”;
 
 
(ii)
omit paragraph (ba) and the “and” before it;
 
 
(c)
omit the italic heading before section 234B;
 
 
(d)
for the italic heading before section 235 substitute “ Sections 226 to 234A:
 
 
meaning of “contract of employment ” ”;
25
 
(e)
in section 235 (construction of references to contract of employment)—
 
 
(i)
in the heading, at the end insert “in sections 226 to 234A”;
 
 
(ii)
for “to 234G” substitute “to 234A”;
 
 
(f)
in section 238A (unfair dismissal: participation in official industrial
 
 
action)—
30
 
(i)
in subsection (2), insert “and” at the end of paragraph (a) and
 
 
omit paragraph (aa) (and the “and” after it);
 
 
(ii)
for subsection (9) substitute—
 
 
“(9)
In this section “date of dismissal” has the meaning given
 
 
by section 238(5).”;
35
 
(g)
in section 246 (minor definitions), for “where section 229(2A) applies
 
 
(see that section and 234G(2))” substitute “for the purposes of section
 
 
229(2) (see section 229(2A))”;
 
 
(h)
in section 299 (index of defined expressions)—
 
 
(i)
in the entry for “contract of employment”, for “234G” substitute
40
 
“234A”;
 

Page 114

 
(ii)
in the entry for “not protected”, for “, 234A and 234E” substitute
 
 
“and 234A”;
 
 
(iii)
omit the entries for “minimum service regulations (in Part 5)”,
 
 
“relevant service (in Part 5)” and “work notice” (in Part 5)”.
 
 
(3)
The Strikes (Minimum Service Levels) Act 2023 is repealed.
5

Certification Officer

 
82
Annual returns: removal of provision about industrial action
 
 
(1)
In the Trade Union and Labour Relations (Consolidation) Act 1992, omit
 
 
section 32ZA (details of industrial action etc to be included in annual return).
 
 
(2)
In consequence of the amendment made by subsection (1) , omit section 7 of
10
 
the Trade Union Act 2016.
 
83
Annual returns: removal of provision about political expenditure
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (6) .
 
 
(2)
Omit section 32ZB (details of political expenditure to be included in annual
15
 
return).
 
 
(3)
In section 32ZC (enforcement)—
 
 
(a)
in the heading, for “sections 32ZA and 32ZB” substitute “section 32ZA”;
 
 
(b)
in subsection (1), omit “or 32ZB”.
 
 
(4)
In section 45 (rights of union members: offences), in subsection (1), for
20
 
“sections 32ZA and 32ZB” substitute “section 32ZA”.
 
 
(5)
In section 131 (administrative provisions applying to employers’ associations),
 
 
in subsection (1), omit “, section 32ZB”.
 
 
(6)
In section 135 (federated employers’ associations), in subsection (3), omit “,
 
 
section 32ZB”.
25
 
(7)
In consequence of the amendments made by subsections (2) to (6) , omit section
 
 
12 of the Trade Union Act 2016.
 
84
Removal of powers to enforce requirements relating to annual returns
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (5) .
30
 
(2)
Omit section 32ZC (enforcement of sections 32ZA and 32ZB).
 
 
(3)
In section 45 (rights of union members: offences), in subsection (1), for the
 
 
words from “section 32” to “sections 32A” substitute “sections 32”.
 

Page 115

 
(4)
In section 45D (appeals from Certification Officer on question arising in
 
 
proceedings etc under Chapters 1, 2 and 3 of Part 1), omit “, 32ZC”.
 
 
(5)
In section 256 (procedure before the Certification Officer), in subsection (1)(c),
 
 
omit “, 32ZC”.
 
 
(6)
In consequence of the amendments made by subsections (2) to (5) —
5
 
(a)
omit section 18 of the Trade Union Act 2016;
 
 
(b)
in section 83 of this Act, omit subsections (3) and (4).
 
85
Removal of investigatory powers
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (6) .
10
 
(2)
In section 25 (duties with respect to register of members’ names and addresses:
 
 
remedies), omit subsection (6A).
 
 
(3)
In section 45D (appeals from Certification Officer on question arising in
 
 
proceedings etc under Chapters 1, 2 and 3 of Part 1), omit “or paragraph 5
 
 
of Schedule A3”.
15
 
(4)
In section 256 (procedure before the Certification Officer), in subsection (1)(c),
 
 
omit “or under paragraph 5 of Schedule A3”.
 
 
(5)
Omit section 256C (investigatory powers).
 
 
(6)
Omit Schedule A3 (Certification Officer: investigatory powers).
 
 
(7)
In consequence of the amendments made by subsections (2) to (6) —
20
 
(a)
in section 43 of the Transparency of Lobbying, Non-Party Campaigning
 
 
and Trade Union Administration Act 2014, omit subsection (4);
 
 
(b)
in the Trade Union Act 2016—
 
 
(i)
in section 17, omit subsections (1) and (2);
 
 
(ii)
omit Schedule 1;
25
 
(iii)
in Schedule 4, omit paragraphs 2 and 3(b).
 
86
Powers to be exercised only on application
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) to (9) .
 
 
(2)
In section 45C (duty to secure union positions not held by certain offenders:
30
 
remedies and enforcement)—
 
 
(a)
in subsection (1), omit the words from “; but the Certification Officer”
 
 
to the end;
 
 
(b)
in subsection (2A)—
 
 
(i)
in paragraph (b), omit “(if any)”;
35
 
(ii)
in paragraph (c), omit “(if any)”.
 

Page 116

 
(3)
In section 54 (elections for union positions: remedies), in subsection (1), omit
 
 
the words after paragraph (b).
 
 
(4)
In section 55 (elections for union positions: powers of Certification Officer)—
 
 
(a)
in the heading, for “Powers of” substitute “Application to”;
 
 
(b)
in subsection (1)—
5
 
(i)
omit “, either”;
 
 
(ii)
omit paragraph (b) and the “or” before it;
 
 
(c)
in subsection (2)—
 
 
(i)
in paragraph (b), omit “(if any)”;
 
 
(ii)
in paragraph (c), omit “(if any)”.
10
 
(5)
In section 72A (application of funds in breach of section 71: remedies)—
 
 
(a)
in subsection (1), omit the words from “; but the Certification Officer”
 
 
to the end;
 
 
(b)
in subsection (2A)—
 
 
(i)
in paragraph (b), omit “(if any)”;
15
 
(ii)
in paragraph (c), omit “(if any)”.
 
 
(6)
In section 79 (remedy for failure to comply with political ballot rules), in
 
 
subsection (1), omit the words from “; but the Certification Officer” to the
 
 
end.
 
 
(7)
In section 80 (remedy for failure to comply with political ballot rules: powers
20
 
of Certification Officer)—
 
 
(a)
in the heading, for “Powers of” substitute “Application to”;
 
 
(b)
in subsection (1)—
 
 
(i)
omit “either”;
 
 
(ii)
omit “or without any such application having been made”;
25
 
(c)
in subsection (2)—
 
 
(i)
in paragraph (b), omit “(if any)”;
 
 
(ii)
in paragraph (c), omit “(if any)”.
 
 
(8)
In section 82 (rules as to political fund)—
 
 
(a)
in subsection (2), omit the words from “; but the Officer” to the end;
30
 
(b)
in subsection (3)—
 
 
(i)
in paragraph (b), omit “(if any)”;
 
 
(ii)
in paragraph (c), omit “(if any)”.
 
 
(9)
In section 103 (passing of amalgamation or transfer resolution: powers of
 
 
Certification Officer)—
35
 
(a)
in the heading, for “Powers of” substitute “Complaint to”;
 
 
(b)
in subsection (1), omit the words from “; but the Officer” to the end;
 
 
(c)
in subsection (3A)—
 
 
(i)
in paragraph (b), omit “(if any)”;
 
 
(ii)
in paragraph (c), omit “(if any)”.
40

Page 117

 
(10)
In consequence of the amendments made by subsections (2) to (9) , in the
 
 
Trade Union Act 2016—
 
 
(a)
in section 17(3), for the words from “to enable the Certification Officer”
 
 
to “the Officer” substitute “in relation to the powers of the Certification
 
 
Officer”;
5
 
(b)
in Schedule 2—
 
 
(i)
in the heading of the Schedule, omit “without application”;
 
 
(ii)
in paragraph 3, omit sub-paragraph (2);
 
 
(iii)
in paragraph 6, omit sub-paragraph (2).
 
87
Removal of power to impose financial penalties
10
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
in accordance with subsections (2) and (3) .
 
 
(2)
Omit section 256D (power to impose financial penalties).
 
 
(3)
Omit Schedule A4 (Certification Officer: power to impose financial penalties).
 
 
(4)
In consequence of the amendments made by subsections (2) and (3) , in the
15
 
Trade Union Act 2016—
 
 
(a)
in section 19, omit subsections (1) to (3);
 
 
(b)
omit Schedule 3.
 
88
Removal of power to impose levy
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
20
 
in accordance with subsections (2) and (3) .
 
 
(2)
Omit section 257A (levy payable to Certification Officer).
 
 
(3)
In section 258 (Certification Officer: annual reports and account), omit
 
 
subsection (1A).
 
 
(4)
In consequence of the amendments made by subsections (2) and (3) , omit
25
 
section 20 of the Trade Union Act 2016.
 
89
Appeals to the Employment Appeal Tribunal
 
 
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
as follows.
 
 
(2)
In section 45D (appeals from Certification Officer on question arising in
30
 
proceedings etc under Chapters 1, 2 and 3 of Part 1), after “question” insert
 
 
“of law”.
 
 
(3)
In section 56A (appeal from Certification Officer on question arising in
 
 
proceedings etc under section 55), after “question” insert “of law”.
 
 
(4)
In section 95 (appeal from Certification Officer on question arising in
35
 
proceedings etc under Chapter 6 of Part 1), after “question” insert “of law”.
 

Page 118

 
(5)
In section 104 (appeal from Certification Officer on question arising in
 
 
proceedings etc under section 103), after “question” insert “of law”.
 
 
(6)
In section 108C (appeal from Certification Officer on question arising in
 
 
proceedings etc under Chapter 7A of Part 1), after “question” insert “of law”.
 

General

5
90
Employment outside Great Britain
 
 
In section 285 of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (employment outside Great Britain)—
 
 
(a)
in subsection (1), before “works” insert “ordinarily”;
 
 
(b)
in subsection (1A), before “works” insert “ordinarily”.
10
91
Regulations subject to affirmative resolution procedure
 
 
In section 293 of the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 (regulations), for subsection (3) substitute—
 
 
“(3)
Regulations under this section are to be made by statutory instrument.
 
 
(4)
A statutory instrument containing regulations to which subsection (5)
15
 
applies (whether alone or with other provision) may not be made
 
 
unless a draft of the instrument is laid before and approved by a
 
 
resolution of each House of Parliament.
 
 
(5)
This subsection applies to regulations prescribing anything for the
 
 
purposes of—
20
 
(a)
section 70ZC (access agreements: response period and
 
 
negotiation period);
 
 
(b)
section 70ZE (access agreements: period to make application
 
 
to Central Arbitration Committee);
 
 
(c)
section 70ZF (access agreements: determinations by Central
25
 
Arbitration Committee);
 
 
(d)
section 70ZJ (enforcement of access agreements: amounts
 
 
payable for breach);
 
 
(e)
section 236A (detriment for taking industrial action).
 
 
(6)
Any other statutory instrument containing regulations under this
30
 
section is subject to annulment in pursuance of a resolution of either
 
 
House of Parliament.”
 
92
Devolved Welsh authorities
 
 
In consequence of provision made by this Part—
 
 
(a)
in the Trade Union and Labour Relations (Consolidation) Act 1992—
35
 
(i)
omit section 297B (devolved Welsh authorities);
 

Page 119

 
(ii)
in section 299 (index of defined expressions), omit the entry
 
 
for “devolved Welsh authority”;
 
 
(b)
in the Trade Union (Wales) Act 2017 (anaw 4), omit section 1
 
 
(amendments to the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992).
5

Part 5

 

Enforcement of labour market legislation

 

General

 
93
Enforcement of labour market legislation by Secretary of State
 
 
(1)
The Secretary of State has the function of enforcing the labour market
10
 
legislation listed in Part 1 of Schedule 7 (but see also section 95 ).
 
 
(2)
For the purposes of enabling the Secretary of State to perform that function,
 
 
this Part confers powers on—
 
 
(a)
the Secretary of State, and
 
 
(b)
enforcement officers.
15
 
(3)
In this Part “enforcement officer” means a person appointed by the Secretary
 
 
of State under this section.
 
 
(4)
The powers of an enforcement officer include power to exercise any of the
 
 
Secretary of State’s enforcement functions, other than the function under
 
 
subsection (1).
20
 
(5)
Accordingly, in the case of the exercise by an enforcement officer of an
 
 
enforcement function of the Secretary of State, any reference in an enactment
 
 
to the Secretary of State in connection with that function is to be read as, or
 
 
as including, a reference to that officer or any other enforcement officer.
 
 
(6)
A person appointed under this section may exercise any powers of an
25
 
enforcement officer to the extent specified in the appointment.
 
 
(7)
Subsection (1) does not limit the Secretary of State’s powers under—
 
 
(a)
section 119 (power to bring proceedings in employment tribunal), or
 
 
(b)
section 120 (power to provide legal assistance).
 
 
(8)
Nothing in this section authorises the Secretary of State to bring proceedings
30
 
in Scotland for an offence.
 
94
Enforcement functions of Secretary of State
 
 
(1)
Any reference in this Part to an enforcement function of the Secretary of State
 
 
is a reference to—
 
 
(a)
any function of the Secretary of State under this Part,
35

Page 120

 
(b)
any function of the Secretary of State under any provision of relevant
 
 
labour market legislation, or
 
 
(c)
any other function of the Secretary of State that is exercisable for the
 
 
purposes of enforcing any relevant labour market legislation.
 
 
(2)
But the following functions are not enforcement functions of the Secretary of
5
 
State for the purposes of this Part—
 
 
(a)
the power to appoint enforcement officers under section 93 ;
 
 
(b)
any function under section 95 (delegation of functions);
 
 
(c)
any function under section 96 (Advisory Board);
 
 
(d)
any function under section 97 or 98 (strategies and reports);
10
 
(e)
any function under or by virtue of section 119 or 120 (powers in
 
 
relation to civil proceedings);
 
 
(f)
any function under Part 1 of Schedule 11 (transfer schemes);
 
 
(g)
any power to give directions or make subordinate legislation.
 
95
Delegation of functions
15
 
(1)
The Secretary of State may make arrangements with a public authority—
 
 
(a)
for the authority to exercise any delegable function of the Secretary
 
 
of State to the extent specified in the arrangements;
 
 
(b)
for officers or other staff of the authority to be appointed as
 
 
enforcement officers.
20
 
(2)
The following functions are “delegable functions”—
 
 
(a)
any enforcement function of the Secretary of State;
 
 
(b)
any function of the Secretary of State by virtue of section 119 (power
 
 
to bring proceedings in employment tribunal);
 
 
(c)
any function of the Secretary of State under section 7 or 11 of the
25
 
Gangmasters (Licensing) Act 2004 (powers relating to licensing of
 
 
gangmasters).
 
 
(3)
Accordingly, in the case of the exercise of a function by a public authority in
 
 
accordance with arrangements under this section, any reference in an
 
 
enactment to the Secretary of State in connection with that function is to be
30
 
read as a reference to that authority.
 
 
(4)
Arrangements under this section may provide for payments to be made by
 
 
the Secretary of State in respect of the performance of any function to which
 
 
the arrangements relate.
 
 
(5)
Arrangements under this section do not prevent the Secretary of State from
35
 
performing a function to which the arrangements relate.
 
 
(6)
In this section “public authority” means a person certain of whose functions
 
 
are functions of a public nature.
 

Page 121

Advisory Board

 
96
Advisory Board
 
 
(1)
The Secretary of State must establish an Advisory Board (“the Board”) for the
 
 
purposes of providing advice to the Secretary of State about such matters as
 
 
the Secretary of State may specify relating to the Secretary of State’s function
5
 
under section 93 (1).
 
 
(2)
The Board is to consist of not fewer than nine members appointed by the
 
 
Secretary of State.
 
 
(3)
Each member of the Board is to hold and vacate office in accordance with
 
 
the terms and conditions of the member’s appointment.
10
 
(4)
The members of the Board must include an equal number of each of the
 
 
following—
 
 
(a)
persons appearing to the Secretary of State to represent the interests
 
 
of trade unions;
 
 
(b)
persons appearing to the Secretary of State to represent the interests
15
 
of employers;
 
 
(c)
persons appearing to the Secretary of State to be independent experts.
 
 
(5)
For the purposes of subsection (4)(c) an “independent expert” is a person
 
 
who—
 
 
(a)
is not a person falling within paragraph (a) or (b) of subsection (4),
20
 
and
 
 
(b)
has expertise that is relevant to the Secretary of State’s function under
 
 
section 93 (1).
 
 
(6)
The Secretary of State may pay such remuneration or allowances to members
 
 
of the Board as the Secretary of State may determine.
25
 
(7)
In addition to the matters referred to in subsection (1) , the Board may also
 
 
provide advice to the Secretary of State about such matters as the Secretary
 
 
of State may specify relating to the Secretary of State’s functions under or by
 
 
virtue of sections 119 and 120 (powers in relation to civil proceedings).
 

Strategies and reports

30
97
Labour market enforcement strategy
 
 
(1)
The Secretary of State must, before the beginning of each relevant three-year
 
 
period (see subsection (6) ), prepare and publish a labour market enforcement
 
 
strategy for that period.
 
 
(2)
A labour market enforcement strategy is a document that—
35
 
(a)
sets out the Secretary of State’s assessment of—
 

Page 122

 
(i)
the scale and nature of non-compliance with relevant labour
 
 
market legislation during the period of three years ending
 
 
immediately before the strategy period, and
 
 
(ii)
the likely scale and nature of such non-compliance during the
 
 
strategy period,
5
 
(b)
contains a proposal for the strategy period setting out how enforcement
 
 
functions of the Secretary of State are to be exercised, and
 
 
(c)
deals with any other matters which the Secretary of State considers
 
 
appropriate.
 
 
(3)
The Secretary of State—
10
 
(a)
may, at any time during the strategy period, revise the labour market
 
 
enforcement strategy, and
 
 
(b)
must publish any revised labour market enforcement strategy.
 
 
(4)
In preparing or revising a labour market enforcement strategy, the Secretary
 
 
of State must consult the Advisory Board.
15
 
(5)
The Secretary of State must lay before Parliament and the Northern Ireland
 
 
Assembly a copy of any strategy published under this section.
 
 
(6)
In this section—
 
 
“relevant three-year period” means—
 
 
(a)
the period of three years beginning with the next 1 April after
20
 
the day on which this section comes into force;
 
 
(b)
each successive period of three years;
 
 
“strategy period” , in relation to a labour market enforcement strategy,
 
 
means the period to which the strategy relates.
 
98
Annual reports
25
 
(1)
As soon as reasonably practicable after the end of each financial year, the
 
 
Secretary of State must prepare and publish an annual report for that year.
 
 
(2)
The annual report must include the following—
 
 
(a)
an assessment of the extent to which enforcement functions of the
 
 
Secretary of State were exercised in accordance with the applicable
30
 
strategy during the year;
 
 
(b)
an assessment of the extent to which the applicable strategy had an
 
 
effect on the scale and nature of non-compliance with relevant labour
 
 
market legislation during the year.
 
 
(3)
Before publishing an annual report under this section, the Secretary of State
35
 
must consult the Advisory Board.
 
 
(4)
The Secretary of State must lay before Parliament and the Northern Ireland
 
 
Assembly a copy of every annual report published under this section.
 
 
(5)
In this section—
 

Page 123

 
“the applicable strategy” , in relation to a financial year, means any labour
 
 
market enforcement strategy published under section 97 that has effect
 
 
for that year;
 
 
“financial year” means—
 
 
(a)
the period beginning with the day on which this section comes
5
 
into force and ending with the following 31 March, and
 
 
(b)
each successive period of 12 months.
 

Powers to obtain documents or information

 
99
Power to obtain documents or information
 
 
(1)
The Secretary of State may by notice require a person—
10
 
(a)
to attend at a specified time and place and to provide information by
 
 
answering questions;
 
 
(b)
to provide specified information, or information of a specified
 
 
description, by a specified date;
 
 
(c)
to provide specified documents, or documents of a specified
15
 
description, by a specified date.
 
 
In this subsection “specified” means specified in the notice.
 
 
(2)
The Secretary of State may give a notice under this section to a person only
 
 
if the Secretary of State has reasonable grounds to believe that—
 
 
(a)
in the case of a requirement under subsection (1)(a), the person is able
20
 
to provide information which is necessary for any enforcement purpose;
 
 
(b)
in the case of a requirement under subsection (1)(b) or (c)—
 
 
(i)
it is necessary to obtain the information or document (as the
 
 
case may be) for any enforcement purpose, and
 
 
(ii)
the person is able to provide it.
25
 
(3)
In this section “enforcement purpose” means—
 
 
(a)
the purpose of enabling the Secretary of State to determine whether
 
 
to exercise any enforcement function;
 
 
(b)
the purpose of determining whether there has been any non-compliance
 
 
with relevant labour market legislation;
30
 
(c)
in the case of a requirement under subsection (1)(c), the purpose of
 
 
ascertaining whether the documents may be required as evidence in
 
 
proceedings for any non-compliance with relevant labour market
 
 
legislation.
 
100
Power to enter premises in order to obtain documents, etc
35
 
(1)
An enforcement officer may, for any enforcement purpose—
 
 
(a)
enter any premises, and
 
 
(b)
exercise any powers within subsection (2).
 
 
This is subject to section 101 (which provides that a warrant is necessary to
 
 
enter a dwelling).
40

Page 124

 
(2)
The powers referred to in subsection (1)(b) are—
 
 
(a)
to inspect or examine any documents on the premises;
 
 
(b)
to require any person on the premises to produce any documents
 
 
which the officer has reasonable grounds to believe are on the premises
 
 
and within the person’s possession or control;
5
 
(c)
to have access to, and check the operation of, any computer or other
 
 
equipment used in connection with the processing or storage of any
 
 
information or documents.
 
 
(3)
The officer may only exercise a power conferred by this section at a reasonable
 
 
time, unless it appears to the officer that there are grounds for suspecting
10
 
that the purpose of entering the premises may be frustrated if the officer
 
 
seeks to enter at a reasonable time.
 
 
(4)
An enforcement officer may seize any document produced, inspected or
 
 
examined under this section.
 
 
(5)
In this section—
15
 
“enforcement purpose” means—
 
 
(a)
the purpose of enabling the Secretary of State to determine
 
 
whether to exercise any enforcement function;
 
 
(b)
the purpose of determining whether there has been any
 
 
non-compliance with relevant labour market legislation;
20
 
(c)
the purpose of ascertaining whether there are documents on
 
 
the premises which may be required as evidence in proceedings
 
 
for any non-compliance with relevant labour market legislation;
 
 
“equipment” includes software.
 
101
Power to enter dwelling subject to warrant
25
 
(1)
An enforcement officer may not by virtue of section 100 enter any dwelling
 
 
unless a justice has issued a warrant authorising the officer to enter the
 
 
dwelling.
 
 
(2)
A justice may issue a warrant under this section only if, on an application
 
 
by the officer, the justice is satisfied—
30
 
(a)
that the officer has reasonable grounds to believe that—
 
 
(i)
there are documents in the dwelling which for any enforcement
 
 
purpose the officer wishes to inspect, examine or seize, or
 
 
(ii)
there is computer or other equipment in the dwelling to which
 
 
the officer wishes to have access for any enforcement purpose,
35
 
and
 
 
(b)
that any of the conditions in subsection (3) is satisfied.
 
 
(3)
The conditions are—
 
 
(a)
that it is not practicable to communicate with any person entitled to
 
 
grant entry to the dwelling;
40

Page 125

 
(b)
that it is not practicable to communicate with any person entitled to
 
 
grant access to the documents or equipment;
 
 
(c)
that entry to the dwelling is unlikely to be granted unless a warrant
 
 
is produced;
 
 
(d)
that the purpose of entry may be frustrated or seriously prejudiced
5
 
unless an enforcement officer arriving at the dwelling can secure
 
 
immediate entry to it.
 
 
(4)
In this section—
 
 
“enforcement purpose” has the same meaning as in section 100 ;
 
 
“justice” means—
10
 
(a)
in relation to England and Wales, a justice of the peace;
 
 
(b)
in relation to Scotland, a sheriff or summary sheriff;
 
 
(c)
in relation to Northern Ireland, a lay magistrate.
 
 
(5)
For further provision about warrants under this section, see section 134 and
 
 
Schedule 8 .
15
102
Supplementary powers in relation to documents
 
 
(1)
A power conferred by section 99 or 100 to require the production or provision
 
 
of any document includes, in the case of a document stored in an electronic
 
 
form, power to require the document to be produced or provided in a form—
 
 
(a)
in which it can be taken away, and
20
 
(b)
in which it is visible and legible or from which it can readily be
 
 
produced in a visible and legible form.
 
 
(2)
The Secretary of State may inspect or examine any document provided under
 
 
section 99 .
 
 
(3)
The Secretary of State or an enforcement officer may take copies of any
25
 
document—
 
 
(a)
provided in response to a requirement under section 99 , or
 
 
(b)
inspected, examined or produced under section 100 .
 
103
Retention of documents
 
 
(1)
This section applies to any document which—
30
 
(a)
is provided in response to a requirement under section 99 , or
 
 
(b)
is seized under section 100 .
 
 
(2)
The document may be retained so long as is necessary in all the circumstances
 
 
and in particular—
 
 
(a)
for use as evidence at a trial for a labour market offence, or
35
 
(b)
for forensic examination or for investigation in connection with a
 
 
labour market offence.
 
 
(3)
No document may be retained for either of the purposes mentioned in
 
 
subsection (2) if a photograph or a copy would be sufficient for that purpose.
 

Page 126

Other powers to investigate non-compliance

 
104
Powers of enforcement officers under Police and Criminal Evidence Act 1984
 
 
For provision enabling enforcement officers in England and Wales to exercise
 
 
powers under the Police and Criminal Evidence Act 1984 in relation to the
 
 
investigation of labour market offences, see section 114B of that Act.
5
105
Offences relating to gangmasters: power to enter premises with warrant
 
 
(1)
In this section—
 
 
(a)
“relevant contravention” means a contravention of section 6 of the
 
 
Gangmasters (Licensing) Act 2004 (prohibition of unlicensed activities),
 
 
so far as it applies in relation to England and Wales and Scotland;
10
 
(b)
references to an enforcement officer do not include an enforcement
 
 
officer who is authorised by virtue of section 114B of the Police and
 
 
Criminal Evidence Act 1984 to exercise any power under Part 2 of
 
 
that Act in relation to a relevant contravention.
 
 
(2)
If a justice is satisfied that there are reasonable grounds for an enforcement
15
 
officer to enter relevant premises for the purpose of determining whether
 
 
there has been a relevant contravention, and is also satisfied—
 
 
(a)
that admission to the premises has been refused, or that a refusal is
 
 
expected, and (in either case) that notice of the intention to apply for
 
 
a warrant has been given to the occupier,
20
 
(b)
that an application for admission, or the giving of such a notice, would
 
 
defeat the object of the entry,
 
 
(c)
that the case is one of extreme urgency, or
 
 
(d)
that the premises are unoccupied or the occupier is temporarily absent,
 
 
the justice may issue a warrant authorising the enforcement officer to enter
25
 
the premises, if necessary using reasonable force.
 
 
(3)
The reference in subsection (2) to being satisfied that there are reasonable
 
 
grounds as mentioned in that subsection is, in relation to England and Wales,
 
 
a reference to being satisfied by written information on oath.
 
 
(4)
An enforcement officer entering any premises by virtue of a warrant under
30
 
this section may—
 
 
(a)
when entering the premises, bring any equipment which the officer
 
 
considers necessary,
 
 
(b)
exercise any power conferred by section 100 (2) or (4) ,
 
 
(c)
carry out on the premises any other inspections and examinations
35
 
which the officer considers necessary for the purpose of determining
 
 
whether there has been a relevant contravention, and
 
 
(d)
seize any item which is on the premises.
 
 
(5)
Where by virtue of subsection (4)(d) an enforcement officer seizes any item,
 
 
the officer must leave on the premises from which the item was removed a
40

Page 127

 
statement giving details of what was seized and stating that the officer has
 
 
seized it.
 
 
(6)
Any item seized by an enforcement officer by virtue of subsection (4)(d) may
 
 
be retained for as long as the officer considers necessary for the purpose of
 
 
determining whether there has been a relevant contravention.
5
 
(7)
In this section—
 
 
“justice” means—
 
 
(a)
in relation to England and Wales, a justice of the peace;
 
 
(b)
in relation to Scotland, the sheriff, a summary sheriff or a justice
 
 
of the peace;
10
 
“relevant premises” means any premises which an enforcement officer
 
 
has reasonable grounds to believe are—
 
 
(a)
premises where a person acting as a gangmaster, or a person
 
 
supplied with workers or services by a person acting as a
 
 
gangmaster, carries on business, or
15
 
(b)
premises which such a person uses in connection with the
 
 
person’s business;
 
 
“worker” has the same meaning as in the Gangmasters (Licensing) Act
 
 
2004 (see section 26 of that Act).
 
 
(8)
Section 4 of the Gangmasters (Licensing) Act 2004 (acting as a gangmaster)
20
 
applies for the purposes of this section as it applies for the purposes of that
 
 
Act.
 
 
(9)
For further provision about warrants under this section, see section 134 and
 
 
Schedule 8 .
 

Notices of underpayment

25
106
Power to give notice of underpayment
 
 
(1)
Where it appears to the Secretary of State that—
 
 
(a)
on any day (“the relevant day”), a sum in respect of—
 
 
(i)
one or more periods ending before the relevant day, or
 
 
(ii)
one or more events occurring before the relevant day,
30
 
was due from a person (the “liable party”) to an individual (the
 
 
“underpaid individual”) under or by virtue of a statutory pay provision
 
 
(see subsection (7) ), and
 
 
(b)
any period for payment of that sum to be made has ended without
 
 
the sum having been paid to the underpaid individual,
35
 
the Secretary of State may give a notice of underpayment to the liable party.
 
 
(2)
A notice of underpayment is a notice under this section requiring the liable
 
 
party to pay the required sum to the underpaid individual before the end of
 
 
the period of 28 days beginning with the day on which the notice is given.
 
 
For the meaning of the “required sum”, see section 107 .
40

Page 128

 
(3)
Subsection (1) is subject to—
 
 
(a)
subsection (6) , and
 
 
(b)
section 108 (period to which notice of underpayment may relate).
 
 
(4)
The Secretary of State may give a notice of underpayment to a person in
 
 
respect of a sum that was due from the person on the relevant day whether
5
 
or not the sum remains due at the time of the giving of the notice (see, in
 
 
particular, section 110 (penalties for underpayment)).
 
 
(5)
But where all or part of that sum has been paid before the giving of the notice,
 
 
the requirement imposed by the notice is, to that extent, to be treated as met.
 
 
(6)
The Secretary of State may not give a notice of underpayment in respect of
10
 
any matter if—
 
 
(a)
proceedings have been brought about the matter by virtue of section
 
 
119 (power to bring proceedings in employment tribunal), and
 
 
(b)
the proceedings have not been finally determined or discontinued.
 
 
(7)
In this Part “statutory pay provision” means a provision of relevant labour
15
 
market legislation that—
 
 
(a)
confers a right or entitlement to the payment of any sum to an
 
 
individual, or
 
 
(b)
prohibits or restricts the withholding of payment of any sum to an
 
 
individual.
20
107
Calculation of the required sum
 
 
(1)
For the purposes of section 106 (2) , the “required sum” is whichever is the
 
 
greater of the following sums—
 
 
(a)
the sum that was due to the underpaid individual on the relevant
 
 
day;
25
 
(b)
in a case where regulations under subsection (2) apply, the sum
 
 
determined in accordance with the regulations.
 
 
This is subject to subsection (4) .
 
 
(2)
Regulations made by the Secretary of State may make provision for
 
 
determining the sum required to be paid to an individual by a notice of
30
 
underpayment in a case where the sum due to the individual on any day
 
 
under or by virtue of a statutory pay provision would have been greater had
 
 
that sum been determined by reference to the statutory pay provision as it
 
 
has effect at the time of giving the notice of underpayment.
 
 
(3)
But regulations under subsection (2) may not make provision in relation to
35
 
any provision of the National Minimum Wage Act 1998 (see instead section
 
 
17 of that Act).
 
 
(4)
If the required sum in respect of an underpaid individual would (in the
 
 
absence of this subsection) be greater than the specified maximum for the
 
 
statutory pay provision concerned, the required sum in respect of the
40
 
underpaid individual is the specified maximum.
 

Page 129

 
(5)
For the purposes of subsection (4) “the specified maximum”, in relation to a
 
 
statutory pay provision, means an amount specified by, or determined in
 
 
accordance with, regulations made by the Secretary of State.
 
 
(6)
Regulations under this section are subject to the affirmative resolution
 
 
procedure.
5
108
Period to which notice of underpayment may relate
 
 
(1)
A notice of underpayment may not relate to any sum that became due under
 
 
or by virtue of a statutory pay provision before the beginning of the claim
 
 
period.
 
 
(2)
The “claim period”, in relation to a notice of underpayment, is the period of
10
 
six years ending with the day on which the notice is given.
 
 
(3)
The Secretary of State may by regulations amend this section so as to alter
 
 
the length of the claim period.
 
 
(4)
Regulations under subsection (3) —
 
 
(a)
may specify different claim periods in relation to different statutory
15
 
pay provisions;
 
 
(b)
may not provide for the claim period in relation to a notice of
 
 
underpayment to be greater than the period of six years ending with
 
 
the day on which the notice is given.
 
 
(5)
Regulations under subsection (3) are subject to the affirmative resolution
20
 
procedure.
 
 
(6)
A notice of underpayment may relate to sums that became due before the
 
 
coming into force of this section.
 
 
(7)
But a notice of underpayment may not relate to any sum that became due
 
 
before the day on which this Act is passed.
25
 
(8)
Subsection (7) does not apply to a notice of underpayment so far as it relates
 
 
to any sum due under section 17 of the National Minimum Wage Act 1998
 
 
(entitlement to additional remuneration for failure to pay at least the minimum
 
 
wage).
 
 
(9)
See also section 115 (3) (claim period for replacement notices of underpayment).
30
109
Notices of underpayment: further provision
 
 
(1)
Where a notice of underpayment relates to more than one underpaid
 
 
individual, the notice may identify the individuals by name or by description.
 
 
(2)
A notice of underpayment must specify, for each underpaid individual to
 
 
whom it relates—
35
 
(a)
the relevant day in relation to the individual;
 
 
(b)
the sum due to the individual on that day and how that sum was
 
 
calculated;
 

Page 130

 
(c)
the period or periods, or event or events, in respect of which it was
 
 
due;
 
 
(d)
the statutory pay provision under or by virtue of which it was due;
 
 
(e)
the fact that any period for payment of that sum to be made ended
 
 
without the sum having been paid;
5
 
(f)
the required sum in respect of the individual and (if different from
 
 
the sum mentioned in paragraph (b)) how that sum was calculated.
 
110
Penalties for underpayment
 
 
(1)
A notice of underpayment must require the liable party to pay a penalty to
 
 
the Secretary of State.
10
 
This is subject to section 111 (1) (power to specify exceptions).
 
 
(2)
The penalty must be paid before the end of the period of 28 days beginning
 
 
with the day on which the notice is given.
 
 
(3)
The amount of the penalty is the total of the amounts for each underpaid
 
 
individual to whom the notice relates calculated in accordance with subsections
15
 
(4) and (5) (but see subsection (6) ).
 
 
(4)
The amount for each underpaid individual to whom the notice relates is 200%
 
 
of the sum specified in the notice of underpayment as the sum due to the
 
 
individual on the relevant day (see section 109 (2) (b) ).
 
 
(5)
But if the amount determined under subsection (4) for any underpaid
20
 
individual would be more than £20,000, the amount for the individual taken
 
 
into account in calculating the penalty is to be £20,000.
 
 
(6)
If a penalty calculated in accordance with subsection (3) would be less than
 
 
£100, the amount of the penalty is to be £100.
 
 
(7)
The Secretary of State may by regulations amend this section—
25
 
(a)
so as to substitute a different percentage for a percentage for the time
 
 
being specified in this section;
 
 
(b)
so as to substitute a different amount for an amount for the time being
 
 
specified in this section;
 
 
(c)
so as to specify different percentages or amounts for different purposes.
30
 
(8)
Regulations under subsection (7) are subject to the affirmative resolution
 
 
procedure.
 
111
Further provision about penalties
 
 
(1)
The Secretary of State may by directions specify circumstances in which a
 
 
notice of underpayment is not to impose a requirement to pay a penalty.
35
 
(2)
A direction under subsection (1) may be amended or revoked by a further
 
 
direction.
 
 
(3)
A notice of underpayment that imposes a requirement to pay a penalty must—
 

Page 131

 
(a)
specify the amount of the penalty,
 
 
(b)
state how that amount was calculated, and
 
 
(c)
specify the date by which the penalty must be paid.
 
 
(4)
In a case where a notice of underpayment imposes a requirement on a person
 
 
to pay a penalty, if the person, before the end of the period of 14 days
5
 
beginning with the day on which the notice is given—
 
 
(a)
pays (or has paid) the required sum specified in the notice of
 
 
underpayment, and
 
 
(b)
pays at least half the penalty,
 
 
the person is to be regarded as having paid the penalty.
10
 
(5)
Any penalty received by the Secretary of State in accordance with section 110
 
 
is to be paid into the Consolidated Fund.
 
112
Suspension of penalty where criminal proceedings have been brought, etc
 
 
(1)
Subsection (3) applies where—
 
 
(a)
the Secretary of State is proposing to give a notice of underpayment
15
 
that imposes a requirement on a person to pay a penalty, and
 
 
(b)
it appears to the Secretary of State that—
 
 
(i)
relevant criminal proceedings have been brought, or
 
 
(ii)
relevant criminal proceedings may be brought.
 
 
(2)
In this section “relevant criminal proceedings” means proceedings against the
20
 
person for a labour market offence in respect of any act or omission to which
 
 
the notice relates (“the relevant conduct”).
 
 
(3)
The notice of underpayment may contain provision suspending the
 
 
requirement to pay the penalty until a notice terminating the suspension is
 
 
given to the person under subsection (4) .
25
 
(4)
The Secretary of State may give the person a notice terminating the suspension
 
 
(a “penalty activation notice”) if it appears to the Secretary of State—
 
 
(a)
in a case referred to in subsection (1) (b) (i) , that the proceedings have
 
 
concluded without the person having been convicted of a labour
 
 
market offence in respect of the relevant conduct, or
30
 
(b)
in a case referred to in subsection (1) (b) (ii) —
 
 
(i)
that relevant criminal proceedings will not be brought, or
 
 
(ii)
that relevant criminal proceedings have concluded without the
 
 
person having been convicted of a labour market offence in
 
 
respect of the relevant conduct.
35
 
(5)
Where a penalty activation notice is given, the requirement to pay the penalty
 
 
has effect as if the notice of underpayment had been given on the day on
 
 
which the penalty activation notice was given.
 
 
(6)
The Secretary of State must give the person a notice withdrawing the
 
 
requirement to pay the penalty if it appears to the Secretary of State that the
40

Page 132

 
person has been convicted of a labour market offence in respect of the relevant
 
 
conduct.
 
113
Appeals against notices of underpayment
 
 
(1)
A person to whom a notice of underpayment is given may appeal to a tribunal
 
 
against any one or more of the following—
5
 
(a)
the decision to give the notice;
 
 
(b)
any requirement imposed by the notice to pay a sum to an individual;
 
 
(c)
any requirement imposed by the notice to pay a penalty.
 
 
(2)
An appeal under this section must be made before the end of the period of
 
 
28 days beginning with the day on which the notice is given.
10
 
(3)
An appeal under subsection (1) (a) may be made only on one or more of the
 
 
following grounds—
 
 
(a)
that no sum was due to any individual to whom the notice relates on
 
 
the specified day under or by virtue of the specified provision;
 
 
(b)
that, in the case of every sum specified in the notice as due to an
15
 
individual to whom the notice relates, the sum had been paid before
 
 
the end of the period mentioned in section 106 (1) (b) ;
 
 
(c)
that, in the case of every sum specified in the notice as due to an
 
 
individual to whom the notice relates, the sum was one to which a
 
 
notice may not relate by virtue of subsection (1) or (7) of section 108
20
 
(period to which notice may relate).
 
 
(4)
An appeal under subsection (1) (b) in relation to an individual may be made
 
 
only on one or more of the following grounds—
 
 
(a)
that, on the specified day, no sum was due to the individual under
 
 
or by virtue of the specified provision;
25
 
(b)
that, in the case of any sum specified in the notice as due to the
 
 
individual, the sum had been paid before the end of the period
 
 
mentioned in section 106 (1) (b) ;
 
 
(c)
that, in the case of any sum specified in the notice as due to the
 
 
individual, the sum was one to which a notice may not relate by virtue
30
 
of subsection (1) or (7) of section 108 ;
 
 
(d)
that the amount specified in the notice as the sum required to be paid
 
 
to the individual is incorrect;
 
 
(e)
that, in the case of a replacement notice given under section 115 , the
 
 
notice contravenes subsection (2) of that section.
35
 
(5)
An appeal under subsection (1) (c) may be made only on one or more of the
 
 
following grounds—
 
 
(a)
that the notice was given in circumstances specified in a direction
 
 
under section 111 (1) ;
 
 
(b)
that the amount of the penalty specified in the notice of underpayment
40
 
has been incorrectly calculated (whether because the notice is incorrect
 

Page 133

 
in some of the particulars which affect that calculation or for some
 
 
other reason).
 
 
(6)
Where the tribunal allows an appeal under subsection (1) (a) , it must cancel
 
 
the notice.
 
 
(7)
Where, in a case where subsection (6) does not apply, the tribunal allows an
5
 
appeal under subsection (1) (b) or (c) —
 
 
(a)
the tribunal must rectify the notice, and
 
 
(b)
the notice of underpayment, as rectified, has effect as if it had been
 
 
given on the day on which the tribunal makes its determination.
 
 
(8)
In this section—
10
 
“the specified day” , in relation to an individual, means the day specified
 
 
in accordance with section 109 (2) (a) in relation to the individual;
 
 
“the specified provision” , in relation to an individual, means the statutory
 
 
pay provision specified in accordance with section 109 (2) (d) in relation
 
 
to the individual;
15
 
“tribunal” means—
 
 
(a)
an employment tribunal, in relation to England and Wales or
 
 
Scotland;
 
 
(b)
an industrial tribunal, in relation to Northern Ireland.
 
114
Withdrawal of notice of underpayment
20
 
(1)
Where—
 
 
(a)
a notice of underpayment has been given to a person (and not already
 
 
withdrawn or cancelled), and
 
 
(b)
it appears to the Secretary of State that the notice incorrectly includes
 
 
or omits any requirement or is incorrect in any particular,
25
 
the Secretary of State may withdraw it by giving a notice of withdrawal to
 
 
the person.
 
 
(2)
Where a notice of underpayment given to a person is withdrawn and no
 
 
replacement notice of underpayment is given in accordance with section 115 —
 
 
(a)
any sum paid by or recovered from the person by way of penalty
30
 
payable under the notice must be repaid to the person with interest
 
 
at the appropriate rate running from the date when the sum was paid
 
 
or recovered;
 
 
(b)
any appeal against the notice must be dismissed.
 
 
(3)
In subsection (2) (a) “the appropriate rate” means the rate that, on the date
35
 
the sum was paid or recovered, was specified in section 17 of the Judgments
 
 
Act 1838.
 
 
(4)
Where subsection (2) applies, the notice of withdrawal must indicate the effect
 
 
of that subsection (but a failure to do so does not make the withdrawal
 
 
ineffective).
40

Page 134

115
Replacement notice of underpayment
 
 
(1)
If the Secretary of State—
 
 
(a)
gives a notice of withdrawal to a person under section 114 , and
 
 
(b)
is of the opinion referred to in section 106 (1) in relation to any
 
 
individual specified in the notice which is being withdrawn (“the
5
 
original notice”),
 
 
the Secretary of State may at the same time give a fresh notice of
 
 
underpayment to the person (a “replacement notice”).
 
 
(2)
The replacement notice may not relate to any individual to whom the original
 
 
notice did not relate.
10
 
(3)
The claim period for a replacement notice (see section 108 (1) ) is the period—
 
 
(a)
beginning with the claim period for the original notice, and
 
 
(b)
ending with the day on which the replacement notice is given.
 
 
Accordingly, the replacement notice may relate to sums that became due after
 
 
the day on which the original notice was given.
15
 
(4)
The replacement notice must—
 
 
(a)
set out the differences between it and the original notice that it is
 
 
reasonable for the Secretary of State to consider are material, and
 
 
(b)
explain the effect of section 116 .
 
 
(5)
Failure to comply with subsection (4) does not make the replacement notice
20
 
ineffective.
 
 
(6)
Where a replacement notice is withdrawn under section 114 , no further
 
 
replacement notice may be given under subsection (1) as a result of the
 
 
withdrawal.
 
 
(7)
Nothing in this section affects any power that exists apart from this section
25
 
to give a notice of underpayment in relation to any underpaid individual.
 
116
Effect of replacement notice of underpayment
 
 
(1)
This section applies where a notice of underpayment is withdrawn under
 
 
section 114 and a replacement notice is given in accordance with section 115 .
 
 
(2)
If an appeal has been made under section 113 in respect of the original notice
30
 
and the appeal has not been withdrawn or finally determined before the time
 
 
when that notice is withdrawn—
 
 
(a)
that appeal (“the earlier appeal”) has effect after that time as if it had
 
 
been made in respect of the replacement notice, and
 
 
(b)
the person given the notice may exercise the right of appeal under
35
 
that section in respect of the replacement notice only if the earlier
 
 
appeal is withdrawn.
 
 
(3)
If a sum was paid by or recovered from the person by way of penalty under
 
 
the original notice—
 

Page 135

 
(a)
an amount equal to that sum (or, if more than one, the total of those
 
 
sums) is to be treated as having been paid in respect of the penalty
 
 
imposed by the replacement notice, and
 
 
(b)
any amount by which that sum (or total) exceeds the amount of the
 
 
penalty imposed by the replacement notice must be repaid to the
5
 
person with interest at the appropriate rate running from the date
 
 
when the sum (or, if more than one, the first of them) was paid or
 
 
recovered.
 
 
(4)
In subsection (3) (b) “the appropriate rate” means the rate that, on the date
 
 
mentioned in that provision, was specified in section 17 of the Judgments Act
10
 
1838.
 
117
Enforcement of requirement to pay sums due to individuals
 
 
(1)
In a case where it appears to the Secretary of State that the liable party has
 
 
failed to comply with a requirement in a notice of underpayment to pay a
 
 
sum to an underpaid individual, the Secretary of State may apply to the court
15
 
for an order under this section.
 
 
(2)
An application under this section may be made only if—
 
 
(a)
the relevant 28-day period has ended, and
 
 
(b)
the liable party’s appeal rights are exhausted (see subsection (5) ).
 
 
(3)
If, on an application under this section, the court is satisfied that—
20
 
(a)
the notice was given to the liable party and has not been withdrawn,
 
 
and
 
 
(b)
the liable party has failed to comply with a requirement imposed by
 
 
the notice to pay a sum to an underpaid individual,
 
 
the court must order the liable party to pay the sum to the underpaid
25
 
individual within the period specified in the order.
 
 
(4)
This section does not affect any right of an underpaid individual to recover
 
 
any sums owed by the liable party to the individual.
 
 
(5)
For the purposes of this section, the liable party’s appeal rights are exhausted
 
 
if—
30
 
(a)
the relevant 28-day period ended without an appeal being made under
 
 
section 113 in respect of the notice,
 
 
(b)
any appeal made under that section by the liable party in respect of
 
 
the notice has been withdrawn, or
 
 
(c)
any such appeal has been finally determined and the notice has not
35
 
been cancelled under subsection (6) of that section.
 
 
(6)
In this section—
 
 
“the court” means—
 
 
(a)
the county court, in relation to England and Wales;
 
 
(b)
the sheriff or a summary sheriff, in relation to Scotland;
40
 
(c)
a county court, in relation to Northern Ireland;
 

Page 136

 
“the relevant 28-day period” means the period of 28 days beginning with
 
 
the day on which the notice (or, where section 113 (7) (b) applies, the
 
 
rectified notice) is given.
 
118
Enforcement of requirement to pay penalty
 
 
(1)
In England and Wales, a penalty is recoverable as if it were payable under
5
 
an order of the county court.
 
 
(2)
In Scotland, a penalty may be enforced in the same manner as an extract
 
 
registered decree arbitral bearing a warrant for execution issued by the sheriff
 
 
court of any sheriffdom in Scotland.
 
 
(3)
In Northern Ireland, a penalty is recoverable as if it were payable under an
10
 
order of a county court.
 
 
(4)
Where action is taken under this section for the recovery of a penalty, the
 
 
penalty—
 
 
(a)
in relation to England and Wales, is to be treated for the purposes of
 
 
section 98 of the Courts Act 2003 (register of judgments and orders
15
 
etc) as if it were a judgment entered in the county court;
 
 
(b)
in relation to Northern Ireland, is to be treated for the purposes of
 
 
Article 116 of the Judgments Enforcement (Northern Ireland) Order
 
 
1981 (S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a
 
 
judgment in respect of which an application has been accepted under
20
 
Article 22 or 23(1) of that Order.
 
 
(5)
In this section “penalty” means a penalty payable under a notice of
 
 
underpayment.
 

Powers relating to civil proceedings

 
119
Power to bring proceedings in employment tribunal
25
 
(1)
In a case where—
 
 
(a)
a worker has the right under any enactment to bring proceedings
 
 
about a matter in an employment tribunal in England and Wales or
 
 
Scotland, and
 
 
(b)
it appears to the Secretary of State that the worker is not going to
30
 
bring proceedings about that matter,
 
 
the Secretary of State may, in place of the worker, bring proceedings about
 
 
the matter in an employment tribunal under the enactment.
 
 
(2)
Subsection (1) does not apply to—
 
 
(a)
any right to bring proceedings about a matter in respect of which a
35
 
notice of underpayment under section 106 has been given;
 
 
(b)
any right arising under or by virtue of the Agricultural Sector (Wales)
 
 
Act 2014 (anaw 6) or the Agricultural Wages (Scotland) Act 1949.
 

Page 137

 
(3)
Where by virtue of this section the Secretary of State brings proceedings in
 
 
place of a worker—
 
 
(a)
the proceedings are to be proceeded with as if they had been brought
 
 
by the worker, and
 
 
(b)
for the purposes of dealing with the proceedings, and any proceedings
5
 
arising out of those proceedings, references to the worker in any
 
 
enactment are to be read as including a reference to the Secretary of
 
 
State.
 
 
(4)
But, despite subsection (3) , any power which an employment tribunal dealing
 
 
with the proceedings would have to make a declaration, decision, award or
10
 
other order in favour of the worker if the worker had brought the proceedings
 
 
continues to be exercisable in relation to the worker (not the Secretary of
 
 
State).
 
 
(5)
Any appeal arising out of proceedings brought by the Secretary of State in
 
 
place of a worker by virtue of this section may be brought by the worker as
15
 
well as by the Secretary of State.
 
 
(6)
The Secretary of State is not liable to any worker for anything done (or omitted
 
 
to be done) in, or in connection with, the discharge or purported discharge
 
 
of the Secretary of State’s functions by virtue of this section.
 
 
(7)
For the purposes of this section—
20
 
(a)
any reference to a right to bring proceedings under an enactment is
 
 
to such a right however expressed, and includes any right to present
 
 
a complaint or make any other description of claim or application;
 
 
(b)
any reference to the Secretary of State includes an enforcement officer.
 
120
Power to provide legal assistance
25
 
(1)
The Secretary of State may assist a person who is or may become party to
 
 
civil proceedings in England and Wales or Scotland relating to employment
 
 
or trade union law or the law of labour relations.
 
 
(2)
In giving assistance under this section the Secretary of State may provide or
 
 
arrange for the provision of—
30
 
(a)
legal advice;
 
 
(b)
legal representation;
 
 
(c)
any other form of assistance.
 
 
(3)
But the Secretary of State may not provide, or arrange for the provision of,
 
 
facilities for the settlement of a dispute.
35
 
(4)
Where proceedings relate or may relate partly to employment or trade union
 
 
law or the law of labour relations (“employment-related matters”) and partly
 
 
to other matters—
 
 
(a)
assistance may be given under this section in respect of any aspect of
 
 
the proceedings, and
40
 
(b)
if the proceedings cease to relate to employment-related matters—
 

Page 138

 
(i)
assistance may nevertheless continue to be given under this
 
 
section in respect of the proceedings, but
 
 
(ii)
the fact that assistance has been given under this section in
 
 
respect of the proceedings does not require such assistance to
 
 
continue to be given.
5
 
(5)
This section does not affect any restriction imposed in respect of
 
 
representation—
 
 
(a)
by virtue of an enactment, or
 
 
(b)
in accordance with the practice of a court or tribunal.
 
 
(6)
A legislative provision which requires insurance or an indemnity in respect
10
 
of advice given in connection with a settlement agreement does not apply to
 
 
advice provided by the Secretary of State under this section.
 
121
Recovery of costs of legal assistance
 
 
(1)
Subsection (2) applies where—
 
 
(a)
the Secretary of State has assisted a person under section 120 in relation
15
 
to proceedings, and
 
 
(b)
the person becomes entitled to some or all of the person’s costs or, in
 
 
Scotland, expenses in the proceedings (whether as a result of an award
 
 
or as a result of an agreement).
 
 
(2)
The Secretary of State’s expenditure in giving the assistance—
20
 
(a)
is to be charged on sums paid to the person by way of costs or
 
 
expenses, and
 
 
(b)
may be enforced as a debt due to the Secretary of State.
 
 
(3)
A requirement to pay money to the Secretary of State under subsection (2)
 
 
ranks, in England and Wales, after a requirement imposed by virtue of section
25
 
25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
 
 
(statutory charge in connection with civil legal aid).
 
 
(4)
Subsection (2) , in its application to Scotland, does not affect the operation of
 
 
section 17(2A) of the Legal Aid (Scotland) Act 1986 (requirement in certain
 
 
cases to pay to the Scottish Legal Aid Board sums recovered under awards
30
 
of, or agreements as to, expenses).
 
 
(5)
For the purposes of subsection (2) , the Secretary of State’s expenditure is to
 
 
be calculated in accordance with such provision (if any) as the Secretary of
 
 
State makes for the purpose by regulations.
 
 
(6)
Regulations under subsection (5) may, in particular, provide for the
35
 
apportionment of expenditure incurred by the Secretary of State—
 
 
(a)
partly for one purpose and partly for another, or
 
 
(b)
for general purposes.
 
 
(7)
Regulations under subsection (5) are subject to the negative resolution
 
 
procedure.
40

Page 139

Labour market enforcement undertakings

 
122
Power to request LME undertaking
 
 
(1)
This section applies where the Secretary of State believes that a person has
 
 
committed, or is committing, a labour market offence (see section 154 ).
 
 
(2)
The Secretary of State may give a notice to the person—
5
 
(a)
identifying the labour market offence which the Secretary of State
 
 
believes has been or is being committed;
 
 
(b)
giving the Secretary of State’s reasons for the belief;
 
 
(c)
inviting the person to give the Secretary of State a labour market
 
 
enforcement undertaking in the form attached to the notice.
10
 
(3)
A labour market enforcement undertaking (an “LME undertaking”) is an
 
 
undertaking by the person giving it (the “subject”) to comply with any
 
 
prohibitions, restrictions and requirements set out in the undertaking (as to
 
 
which, see section 123 ).
 
123
Measures in LME undertakings
15
 
(1)
An LME undertaking may include a prohibition, restriction or requirement
 
 
(each a “measure”) if, and only if—
 
 
(a)
the measure falls within subsection (2) or (3) (or both), and
 
 
(b)
the Secretary of State considers that the measure is just and reasonable.
 
 
(2)
A measure falls within this subsection if it is for the purpose of—
20
 
(a)
preventing or reducing the risk of the subject not complying with any
 
 
requirement imposed by or under the relevant enactment, or
 
 
(b)
bringing to the attention of persons likely to be interested in the
 
 
matter—
 
 
(i)
the existence of the LME undertaking,
25
 
(ii)
the circumstances in which it was given, and
 
 
(iii)
any action taken (or not taken) by the subject in order to
 
 
comply with the undertaking.
 
 
(3)
A measure falls within this subsection if it is specified, or is of a description
 
 
specified, in regulations made by the Secretary of State.
30
 
(4)
Regulations under subsection (3) are subject to the affirmative resolution
 
 
procedure.
 
 
(5)
The Secretary of State may not—
 
 
(a)
invite a person to give an LME undertaking, or
 
 
(b)
agree to the form of an undertaking,
35
 
unless the Secretary of State believes that at least one measure in the
 
 
undertaking is necessary for the purpose mentioned in subsection (6).
 
 
(6)
That purpose is preventing or reducing the risk of the subject—
 

Page 140

 
(a)
committing a further labour market offence under the relevant
 
 
enactment, or
 
 
(b)
continuing to commit the labour market offence.
 
 
(7)
An LME undertaking must set out how each measure included for the purpose
 
 
mentioned in subsection (2)(a) is expected to achieve that purpose.
5
 
(8)
In this section “the relevant enactment” means the enactment under which
 
 
the Secretary of State believes the labour market offence concerned has been
 
 
or is being committed.
 
124
Duration of LME undertakings
 
 
(1)
An LME undertaking has effect from—
10
 
(a)
the time when it is accepted by the Secretary of State, or
 
 
(b)
any later time specified in the LME undertaking for this purpose.
 
 
(2)
An LME undertaking has effect for the period specified in the LME
 
 
undertaking.
 
 
(3)
The maximum period for which an LME undertaking may have effect is two
15
 
years.
 
 
(4)
The Secretary of State may release the subject from an LME undertaking.
 
 
(5)
The Secretary of State must release the subject from an LME undertaking if
 
 
at any time during the period for which it has effect the Secretary of State
 
 
believes that no measure in it is necessary for the purpose mentioned in
20
 
section 123 (6).
 
 
(6)
If the Secretary of State releases the subject from an LME undertaking, the
 
 
Secretary of State must take whatever steps the Secretary of State considers
 
 
appropriate to bring that fact to the attention of—
 
 
(a)
the subject;
25
 
(b)
any other persons likely to be interested in the matter.
 
125
Means of giving notice under section
 
 
(1)
A notice may be given under section 122 to a person by—
 
 
(a)
delivering it to the person,
 
 
(b)
leaving it at the person’s proper address,
30
 
(c)
sending it by post to the person at that address, or
 
 
(d)
subject to subsection (6), sending it to the person by electronic means.
 
 
(2)
A notice to a body corporate may be given to any officer of that body.
 
 
(3)
A notice to a partnership may be given to any partner.
 
 
(4)
A notice to an unincorporated association (other than a partnership) may be
35
 
given to any member of the governing body of the association.
 

Page 141

 
(5)
For the purposes of this section and of section 7 of the Interpretation Act 1978
 
 
(service of documents by post) in its application to this section, the proper
 
 
address of a person is the person’s last known address (whether of the
 
 
person’s residence or of a place where the person carries on business or is
 
 
employed) and also—
5
 
(a)
in the case of a body corporate or an officer of the body, the address
 
 
of the body’s registered or principal office in the United Kingdom;
 
 
(b)
in the case of a partnership or a partner, the address of the principal
 
 
office of the partnership in the United Kingdom;
 
 
(c)
in the case of an unincorporated association (other than a partnership)
10
 
or a member of its governing body, the principal office of the
 
 
association in the United Kingdom.
 
 
(6)
A notice may be sent to a person by electronic means only if—
 
 
(a)
the person has indicated that notices under section 122 may be given
 
 
to the person by being sent to an electronic address and in an electronic
15
 
form specified for that purpose, and
 
 
(b)
the notice is sent to that address in that form.
 
 
(7)
A notice sent to a person by electronic means is, unless the contrary is proved,
 
 
to be treated as having been given on the working day immediately following
 
 
the day on which it was sent.
20
 
(8)
In this section—
 
 
“electronic address” means any number or address used for the purposes
 
 
of sending or receiving documents or information by electronic means;
 
 
“officer” , in relation to a body corporate, means a director, manager,
 
 
secretary or other similar officer of the body;
25
 
“working day” means a day other than a Saturday, a Sunday, Christmas
 
 
Day, Good Friday or a bank holiday under the Banking and Financial
 
 
Dealings Act 1971 in any part of the United Kingdom.
 

Labour market enforcement orders

 
126
Power to make LME order on application
30
 
(1)
The appropriate court may, on an application by the Secretary of State under
 
 
section 127 , make a labour market enforcement order in relation to a person
 
 
if the court—
 
 
(a)
is satisfied, on the balance of probabilities, that the person has
 
 
committed, or is committing, a labour market offence, and
35
 
(b)
considers that it is just and reasonable to make the order.
 
 
(2)
A labour market enforcement order (an “LME order”) is an order which—
 
 
(a)
prohibits or restricts the person in relation to whom it is made (the
 
 
“respondent”) from doing anything set out in the order;
 
 
(b)
requires the respondent to do anything set out in the order.
40
 
(See also section 129 .)
 

Page 142

 
(3)
An application for an LME order under this section is—
 
 
(a)
in England and Wales, to be made by complaint;
 
 
(b)
in Northern Ireland, to be made by complaint under Part 8 of the
 
 
Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.
 
 
26)).
5
 
(4)
In this section “the appropriate court”—
 
 
(a)
in a case where the conduct constituting the labour market offence
 
 
took place, or is taking place, primarily in England and Wales, means
 
 
a magistrates’ court;
 
 
(b)
in a case where that conduct took place, or is taking place, primarily
10
 
in Scotland, means the sheriff or a summary sheriff;
 
 
(c)
in a case where that conduct took place, or is taking place, primarily
 
 
in Northern Ireland, means a court of summary jurisdiction.
 
127
Applications for LME orders
 
 
(1)
The Secretary of State may apply for an LME order to be made under section
15
 
126 in relation to a person (the “proposed respondent”) if—
 
 
(a)
the Secretary of State has given the proposed respondent a notice
 
 
under section 122 , and
 
 
(b)
the proposed respondent—
 
 
(i)
refuses to give an LME undertaking, or
20
 
(ii)
otherwise fails, before the end of the negotiation period, to
 
 
give an LME undertaking in the form attached to the notice
 
 
or in such other form as may be agreed with the Secretary of
 
 
State.
 
 
(2)
The Secretary of State may also apply for an LME order if the proposed
25
 
respondent—
 
 
(a)
has given an LME undertaking to the Secretary of State, and
 
 
(b)
has failed to comply with the undertaking.
 
 
(3)
In subsection (1) “the negotiation period” means—
 
 
(a)
the period of 14 days beginning with the day after the day on which
30
 
the notice mentioned in paragraph (a) of that subsection was given,
 
 
or
 
 
(b)
a longer period agreed between the Secretary of State and the proposed
 
 
respondent.
 
128
Power to make LME order on conviction
35
 
(1)
This section applies where a court deals with a person in respect of a
 
 
conviction for a labour market offence.
 
 
(2)
The court may make an LME order in relation to the person if the court
 
 
considers it is just and reasonable to do so.
 
 
(3)
An LME order must not be made under this section except—
40

Page 143

 
(a)
in addition to a sentence imposed in respect of the offence concerned,
 
 
or
 
 
(b)
in addition to an order discharging the person conditionally or, in
 
 
Scotland, discharging the person absolutely.
 
129
Measures in LME orders
5
 
(1)
An LME order may include a prohibition, restriction or requirement (each a
 
 
“measure”) if, and only if, the measure falls within subsection (2) or (3) (or
 
 
both).
 
 
(2)
A measure falls within this subsection if it is for the purpose of—
 
 
(a)
preventing or reducing the risk of the respondent not complying with
10
 
any requirement imposed by or under the relevant enactment, or
 
 
(b)
bringing to the attention of persons likely to be interested in the
 
 
matter—
 
 
(i)
the existence of the LME order,
 
 
(ii)
the circumstances in which it was made, and
15
 
(iii)
any action taken (or not taken) by the respondent in order to
 
 
comply with the order.
 
 
(3)
A measure falls within this subsection if it is specified, or is of a description
 
 
specified, in regulations made by the Secretary of State.
 
 
(4)
Regulations under subsection (3) are subject to the affirmative resolution
20
 
procedure.
 
 
(5)
Where an LME order includes a measure for the purpose mentioned in
 
 
subsection (2)(a), the order must set out how the measure is expected to
 
 
achieve that purpose.
 
 
(6)
In this section “the relevant enactment” means the enactment under which
25
 
the labour market offence concerned has been or is being committed.
 
130
Further provision about LME orders
 
 
(1)
An LME order has effect for the period specified in the LME order.
 
 
(2)
The maximum period for which an LME order may have effect is two years.
 
 
(3)
An LME order may not be made against an individual who is under the age
30
 
of 18.
 
 
(4)
If a court makes an LME order, the court may also—
 
 
(a)
release the respondent from any LME undertaking given in relation
 
 
to the labour market offence concerned;
 
 
(b)
discharge any other LME order which is in force against the respondent
35
 
and which was made by—
 
 
(i)
that court, or
 

Page 144

 
(ii)
any other court in the same part of the United Kingdom as
 
 
that court.
 
131
Variation and discharge of LME orders
 
 
(1)
On an application under this section, the appropriate court may by order
 
 
vary or discharge an LME order.
5
 
(2)
An application for the variation or discharge of an LME order may be made
 
 
by—
 
 
(a)
the respondent, or
 
 
(b)
the Secretary of State.
 
 
(3)
An application for an order under this section is—
10
 
(a)
in England and Wales, to be made by complaint;
 
 
(b)
in Northern Ireland, to be made by complaint under Part 8 of the
 
 
Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.
 
 
26)).
 
 
(4)
In this section “the appropriate court”—
15
 
(a)
in the case of an LME order made in England and Wales (whether
 
 
made under section 126 or 128 ), means a magistrates’ court;
 
 
(b)
in the case of an LME order made in Scotland, means the sheriff or a
 
 
summary sheriff;
 
 
(c)
in the case of an LME order made in Northern Ireland, means a court
20
 
of summary jurisdiction.
 
132
LME orders: appeals
 
 
(1)
A respondent may appeal against—
 
 
(a)
the making of an LME order under section 126 ;
 
 
(b)
the making of, or refusal to make, an order under section 131 .
25
 
(2)
An appeal under subsection (1) is to be made—
 
 
(a)
where the order was made or refused by a magistrates’ court in
 
 
England and Wales, to the Crown Court;
 
 
(b)
where the order was made or refused by the sheriff or a summary
 
 
sheriff, to the Sheriff Appeal Court;
30
 
(c)
where the order was made or refused by a court of summary
 
 
jurisdiction in Northern Ireland, to a county court.
 
 
(3)
On an appeal under subsection (1), the court hearing the appeal—
 
 
(a)
may make such orders as may be necessary to give effect to its
 
 
determination of the appeal, and
35
 
(b)
may also make any incidental or consequential orders that appear to
 
 
it to be just and reasonable.
 
 
(4)
An LME order that has been varied by virtue of subsection (3) remains an
 
 
order of the court that first made it for the purposes of section 131 .
 

Page 145

 
(5)
A respondent may appeal against the making of an LME order under section
 
 
128 as if the order were a sentence passed on the respondent for the labour
 
 
market offence.
 

Safeguards etc

 
133
Evidence of authority
5
 
(1)
This section applies where a person is proposing to exercise—
 
 
(a)
any enforcement function of the Secretary of State;
 
 
(b)
any power of an enforcement officer, other than a power by virtue of
 
 
section 119 (power to bring proceedings in employment tribunal).
 
 
(2)
The person must, if required to do so, produce identification showing that
10
 
the person is authorised to exercise that function.
 
134
Warrants
 
 
(1)
A warrant under section 101 or 105 may be executed by any enforcement
 
 
officer.
 
 
(2)
A warrant under section 101 or 105 may authorise persons to accompany any
15
 
enforcement officer who is executing it.
 
 
(3)
A person authorised under subsection (2) to accompany an enforcement officer
 
 
may exercise any power conferred by this Part which the officer may exercise
 
 
as a result of the warrant.
 
 
(4)
But the person may exercise such a power only in the company of, and under
20
 
the supervision of, an enforcement officer.
 
 
(5)
Schedule 8 contains further provision about—
 
 
(a)
applications for warrants under section 101 or 105 , and
 
 
(b)
warrants issued under section 101 or 105 .
 
 
(6)
The entry of premises under a warrant issued under section 101 or 105 is
25
 
unlawful unless it complies with the provisions of Part 3 of that Schedule
 
 
(execution of warrants).
 
135
Items subject to legal privilege
 
 
(1)
Nothing in this Part requires a person to produce any document, or provide
 
 
any information, which the person would be entitled to refuse to produce or
30
 
provide—
 
 
(a)
in proceedings in the High Court on the grounds of legal professional
 
 
privilege, or
 
 
(b)
in proceedings in the Court of Session on the grounds of confidentiality
 
 
of communications.
35
 
(2)
In subsection (1) “communications” means—
 

Page 146

 
(a)
communications between a professional legal adviser and the adviser’s
 
 
client, or
 
 
(b)
communications made in connection with or in contemplation of legal
 
 
proceedings or for the purposes of those proceedings.
 
136
Privilege against self-incrimination
5
 
(1)
This section applies where a person provides information in response to a
 
 
requirement under section 99 .
 
 
(2)
In any criminal proceedings against the person—
 
 
(a)
no evidence relating to the information may be adduced by or on
 
 
behalf of the prosecution, and
10
 
(b)
no question relating to the information may be asked by or on behalf
 
 
of the prosecution.
 
 
(3)
Subsection (2) does not apply if, in the proceedings—
 
 
(a)
evidence relating to the information is adduced by or on behalf of the
 
 
person providing it, or
15
 
(b)
a question relating to the information is asked by or on behalf of that
 
 
person.
 
 
(4)
Subsection (2) does not apply if the proceedings are for—
 
 
(a)
an offence under section 143 (providing false information or
 
 
documents);
20
 
(b)
an offence under section 5 of the Perjury Act 1911 (false statutory
 
 
declarations and other false statements without oath);
 
 
(c)
an offence under section 44(2) of the Criminal Law (Consolidation)
 
 
(Scotland) Act 1995 (false statements and declarations);
 
 
(d)
an offence under Article 10 of the Perjury (Northern Ireland) Order
25
 
1979 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations and other
 
 
false unsworn statements).
 
137
Information relating to the intelligence services, etc
 
 
(1)
A power conferred by section 99 or 100 may not be exercised in relation to
 
 
a person serving in an intelligence service unless the Secretary of State certifies
30
 
that the condition in subsection (3) is met in relation to the power.
 
 
(2)
A power of entry conferred by this Part may not be exercised in relation to
 
 
any premises (or any part of premises) used for the purposes of an intelligence
 
 
service unless the Secretary of State certifies that the condition in subsection
 
 
(3) is met in relation to the power.
35
 
(3)
The condition in this subsection is met in relation to a power if the Secretary
 
 
of State is satisfied that the exercise of the power will not be contrary to the
 
 
public interest or prejudicial to—
 
 
(a)
national security,
 
 
(b)
the prevention or detection of serious crime, or
40

Page 147

 
(c)
the economic well-being of the United Kingdom.
 
 
(4)
A certificate issued under this section in relation to a power may impose
 
 
conditions on the exercise of the power.
 
 
(5)
Except as provided for by subsection (1), nothing in this Part requires any
 
 
person to—
5
 
(a)
produce any document containing intelligence service information, or
 
 
(b)
provide any information that is intelligence service information.
 
 
(6)
For the purposes of this section—
 
 
(a)
“crime” means conduct which—
 
 
(i)
constitutes a criminal offence, or
10
 
(ii)
is, or corresponds to, any conduct which, if it all took place in
 
 
any one part of the United Kingdom, would constitute a
 
 
criminal offence;
 
 
(b)
crime is “serious” if—
 
 
(i)
the offence which is or would be constituted by the conduct
15
 
is an offence for which the maximum sentence (in any part of
 
 
the United Kingdom) is imprisonment for three years or more,
 
 
or
 
 
(ii)
the conduct involves the use of violence, results in substantial
 
 
financial gain or is conduct by a large number of persons in
20
 
pursuit of a common purpose;
 
 
(c)
“intelligence service information” means information obtained directly
 
 
or indirectly from, or that relates to, an intelligence service or a person
 
 
acting on behalf of an intelligence service.
 

Disclosure of information

25
138
Disclosure of information
 
 
(1)
In this section—
 
 
“civil proceedings function” means a function under or by virtue of
 
 
section 119 or 120 (powers in relation to civil proceedings);
 
 
“enforcement function” means—
30
 
(a)
an enforcement function of the Secretary of State, or
 
 
(b)
a power of an enforcement officer (other than a power by virtue
 
 
of section 119 );
 
 
“enforcing authority” means the Secretary of State or an enforcement
 
 
officer.
35
 
(2)
A person may disclose information to an enforcing authority if the disclosure
 
 
is made for the purposes of the exercise of an enforcement function or a civil
 
 
proceedings function.
 
 
(3)
Information obtained by an enforcing authority in connection with the exercise
 
 
of an enforcement function or a civil proceedings function—
40

Page 148

 
(a)
may be used by an enforcing authority in connection with the exercise
 
 
of an enforcement function or civil proceedings function;
 
 
(b)
may be used by the Secretary of State in connection with a function
 
 
of the Secretary of State under this Part.
 
 
(4)
The Secretary of State may disclose to a person any information obtained by
5
 
an enforcing authority in connection with the exercise of an enforcement
 
 
function or a civil proceedings function if the disclosure is made for a purpose
 
 
connected with an enforcement function or civil proceedings function or a
 
 
function of the Secretary of State under this Part.
 
 
(5)
The Secretary of State may disclose to a person specified in Schedule 9
10
 
information obtained in connection with the exercise of an enforcement
 
 
function or a civil proceedings function if the disclosure is made for the
 
 
purposes of the exercise of a function of the person.
 
 
(6)
The Secretary of State may by regulations amend Schedule 9 .
 
 
(7)
Regulations under subsection (6) are subject to the affirmative resolution
15
 
procedure.
 
 
(8)
Sections 139 to 141 contain further provision about disclosure of information
 
 
under this section.
 
139
Disclosure of information: supplementary provision
 
 
(1)
A disclosure of information which is authorised by section 138 does not
20
 
breach—
 
 
(a)
an obligation of confidence owed by the person making the disclosure,
 
 
or
 
 
(b)
any other restriction on the disclosure of information (however
 
 
imposed).
25
 
(2)
But nothing in section 138 authorises either of the following—
 
 
(a)
the making of a disclosure which would contravene the data protection
 
 
legislation (but in determining whether a disclosure would do so, the
 
 
power conferred by that section is to be taken into account);
 
 
(b)
the making of a disclosure which is prohibited by any of Parts 1 to 7
30
 
or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.
 
 
(3)
In subsection (2) “the data protection legislation” has the same meaning as
 
 
in the Data Protection Act 2018 (see section 3 of that Act).
 
 
(4)
Section 138 does not limit the circumstances in which information may be
 
 
disclosed apart from that section.
35
140
Restriction on disclosure of HMRC information
 
 
(1)
HMRC information may not be disclosed by an enforcing authority without
 
 
authorisation from the Commissioners for His Majesty’s Revenue and Customs
 
 
(“the Commissioners”).
 

Page 149

 
(2)
If an enforcing authority has disclosed HMRC information to a person, that
 
 
person may not further disclose that information without authorisation from
 
 
the Commissioners.
 
 
(3)
Subsections (1) and (2) do not apply to national minimum wage information.
 
 
(4)
If a person contravenes subsection (1) or (2) by disclosing revenue and customs
5
 
information relating to a person whose identity—
 
 
(a)
is specified in the disclosure, or
 
 
(b)
can be deduced from it,
 
 
section 19 of the Commissioners for Revenue and Customs Act 2005 (wrongful
 
 
disclosure) applies in relation to that disclosure as it applies in relation to a
10
 
disclosure of such information in contravention of section 20(9) of that Act.
 
 
(5)
In this section—
 
 
“enforcing authority” has the same meaning as in section 138 ;
 
 
“HMRC information” means information disclosed to an enforcing
 
 
authority under section 138 by the Commissioners or a person acting
15
 
on behalf of the Commissioners;
 
 
“national minimum wage information” means information obtained by
 
 
an enforcing authority for the purposes of enforcing any provision of
 
 
the National Minimum Wage Act 1998;
 
 
“revenue and customs information relating to a person” has the meaning
20
 
given by section 19(2) of the Commissioners for Revenue and Customs
 
 
Act 2005.
 
141
Restriction on disclosure of intelligence service information
 
 
(1)
Section 138 (2) does not authorise a person to disclose information to an
 
 
enforcing authority where—
25
 
(a)
the person is serving in an intelligence service, or
 
 
(b)
the information is intelligence service information.
 
 
But this does not affect the disclosures which a person serving in an
 
 
intelligence service may make in accordance with intelligence service disclosure
 
 
arrangements (see subsection (4)).
30
 
(2)
Intelligence service information may not be disclosed by an enforcing authority
 
 
without authorisation from the appropriate service chief.
 
 
(3)
If an enforcing authority has disclosed intelligence service information to a
 
 
person, that person may not further disclose that information without
 
 
authorisation from the appropriate service chief.
35
 
(4)
In this section—
 
 
“appropriate service chief” means—
 
 
(a)
the Director-General of the Security Service, in the case of
 
 
information obtained from, or relating to, that Service or a
 
 
person acting on its behalf;
40

Page 150

 
(b)
the Chief of the Secret Intelligence Service, in the case of
 
 
information obtained from, or relating to, that Service or a
 
 
person acting on its behalf;
 
 
(c)
the Director of GCHQ, in the case of information obtained
 
 
from, or relating to, GCHQ or a person acting on its behalf;
5
 
“enforcing authority” has the same meaning as in section 138 ;
 
 
“intelligence service disclosure arrangements” means—
 
 
(a)
arrangements made by the Director-General of the Security
 
 
Service under section 2(2)(a) of the Security Service Act 1989
 
 
about the disclosure of information by that Service;
10
 
(b)
arrangements made by the Chief of the Intelligence Service
 
 
under section 2(2)(a) of the Intelligence Services Act 1994 about
 
 
the disclosure of information by that Service;
 
 
(c)
arrangements made by the Director of GCHQ under section
 
 
4(2)(a) of that Act about the disclosure of information by
15
 
GCHQ;
 
 
“intelligence service information” means information obtained directly
 
 
or indirectly from, or that relates to, an intelligence service or a person
 
 
acting on behalf of an intelligence service.
 

Offences

20
142
Offence of failing to comply with LME order
 
 
(1)
A person in relation to whom an LME order is made commits an offence if
 
 
the person, without reasonable excuse, fails to comply with the order.
 
 
(2)
A person guilty of an offence under this section is liable—
 
 
(a)
on summary conviction in England and Wales, to imprisonment for
25
 
a term not exceeding the general limit in a magistrates’ court or a fine,
 
 
or both;
 
 
(b)
on summary conviction in Scotland, to imprisonment for a term not
 
 
exceeding 12 months or a fine not exceeding the statutory maximum,
 
 
or both;
30
 
(c)
on summary conviction in Northern Ireland, to imprisonment for a
 
 
term not exceeding 6 months or a fine not exceeding the statutory
 
 
maximum, or both;
 
 
(d)
on conviction on indictment, to imprisonment for a term not exceeding
 
 
2 years or a fine, or both.
35
143
Offence of providing false information or documents
 
 
(1)
A person commits an offence if—
 
 
(a)
the person produces, or knowingly causes or allows to be produced,
 
 
any information or document in response to a requirement reasonably
 
 
made by a person in the exercise of a power conferred by this Part,
40
 
(b)
the information or document is false in a material respect, and
 

Page 151

 
(c)
the person knows that it is or is reckless as to whether it is.
 
 
(2)
A person guilty of an offence under this section is liable—
 
 
(a)
on summary conviction in England and Wales, to imprisonment for
 
 
a term not exceeding the maximum term for summary offences or a
 
 
fine, or both;
5
 
(b)
on summary conviction in Scotland, to imprisonment for a term not
 
 
exceeding 12 months or a fine not exceeding level 5 on the standard
 
 
scale, or both;
 
 
(c)
on summary conviction in Northern Ireland, to imprisonment for a
 
 
term not exceeding 6 months or a fine not exceeding level 5 on the
10
 
standard scale, or both.
 
 
(3)
In subsection (2)(a) “the maximum term for summary offences” means—
 
 
(a)
in the case of an offence committed before the time when section 281(5)
 
 
of the Criminal Justice Act 2003 comes into force, 6 months;
 
 
(b)
in the case of an offence committed after that time, 51 weeks.
15
144
Providing false information or documents: national security etc defence
 
 
(1)
A person in relation to whom a certificate is issued by the Secretary of State
 
 
for the purposes of this section is not liable for the commission of an offence
 
 
under section 143 (offence of providing false information or documents).
 
 
(2)
The Secretary of State may issue a certificate in relation to a person for the
20
 
purposes of this section only if satisfied that it is necessary for the person to
 
 
engage in conduct amounting to such an offence—
 
 
(a)
in the interests of national security,
 
 
(b)
for the purposes of preventing or detecting serious crime, or
 
 
(c)
in the interests of the economic well-being of the United Kingdom.
25
 
(3)
A certificate under this section may be revoked by the Secretary of State at
 
 
any time.
 
 
(4)
For the purposes of subsection (2)(b)—
 
 
(a)
“crime” means conduct which—
 
 
(i)
constitutes a criminal offence, or
30
 
(ii)
is, or corresponds to, any conduct which, if it all took place in
 
 
any one part of the United Kingdom, would constitute a
 
 
criminal offence, and
 
 
(b)
crime is “serious” if—
 
 
(i)
the offence which is or would be constituted by the conduct
35
 
is an offence for which the maximum sentence (in any part of
 
 
the United Kingdom) is imprisonment for three years or more,
 
 
or
 
 
(ii)
the conduct involves the use of violence, results in substantial
 
 
financial gain or is conduct by a large number of persons in
40
 
pursuit of a common purpose.
 

Page 152

145
Offence of obstruction
 
 
(1)
A person commits an offence if the person—
 
 
(a)
intentionally obstructs a person who is acting in the exercise of an
 
 
enforcement function, or
 
 
(b)
without reasonable excuse, fails to comply with any requirement
5
 
imposed by a person who is acting in the exercise of an enforcement
 
 
function.
 
 
(2)
In subsection (1) “enforcement function” means—
 
 
(a)
an enforcement function of the Secretary of State, or
 
 
(b)
a power of an enforcement officer, other than a power by virtue of
10
 
section 119 (power to bring proceedings in employment tribunal).
 
 
(3)
A person guilty of an offence under this section is liable—
 
 
(a)
on summary conviction in England and Wales, to imprisonment for
 
 
a term not exceeding the maximum term for summary offences or a
 
 
fine, or both;
15
 
(b)
on summary conviction in Scotland, to imprisonment for a term not
 
 
exceeding 12 months or a fine not exceeding level 5 on the standard
 
 
scale, or both;
 
 
(c)
on summary conviction in Northern Ireland, to imprisonment for a
 
 
term not exceeding 6 months or a fine not exceeding level 5 on the
20
 
standard scale, or both.
 
 
(4)
In subsection (3)(a) “the maximum term for summary offences” means—
 
 
(a)
in the case of an offence committed before the time when section 281(5)
 
 
of the Criminal Justice Act 2003 comes into force, 6 months;
 
 
(b)
in the case of an offence committed after that time, 51 weeks.
25
 
(5)
Nothing in this section requires a person to answer any question or give any
 
 
information if to do so might incriminate that person.
 

Recovery of enforcement costs

 
146
Power to recover costs of enforcement
 
 
(1)
The Secretary of State may by regulations make provision requiring a relevant
30
 
person, or a relevant person of a specified description, to pay a charge as a
 
 
means of recovering any enforcement costs incurred in relation to the person.
 
 
(2)
For the purposes of this section—
 
 
“enforcement costs” , in relation to a relevant person, means any costs
 
 
incurred in connection with the exercise of an enforcement function
35
 
of the Secretary of State in relation to the person;
 
 
“relevant person” means a person who has failed to comply with any
 
 
relevant labour market legislation;
 
 
“specified” means specified in the regulations.
 

Page 153

 
(3)
Regulations under this section may—
 
 
(a)
provide that the amount of a charge is—
 
 
(i)
a fixed amount, or
 
 
(ii)
an amount calculated by reference to an hourly rate;
 
 
(b)
provide for the amount of the charge to be determined by the Secretary
5
 
of State in accordance with the regulations.
 
 
(4)
The regulations may in particular—
 
 
(a)
provide that the amount of a charge is to be determined by the
 
 
Secretary of State in accordance with a scheme made and published
 
 
by the Secretary of State, and
10
 
(b)
make provision about such schemes, including the principles governing
 
 
such schemes.
 
 
(5)
The provision that may be made by regulations under this section includes,
 
 
among other things—
 
 
(a)
provision for charges to be payable only in specified circumstances;
15
 
(b)
provision about reductions, exemptions and waivers;
 
 
(c)
provision about how and when charges are to be paid;
 
 
(d)
provision about the collection or recovery of payments;
 
 
(e)
provision for the charging of interest on unpaid charges;
 
 
(f)
provision about the resolution of disputes relating to the payment of
20
 
charges, including provision for the making of appeals to a court or
 
 
tribunal.
 
 
(6)
Regulations under this section are subject to the negative resolution procedure.
 

Supplementary

 
147
Offences by bodies corporate
25
 
(1)
If an offence under this Part committed by a body corporate is proved—
 
 
(a)
to have been committed with the consent or connivance of an officer
 
 
of the body, or
 
 
(b)
to be attributable to any neglect on the part of such an officer,
 
 
the officer, as well as the body corporate, is guilty of the offence and liable
30
 
to be proceeded against and punished accordingly.
 
 
(2)
In subsection (1) “officer”, in relation to a body corporate, means—
 
 
(a)
a director, manager, secretary or other similar officer of the body;
 
 
(b)
a person purporting to act in any such capacity.
 
 
(3)
If the affairs of a body corporate are managed by its members, subsection (1)
35
 
applies in relation to the acts and defaults of a member in connection with
 
 
the member’s functions of management as if the member were a director of
 
 
the body corporate.
 

Page 154

148
Application of this Part to partnerships
 
 
(1)
If an offence under this Part committed by a partner (“P”) of a partnership
 
 
which is not regarded as a legal person is shown—
 
 
(a)
to have been committed with the consent or connivance of another
 
 
partner, or
5
 
(b)
to be attributable to any neglect on the part of another partner,
 
 
that other partner, as well as P, is guilty of the offence and liable to be
 
 
proceeded against and punished accordingly.
 
 
(2)
Proceedings for an offence under this Part alleged to have been committed
 
 
by a partnership which is regarded as a legal person may be brought against
10
 
the partnership in the firm name.
 
 
(3)
For the purposes of such proceedings—
 
 
(a)
rules of court relating to the service of documents have effect as if the
 
 
partnership were a body corporate, and
 
 
(b)
the following provisions apply as they apply in relation to a body
15
 
corporate—
 
 
(i)
section 33 of the Criminal Justice Act 1925 and Schedule 3 to
 
 
the Magistrates’ Courts Act 1980;
 
 
(ii)
sections 34(2), 66(6AA) and 72D(2) of the Criminal Procedure
 
 
(Scotland) Act 1995;
20
 
(iii)
section 18 of the Criminal Justice Act (Northern Ireland) 1945
 
 
(c. 15 (N.I.)) and Schedule 4 to the Magistrates’ Courts
 
 
(Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).
 
 
(4)
A fine imposed on a partnership on its conviction of an offence under this
 
 
Part is to be paid out of the funds of the partnership.
25
 
(5)
If an offence under this Part committed by a partnership is proved—
 
 
(a)
to have been committed with the consent or connivance of a partner,
 
 
or
 
 
(b)
to be attributable to any neglect on the part of a partner,
 
 
the partner, as well as the partnership, is guilty of the offence and liable to
30
 
be proceeded against and punished accordingly.
 
 
(6)
In subsections (1) and (5) “partner” includes a person purporting to act as a
 
 
partner.
 
 
(7)
For the purposes of this section a partnership is, or is not, “regarded as a
 
 
legal person” if it is, or is not, so regarded under the law of the country or
35
 
territory under which it was formed.
 
149
Application of this Part to unincorporated associations
 
 
(1)
In a case falling within subsection (2), an unincorporated association is to be
 
 
treated as a legal person for the purposes of this Part.
 

Page 155

 
(2)
A case falls within this subsection if it relates to a labour market offence for
 
 
which it is possible to bring proceedings against an unincorporated association
 
 
in the name of the association.
 
 
(3)
Proceedings for an offence under this Part alleged to have been committed
 
 
by an unincorporated association may be brought against the association in
5
 
the name of the association.
 
 
(4)
For the purposes of such proceedings—
 
 
(a)
rules of court relating to the service of documents have effect as if the
 
 
association were a body corporate, and
 
 
(b)
the following provisions apply as they apply in relation to a body
10
 
corporate—
 
 
(i)
section 33 of the Criminal Justice Act 1925 and Schedule 3 to
 
 
the Magistrates’ Courts Act 1980;
 
 
(ii)
sections 34(2), 66(6AA) and 72D(2) of the Criminal Procedure
 
 
(Scotland) Act 1995;
15
 
(iii)
section 18 of the Criminal Justice Act (Northern Ireland) 1945
 
 
(c. 15 (N.I.)) and Schedule 4 to the Magistrates’ Courts
 
 
(Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).
 
 
(5)
A fine imposed on the association on its conviction of an offence under this
 
 
Part is to be paid out of the funds of the association.
20
 
(6)
If an offence under this Part committed by an unincorporated association is
 
 
proved—
 
 
(a)
to have been committed with the consent or connivance of an officer
 
 
of the association, or
 
 
(b)
to be attributable to any neglect on the part of such an officer,
25
 
the officer, as well as the association, is guilty of the offence and liable to be
 
 
proceeded against and punished accordingly.
 
 
(7)
In subsection (6) “officer”, in relation to any association, means—
 
 
(a)
an officer of the association or a member of its governing body;
 
 
(b)
a person purporting to act in such a capacity.
30
150
Application of this Part to the Crown and Parliament
 
 
(1)
Subject to the provisions of section 137 and this section, this Part is binding
 
 
on the Crown and applies in relation to any Crown premises as it applies in
 
 
relation to any other premises.
 
 
(2)
In this section “Crown premises” means premises held, or used, by or on
35
 
behalf of the Crown.
 
 
(3)
No contravention by the Crown of any provision made by this Part is to make
 
 
the Crown criminally liable; but the High Court or, in Scotland, the Court of
 
 
Session may declare unlawful any act or omission of the Crown which
 
 
constitutes such a contravention.
40

Page 156

 
(4)
Despite subsection (3), the provisions of this Part apply to persons in the
 
 
public service of the Crown as they apply to other persons.
 
 
(5)
If the Secretary of State certifies that it appears appropriate in the interests
 
 
of national security that powers of entry conferred by this Part should not
 
 
be exercisable in relation to Crown premises specified in the certificate, those
5
 
powers are not exercisable in relation to those premises.
 
 
(6)
No power of entry conferred by this Part may be exercised in relation to—
 
 
(a)
land belonging to His Majesty in right of His private estates, or
 
 
(b)
premises occupied for the purposes of either House of Parliament.
 
 
(7)
In subsection (6)(a), the reference to His Majesty’s private estates is to be read
10
 
in accordance with section 1 of the Crown Private Estates Act 1862.
 
151
Abolition of existing enforcement authorities
 
 
(1)
The following are abolished—
 
 
(a)
the Gangmasters and Labour Abuse Authority;
 
 
(b)
the Director of Labour Market Enforcement.
15
 
(2)
Accordingly—
 
 
(a)
in the Gangmasters (Licensing) Act 2004, omit section 1 (the
 
 
Gangmasters and Labour Abuse Authority);
 
 
(b)
in Part 1 of the Immigration Act 2016 (labour market and illegal
 
 
working), omit section 1 (Director of Labour Market Enforcement).
20
152
Consequential and transitional provision
 
 
(1)
Schedule 10 contains consequential amendments relating to this Part.
 
 
(2)
Part 1 of Schedule 11 contains provision for the making of schemes for the
 
 
transfer of staff, property, rights and liabilities from the Gangmasters and
 
 
Labour Abuse Authority and the Director of Labour Market Enforcement to
25
 
the Secretary of State.
 
 
(3)
Part 2 of that Schedule contains other transitional and saving provision for
 
 
the purposes of this Part.
 

Interpretation of this Part

 
153
Meaning of “non-compliance with relevant labour market legislation”
30
 
(1)
For the purposes of this Part, each of the following constitutes “non-compliance
 
 
with relevant labour market legislation”—
 
 
(a)
failure to comply with any requirement, restriction or prohibition
 
 
imposed by or under a provision of relevant labour market legislation;
 
 
(b)
breach of a condition of a licence granted under section 7 of the
35
 
Gangmasters (Licensing) Act 2004;
 

Page 157

 
(c)
the commission of a labour market offence.
 
 
(2)
For the purposes of this Part, any requirement to pay a relevant sum within
 
 
the meaning of Part 2A of the Employment Tribunals Act 1996 is to be treated
 
 
as a requirement imposed by or under that Part; and a reference to enforcing
 
 
that Part is to be read accordingly.
5
154
Interpretation: general
 
 
(1)
In this Part—
 
 
“the Advisory Board” means the Advisory Board established under
 
 
section 96 ;
 
 
“ancillary offence” , in relation to an offence under any provision of
10
 
relevant labour market legislation, means—
 
 
(a)
an offence of attempting or conspiring to commit such an
 
 
offence;
 
 
(b)
an offence under Part 2 of the Serious Crime Act 2007 in
 
 
relation to such an offence;
15
 
(c)
an offence of inciting a person to commit such an offence;
 
 
(d)
an offence of aiding, abetting, counselling or procuring the
 
 
commission of such an offence;
 
 
“business” includes—
 
 
(a)
a trade or profession, and
20
 
(b)
any activity carried on by a body of persons (whether corporate
 
 
or unincorporated);
 
 
“employee” means an individual who is an employee within the meaning
 
 
of section 230(1) of the Employment Rights Act 1996 or Article 3(1) of
 
 
the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919
25
 
(N.I. 16));
 
 
“employer” has the meaning given by subsection (2) ;
 
 
“employers’ association” has the same meaning as in the Trade Union
 
 
and Labour Relations (Consolidation) Act 1992 (see section 122 of that
 
 
Act);
30
 
“enactment” means an enactment whenever passed or made, and
 
 
includes—
 
 
(a)
an enactment contained in subordinate legislation,
 
 
(b)
an enactment contained in, or in an instrument made under,
 
 
a Measure or Act of the National Assembly for Wales or an
35
 
Act of Senedd Cymru,
 
 
(c)
an enactment contained in, or in an instrument made under,
 
 
an Act of the Scottish Parliament, and
 
 
(d)
an enactment contained in, or in an instrument made under,
 
 
Northern Ireland legislation;
40
 
“enforcement function” , in relation to the Secretary of State, has the
 
 
meaning given by section 94 ;
 
 
“enforcement officer” has the meaning given by section 93 (3) ;
 

Page 158

 
“GCHQ” has the same meaning as in the Intelligence Services Act 1994;
 
 
“intelligence service” means—
 
 
(a)
the Security Service;
 
 
(b)
the Secret Intelligence Service;
 
 
(c)
GCHQ;
5
 
“labour market offence” means—
 
 
(a)
an offence under any provision of relevant labour market
 
 
legislation, or
 
 
(b)
an ancillary offence relating to such an offence;
 
 
“the liable party” , in relation to a notice of underpayment, has the
10
 
meaning given by section 106 (1) ;
 
 
“LME order” has the meaning given by section 126 (2);
 
 
“LME undertaking” has the meaning given by section 122 (3);
 
 
“non-compliance with relevant labour market legislation” has the meaning
 
 
given by section 153 ; and any reference to a failure to comply with
15
 
relevant labour market legislation is to be read accordingly;
 
 
“notice of underpayment” has the meaning given by section 106 (2) ;
 
 
“premises” has the meaning given by subsection (3) ;
 
 
“the relevant day” , in relation to a notice of underpayment, has the
 
 
meaning given by section 106 (1) ;
20
 
“relevant labour market legislation” means the labour market legislation
 
 
listed in Part 1 of Schedule 7 ;
 
 
“respondent” , in relation to an LME order, has the meaning given by
 
 
section 126 (2);
 
 
“statutory pay provision” has the meaning given by section 106 (7) ;
25
 
“subject” , in relation to an LME undertaking, has the meaning given by
 
 
section 122 (3);
 
 
“subordinate legislation” has the meaning given by section 21(1) of the
 
 
Interpretation Act 1978;
 
 
“trade union” has the same meaning as in the Trade Union and Labour
30
 
Relations (Consolidation) Act 1992 (see section 1 of that Act);
 
 
“underpaid individual” , in relation to a notice of underpayment, has the
 
 
meaning given by section 106 (1) ;
 
 
“worker” (except in section 105 ) has the meaning given by subsection
 
 
(5) .
35
 
(2)
In this Part “employer” means any of the following—
 
 
(a)
an employer within the meaning of section 230(4) of the Employment
 
 
Rights Act 1996 or Article 3(4) of the Employment Rights (Northern
 
 
Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16));
 
 
(b)
a person who is an employer for the purposes of Part 4A of the
40
 
Employment Rights Act 1996 in relation to a worker mentioned in
 
 
section 43K(2) of that Act;
 

Page 159

 
(c)
a person who is an employer for the purposes of Part 5A of the
 
 
Employment Rights (Northern Ireland) Order 1996 in relation to a
 
 
worker mentioned in Article 67K(2) of that Order;
 
 
(d)
a person who is the principal for the purposes of section 47A or 63A
 
 
of the Employment Rights Act 1996 or Article 70A or 91A of the
5
 
Employment Rights (Northern Ireland) Order 1996 (right to time off
 
 
for young person for study or training);
 
 
(e)
a person who is—
 
 
(i)
an employer for the purposes of Chapter 3 or 4 of Part 2A of
 
 
the Employment Rights Act 1996 (zero hours workers) by virtue
10
 
of section 27BJ (7) or (as the case may be) 27BP (9) of that Act,
 
 
(ii)
an employer in relation to a zero hours arrangement within
 
 
the meaning of Part 2A of that Act (see section 27BZ2 (1) of
 
 
that Act), or
 
 
(iii)
an employer in relation to a non-contractual zero hours
15
 
arrangement within the meaning of Article 59A of the
 
 
Employment Rights (Northern Ireland) Order 1996;
 
 
(f)
in relation to an individual who is an agency worker within the
 
 
meaning of Part 2A of the Employment Rights Act 1996—
 
 
(i)
a person who is the hirer within the meaning of any Part of
20
 
Schedule A1 to that Act (agency workers: guaranteed hours
 
 
and rights relating to shifts);
 
 
(ii)
a work-finding agency within the meaning of Schedule A1 to
 
 
that Act (see section 27BV(4) of that Act);
 
 
(iii)
a relevant person within the meaning of section 47I of that Act
25
 
(agency workers and Schedule A1 rights);
 
 
(g)
in relation to an individual who is an agency worker within the
 
 
meaning of the Agency Workers Regulations 2010 (S.I. 2010/93) or
 
 
the Agency Workers Regulations (Northern Ireland) 2011 (S.R. (N.I.)
 
 
2011 No. 350)—
30
 
(i)
the hirer within the meaning of the relevant Regulations;
 
 
(ii)
(where the worker is not actually employed by the temporary
 
 
work agency) the temporary work agency within the meaning
 
 
of the relevant Regulations;
 
 
(h)
in relation to an individual seeking to be employed by a person as a
35
 
worker, that person.
 
 
(3)
In this Part “premises” includes any place and, in particular, includes—
 
 
(a)
any vehicle, vessel, aircraft or hovercraft;
 
 
(b)
any tent or movable structure;
 
 
(c)
any offshore installation;
40
 
(d)
any renewable energy installation.
 
 
(4)
In subsection (3) —
 
 
“offshore installation” has the same meaning as in the Mineral Workings
 
 
(Offshore Installations) Act 1971;
 

Page 160

 
“renewable energy installation” has the meaning given by section 104 of
 
 
the Energy Act 2004.
 
 
(5)
In this Part “worker” means any of the following—
 
 
(a)
a worker within the meaning of section 230(3) of the Employment
 
 
Rights Act 1996 or Article 3(3) of the Employment Rights (Northern
5
 
Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16));
 
 
(b)
an individual who is not a worker as defined by section 230(3) of the
 
 
Employment Rights Act 1996 but who is a worker for the purposes
 
 
of Part 4A of that Act (see section 43K(1) of that Act);
 
 
(c)
an individual who is not a worker as defined by Article 3(3) of the
10
 
Employment Rights (Northern Ireland) Order 1996 but who is a worker
 
 
for the purposes of Part 5A of that Order (see Article 67K(1) of that
 
 
Order);
 
 
(d)
an individual who—
 
 
(i)
is a worker for the purposes of Chapter 3 or 4 of Part 2A of
15
 
the Employment Rights Act 1996 (zero hours workers) by virtue
 
 
of section 27BJ (7) or (as the case may be) 27BP (9) of that Act,
 
 
(ii)
works under a zero hours arrangement within the meaning of
 
 
Part 2A of that Act (see section 27BZ2 (1) of that Act), or
 
 
(iii)
works under a non-contractual zero hours arrangement within
20
 
the meaning of Article 59A of the Employment Rights (Northern
 
 
Ireland) Order 1996;
 
 
(e)
an individual who is an agency worker within the meaning of Part
 
 
2A of the Employment Rights Act 1996;
 
 
(f)
an individual who is an agency worker within the meaning of the
25
 
Agency Workers Regulations 2010 (S.I. 2010/93) or the Agency Workers
 
 
Regulations (Northern Ireland) 2011 (S.R. (N.I.) 2011 No. 350);
 
 
(g)
an individual seeking to be employed by a person as a worker.
 

Part 6

 

Miscellaneous and general

30

Tribunals

 
155
Increase in time limits for making claims
 
 
Schedule 12 makes amendments for the purpose of increasing time limits for
 
 
making claims in employment tribunals in Great Britain (and, in certain cases,
 
 
industrial tribunals in Northern Ireland) from three months to six months.
35

Page 161

Regulations etc under Employment Rights Act 1996

 
156
Orders and regulations under Employment Rights Act 1996: procedure
 
 
In section 236 of the Employment Rights Act 1996 (orders and regulations),
 
 
after subsection (4) insert—
 
 
“(4A)
A statutory instrument containing an order or regulations under this
5
 
Act to which subsection (3) applies may include an order or regulations
 
 
under this Act to which subsection (3) would not otherwise apply.
 
 
(4B)
In such a case, the statutory instrument is to be proceeded with as if
 
 
all of the orders and regulations contained in it were orders or
 
 
regulations to which subsection (3) applies.”
10

Final provisions

 
157
Power to make consequential amendments
 
 
(1)
The Secretary of State may by regulations make provision that is consequential
 
 
on any provision made by this Act.
 
 
(2)
The power to make regulations under this section may, in particular, be
15
 
exercised by amending, repealing, revoking or otherwise modifying any
 
 
provision made by or under primary legislation passed before, or in the same
 
 
session of Parliament as, this Act.
 
 
(3)
In this section “primary legislation” means—
 
 
(a)
an Act of Parliament;
20
 
(b)
a Measure or Act of the National Assembly for Wales or an Act of
 
 
Senedd Cymru;
 
 
(c)
an Act of the Scottish Parliament;
 
 
(d)
Northern Ireland legislation.
 
 
(4)
Regulations under this section that amend or repeal any primary legislation
25
 
are subject to the affirmative resolution procedure.
 
 
(5)
Any other regulations under this section are subject to the negative resolution
 
 
procedure.
 
158
Power to make transitional or saving provision
 
 
(1)
The Secretary of State may by regulations make such transitional or saving
30
 
provision as the Secretary of State considers appropriate in connection with
 
 
the coming into force of any provision of this Act.
 
 
(2)
Regulations under this section may (among other things)—
 
 
(a)
make provision in addition to, or different from, that made by this
 
 
Act;
35

Page 162

 
(b)
make any adaptations of any provisions of this Act brought into force
 
 
that appear to be appropriate in consequence of other provisions of
 
 
this Act not yet having come into force.
 
159
Regulations
 
 
(1)
Any power of the Secretary of State or the Welsh Ministers to make regulations
5
 
under this Act is exercisable by statutory instrument.
 
 
(2)
For provision about the making of regulations under this Act by the Scottish
 
 
Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland)
 
 
Act 2010 (asp 10) (which provides for such regulations to be made by Scottish
 
 
statutory instrument).
10
 
(3)
Regulations under this Act may—
 
 
(a)
make different provision for different purposes or different areas;
 
 
(b)
contain supplementary, incidental, consequential, transitional or saving
 
 
provision.
 
 
(4)
Subsection (3) does not apply to regulations under section 162 (see instead
15
 
subsection (4) of that section).
 
 
(5)
Where regulations under this Act are subject to the “negative resolution
 
 
procedure”—
 
 
(a)
in the case of regulations of the Secretary of State, the statutory
 
 
instrument containing the regulations is subject to annulment in
20
 
pursuance of a resolution of either House of Parliament;
 
 
(b)
in the case of regulations of the Welsh Ministers, the statutory
 
 
instrument containing the regulations is subject to annulment in
 
 
pursuance of a resolution of Senedd Cymru;
 
 
(c)
in the case of regulations of the Scottish Ministers, the regulations are
25
 
subject to the negative procedure (see section 28 of the Interpretation
 
 
and Legislative Reform (Scotland) Act 2010 (asp 10)).
 
 
(6)
Where regulations under this Act are subject to the “affirmative resolution
 
 
procedure”—
 
 
(a)
in the case of regulations of the Secretary of State, the regulations may
30
 
not be made unless a draft of the statutory instrument containing them
 
 
has been laid before Parliament and approved by a resolution of each
 
 
House of Parliament;
 
 
(b)
in the case of regulations of the Welsh Ministers, the regulations may
 
 
not be made unless a draft of the statutory instrument containing them
35
 
has been laid before, and approved by a resolution of, Senedd Cymru;
 
 
(c)
in the case of regulations of the Scottish Ministers, the regulations are
 
 
subject to the affirmative procedure (see section 29 of the Interpretation
 
 
and Legislative Reform (Scotland) Act 2010 (asp 10)).
 
 
(7)
Any provision that may be included by a person in an instrument under this
40
 
Act subject to the negative resolution procedure may be made by the person
 
 
by regulations subject to the affirmative resolution procedure.
 

Page 163

160
Financial provision
 
 
There is to be paid out of money provided by Parliament—
 
 
(a)
any expenditure incurred under or by virtue of this Act by a person
 
 
holding office under His Majesty or by a government department, and
 
 
(b)
any increase attributable to this Act in the sums payable under any
5
 
other Act out of money so provided.
 
161
Extent
 
 
(1)
Except as set out below—
 
 
(a)
Parts 1, 2 and 4 of this Act extend to England and Wales and Scotland;
 
 
(b)
in Part 3—
10
 
(i)
Chapter 1 extends to England and Wales;
 
 
(ii)
Chapter 2 extends to England and Wales and Scotland;
 
 
(iii)
Chapter 3 extends to England and Wales, Scotland and
 
 
Northern Ireland;
 
 
(c)
Part 5 and this Part extend to England and Wales, Scotland and
15
 
Northern Ireland.
 
 
(2)
Sections 12 and 13 (statutory sick pay in Northern Ireland) extend to Northern
 
 
Ireland only.
 
 
(3)
Section 36 (public sector outsourcing: protection of workers) extends to
 
 
England and Wales, Scotland and Northern Ireland.
20
 
(4)
Except as set out in subsection (5) , an amendment, repeal or revocation made
 
 
by this Act has the same extent within the United Kingdom as the provision
 
 
amended, repealed or revoked.
 
 
(5)
In Schedule 12 (increase in time limits for making claims)—
 
 
(a)
the amendments made by paragraph 9 (3) and (4) extend to Northern
25
 
Ireland only;
 
 
(b)
the amendments made by paragraphs 10 , 12 and 13 extend to England
 
 
and Wales and Scotland only.
 
162
Commencement
 
 
(1)
The following provisions of this Act come into force on the day on which
30
 
this Act is passed—
 
 
(a)
section 81 (repeal of provision about minimum service levels);
 
 
(b)
sections 157 to 161 , this section and section 163 .
 
 
(2)
The following provisions of this Act come into force at the end of the period
 
 
of two months beginning with the day on which this Act is passed—
35
 
(a)
section 65 (political funds: requirement to pass political resolution);
 
 
(b)
section [section removed];
 
 
(c)
section 66 (deduction of trade union subscriptions from wages in
 
 
public sector);
 

Page 164

 
(d)
section 69 (facility time: publication requirements and reserve powers);
 
 
(e)
section 70 (blacklists: additional powers);
 
 
(f)
section 72 (industrial action ballots: support thresholds);
 
 
(g)
section 73 (notice of industrial action ballot and sample voting paper
 
 
for employers);
5
 
(h)
section 74 (industrial action ballots: information to be included on
 
 
voting paper);
 
 
(i)
section 75 (period after which industrial action ballot ceases to be
 
 
effective);
 
 
(j)
section 76 (electronic balloting);
10
 
(k)
section 77 (notice to employers of industrial action);
 
 
(l)
section 78 (union supervision of picketing);
 
 
(m)
section 83 (union annual returns: removal of provision about political
 
 
expenditure);
 
 
(n)
section 85 (Certification Officer: removal of investigatory powers);
15
 
(o)
section 86 (Certification Officer: powers to be exercised only on
 
 
application);
 
 
(p)
section 87 (Certification Officer: removal of power to impose financial
 
 
penalties);
 
 
(q)
section 89 (Certification Officer: appeals to the Employment Appeal
20
 
Tribunal);
 
 
(r)
section 90 (employment outside Great Britain);
 
 
(s)
section 92 (devolved Welsh authorities).
 
 
(3)
The other provisions of this Act come into force in accordance with regulations
 
 
made by the Secretary of State.
25
 
(4)
Regulations under subsection (3) may make different provision for different
 
 
purposes or different areas.
 
163
Short title
 
 
This Act may be cited as the Employment Rights Act 2025.
 

Page 165

Schedules

 
 
Schedule 1
Section 4
 

Agency workers: guaranteed hours and rights relating to shifts

 
 
Before Schedule 1 to the Employment Rights Act 1996 insert—
 
 
“Schedule A1
Section 27BV
5

Agency workers: guaranteed hours and rights relating to shifts

 

Part 1

 

Right to guaranteed hours

 

Right for qualifying agency workers to be offered guaranteed hours

 
 
1
(1)
A hirer must make a guaranteed hours offer to an agency worker in
10
 
accordance with paragraph 2 after the end of every period—
 
 
(a)
that is a reference period in relation to that agency worker and that
 
 
hirer, and
 
 
(b)
in relation to which the agency worker is a qualifying agency worker
 
 
of the hirer.
15
 
(2)
Paragraph 5 makes provision for exceptions to this duty, including in certain
 
 
cases where the agency worker stops working for and under the supervision
 
 
and direction of the hirer.
 
 
(3)
An agency worker is a qualifying agency worker of a hirer in relation to
 
 
a reference period if—
20
 
(a)
during the reference period the agency worker worked for and
 
 
under the supervision and direction of the hirer for a number of
 
 
hours (the “reference period hours”),
 
 
(b)
the reference period hours satisfy such conditions as to number,
 
 
regularity or otherwise as are specified, and
25
 
(c)
when the agency worker worked the reference period hours, it was
 
 
not as an excluded agency worker.
 
 
(4)
In relation to an agency worker and a hirer for and under the supervision
 
 
and direction of whom the agency worker works, each of the following is
 
 
a “reference period”—
30
 
(a)
the initial reference period, and
 
 
(b)
each subsequent reference period.
 
 
(5)
“The initial reference period”, in relation to an agency worker and a hirer
 
 
for and under the supervision and direction of whom the agency worker
 
 
works, means the period—
35
 
(a)
beginning with—
 

Page 166

 
(i)
where the agency worker is working for and under the
 
 
supervision and direction of the hirer on the day on which
 
 
sub-paragraph (1) comes into force (“the commencement
 
 
day”), the commencement day, or
 
 
(ii)
where the agency worker is not so working, the first day
5
 
after the commencement day on which the agency worker
 
 
is working for and under the supervision and direction of
 
 
the hirer, and
 
 
(b)
ending with the specified day.
 
 
(6)
A “subsequent reference period”, in relation to an agency worker and a
10
 
hirer for and under the supervision and direction of whom the agency
 
 
worker works, means a period beginning and ending with the specified
 
 
days.
 
 
(7)
For the purposes of this Part of this Schedule—
 
 
(a)
references to a “hirer” are to a person for and under the supervision
15
 
and direction of whom agency workers are supplied to work,
 
 
(b)
references to a “qualifying agency worker” are to an agency worker
 
 
who is a qualifying agency worker of a hirer in relation to a
 
 
reference period by virtue of sub-paragraph (3) , and
 
 
(c)
the reference period in relation to which the agency worker is a
20
 
qualifying agency worker of the hirer is referred to as “the relevant
 
 
reference period”.
 
 
(8)
Nothing in this Part of this Schedule prevents a hirer from making one or
 
 
more other offers to a qualifying agency worker to enter into a worker’s
 
 
contract, at the same time as making a guaranteed hours offer.
25
 
(9)
Regulations made under sub-paragraph (3) (b) , (5) or (6) may, in particular,
 
 
include provision to take account of time when an agency worker does not
 
 
work for a specified reason.
 
 
(10)
In this paragraph, “excluded agency worker” means an agency worker who
 
 
is of a specified description.
30

Requirements relating to a guaranteed hours offer

 
 
2
(1)
An offer by a hirer to a qualifying agency worker is a guaranteed hours
 
 
offer for the purposes of this Part of this Schedule if it is an offer to enter
 
 
into a worker’s contract and the worker’s contract will require the hirer to
 
 
provide the qualifying agency worker with work, and the qualifying agency
35
 
worker to do work, for a number of hours that reflects the reference period
 
 
hours in the relevant reference period.
 
 
(2)
The Secretary of State may by regulations provide that an offer by a hirer
 
 
to a qualifying agency worker is a guaranteed hours offer for the purposes
 
 
of this Part of this Schedule only if it also satisfies the condition in
40
 
sub-paragraph (3) .
 
 
(3)
The condition referred to in sub-paragraph (2) is that—
 
 
(a)
the offer sets out—
 

Page 167

 
(i)
the days of the week, and the times on those days, when
 
 
the offered number of hours are to be provided and worked,
 
 
or
 
 
(ii)
a working pattern of days, and times of day, by reference
 
 
to which the offered number of hours are to be provided
5
 
and worked, and
 
 
(b)
those days and times reflect, or that pattern reflects, when the
 
 
qualifying agency worker worked the reference period hours in the
 
 
relevant reference period.
 
 
(4)
Where no regulations are in force under sub-paragraph (2) that apply in
10
 
relation to an offer by a hirer to a qualifying agency worker, the offer is a
 
 
guaranteed hours offer for the purposes of this Part of this Schedule only
 
 
if it also proposes terms and conditions relating to when the offered number
 
 
of hours are to be provided and worked (which need not be on particular
 
 
days of the week, or at particular times on those days, or by reference to
15
 
a particular working pattern of days or times of day).
 
 
(5)
The Secretary of State may by regulations make provision about how it is
 
 
to be determined—
 
 
(a)
whether an offer reflects the number of hours worked by a
 
 
qualifying agency worker during a reference period;
20
 
(b)
where regulations are in force under sub-paragraph (2) that apply
 
 
in relation to an offer, whether the offer reflects when hours were
 
 
worked by a qualifying agency worker during a reference period.
 
 
(6)
A guaranteed hours offer—
 
 
(a)
must not propose a worker’s contract that is a limited-term contract
25
 
unless it is reasonable for it to be entered into as such a contract,
 
 
(b)
must propose terms and conditions of employment relating to pay
 
 
that comply with paragraph 3 , and
 
 
(c)
must propose terms and conditions of employment relating to
 
 
additional matters—
30
 
(i)
that, taken as a whole, are no less favourable than the terms
 
 
and conditions relating to additional matters that the
 
 
qualifying agency worker had when working for and under
 
 
the supervision and direction of the hirer during the relevant
 
 
reference period, or
35
 
(ii)
where paragraph 4 applies, that comply with sub-paragraph
 
 
(2) of that paragraph.
 
 
(7)
For the purposes of sub-paragraph (6) (a) it is reasonable for a worker’s
 
 
contract to be entered into, between a hirer and a qualifying agency worker,
 
 
as a limited-term contract only if—
40
 
(a)
it is reasonable for the hirer to consider that the qualifying agency
 
 
worker is only needed to perform a specific task and the worker’s
 
 
contract provides for termination when the task has been performed,
 
 
(b)
it is reasonable for the hirer to consider that the qualifying agency
 
 
worker is only needed until the occurrence of an event (or the failure
45

Page 168

 
of an event to occur) and the worker’s contract provides for
 
 
termination on the occurrence of the event (or the failure of the
 
 
event to occur), or
 
 
(c)
it is reasonable for the hirer to consider that there is only a
 
 
temporary need of a specified description (not falling within
5
 
paragraph (a) or (b) ) for the qualifying agency worker to do work
 
 
under the worker’s contract and the worker’s contract is to expire
 
 
at a time when it is reasonable for the hirer to consider that the
 
 
temporary need will come to an end.
 
 
(8)
For the purposes of sub-paragraphs (6) (b) and (9) , terms and conditions of
10
 
employment relate to “pay” if they relate to any sums payable to a worker
 
 
in connection with the worker’s employment, including any fee, bonus,
 
 
commission, holiday pay or other emolument referable to the employment,
 
 
whether payable under contract or otherwise.
 
 
(9)
For the purposes of sub-paragraph (6) (c) , terms and conditions of
15
 
employment relate to “additional matters” if—
 
 
(a)
they are not terms and conditions that are required by or under
 
 
sub-paragraphs (1) and (2) or sub-paragraphs (1) and (4) ;
 
 
(b)
they do not relate to length of employment;
 
 
(c)
they do not relate to pay.
20
 
(10)
A guaranteed hours offer—
 
 
(a)
must be made by no later than the specified day,
 
 
(b)
must be made in the specified form and manner, and
 
 
(c)
must be accompanied by specified information relating to the offer.
 
 
(11)
The Secretary of State may by regulations make provision about when a
25
 
guaranteed hours offer is to be treated as having been made.
 
 
(12)
In this paragraph, “reference period hours”, in relation to a qualifying
 
 
agency worker and a relevant reference period, has the same meaning as
 
 
in paragraph 1 (3) .
 

Requirements relating to a guaranteed hours offer: terms and conditions relating to pay

30
 
3
(1)
Terms and conditions of employment relating to pay that are proposed by
 
 
a guaranteed hours offer made by a hirer to a qualifying agency worker
 
 
in respect of a relevant reference period comply with this paragraph if any
 
 
of conditions A to D is met in relation to those terms and conditions.
 
 
(2)
Condition A is that the terms and conditions of employment relating to
35
 
pay are no less favourable than the most favourable terms and conditions
 
 
relating to pay that the qualifying agency worker had when working for
 
 
and under the supervision and direction of the hirer during the relevant
 
 
reference period.
 
 
(3)
Condition B is that—
40
 
(a)
the terms and conditions of employment relating to pay do not meet
 
 
condition A but are no less favourable than the least favourable
 

Page 169

 
terms and conditions relating to pay that the qualifying agency
 
 
worker had when working for and under the supervision and
 
 
direction of the hirer during the relevant reference period, and
 
 
(b)
the proposal of those terms by the hirer constitutes a proportionate
 
 
means of achieving a legitimate aim.
5
 
(4)
Condition C is that the terms and conditions of employment relating to
 
 
pay are no less favourable than—
 
 
(a)
where there was only one comparable worker in relation to the
 
 
qualifying agency worker at the end of the relevant reference period,
 
 
the terms and conditions of employment relating to pay that the
10
 
comparable worker had at the end of that period, or
 
 
(b)
where there was more than one such comparable worker, the most
 
 
favourable terms and conditions of employment relating to pay that
 
 
a comparable worker had at the end of the relevant reference period.
 
 
(5)
Condition D is that, where there was more than one comparable worker
15
 
in relation to the qualifying agency worker at the end of the relevant
 
 
reference period—
 
 
(a)
the terms and conditions of employment relating to pay do not meet
 
 
condition C but are no less favourable than the terms and conditions
 
 
of employment relating to pay that at least one comparable worker
20
 
had at the end of the relevant reference period, and
 
 
(b)
the proposal of those terms by the hirer constitutes a proportionate
 
 
means of achieving a legitimate aim.
 
 
(6)
If a hirer relies on any of sub-paragraphs (3) to (5) when making a
 
 
guaranteed hours offer to a qualifying agency worker, the hirer must give
25
 
a notice to the qualifying agency worker that—
 
 
(a)
states that the hirer has done so, and
 
 
(b)
where sub-paragraph (3) (b) or (5) (b) applies, explains how the
 
 
proposed terms and conditions constitute a proportionate means of
 
 
achieving a legitimate aim.
30
 
(7)
A notice under sub-paragraph (6) must be given by no later than the same
 
 
day, and in the same form and manner, as the guaranteed hours offer (see
 
 
paragraph 2 (10) ).
 
 
(8)
For the purposes of this paragraph a worker is a “comparable worker”, in
 
 
relation to an agency worker who works for and under the supervision
35
 
and direction of a hirer, if—
 
 
(a)
the worker is employed by the hirer to do the same or broadly
 
 
similar work as the agency worker, having regard, where relevant,
 
 
to whether the worker and the agency worker have a similar level
 
 
of qualification and skills, and
40
 
(b)
the worker is employed by the hirer to work at the same place as
 
 
the agency worker or, where there is no worker employed by the
 
 
hirer at that place who does the same or broadly similar work as
 
 
the agency worker, at any other place.
 

Page 170

 
(9)
Paragraph 2 (8) (when terms and conditions of employment relate to pay)
 
 
applies for the purposes of this paragraph as it applies for the purposes of
 
 
paragraph 2 (6) (b) and (9) .
 
 
(10)
References in this paragraph to terms and conditions relating to pay that
 
 
an agency worker had when working for and under the supervision and
5
 
direction of a hirer are references to any sums payable to the agency worker
 
 
in connection with that work, including any fee, bonus, commission, holiday
 
 
pay or other emolument referable to the work, whether payable under
 
 
contract or otherwise.
 

Requirements relating to a guaranteed hours offer: supplementary

10
 
4
(1)
This paragraph applies where, during the relevant reference period, the
 
 
terms and conditions relating to additional matters that the qualifying
 
 
agency worker had when working for and under the supervision and
 
 
direction of the hirer were not the same throughout the relevant reference
 
 
period.
15
 
(2)
Where this paragraph applies, the guaranteed hours offer may propose
 
 
terms and conditions of employment relating to additional matters that,
 
 
taken as a whole, are less favourable than the most favourable terms and
 
 
conditions relating to additional matters that the qualifying agency worker
 
 
had when working for and under the supervision and direction of the hirer
20
 
during the relevant reference period, but only if—
 
 
(a)
those proposed terms and conditions, taken as a whole, are no less
 
 
favourable than the least favourable terms and conditions relating
 
 
to additional matters that the qualifying agency worker had when
 
 
working for and under the supervision and direction of the hirer
25
 
during the relevant reference period, and
 
 
(b)
the proposal of those terms by the hirer constitutes a proportionate
 
 
means of achieving a legitimate aim.
 
 
(3)
If a hirer relies on sub-paragraph (2) when making a guaranteed hours
 
 
offer to a qualifying agency worker, the hirer must give to the qualifying
30
 
agency worker a notice that—
 
 
(a)
states that the hirer has done so, and
 
 
(b)
explains how the proposed terms and conditions constitute a
 
 
proportionate means of achieving a legitimate aim.
 
 
(4)
A notice under sub-paragraph (3) must be given by no later than the same
35
 
day, and in the same form and manner, as the guaranteed hours offer (see
 
 
paragraph 2 (10) ).
 
 
(5)
Paragraph 2 (9) (when terms and conditions of employment relate to
 
 
additional matters) applies for the purposes of this paragraph as it applies
 
 
for the purposes of paragraph 2 (6) (c) .
40

Page 171

Guaranteed hours offer: exceptions to duty to make offer and withdrawal of offer

 
 
5
(1)
The duty imposed by paragraph 1 (1) on a hirer in relation to a qualifying
 
 
agency worker does not apply if, during the relevant reference period or
 
 
the offer period, the qualifying agency worker stops working for and under
 
 
the supervision and direction of the hirer in relevant circumstances.
5
 
(2)
A guaranteed hours offer made by a hirer to a qualifying agency worker
 
 
is to be treated as having been withdrawn if, during the response period,
 
 
the qualifying agency worker stops working for and under the supervision
 
 
and direction of the hirer in relevant circumstances.
 
 
(3)
Relevant circumstances occur where—
10
 
(a)
the qualifying agency worker declines to continue working under
 
 
the supervision and direction of the hirer other than in circumstances
 
 
in which the qualifying agency worker is entitled to do so without
 
 
notice by reason of the hirer’s conduct;
 
 
(b)
the hirer tells the work-finding agency, or other person, that has
15
 
been supplying the qualifying agency worker to the hirer to stop
 
 
supplying the qualifying agency worker and—
 
 
(i)
the hirer’s reason for doing so (or, if more than one, the
 
 
hirer’s principal reason for doing so) is a qualifying reason,
 
 
and
20
 
(ii)
in the circumstances (including the size and administrative
 
 
resources of the hirer’s undertaking) the hirer has acted
 
 
reasonably in treating the reason (or the principal reason)
 
 
as a sufficient reason for telling the work-finding agency, or
 
 
other person, to stop supplying the qualifying agency worker.
25
 
(4)
In sub-paragraph (3) (b) , “qualifying reason”, in relation to a qualifying
 
 
agency worker, means a reason falling within sub-paragraph (5) or some
 
 
other substantial reason of a kind such as to justify telling a work-finding
 
 
agency, or other person, to stop supplying an agency worker doing work
 
 
of the kind which the qualifying agency worker was supplied to the hirer
30
 
to do.
 
 
(5)
A reason falls within this sub-paragraph if it—
 
 
(a)
relates to the capability or qualifications of the qualifying agency
 
 
worker to do work of the kind which the qualifying agency worker
 
 
was supplied to the hirer to do,
35
 
(b)
relates to the conduct of the qualifying agency worker, or
 
 
(c)
is that the qualifying agency worker could not continue to do work
 
 
of the kind which the qualifying agency worker was supplied to
 
 
the hirer to do without contravention (whether on the part of the
 
 
qualifying agency worker, on the part of the hirer or on the part of
40
 
the work-finding agency or other person that supplied the qualifying
 
 
agency worker) of a duty or restriction imposed by or under any
 
 
legislation.
 

Page 172

 
(6)
The Secretary of State may by regulations make provision for the duty
 
 
imposed by paragraph 1 (1) not to apply in relation to a reference period,
 
 
or for a guaranteed hours offer that has been made to be treated as having
 
 
been withdrawn, in other specified circumstances.
 
 
(7)
In exercising the power under sub-paragraph (6) the Secretary of State
5
 
must, in particular, have regard to—
 
 
(a)
the benefit to agency workers of receiving a guaranteed hours offer
 
 
under this Part of this Schedule, and
 
 
(b)
the desirability of preventing this Part of this Schedule from having
 
 
a significant adverse effect on hirers who are dealing with
10
 
exceptional circumstances.
 
 
(8)
Where, by virtue of sub-paragraph (2) , a guaranteed hours offer made by
 
 
a hirer to a qualifying agency worker is treated as having been withdrawn,
 
 
the hirer must, by no later than the end of the response period, give a
 
 
notice to the qualifying agency worker stating this to be the case.
15
 
(9)
Where, by virtue of regulations under sub-paragraph (6) —
 
 
(a)
a hirer who would otherwise have been subject to the duty imposed
 
 
by paragraph 1 (1) in relation to a qualifying agency worker and a
 
 
particular reference period is not required to make a guaranteed
 
 
hours offer to the qualifying agency worker, or
20
 
(b)
a guaranteed hours offer made by a hirer to a qualifying agency
 
 
worker is treated as having been withdrawn,
 
 
the hirer must give a notice to the qualifying agency worker that states
 
 
which provision of the regulations has produced the effect referred to in
 
 
paragraph (a) or (b) (as the case may be).
25
 
(10)
A notice under sub-paragraph (9) must be given by a hirer to a qualifying
 
 
agency worker—
 
 
(a)
where it is required to be given by virtue of paragraph (a) of that
 
 
sub-paragraph, by no later than the end of the offer period;
 
 
(b)
where it is required to be given by virtue of paragraph (b) of that
30
 
sub-paragraph, by no later than the end of the response period.
 
 
(11)
The Secretary of State may by regulations make provision about—
 
 
(a)
the form and manner in which a notice under sub-paragraph (8) or
 
 
(9) must be given;
 
 
(b)
when a notice under sub-paragraph (8) or (9) is to be treated as
35
 
having been given.
 
 
(12)
In this paragraph—
 
 
“capability” , in relation to a qualifying agency worker, means the
 
 
qualifying agency worker’s capability assessed by reference to skill,
 
 
aptitude, health or any other physical or mental quality;
40
 
“the offer period” , in relation to a qualifying agency worker and the
 
 
hirer for and under the supervision and direction of whom the
 
 
agency worker worked, means the period beginning with the day
 

Page 173

 
after the day on which the relevant reference period ends and ending
 
 
with—
 
 
(a)
the day on which a guaranteed hours offer is made to the
 
 
qualifying agency worker by the hirer, or
 
 
(b)
if no guaranteed hours offer is made before the day specified
5
 
under paragraph 2 (10) (a) as the last day on which the hirer
 
 
may make such an offer to the qualifying agency worker,
 
 
that last day;
 
 
“qualifications” , in relation to a qualifying agency worker, means any
 
 
degree, diploma or other academic, technical or professional
10
 
qualification relevant to the work which the qualifying agency
 
 
worker is supplied to the hirer to do;
 
 
“the response period” , in relation to a guaranteed hours offer made
 
 
to a qualifying agency worker, means the period—
 
 
(a)
beginning with the day after the day on which the offer is
15
 
made, and
 
 
(b)
ending with the specified day.
 

Acceptance or rejection of a guaranteed hours offer

 
 
6
(1)
Where a hirer makes a guaranteed hours offer to a qualifying agency worker
 
 
and the offer is not treated as having been withdrawn by virtue of
20
 
paragraph 5 (2) or regulations under paragraph 5 (6) , the qualifying agency
 
 
worker may, by giving notice to the hirer before the end of the response
 
 
period, accept or reject the offer.
 
 
(2)
Where a qualifying agency worker gives notice under sub-paragraph (1)
 
 
accepting an offer, the qualifying agency worker and the hirer that made
25
 
the offer are to be treated as entering into a worker’s contract in the terms
 
 
of the offer on the day after the day on which notice is given.
 
 
(3)
But a qualifying agency worker and a hirer may agree, for the purposes
 
 
of sub-paragraph (2) , that the worker’s contract is to be treated as being
 
 
entered into on a later day than the day mentioned in that sub-paragraph.
30
 
(4)
Where, by virtue of sub-paragraphs (2) and (3) , a qualifying agency worker
 
 
and a hirer are treated as entering into a worker’s contract on a day, and
 
 
accordingly from that day the qualifying agency worker becomes a worker
 
 
and the hirer becomes that worker’s employer, Chapter 2 of Part 2A applies
 
 
in relation to that worker and that employer as if in section 27BA
35
 
(employer’s duty to make a guaranteed hours offer) subsections (4) (a) and
 
 
(5) (which provide for the initial reference period to be a reference period
 
 
and define the initial reference period) were omitted.
 
 
(5)
If a qualifying agency worker to whom a guaranteed hours offer has been
 
 
made does not give notice under sub-paragraph (1) before the end of the
40
 
response period, the qualifying agency worker is to be treated as having
 
 
rejected the offer.
 
 
(6)
The Secretary of State may by regulations make provision about—
 

Page 174

 
(a)
the form and manner in which notice under sub-paragraph (1) must
 
 
be given by a qualifying agency worker to a hirer;
 
 
(b)
when notice given by a qualifying agency worker to a hirer under
 
 
sub-paragraph (1) is to be treated as having been given.
 
 
(7)
In this paragraph, “the response period” has the same meaning as in
5
 
paragraph 5 .
 
 
(8)
Where—
 
 
(a)
a hirer is permitted by section 27BY (3) to withdraw a guaranteed
 
 
hours offer (withdrawal of offer following incorporation of terms
 
 
of collective agreement), and
10
 
(b)
the hirer withdraws the offer by giving notice under that section,
 
 
sub-paragraph (1) of this paragraph ceases to apply in relation to the offer
 
 
when the notice is given.
 

Information about rights conferred by Part

 
 
7
(1)
Where—
15
 
(a)
a work-finding agency has a worker’s contract or an arrangement
 
 
with an agency worker by virtue of which the agency worker is (or
 
 
is to be) supplied to work for and under the supervision and
 
 
direction of a hirer, and
 
 
(b)
it is reasonable to consider that the agency worker might become
20
 
a qualifying agency worker of a hirer in relation to a reference
 
 
period (whether the initial reference period, or a subsequent
 
 
reference period, as defined in paragraph 1 ),
 
 
the work-finding agency must take reasonable steps, within the initial
 
 
information period, to ensure that the agency worker is aware of specified
25
 
information relating to the rights conferred on agency workers by this Part
 
 
of this Schedule.
 
 
(2)
A work-finding agency that is subject to the duty in sub-paragraph (1) in
 
 
relation to an agency worker must take reasonable steps to ensure that,
 
 
after the end of the initial information period, the agency worker continues
30
 
to have access to the specified information referred to in that sub-paragraph
 
 
at all times when—
 
 
(a)
the worker’s contract or (as the case may be) the arrangement so
 
 
referred to continues to be in force, and
 
 
(b)
it is reasonable to consider that the agency worker might become
35
 
(or might again become) a qualifying agency worker of a hirer in
 
 
relation to a reference period.
 
 
(3)
“The initial information period”, in relation to an agency worker and the
 
 
work-finding agency with which the agency worker has a worker’s contract
 
 
or an arrangement by virtue of which the agency worker is (or is to be)
40
 
supplied to work for and under the supervision and direction of a hirer,
 
 
means the period of two weeks beginning with—
 

Page 175

 
(a)
where the worker’s contract or arrangement is in force on the day
 
 
on which paragraph 1 (1) comes into force (“the commencement
 
 
day”), the commencement day, or
 
 
(b)
where it is not in force on that day, the first day after the
 
 
commencement day on which it is in force.
5
 
(4)
But where, on the day referred to in sub-paragraph (3) (a) or (b) , it was not
 
 
reasonable to consider that the agency worker might become a qualifying
 
 
agency worker of a hirer in relation to any reference period, sub-paragraph
 
 
(3) is to be read as if it provided for “the initial information period” to
 
 
mean the period of two weeks beginning with the day on which it becomes
10
 
reasonable so to consider.
 

Complaints to employment tribunals against a hirer: grounds

 
 
8
(1)
An agency worker may present a complaint to an employment tribunal
 
 
that—
 
 
(a)
the duty imposed by paragraph 1 (1) applies to a hirer in relation
15
 
to the agency worker and a particular reference period, but
 
 
(b)
by the end of the last day of the offer period, the hirer has not made
 
 
an offer to enter into a worker’s contract in compliance (or purported
 
 
compliance) with that duty (whether because the hirer does not
 
 
consider that the agency worker is a qualifying agency worker in
20
 
relation to the reference period or for any other reason).
 
 
(2)
An agency worker may present a complaint to an employment tribunal
 
 
that—
 
 
(a)
the duty imposed by paragraph 1 (1) applies to a hirer in relation
 
 
to the agency worker and a particular reference period, but
25
 
(b)
the offer that the hirer has made to the agency worker in relation
 
 
to that reference period to enter into a worker’s contract is not a
 
 
guaranteed hours offer as described in—
 
 
(i)
where regulations are in force under sub-paragraph (2) of
 
 
paragraph 2 that apply in relation to the offer,
30
 
sub-paragraphs (1) and (3) of that paragraph (read with any
 
 
regulations in force under sub-paragraph (5) (a) or (b) of that
 
 
paragraph), or
 
 
(ii)
where no regulations are in force under sub-paragraph (2)
 
 
of paragraph 2 that apply in relation to the offer,
35
 
sub-paragraphs (1) and (4) of that paragraph (read with any
 
 
regulations in force under sub-paragraph (5) (a) of that
 
 
paragraph).
 
 
(3)
An agency worker may present a complaint to an employment tribunal
 
 
that—
40
 
(a)
the duty imposed by paragraph 1 (1) applies to a hirer in relation
 
 
to the agency worker and a particular reference period, but
 

Page 176

 
(b)
the guaranteed hours offer that the hirer has made to the agency
 
 
worker in relation to that reference period does not comply with
 
 
paragraph 2 (6) .
 
 
(4)
An agency worker may present a complaint to an employment tribunal
 
 
that—
5
 
(a)
the duty imposed by paragraph 1 (1) applies to a hirer in relation
 
 
to the agency worker and a particular reference period, but
 
 
(b)
the guaranteed hours offer that the hirer has made to the agency
 
 
worker in relation to that reference period is on terms requiring the
 
 
hirer to provide, and the agency worker to do, less work than would
10
 
have been the case if the hirer had not, during that reference
 
 
period—
 
 
(i)
limited (by whatever means) the number of hours of work
 
 
that the agency worker was requested or required, by virtue
 
 
of a worker’s contract or arrangement between the agency
15
 
worker and a work-finding agency, to work for and under
 
 
the supervision and direction of the hirer, or
 
 
(ii)
caused the agency worker to be requested or required, by
 
 
virtue of a worker’s contract or arrangement between the
 
 
agency worker and a work-finding agency, to work for and
20
 
under the supervision and direction of the hirer in the way
 
 
that the agency worker was,
 
 
for the sole or main purpose of the hirer being able to comply with
 
 
the duty by making such a reduced offer.
 
 
(5)
An agency worker may present a complaint to an employment tribunal
25
 
that the duty imposed by paragraph 1 (1) would have applied to a hirer in
 
 
relation to the agency worker and a particular reference period if the hirer
 
 
had not, during that reference period—
 
 
(a)
limited (by whatever means) the number of hours of work that the
 
 
agency worker was requested or required, by virtue of a worker’s
30
 
contract or arrangement between the agency worker and a
 
 
work-finding agency, to work for and under the supervision and
 
 
direction of the hirer, or
 
 
(b)
caused the agency worker to be requested or required, by virtue of
 
 
a worker’s contract or arrangement between the agency worker and
35
 
a work-finding agency, to work for and under the supervision and
 
 
direction of the hirer in the way that the agency worker was,
 
 
for the sole or main purpose of preventing the agency worker from
 
 
satisfying, in relation to that reference period, the condition in paragraph
 
 
1 (3) (a) or (b) .
40
 
(6)
A complaint under sub-paragraph (2) , (3) or (4) —
 
 
(a)
may be presented whether or not the offer in question has been
 
 
accepted by the agency worker, but
 
 
(b)
may not be presented in relation to an offer that is—
 

Page 177

 
(i)
treated as having been withdrawn by virtue of paragraph
 
 
5 (2) or regulations under paragraph 5 (6) , or
 
 
(ii)
withdrawn in accordance with section 27BY (3) (withdrawal
 
 
of offer following incorporation of terms of collective
 
 
agreement).
5
 
(7)
An agency worker may present a complaint to an employment tribunal
 
 
that a hirer—
 
 
(a)
has failed to give to the agency worker a notice under paragraph
 
 
5 (8) or (9) ;
 
 
(b)
has given to the agency worker a notice under paragraph 5 (8) or
10
 
(9) (b) in circumstances in which the hirer should not have done so;
 
 
(c)
has given to the agency worker a notice in purported compliance
 
 
with paragraph 5 (9) that does not refer to any provision of the
 
 
regulations or refers to the wrong provision.
 
 
(8)
In this paragraph, “the last day of the offer period”, in relation to a reference
15
 
period, means the day specified under paragraph 2 (10) (a) as the last day
 
 
on which a guaranteed hours offer may be made in relation to that reference
 
 
period.
 

Complaints to employment tribunals against a work-finding agency: grounds

 
 
9
(1)
An agency worker may present a complaint to an employment tribunal,
20
 
against a relevant work-finding agency, that—
 
 
(a)
the duty imposed by paragraph 1 (1) applies to a hirer in relation
 
 
to the agency worker and a particular reference period, but
 
 
(b)
during that reference period the relevant work-finding agency—
 
 
(i)
limited (by whatever means, including termination of a
25
 
worker’s contract or an arrangement) the number of hours
 
 
of work that the agency worker was requested or required,
 
 
by virtue of a worker’s contract or arrangement between the
 
 
agency worker and the relevant work-finding agency, to
 
 
work for and under the supervision and direction of the
30
 
hirer, or
 
 
(ii)
caused the agency worker to be requested or required, by
 
 
virtue of a worker’s contract or arrangement between the
 
 
agency worker and the relevant work-finding agency, to
 
 
work for and under the supervision and direction of the
35
 
hirer in the way that the agency worker was,
 
 
for the sole or main purpose of enabling the hirer to comply with
 
 
the duty by making an offer to the agency worker on terms requiring
 
 
the hirer to provide, and the agency worker to do, less work than
 
 
would otherwise have been the case.
40
 
(2)
An agency worker may present a complaint to an employment tribunal,
 
 
against a relevant work-finding agency, that the duty imposed by paragraph
 
 
1 (1) would have applied to a hirer in relation to the agency worker and a
 

Page 178

 
particular reference period if the relevant work-finding agency had not,
 
 
during that reference period—
 
 
(a)
limited (by whatever means, including termination of a worker’s
 
 
contract or an arrangement) the number of hours of work that the
 
 
agency worker was requested or required, by virtue of a worker’s
5
 
contract or arrangement between the agency worker and the relevant
 
 
work-finding agency, to work for and under the supervision and
 
 
direction of the hirer, or
 
 
(b)
caused the agency worker to be requested or required, by virtue of
 
 
a worker’s contract or arrangement between the agency worker and
10
 
the relevant work-finding agency, to work for and under the
 
 
supervision and direction of the hirer in the way that the agency
 
 
worker was,
 
 
for the sole or main purpose of preventing the agency worker from
 
 
satisfying, in relation to that reference period, the condition in paragraph
15
 
1 (3) (a) or (b) .
 
 
(3)
A complaint under sub-paragraph (1) —
 
 
(a)
may be presented whether or not an offer has been made by the
 
 
hirer to the agency worker and, if it has, whether or not the offer
 
 
has been accepted by the agency worker, but
20
 
(b)
where an offer has been made, may not be presented where the
 
 
offer is—
 
 
(i)
treated as having been withdrawn by virtue of paragraph
 
 
5 (2) or regulations under paragraph 5 (6) , or
 
 
(ii)
withdrawn in accordance with section 27BY (3) (withdrawal
25
 
of offer following incorporation of terms of collective
 
 
agreement).
 
 
(4)
For the purposes of sub-paragraphs (1) and (2) , references to a “relevant
 
 
work-finding agency”, in relation to an agency worker, a hirer and a
 
 
reference period, are to a work-finding agency with which the agency
30
 
worker had a worker’s contract or arrangement by virtue of which the
 
 
agency worker was (or could have been) supplied to work for and under
 
 
the supervision and direction of the hirer during the reference period in
 
 
question.
 
 
(5)
An agency worker may present a complaint to an employment tribunal
35
 
that a work-finding agency has failed to comply with—
 
 
(a)
the duty imposed by paragraph 7 (1) ;
 
 
(b)
the duty imposed by paragraph 7 (2) .
 

Complaints to employment tribunals: time limits

 
 
10
(1)
An employment tribunal must not consider a complaint under paragraph
40
 
8 (1) unless it is presented before the end of the period of six months
 
 
beginning with the day after the last day of the offer period (as defined in
 
 
paragraph 8 (8) ).
 

Page 179

 
(2)
An employment tribunal must not consider a complaint under paragraph
 
 
8 (2) unless it is presented before the end of the period of six months
 
 
beginning with the day after the day when the offer referred to in that
 
 
provision is made.
 
 
(3)
An employment tribunal must not consider a complaint under paragraph
5
 
8 (3) or (4) unless it is presented before the end of the period of six months
 
 
beginning with the day after the day when the guaranteed hours offer
 
 
referred to in that provision is made.
 
 
(4)
An employment tribunal must not consider a complaint under paragraph
 
 
8 (5) or 9 (2) unless it is presented before the end of the period of six months
10
 
beginning with the day after what would have been the last day of the
 
 
offer period (as defined in paragraph 8 (8) ) if the duty in paragraph 1 (1)
 
 
had applied.
 
 
(5)
An employment tribunal must not consider a complaint under paragraph
 
 
8 (7) (a) relating to a notice unless it is presented before the end of the period
15
 
of six months beginning with the day after the day on or before which the
 
 
notice should have been given (see paragraph 5 (8) and (10) ).
 
 
(6)
An employment tribunal must not consider a complaint under paragraph
 
 
8 (7) (b) or (c) relating to a notice unless it is presented before the end of
 
 
the period of six months beginning with the day after the day on which
20
 
the notice is given.
 
 
(7)
An employment tribunal must not consider a complaint under paragraph
 
 
9 (1) unless it is presented before the end of the period of six months
 
 
beginning with the day after the last day of the offer period (as defined in
 
 
paragraph 8 (8) ).
25
 
(8)
An employment tribunal must not consider a complaint under paragraph
 
 
9 (5) (a) unless it is presented before the end of the period of six months
 
 
beginning with the day after the last day of the initial information period
 
 
(see paragraph 7 (3) and (4) ).
 
 
(9)
An employment tribunal must not consider a complaint under paragraph
30
 
9 (5) (b) unless it is presented before the end of the period of six months
 
 
beginning with the day on which the agency worker first becomes aware
 
 
of the failure to which the complaint relates.
 
 
(10)
But, if the employment tribunal is satisfied that it was not reasonably
 
 
practicable for a complaint under paragraph 8 or 9 to be presented before
35
 
the end of the relevant period of six months, the tribunal may consider the
 
 
complaint if it is presented within such further period as the tribunal
 
 
considers reasonable.
 
 
(11)
Section 207B (extension of time limits to facilitate conciliation before
 
 
institution of proceedings) applies for the purposes of sub-paragraphs (1)
40
 
to (9) .
 

Page 180

Remedies

 
 
11
(1)
Where an employment tribunal finds a complaint under paragraph 8 or 9
 
 
well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 
 
(b)
may make an award of compensation to be paid by the respondent
5
 
to the agency worker.
 
 
(2)
The amount of compensation under sub-paragraph (1) (b) is to be such
 
 
amount, not exceeding the permitted maximum, as the tribunal considers
 
 
just and equitable in all the circumstances to compensate the agency worker
 
 
for any financial loss sustained by the agency worker which is attributable
10
 
to the matter complained of.
 
 
(3)
In ascertaining the financial loss sustained, the tribunal must apply the
 
 
same rule concerning the duty of a person to mitigate their loss as applies
 
 
to damages recoverable under the common law of England and Wales or
 
 
(as the case may be) Scotland.
15
 
(4)
For the purposes of sub-paragraph (2) , “the permitted maximum” is—
 
 
(a)
where the complaint is under paragraph 8 (1) , (2) , (3) or (7) or 9 (5)
 
 
, such number of weeks’ pay as the Secretary of State may specify
 
 
in regulations;
 
 
(b)
where the complaint is under paragraph 8 (4) or (5) or 9 (1) or (2)
20
 
, such amount as the Secretary of State may specify in regulations.
 
 
(5)
For the purposes of determining the permitted maximum for an award of
 
 
compensation to be paid by a hirer (where the complaint is under paragraph
 
 
8 (1) , (2) , (3) or (7) )—
 
 
(a)
the amount of a week’s pay is (subject to paragraph (b) ) the amount
25
 
of average weekly remuneration received by the agency worker for
 
 
working for and under the supervision and direction of the hirer
 
 
in the reference period in question;
 
 
(b)
the amount of a week’s pay is not to exceed the amount specified
 
 
in section 227(1) (as amended from time to time).
30
 
(6)
For the purposes of determining the permitted maximum for an award of
 
 
compensation to be paid by a work-finding agency (where the complaint
 
 
is under paragraph 9 (5) )—
 
 
(a)
the amount of a week’s pay is (subject to paragraph (b) ) the amount
 
 
of average weekly remuneration received by the agency worker, in
35
 
the relevant period, for working for and under the supervision and
 
 
direction of a hirer (or, if more than one, all of the hirers taken
 
 
together) by virtue of the worker’s contract or arrangement between
 
 
the work-finding agency and the agency worker;
 
 
(b)
the amount of a week’s pay is not to exceed the amount specified
40
 
in section 227(1) (as amended from time to time);
 
 
(c)
“the relevant period” means—
 
 
(i)
where the worker’s contract or arrangement between the
 
 
agency worker and the work-finding agency ceased to be in
 

Page 181

 
force on or before the date the complaint was presented to
 
 
the employment tribunal, the period of 12 weeks (or, if it
 
 
was not in force for 12 weeks, the shorter period for which
 
 
it was in force) ending with the latest day before the last
 
 
day on which it was in force on which the agency worker
5
 
worked for and under the supervision and direction of the
 
 
hirer, or (if more than one) one of the hirers, referred to in
 
 
paragraph (a) ;
 
 
(ii)
where the worker’s contract or arrangement between the
 
 
agency worker and the work-finding agency did not so cease
10
 
to be in force, the period of 12 weeks (or, if it had not then
 
 
been in force for 12 weeks, the shorter period for which it
 
 
had been in force) ending with the latest day before the date
 
 
on which the complaint was presented to the employment
 
 
tribunal on which the agency worker worked for and under
15
 
the supervision and direction of the hirer, or (if more than
 
 
one) one of the hirers, referred to in paragraph (a) ;
 
 
(d)
Chapter 2 of Part 14 does not apply (and this paragraph applies
 
 
instead), where the agency worker to whom compensation is to be
 
 
paid is an employee of the work-finding agency.
20

Power to change the effect of Part

 
 
12
(1)
The Secretary of State may by regulations make provision that, in relation
 
 
to specified descriptions of agency workers, has the effect that—
 
 
(a)
a hirer is not required by this Part of this Schedule to make a
 
 
guaranteed hours offer, and
25
 
(b)
a work-finding agency, or another person involved in the supply
 
 
or payment of an agency worker, is instead required to make a
 
 
corresponding or similar offer (and is liable to have a complaint
 
 
against them presented to an employment tribunal on grounds
 
 
corresponding or similar to those in paragraph 8 ).
30
 
(2)
The provision referred to in sub-paragraph (1) may be made by amending
 
 
this Act (or otherwise).
 
 
(3)
Regulations under sub-paragraph (1) may make consequential provision,
 
 
including provision amending—
 
 
(a)
an Act of Parliament (including this Act);
35
 
(b)
a Measure or Act of the National Assembly for Wales or an Act of
 
 
Senedd Cymru;
 
 
(c)
an Act of the Scottish Parliament.
 

Page 182

Part 2

 

Shifts: rights to reasonable notice

 

Application of Part

 
 
13
(1)
This Part of this Schedule applies in relation to a shift that would be (or
 
 
would have been) worked, or is being worked, by an individual as an
5
 
agency worker.
 
 
(2)
But nothing in this Part of this Schedule applies in relation to a shift that
 
 
would be (or would have been) worked, or is being worked, by an
 
 
individual as an agency worker if, in relation to the agency worker, the
 
 
shift is an excluded shift.
10
 
(3)
For the purposes of this Part of this Schedule, “excluded shift”, in relation
 
 
to an agency worker, means a shift of a specified description.
 
 
(4)
Regulations under sub-paragraph (3) may, in particular, specify a description
 
 
of shift by reference to—
 
 
(a)
the amount payable for working the shift being more than a
15
 
specified amount;
 
 
(b)
the number of hours to be worked during the shift, whether alone
 
 
or taken together with other shifts of a specified description, being
 
 
more than a specified number;
 
 
(c)
the shift corresponding to the time of a shift provided for by a
20
 
worker’s contract between the agency worker and a work-finding
 
 
agency or another person involved in the supply or payment of the
 
 
agency worker (and where the regulations so specify a description
 
 
of shift, the regulations may include provision similar or
 
 
corresponding to section 27BJ (6) ).
25
 
(5)
In the application of this Part of this Schedule in relation to an agency
 
 
worker and a shift, references to—
 
 
(a)
“the work-finding agency” are to the work-finding agency with
 
 
which the agency worker has a worker’s contract or an arrangement
 
 
and by virtue of which the agency worker would work (or would
30
 
have worked) or is working the shift;
 
 
(b)
“the hirer” are to the person for and under the supervision and
 
 
direction of whom the agency worker would work (or would have
 
 
worked) or is working the shift.
 

Right to reasonable notice of a shift

35
 
14
(1)
An agency worker is entitled to be given, by the work-finding agency or
 
 
the hirer, reasonable notice of a shift that the agency worker is requested
 
 
or required to work by virtue of the worker’s contract or arrangement that
 
 
the agency worker has with the work-finding agency.
 

Page 183

 
(2)
It is to be presumed, unless the contrary is shown, that notice of a shift is
 
 
not reasonable notice if it is given less than a specified amount of time
 
 
before the shift is due to start.
 
 
(3)
In this paragraph and paragraphs 15 and 16 , “notice of a shift” means notice
 
 
of how many hours are to be worked during the shift and when the shift
5
 
is to start and end.
 

Right to reasonable notice of cancellation of or change to a shift

 
 
15
(1)
Sub-paragraph (2) applies in relation to an agency worker where—
 
 
(a)
the agency worker has been given notice of a shift by the
 
 
work-finding agency or the hirer, and
10
 
(b)
where the shift is one that the agency worker has been requested
 
 
(rather than required) to work, the agency worker has agreed to
 
 
work it.
 
 
(2)
The agency worker is entitled to be given, by the work-finding agency or
 
 
the hirer, reasonable notice of—
15
 
(a)
the cancellation of the shift;
 
 
(b)
any change requested or required by virtue of the worker’s contract
 
 
or arrangement that the agency worker has with the work-finding
 
 
agency consisting of—
 
 
(i)
a change to when the shift is to start or end;
20
 
(ii)
a reduction in the number of hours to be worked during the
 
 
shift because of a break in the shift;
 
 
(but this is subject to paragraph 18 ).
 
 
(3)
It is to be presumed, unless the contrary is shown, that—
 
 
(a)
notice of the cancellation of a shift is not reasonable notice for the
25
 
purposes of sub-paragraph (2) if it is given less than a specified
 
 
amount of time before the shift would have started (if the shift had
 
 
not been cancelled);
 
 
(b)
notice of a change to when a shift is to start is not reasonable notice
 
 
for the purposes of sub-paragraph (2) if it is given less than a
30
 
specified amount of time before the earlier of—
 
 
(i)
when the shift would have started (if the shift had not been
 
 
changed), and
 
 
(ii)
when the shift is due to start (having been changed);
 
 
(c)
notice of any other change to a shift is not reasonable notice for the
35
 
purposes of sub-paragraph (2) if it is given—
 
 
(i)
less than a specified amount of time before the shift is due
 
 
to start;
 
 
(ii)
on or after the start of the shift.
 

Page 184

Paragraphs

 
 
16
(1)
The work-finding agency is liable for a breach of paragraph 14 or 15 , in
 
 
relation to an agency worker and a shift, to the extent that it is responsible
 
 
for the breach.
 
 
(2)
The hirer is liable for a breach of paragraph 14 or 15 , in relation to an
5
 
agency worker and a shift, to the extent that it is responsible for the breach.
 
 
(3)
For the purposes of this Part of this Schedule, the hirer is not responsible
 
 
for a breach of paragraph 14 or 15 in relation to an agency worker and a
 
 
shift (and accordingly is not liable for the breach) if—
 
 
(a)
the hirer gives notice to the work-finding agency of the shift or (as
10
 
the case may be) of the cancellation of, or change to, the shift, and
 
 
(b)
that notice is such as to enable the work-finding agency to give
 
 
reasonable notice to the agency worker under paragraph 14 or 15 .
 
 
(4)
The Secretary of State may by regulations provide, in relation to an agency
 
 
worker and a shift, that the work-finding agency is solely responsible for
15
 
a breach of paragraph 14 or 15 (and accordingly is solely liable for the
 
 
breach) where the hirer is a person of a specified description.
 

Paragraphs

 
 
17
(1)
Where an agency worker suggests working a shift and the work-finding
 
 
agency or the hirer agrees to the suggestion—
20
 
(a)
nothing in paragraph 14 applies in relation to the shift as suggested
 
 
by the agency worker, but
 
 
(b)
paragraph 15 (2) applies (even though the conditions in paragraph
 
 
15 (1) have not been met).
 
 
(2)
In paragraphs 14 and 15 , references to a request made to an agency worker
25
 
to work a shift include a request (a “multi-worker request”) made to the
 
 
agency worker and one or more others in circumstances where not all of
 
 
those to whom the request is made are needed to work the shift.
 
 
(3)
For the purposes of paragraph 15 , where a multi-worker request has been
 
 
made to an agency worker in relation to a shift, references to the cancellation
30
 
of the shift include the agency worker not being needed to work the shift
 
 
because one or more others have agreed to work it.
 
 
(4)
The Secretary of State may by regulations make provision about—
 
 
(a)
the form and manner in which notices under paragraphs 14 to 16
 
 
must be given;
35
 
(b)
when notice under those paragraphs is to be treated as having been
 
 
given.
 

Interaction with Part 3 of Schedule

 
 
18
(1)
Where a work-finding agency—
 

Page 185

 
(a)
is required to make a payment to an agency worker under paragraph
 
 
22 (1) in relation to a shift that is cancelled, moved or curtailed at
 
 
short notice, or
 
 
(b)
would have been required to make such a payment in relation to
 
 
the shift but for provision made under paragraph 24 (1) (c) ,
5
 
nothing in paragraph 15 (2) is to be taken to have applied in relation to the
 
 
cancellation, movement or curtailment of the shift that gave rise to, or
 
 
would have given rise to, the requirement to make the payment.
 
 
(2)
Terms used in this paragraph have the same meaning as in paragraph 22 .
 

Complaints to employment tribunals

10
 
19
(1)
An agency worker may present a complaint to an employment tribunal
 
 
that the work-finding agency or the hirer is liable for a breach of paragraph
 
 
14 or 15 in relation to the agency worker and a shift.
 
 
(2)
Where, in determining whether a complaint under this paragraph is
 
 
well-founded, the tribunal must determine whether reasonable notice has
15
 
been given, the tribunal must have regard, in particular, to such of the
 
 
specified matters as are appropriate in the circumstances.
 
 
(3)
An employment tribunal must not consider a complaint under this
 
 
paragraph unless it is presented before the end of the period of six months
 
 
beginning with—
20
 
(a)
where the complaint is that the work-finding agency or the hirer is
 
 
liable for a breach of paragraph 14 in relation to the agency worker
 
 
and a shift, the day on which the shift was due to start;
 
 
(b)
where the complaint is that the work-finding agency or the hirer is
 
 
liable for a breach of paragraph 15 (2) in relation to the agency
25
 
worker and the cancellation of a shift, the day on which the shift
 
 
would have started (if the shift had not been cancelled);
 
 
(c)
where the complaint is that the work-finding agency or the hirer is
 
 
liable for a breach of paragraph 15 (2) in relation to the agency
 
 
worker and a change to a shift, the day on which the shift as
30
 
changed was due to start or, where the shift was changed on or
 
 
after its start, the day on which the shift started.
 
 
(4)
But, if the employment tribunal is satisfied that it was not reasonably
 
 
practicable for a complaint to be presented before the end of the relevant
 
 
period of six months, the tribunal may consider the complaint if it is
35
 
presented within such further period as the tribunal considers reasonable.
 
 
(5)
Section 207B (extension of time limits to facilitate conciliation before
 
 
institution of proceedings) applies for the purposes of sub-paragraph (3) .
 

Remedies

 
 
20
(1)
Where an employment tribunal finds a complaint under paragraph 19
40
 
well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 

Page 186

 
(b)
may make an award of compensation to be paid by the respondent
 
 
to the agency worker.
 
 
(2)
The amount of compensation under sub-paragraph (1) (b) in relation to a
 
 
complaint is to be such amount, not exceeding the specified amount, as
 
 
the tribunal considers just and equitable in all the circumstances to
5
 
compensate the agency worker for any financial loss sustained by the
 
 
agency worker which is attributable to the matter complained of.
 
 
(3)
In ascertaining the financial loss sustained, the tribunal must apply the
 
 
same rule concerning the duty of a person to mitigate their loss as applies
 
 
to damages recoverable under the common law of England and Wales or
10
 
(as the case may be) Scotland.
 
 
(4)
Where an employment tribunal makes an award of compensation under
 
 
sub-paragraph (1) (b) to an agency worker in relation to a shift and both
 
 
the work-finding agency and the hirer are respondents, the amount of
 
 
compensation payable by each respondent is to be such amount (if any)
15
 
as the tribunal considers just and equitable having regard to the extent of
 
 
each respondent’s responsibility for the breach to which the complaint
 
 
relates.
 

Part 3

 

Right to payment for cancelled, moved and curtailed shifts

20

Application of Part 3 of Schedule

 
 
21
(1)
This Part of this Schedule applies in relation to a shift that would be (or
 
 
would have been) worked, or is being worked, by an individual as an
 
 
agency worker.
 
 
(2)
In the application of this Part of this Schedule in relation to an agency
25
 
worker and a shift, references to—
 
 
(a)
“the work-finding agency” are to the work-finding agency with
 
 
which the agency worker has a worker’s contract or an arrangement
 
 
and by virtue of which the agency worker would work (or would
 
 
have worked) or is working the shift;
30
 
(b)
“the hirer” are to the person for and under the supervision and
 
 
direction of whom the agency worker would work (or would have
 
 
worked) or is working the shift.
 

Right to payment for a cancelled, moved or curtailed shift

 
 
22
(1)
A work-finding agency must make a payment of a specified amount to an
35
 
agency worker each time that, by virtue of the worker’s contract or
 
 
arrangement that the agency worker has with the work-finding agency,
 
 
there is a cancellation, movement or curtailment at short notice of a shift—
 
 
(a)
that the agency worker has been informed they are required to work
 
 
for the hirer (by virtue of that worker’s contract or arrangement),
40

Page 187

 
(b)
that the agency worker has been requested to work for the hirer
 
 
(by virtue of that worker’s contract or arrangement) and the agency
 
 
worker has agreed to work, or
 
 
(c)
that the agency worker has suggested working for the hirer and it
 
 
has been agreed (by virtue of that worker’s contract or arrangement)
5
 
that the agency worker is to work,
 
 
(but see paragraph 24 for exceptions to this duty).
 
 
(2)
A payment that a work-finding agency is required to make under
 
 
sub-paragraph (1) must be made by no later than the specified day.
 
 
(3)
For the purposes of this Part of this Schedule, “short notice” means—
10
 
(a)
in relation to the cancellation of a shift, notice given less than a
 
 
specified amount of time before the shift would have started (if the
 
 
shift had not been cancelled);
 
 
(b)
in relation to the movement of a shift, or the movement and
 
 
curtailment (at the same time) of a shift, notice given—
15
 
(i)
less than a specified amount of time before the earlier of
 
 
when the shift would have started (if the shift had not been
 
 
moved, or moved and curtailed) and when the shift is due
 
 
to start (having been moved, or moved and curtailed);
 
 
(ii)
on or after the start of the shift;
20
 
(c)
in relation to the curtailment of a shift where there is a change to
 
 
when the shift is to start (but there is no movement of the shift),
 
 
notice given less than a specified amount of time before the earlier
 
 
of—
 
 
(i)
when the shift would have started (if there had not been the
25
 
change), and
 
 
(ii)
when the shift is due to start (the change having been made);
 
 
(d)
in relation to the curtailment of a shift where there is no change to
 
 
when the shift is to start, notice given—
 
 
(i)
less than a specified amount of time before the shift is due
30
 
to start;
 
 
(ii)
on or after the start of the shift.
 
 
(4)
The Secretary of State may by regulations make provision about when
 
 
notice of the cancellation, movement or curtailment of a shift is to be treated
 
 
as having been given to an agency worker for the purposes of this Part of
35
 
this Schedule.
 
 
(5)
For the purposes of this Part of this Schedule, references to the movement
 
 
of a shift (however expressed)—
 
 
(a)
are to any change to the time at which the shift is to start that is a
 
 
change of more than a specified amount of time;
40
 
(b)
include—
 
 
(i)
where a shift is in two or more parts, a change of more than
 
 
a specified amount of time to the time at which the second
 
 
(or a subsequent) part is to start, and
 

Page 188

 
(ii)
a division of a shift into two or more parts where the time
 
 
between the parts is more than a specified amount of time,
 
 
but only if the change or division (as the case may be) results in
 
 
the shift ending later.
 
 
(6)
In this Part of this Schedule, references to a request made to an agency
5
 
worker to work a shift include a request (a “multi-worker request”) made
 
 
to the agency worker and one or more others in circumstances where not
 
 
all of those to whom the request is made are needed to work the shift.
 
 
(7)
For the purposes of this Part of this Schedule, where a multi-worker request
 
 
has been made to an agency worker in relation to a shift, references to the
10
 
cancellation of the shift include the agency worker not being needed to
 
 
work the shift because one or more others have agreed to work it.
 

Regulations under paragraph

 
 
23
(1)
Regulations under paragraph 22 (1) may not specify an amount to be paid
 
 
to an agency worker in relation to the cancellation, movement or curtailment
15
 
of a shift that exceeds—
 
 
(a)
where the shift is cancelled, the amount of remuneration to which
 
 
the agency worker would have been entitled had they worked the
 
 
hours that will not be worked because of the cancellation;
 
 
(b)
where the shift is moved, or moved and curtailed (at the same time),
20
 
and no part of the shift as moved, or as moved and curtailed,
 
 
corresponds to the time of the shift (“the original shift”) before it
 
 
was moved, or moved and curtailed, the amount of remuneration
 
 
to which the agency worker would have been entitled had they
 
 
worked the original shift;
25
 
(c)
where the shift is moved, or moved and curtailed (at the same time),
 
 
and part of the shift as moved, or as moved and curtailed,
 
 
corresponds to the time of the original shift (but part does not), the
 
 
amount of remuneration to which the agency worker would have
 
 
been entitled had they worked the part of the original shift that
30
 
does not correspond to the shift as moved, or as moved and
 
 
curtailed;
 
 
(d)
where the shift is—
 
 
(i)
curtailed but not moved, or
 
 
(ii)
moved and curtailed (at the same time) and the shift as
35
 
moved and curtailed is to start and end within the time of
 
 
the original shift,
 
 
the amount of remuneration to which the agency worker would
 
 
have been entitled had they worked the hours that will not be
 
 
worked because of the curtailment, or the movement and
40
 
curtailment.
 
 
(2)
Regulations under paragraph 22 (1) may, in particular, include provision
 
 
specifying different amounts depending on the amount of notice that was
 
 
given of the cancellation, movement or curtailment.
 

Page 189

 
(3)
Regulations under paragraph 22 (3) may not specify an amount of time that
 
 
exceeds 7 days.
 

Exceptions to duty to make payment for a cancelled, moved or curtailed shift

 
 
24
(1)
The requirement to make a payment under paragraph 22 (1) does not
 
 
apply—
5
 
(a)
in relation to the cancellation, movement or curtailment of a shift
 
 
if, in relation to the agency worker, the shift is an excluded shift;
 
 
(b)
in relation to the cancellation, movement or curtailment of a shift
 
 
that an agency worker has been requested to work, unless the agency
 
 
worker reasonably believed, whether on agreeing to work the shift
10
 
or at some later time before the cancellation, movement or
 
 
curtailment, that they would be needed to work the shift;
 
 
(c)
in other specified circumstances (whether circumstances relating to
 
 
the work-finding agency, the hirer or otherwise).
 
 
(2)
In sub-paragraph (1) (a) , “excluded shift”, in relation to an agency worker,
15
 
means a shift of a specified description.
 
 
(3)
Regulations under sub-paragraph (2) may, in particular, specify a description
 
 
of shift by reference to—
 
 
(a)
the amount payable for working the shift being more than a
 
 
specified amount;
20
 
(b)
the number of hours to be worked during the shift, whether alone
 
 
or taken together with other shifts of a specified description, being
 
 
more than a specified number;
 
 
(c)
the shift corresponding to the time of a shift provided for by a
 
 
worker’s contract between the agency worker and a work-finding
25
 
agency or another person involved in the supply or payment of the
 
 
agency worker (and where the regulations so specify a description
 
 
of shift, the regulations may include provision similar or
 
 
corresponding to section 27BP (4) ).
 
 
(4)
Where, by virtue of regulations made under sub-paragraph (1) (c) , a
30
 
work-finding agency is not required to make a payment to an agency
 
 
worker in relation to a shift under paragraph 22 (1) , the work-finding agency
 
 
must give a notice to the agency worker that—
 
 
(a)
states which provision of the regulations has produced the effect
 
 
that the work-finding agency is not required to make the payment,
35
 
and
 
 
(b)
explains why the work-finding agency was entitled to rely on that
 
 
provision so as not to make the payment to the agency worker
 
 
under paragraph 22 (1) .
 
 
(5)
But sub-paragraph (4) (b) does not require a work-finding agency to
40
 
disclose—
 
 
(a)
any information the disclosure of which by the work-finding agency
 
 
would contravene the data protection legislation (but in determining
 

Page 190

 
whether a disclosure would do so, the duty imposed by that
 
 
sub-paragraph is to be taken into account);
 
 
(b)
any information that is commercially sensitive;
 
 
(c)
any information the disclosure of which by the work-finding agency
 
 
would constitute a breach of a duty of confidentiality owed by the
5
 
work-finding agency to any other person.
 
 
(6)
In sub-paragraph (5) (a) “the data protection legislation” has the same
 
 
meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
 
 
(7)
The Secretary of State may by regulations make provision about—
 
 
(a)
the form and manner in which a notice under this paragraph must
10
 
be given;
 
 
(b)
the day on or before which it must be given;
 
 
(c)
when a notice under this paragraph is to be treated as having been
 
 
given.
 
 
(8)
The duty in sub-paragraph (4) is to be taken not to have applied if—
15
 
(a)
the work-finding agency or another person pays to the agency
 
 
worker an amount in relation to a number of hours that is at least
 
 
equal to the amount of the payment that the work-finding agency
 
 
would have been required to make to the agency worker under
 
 
paragraph 22 (1) in relation to the same number of hours but for
20
 
regulations made under sub-paragraph (1) (c) , and
 
 
(b)
the payment is made on or before the day on which the payment
 
 
under paragraph 22 (1) would have had to be made if the
 
 
work-finding agency had been required to make it.
 
 
(9)
Sub-paragraph (4) of paragraph 25 applies for the purposes of
25
 
sub-paragraph (8) of this paragraph as it applies for the purposes of
 
 
sub-paragraphs (2) and (3) of that paragraph.
 

Contractual remuneration

 
 
25
(1)
The right of an agency worker to receive a payment from a work-finding
 
 
agency under paragraph 22 (1) does not affect any right of the agency worker
30
 
in relation to remuneration under a worker’s contract (whether with the
 
 
work-finding agency or another person) (“contractual remuneration”).
 
 
(2)
Any contractual remuneration paid to an agency worker in relation to a
 
 
number of hours goes towards discharging any liability of the work-finding
 
 
agency to make a payment to the agency worker under paragraph 22 (1)
35
 
in relation to the same hours.
 
 
(3)
Any payment made by a work-finding agency to an agency worker under
 
 
paragraph 22 (1) in relation to a number of hours goes towards discharging
 
 
any liability to pay contractual remuneration to the agency worker in
 
 
relation to the same hours.
40
 
(4)
For the purposes of sub-paragraphs (2) and (3) , the hours to which a
 
 
payment under paragraph 22 (1) relates are—
 

Page 191

 
(a)
where a shift has been cancelled, the hours that would have been
 
 
worked (by virtue of the worker’s contract or arrangement between
 
 
the work-finding agency and the agency worker) if the shift had
 
 
not been cancelled;
 
 
(b)
where a shift has been moved, or moved and curtailed (at the same
5
 
time), and no part of the shift as moved, or as moved and curtailed,
 
 
corresponds to the time of the shift (“the original shift”) before it
 
 
was moved, or moved and curtailed, the hours that would have
 
 
been worked (by virtue of the worker’s contract or arrangement
 
 
between the work-finding agency and the agency worker) during
10
 
the original shift;
 
 
(c)
where a shift has been moved, or moved and curtailed (at the same
 
 
time), and part of the shift as moved, or as moved and curtailed,
 
 
corresponds to the time of the original shift (but part does not), the
 
 
hours that would have been worked (by virtue of the worker’s
15
 
contract or arrangement between the work-finding agency and the
 
 
agency worker) during the part of the original shift that does not
 
 
correspond to the shift as moved, or as moved and curtailed;
 
 
(d)
where a shift has been—
 
 
(i)
curtailed but not moved, or
20
 
(ii)
moved and curtailed (at the same time) and the shift as
 
 
moved and curtailed is to start and end within the time of
 
 
the original shift,
 
 
the hours that would have been worked (by virtue of the worker’s
 
 
contract or arrangement between the work-finding agency and the
25
 
agency worker) if the shift had not been curtailed, or moved and
 
 
curtailed.
 

Complaints to employment tribunal

 
 
26
(1)
An agency worker may present a complaint to an employment tribunal
 
 
that, in relation to a shift, the work-finding agency—
30
 
(a)
has failed to make the whole or any part of a payment that the
 
 
work-finding agency is liable to make to the agency worker under
 
 
paragraph 22 (1) ;
 
 
(b)
has unreasonably failed to give to the agency worker a notice under
 
 
paragraph 24 (4) ;
35
 
(c)
has given to the agency worker a notice in purported compliance
 
 
with paragraph 24 (4) that—
 
 
(i)
does not refer to any provision of the regulations or refers
 
 
to the wrong provision;
 
 
(ii)
does not contain an explanation or contains an explanation
40
 
that is inadequate or untrue.
 
 
(2)
An employment tribunal must not consider a complaint under
 
 
sub-paragraph (1) (a) relating to a payment unless it is presented before the
 
 
end of the period of six months beginning with the day after the day on
 
 
or before which the payment should have been made (see paragraph 22 (2) ).
45

Page 192

 
(3)
An employment tribunal must not consider a complaint under
 
 
sub-paragraph (1) (b) relating to a notice unless it is presented before the
 
 
end of the period of six months beginning with the day after the day on
 
 
or before which the notice should have been given (see paragraph 24 (7) (b) ).
 
 
(4)
An employment tribunal must not consider a complaint under
5
 
sub-paragraph (1) (c) relating to a notice unless it is presented before the
 
 
end of the period of six months beginning with the day after the day on
 
 
which the notice is given.
 
 
(5)
But, if the employment tribunal is satisfied that it was not reasonably
 
 
practicable for a complaint under this paragraph to be presented before
10
 
the end of the relevant period of six months, the tribunal may consider the
 
 
complaint if it is presented within such further period as the tribunal
 
 
considers reasonable.
 
 
(6)
Section 207B (extension of time limits to facilitate conciliation before
 
 
institution of proceedings) applies for the purposes of sub-paragraphs (2)
15
 
to (4) .
 
 
(7)
Where—
 
 
(a)
an agency worker presents a complaint to an employment tribunal
 
 
under sub-paragraph (1) (c) that, in relation to a shift, the
 
 
work-finding agency has given to the agency worker a notice in
20
 
purported compliance with paragraph 24 (4) that refers to the wrong
 
 
provision of the regulations or contains an explanation that is
 
 
inadequate or untrue, and
 
 
(b)
the work-finding agency claims that it was provided by the hirer
 
 
with information for the purposes of the notice that was wrong,
25
 
inadequate or untrue,
 
 
the work-finding agency may request the employment tribunal to direct
 
 
that the hirer be added as a party to the proceedings.
 
 
(8)
A request under sub-paragraph (7) must be granted if it is made before
 
 
the hearing of the complaint begins, but may be refused if it is made after
30
 
that time; and no such request may be made after the tribunal has made
 
 
its decision as to whether the complaint is well-founded.
 
 
(9)
The Secretary of State may by regulations provide that sub-paragraph (7)
 
 
does not apply in relation to a hirer of a specified description.
 

Remedies

35
 
27
(1)
Where an employment tribunal finds a complaint under paragraph 26 (1) (a)
 
 
well-founded, the tribunal must—
 
 
(a)
make a declaration to that effect, and
 
 
(b)
order the work-finding agency to pay to the agency worker the
 
 
amount of the payment under paragraph 22 (1) which it finds is due
40
 
to the agency worker.
 

Page 193

 
(2)
Where an employment tribunal finds a complaint under paragraph 26 (1) (b)
 
 
or (c) well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 
 
(b)
may order the work-finding agency to make a payment to the agency
 
 
worker of such amount, not exceeding the specified amount, as the
5
 
tribunal considers just and equitable in all the circumstances.
 
 
(3)
But an employment tribunal may not make an order under sub-paragraph
 
 
(2) (b) relating to a notice given in purported compliance with paragraph
 
 
24 (4) if the tribunal makes an order under sub-paragraph (1) (b) relating to
 
 
the same payment to which the notice related.
10
 
(4)
In determining—
 
 
(a)
whether to make an order under sub-paragraph (2) (b) , and
 
 
(b)
if so, how much to order the work-finding agency to pay,
 
 
an employment tribunal must have regard, in particular, to the seriousness
 
 
of the matter complained of.
15
 
(5)
If, following the making of a request under paragraph 26 (7) , an employment
 
 
tribunal has added the hirer as a party to the proceedings and the tribunal—
 
 
(a)
finds the complaint under paragraph 26 (1) (c) well-founded (so far
 
 
as relating to the notice referring to the wrong provision of the
 
 
regulations or containing an explanation that is inadequate or
20
 
untrue),
 
 
(b)
makes an award of compensation under sub-paragraph (2) (b) , and
 
 
(c)
also finds that the hirer did provide the work-finding agency with
 
 
information for the purposes of the notice that was wrong,
 
 
inadequate or untrue,
25
 
it may order that the compensation is to be paid by the hirer instead of by
 
 
the work-finding agency, or partly by the hirer and partly by the
 
 
work-finding agency (with the amount of the compensation payable by
 
 
each being such amount as the tribunal considers just and equitable in the
 
 
circumstances).
30
 
(6)
Where an employment tribunal finds as described in sub-paragraph (5) (c)
 
 
, the hirer is to be treated for the purposes of section 12A and Part 2A of
 
 
the Employment Tribunals Act 1996 (financial penalties) as an employer
 
 
and as having breached the right of the agency worker to which the
 
 
complaint under paragraph 26 (1) (c) relates.
35

Recovery of payment by work-finding agency from hirer: pre-existing arrangements

 
 
28
(1)
Where, in compliance with paragraph 22 (1) , a work-finding agency makes
 
 
a payment to an agency worker in relation to a shift that the agency worker
 
 
was to be, or was, supplied to work by virtue of a pre-existing arrangement
 
 
involving the work-finding agency and the hirer, the work-finding agency
40
 
is entitled to recover from the hirer the proportion of the payment (up to
 
 
the full amount of it) that reflects the hirer’s responsibility for the shift
 
 
having been cancelled, moved or curtailed at short notice.
 

Page 194

 
(2)
The Secretary of State may by regulations provide that sub-paragraph (1)
 
 
does not apply in relation to a hirer of a specified description.
 
 
(3)
A “pre-existing arrangement” means an arrangement—
 
 
(a)
that was entered into on or before the last day of the period of two
 
 
months beginning with the day on which the Employment Rights
5
 
Act 2025 was passed, and
 
 
(b)
that has not been modified by the work-finding agency and the
 
 
hirer after the last day of that period.
 
 
(4)
The reference in sub-paragraph (1) to a payment made in compliance with
 
 
paragraph 22 (1) includes a payment made by virtue of an order under
10
 
paragraph 27 (1) (b) .
 
 
(5)
Sub-paragraph (1) applies whether the agency worker was to be, or was,
 
 
supplied to work for and under the supervision and direction of the hirer
 
 
by the work-finding agency or by another person.
 
 
Schedule 2
Section 6
15

Consequential amendments relating to

 

Insolvency Act 1986

 
 
1
In the Insolvency Act 1986, in Schedule 6 (categories of preferential debts),
 
 
in paragraph 13(2), before paragraph (a) insert—
 
 
“(za)
a payment under section 27BP (1) of, or paragraph 22 (1) of
20
 
Schedule A1 to, the Employment Rights Act 1996 (payment
 
 
for a cancelled, moved or curtailed shift);”.
 

Employment Tribunals Act 1996

 
 
2
The Employment Tribunals Act 1996 is amended as follows.
 
 
3
(1)
Section 12A (financial penalties) is amended as follows.
25
 
(2)
In subsection (11), in the definition of “employer”, after paragraph (a)
 
 
insert—
 
 
“(aa)
in relation to a right conferred by Chapter 3 or 4 of Part 2A,
 
 
or section 47H , of the Employment Rights Act 1996, includes
 
 
a person who is an employer by virtue of section 27BJ (7) or
30
 
(as the case may be) 27BP (9) of that Act;
 
 
(ab)
in relation to a right conferred by Part 1 or 2 of Schedule
 
 
A1 to the Employment Rights Act 1996, or Chapter 6 of Part
 
 
2A of that Act so far as relating to Part 1 of Schedule A1 to
 
 
that Act, includes the hirer within the meaning of the
35
 
relevant Part of that Schedule;
 

Page 195

 
(ac)
in relation to a right conferred by Part 1 , 2 or 3 of Schedule
 
 
A1 to the Employment Rights Act 1996, includes (where it
 
 
would not otherwise do so) the work-finding agency within
 
 
the meaning of the relevant Part of that Schedule;
 
 
(ad)
in relation to a right conferred by section 47I of the
5
 
Employment Rights Act 1996, includes (where it would not
 
 
otherwise do so) a person who is a relevant person within
 
 
the meaning of that section;”.
 
 
(3)
In that subsection, in the definition of “worker”, for the words from
 
 
“includes” to the end of the definition substitute “—
10
 
“(a)
includes an individual seeking to be employed by a person
 
 
as a worker;
 
 
(b)
in relation to a right conferred by Chapter 3 or 4 of Part 2A,
 
 
or section 47H , of the Employment Rights Act 1996, includes
 
 
an individual who is a worker by virtue of section 27BJ (7)
15
 
or (as the case may be) 27BP (9) of that Act;
 
 
(c)
in relation to a right conferred by—
 
 
(i)
Part 1 , 2 or 3 of Schedule A1 to the Employment
 
 
Rights Act 1996,
 
 
(ii)
Chapter 6 of Part 2A of that Act so far as relating to
20
 
Part 1 of Schedule A1 to that Act, or
 
 
(iii)
section 47I of that Act,
 
 
includes (where it would not otherwise do so) an agency
 
 
worker within the meaning of Part 2A of that Act (see section
 
 
27BV of that Act).”
25
 
4
(1)
Section 16 (power to provide for recoupment of benefits) is amended as
 
 
follows.
 
 
(2)
In subsection (1), after paragraph (d) insert—
 
 
“(da)
payments under section 27BP (1) of, or paragraph 22 (1) of
 
 
Schedule A1 to, the Employment Rights Act 1996,”.
30
 
(3)
At the end insert—
 
 
“(7)
In the application of this section to payments which are the subject
 
 
of proceedings under Chapter 2 , 3 or 4 of Part 2A of the
 
 
Employment Rights Act 1996, or Chapter 6 of Part 2A of that Act
 
 
so far as relating to Chapter 2 of that Part, and which are
35
 
compensation for loss of wages (see subsection (1)(a))—
 
 
(a)
references to an employer are to be read as if they were
 
 
references to an employer within the meaning of the relevant
 
 
Chapter of that Part;
 
 
(b)
references to an employee are to be read as if they were
40
 
references to a worker within the meaning of the relevant
 
 
Chapter of that Part.
 

Page 196

 
(8)
In the application of this section to payments which are the subject
 
 
of proceedings under Part 1 , 2 or 3 of Schedule A1 to the
 
 
Employment Rights Act 1996, or Chapter 6 of Part 2A of that Act
 
 
so far as relating to Part 1 of that Schedule, and which are
 
 
compensation for loss of wages (see subsection (1)(a))—
5
 
(a)
references to an employer are to be read as if they were
 
 
references to a hirer or (as the case may be) a work-finding
 
 
agency within the meaning of the relevant Part of that
 
 
Schedule;
 
 
(b)
references to an employee are to be read as if they were
10
 
references to an agency worker within the meaning of Part
 
 
2A of that Act.
 
 
(9)
In the application of this section to payments under Part 5 of the
 
 
Employment Rights Act 1996 (see subsection (1)(c)(i)) by virtue of
 
 
section 47H of that Act—
15
 
(a)
references to an employer are to be read as if they were
 
 
references to an employer within the meaning of that section;
 
 
(b)
references to an employee are to be read as if they were
 
 
references to a worker within the meaning of that section.
 
 
(10)
In the application of this section to payments under Part 5 of the
20
 
Employment Rights Act 1996 (see subsection (1)(c)(i)) by virtue of
 
 
section 47I of that Act—
 
 
(a)
references to an employer are to be read as if they were
 
 
references to a relevant person within the meaning of that
 
 
section;
25
 
(b)
references to an employee are to be read as if they were
 
 
references to an agency worker within the meaning of Part
 
 
2A of that Act.
 
 
(11)
In the application of this section to payments under section 27BP (1)
 
 
of the Employment Rights Act 1996 (see subsection (1) (da) )—
30
 
(a)
references to an employer are to be read as if they were
 
 
references to an employer within the meaning of Chapter 4
 
 
of Part 2A of that Act;
 
 
(b)
references to an employee are to be read as if they were
 
 
references to a worker within the meaning of that Chapter.
35
 
(12)
In the application of this section to payments under paragraph 22 (1)
 
 
of Schedule A1 to the Employment Rights Act 1996 (see subsection
 
 
(1) (da) )—
 
 
(a)
references to an employer are to be read as if they were
 
 
references to a work-finding agency within the meaning of
40
 
Part 2A of that Act;
 
 
(b)
references to an employee are to be read as if they were
 
 
references to an agency worker within the meaning of that
 
 
Part.”
 

Page 197

 
5
In section 18 (conciliation: relevant proceedings), in subsection (1) (b) —
 
 
(a)
after “23,” insert “ 27BG , 27BN , 27BT , 27BY (5) ,”;
 
 
(b)
after “177 of” insert “, or paragraph 8 , 9 , 19 or 26 of Schedule A1
 
 
to,”.
 

Employment Rights Act 1996

5
 
6
The Employment Rights Act 1996 is amended as follows.
 
 
7
In section 27 (meaning of “wages” for purposes of Part 2 of the Act), in
 
 
subsection (1)—
 
 
(a)
after the paragraph (ce) inserted by the Neonatal Care (Leave and
 
 
Pay) Act 2023 insert—
10
 
“(cf)
a payment under section 27BP (1) of this Act (payment
 
 
for a cancelled, moved or curtailed shift),”;
 
 
(b)
after paragraph (cf) (inserted by paragraph (a) ) insert—
 
 
“(cg)
a payment under paragraph 22 (1) of Schedule A1 to
 
 
this Act (agency workers: payment for a cancelled,
15
 
moved or curtailed shift),”;
 
 
(c)
renumber the paragraph (ce) inserted by the Employment (Allocation
 
 
of Tips) Act 2023 as paragraph (ch).
 
 
8
In section 27A (exclusivity terms unenforceable in zero hours contracts),
 
 
omit subsections (1) and (2) .
20
 
9
In section 27B (power to make further provision in relation to zero hours
 
 
workers)—
 
 
(a)
omit subsection (4);
 
 
(b)
in subsection (6)(a) and (b) (inserted by section 8 ), for “prescribed”
 
 
substitute “specified”;
25
 
(c)
omit subsections (7) and (8).
 
 
10
After section 47G insert—
 
“47H
Zero hours workers and similar
 
 
(1)
A worker has the right not to be subjected to any detriment by any
 
 
act, or any deliberate failure to act, by the worker’s employer done
30
 
on the ground that the worker—
 
 
(a)
accepted, or proposed to accept, an offer from the employer
 
 
to vary the worker’s terms and conditions of employment
 
 
or to enter into a new worker’s contract made in compliance
 
 
(or purported compliance) with the duty imposed by section
35
 
27BA (1) ,
 
 
(b)
rejected, or proposed to reject, an offer from the employer
 
 
to vary the worker’s terms and conditions of employment
 
 
or to enter into a new worker’s contract made in compliance
 
 
(or purported compliance) with the duty imposed by section
40
 
27BA (1) ,
 

Page 198

 
(c)
declined to work a shift (or part of a shift) on the basis of a
 
 
reasonable belief that the employer failed to comply with a
 
 
duty imposed by section 27BJ or 27BK in relation to the shift,
 
 
(d)
brought proceedings against the employer under—
 
 
(i)
section 27BG ,
5
 
(ii)
section 27BN ,
 
 
(iii)
section 27BT , or
 
 
(iv)
section 27BY (5) , or
 
 
(e)
alleged the existence of any circumstance which would
 
 
constitute a ground for bringing any proceedings within
10
 
paragraph (d) (whether or not the worker referred to the
 
 
possibility of bringing such proceedings).
 
 
(2)
The reference in subsection (1) (b) to a worker who rejected an offer
 
 
includes a reference to a worker who is to be treated as having
 
 
rejected an offer (see section 27BE (7) ).
15
 
(3)
It is immaterial for the purposes of subsection (1) (d) or (e) whether
 
 
or not the proceedings were, or would have been, well-founded
 
 
provided that the worker acted in good faith in bringing the
 
 
proceedings or alleging the existence of the circumstance.
 
 
(4)
A worker has the right not to be subjected to any detriment by any
20
 
act, or any deliberate failure to act, by the worker’s employer done
 
 
on the ground that—
 
 
(a)
the duty imposed by section 27BA(1) applies to the employer
 
 
in relation to the worker and a particular reference period,
 
 
or
25
 
(b)
the employer believes that that duty so applies.
 
 
(5)
This section does not apply where—
 
 
(a)
the worker is an employee, and
 
 
(b)
the detriment in question amounts to dismissal within the
 
 
meaning of Part 10.
30
 
(6)
References to “worker” and “employer” in this section, section
 
 
48 (1BA) and section 49 so far as relating to a complaint under section
 
 
48 (1BA) are to be read with the modifications set out in—
 
 
(a)
section 27BJ (7) , in connection with a complaint of detriment
 
 
in contravention of this section relating to a duty imposed
35
 
by section 27BJ or 27BK ;
 
 
(b)
section 27BP (9) , in connection with a complaint of detriment
 
 
in contravention of this section relating to a duty imposed
 
 
by section 27BP (1) or 27BR (2) .
 
 
(7)
In this section “reference period” has the same meaning as in
40
 
Chapter 2 of Part 2A (see section 27BA(4)).”
 

Page 199

 
11
After section 47H (inserted by paragraph 10 ) insert—
 
“47I
Agency workers and Schedule
 
 
(1)
An agency worker has the right not to be subjected to any detriment
 
 
by any act, or any deliberate failure to act, by a relevant person
 
 
done on the ground that the agency worker—
5
 
(a)
accepted, or proposed to accept, an offer to enter into a
 
 
worker’s contract made in compliance (or purported
 
 
compliance) with the duty imposed by paragraph 1 (1) of
 
 
Schedule A1 ,
 
 
(b)
rejected, or proposed to reject, an offer to enter into a
10
 
worker’s contract made in compliance (or purported
 
 
compliance) with the duty imposed by paragraph 1 (1) of
 
 
Schedule A1 ,
 
 
(c)
declined to work a shift (or part of a shift) on the basis of a
 
 
reasonable belief that there had been a failure to comply
15
 
with a duty imposed by paragraph 14 or 15 of Schedule A1
 
 
in relation to the shift,
 
 
(d)
brought proceedings under—
 
 
(i)
paragraph 8 or 9 of Schedule A1 ,
 
 
(ii)
paragraph 19 of Schedule A1 ,
20
 
(iii)
paragraph 26 of Schedule A1 , or
 
 
(iv)
section 27BY (5) , or
 
 
(e)
alleged the existence of any circumstance which would
 
 
constitute a ground for bringing any proceedings within
 
 
paragraph (d) (whether or not the agency worker referred
25
 
to the possibility of bringing such proceedings).
 
 
(2)
The reference in subsection (1) (b) to an agency worker who rejected
 
 
an offer includes a reference to an agency worker who is to be
 
 
treated as having rejected an offer (see paragraph 6 (5) of Schedule
 
 
A1 ).
30
 
(3)
It is immaterial for the purposes of subsection (1) (d) or (e) whether
 
 
or not the proceedings were, or would have been, well-founded
 
 
provided that the agency worker acted in good faith in bringing
 
 
the proceedings or alleging the existence of the circumstance.
 
 
(4)
An agency worker has the right not to be subjected to any detriment
35
 
by any act, or any deliberate failure to act, by a relevant person
 
 
done on the ground that—
 
 
(a)
the duty imposed by paragraph 1 (1) of Schedule A1 applies
 
 
in relation to the agency worker and a particular reference
 
 
period, or
40
 
(b)
the relevant person believes that that duty so applies.
 
 
(5)
This section does not apply where—
 
 
(a)
the worker is an employee of the relevant person, and
 

Page 200

 
(b)
the detriment in question amounts to dismissal within the
 
 
meaning of Part 10.
 
 
(6)
For the purposes of this section, a person is a “relevant person”, in
 
 
relation to an agency worker, if the person is (or has been)—
 
 
(a)
a work-finding agency with which the agency worker has a
5
 
worker’s contract or an arrangement by virtue of which the
 
 
agency worker is (or is to be) supplied to work for and under
 
 
the supervision and direction of another person;
 
 
(b)
a person for and under the supervision and direction of
 
 
whom the agency worker is (or is to be) supplied to work;
10
 
(c)
a person who is (or is to be) involved in the supply of the
 
 
agency worker to a person falling within paragraph (b) or
 
 
the payment of the agency worker for work done for such
 
 
a person.
 
 
(7)
In this section—
15
 
“agency worker” has the same meaning as in Part 2A (see
 
 
section 27BV );
 
 
“reference period” has the same meaning as in Part 1 of
 
 
Schedule A1 (see paragraph 1 (4) );
 
 
“work-finding agency” has the same meaning as in Part 2A
20
 
(see section 27BV ).”
 
 
12
(1)
Section 48 (enforcement) is amended as follows.
 
 
(2)
After subsection (1B) insert—
 
 
“(1BA)
A worker may present a complaint to an employment tribunal that
 
 
the worker has been subjected to a detriment in contravention of
25
 
section 47H .”
 
 
(3)
After subsection (1BA) (inserted by sub-paragraph (2) ) insert—
 
 
“(1BB)
An agency worker (within the meaning of Part 2A) may present a
 
 
complaint to an employment tribunal that the agency worker has
 
 
been subjected to a detriment in contravention of section 47I .”
30
 
(4)
In subsection (2), for “or (1B)” substitute “, (1B) or (1BA) ”.
 
 
(5)
After subsection (2A) insert—
 
 
“(2B)
On a complaint under subsection (1BB) it is for the relevant person
 
 
(within the meaning of section 47I ) to show the ground on which
 
 
any act, or deliberate failure to act, was done.”
35
 
(6)
In subsection (4), in the words after paragraph (b), after “hirer” insert “, or
 
 
a relevant person (within the meaning of section 47I ),”.
 
 
(7)
In subsection (6), after “49” insert “, except so far as relating to an alleged
 
 
detriment in contravention of section 47I ,”.
 
 
13
(1)
Section 49 (remedies) is amended as follows.
40
 
(2)
In subsection (1), for “or (1B)” substitute “, (1B) or (1BA) ”.
 

Page 201

 
(3)
After subsection (1A) insert—
 
 
“(1B)
Where an employment tribunal finds a complaint under section
 
 
48 (1BB) well-founded, the tribunal—
 
 
(a)
must make a declaration to that effect, and
 
 
(b)
may make an award of compensation to be paid by the
5
 
relevant person (within the meaning of section 47I ) to the
 
 
complainant in respect of the act or failure to act to which
 
 
the complaint relates.”
 
 
(4)
In subsection (2), for “and (6)” substitute “, (6), (7) and (7A)”.
 
 
(5)
In that subsection, after “ (7A) ” insert “and (7B) ”.
10
 
(6)
After subsection (7) insert—
 
 
“(7A)
Where—
 
 
(a)
the complaint is made under section 48(1BA),
 
 
(b)
the detriment to which the worker is subjected is the
 
 
termination of the worker’s contract, and
15
 
(c)
that contract is not a contract of employment,
 
 
any compensation must not exceed the compensation that would
 
 
be payable under Chapter 2 of Part 10 if the worker had been an
 
 
employee and had been dismissed for a reason specified in section
 
 
104BA.”
20
 
(7)
After subsection (7A) (inserted by sub-paragraph (6) ) insert—
 
 
“(7B)
Where—
 
 
(a)
the complaint is made under section 48 (1BB) ,
 
 
(b)
the detriment to which the agency worker is subjected is the
 
 
termination of a worker’s contract between the agency
25
 
worker and the relevant person, and
 
 
(c)
that contract is not a contract of employment,
 
 
any compensation must not exceed the compensation that would
 
 
be payable under Chapter 2 of Part 10 if the agency worker had
 
 
been an employee and had been dismissed for a reason specified
30
 
in section 104BB (and “agency worker” and “relevant person” have
 
 
the same meaning in this subsection as in section 47I ).”
 
 
14
After section 104B insert—
 
“104BA
Guaranteed hours
 
 
(1)
An employee who is dismissed is to be regarded for the purposes
35
 
of this Part as unfairly dismissed if the reason (or, if more than one,
 
 
the principal reason) for the dismissal is that the employee—
 
 
(a)
accepted, or proposed to accept, an offer from the employer
 
 
to vary the employee’s terms and conditions of employment
 
 
or to enter into a new contract of employment made in
40

Page 202

 
compliance (or purported compliance) with the duty imposed
 
 
by section 27BA (1) , or
 
 
(b)
rejected, or proposed to reject, an offer from the employer
 
 
to vary the employee’s terms and conditions of employment
 
 
or to enter into a new contract of employment made in
5
 
compliance (or purported compliance) with the duty imposed
 
 
by section 27BA (1) .
 
 
(2)
The reference in subsection (1) (b) to an employee who rejected an
 
 
offer includes a reference to an employee who is to be treated as
 
 
having rejected an offer (see section 27BE (7) ).
10
 
(3)
An employee who is dismissed is also to be regarded for the
 
 
purposes of this Part as unfairly dismissed if the reason (or, if more
 
 
than one, the principal reason) for the dismissal is that the
 
 
employee—
 
 
(a)
brought proceedings against the employer under section
15
 
27BG (4) , (5) or (7) (b) or 27BY (5) , or
 
 
(b)
alleged the existence of any circumstance which would
 
 
constitute a ground for bringing such proceedings (whether
 
 
or not the employee referred to the possibility of bringing
 
 
such proceedings).
20
 
(In relation to other proceedings under section 27BG , see section
 
 
104.)
 
 
(4)
It is immaterial for the purposes of subsection (3) whether or not
 
 
the proceedings were, or would have been, well-founded provided
 
 
that the employee acted in good faith in bringing the proceedings
25
 
or alleging the existence of the circumstance.
 
 
(5)
An employee who is dismissed is also to be regarded for the
 
 
purposes of this Part as unfairly dismissed if—
 
 
(a)
the duty imposed by section 27BA (1) applies to the
 
 
employee’s employer in relation to the employee and a
30
 
particular reference period, or the employer believes that
 
 
that duty so applies, and
 
 
(b)
the reason (or, if more than one, the principal reason) for
 
 
the dismissal is that the employer sought to avoid the
 
 
necessity of complying with that duty in relation to the
35
 
employee and that reference period.
 
 
(6)
In this section, “reference period” has the same meaning as in
 
 
Chapter 2 of Part 2A (see section 27BA (4) ).”
 
 
15
After section 104BA (inserted by paragraph 14 ) insert—
 
“104BB
Guaranteed hours: agency workers
40
 
(1)
An employee who is dismissed by a relevant person (who is their
 
 
employer) is to be regarded for the purposes of this Part as unfairly
 

Page 203

 
dismissed if the reason (or, if more than one, the principal reason)
 
 
for the dismissal is that the employee—
 
 
(a)
accepted, or proposed to accept, an offer to enter into a
 
 
worker’s contract made in compliance (or purported
 
 
compliance) with the duty imposed by paragraph 1 (1) of
5
 
Schedule A1 , or
 
 
(b)
rejected, or proposed to reject, an offer to enter into a
 
 
worker’s contract made in compliance (or purported
 
 
compliance) with the duty imposed by paragraph 1 (1) of
 
 
Schedule A1 .
10
 
(2)
The reference in subsection (1) (b) to an employee who rejected an
 
 
offer includes a reference to an employee who is to be treated as
 
 
having rejected an offer (see paragraph 6 (5) of Schedule A1 ).
 
 
(3)
An employee who is dismissed by a relevant person (who is their
 
 
employer) is also to be regarded for the purposes of this Part as
15
 
unfairly dismissed if the reason (or, if more than one, the principal
 
 
reason) for the dismissal is that the employee—
 
 
(a)
brought proceedings against the employer under paragraph
 
 
9 (1) or (2) of Schedule A1 , or
 
 
(b)
alleged the existence of any circumstance which would
20
 
constitute a ground for bringing such proceedings (whether
 
 
or not the employee referred to the possibility of bringing
 
 
such proceedings).
 
 
(In relation to other proceedings under paragraph 9 of Schedule
 
 
A1 , see section 104.)
25
 
(4)
It is immaterial for the purposes of subsection (3) whether or not
 
 
the proceedings were, or would have been, well-founded provided
 
 
that the employee acted in good faith in bringing the proceedings
 
 
or alleging the existence of the circumstance.
 
 
(5)
An employee who is dismissed by a relevant person (who is their
30
 
employer) is also to be regarded for the purposes of this Part as
 
 
unfairly dismissed if—
 
 
(a)
the duty imposed by paragraph 1 (1) of Schedule A1 applies
 
 
in relation to the employee and a particular reference period,
 
 
or the employer believes that that duty so applies, and
35
 
(b)
the reason (or, if more than one, the principal reason) for
 
 
the dismissal is that the employer sought to avoid the
 
 
necessity of that duty having to be complied with in relation
 
 
to the employee and the reference period.
 
 
(6)
In this section—
40
 
“reference period” has the same meaning as in Part 1 of
 
 
Schedule A1 (see paragraph 1 (4) );
 
 
“relevant person” means a person falling within subsection
 
 
(6) (a) or (c) of section 47I .”
 

Page 204

 
16
In section 105 (redundancy)—
 
 
(a)
after subsection (7B) insert—
 
 
“(7BZA)
This subsection applies if the reason (or, if more than one,
 
 
the principal reason) for which the employee was selected
 
 
for dismissal was—
5
 
(a)
the reason specified in subsection (1) (a) or (5) of
 
 
section 104BA ,
 
 
(b)
the reason specified in subsection (1) (b) of that section
 
 
(read with subsection (2) of that section), or
 
 
(c)
the reason specified in subsection (3) of that section
10
 
(read with subsection (4) of that section).”;
 
 
(b)
after subsection (7BZA) (inserted by paragraph (a)) insert—
 
 
“(7BZB)
This subsection applies if the reason (or, if more than one,
 
 
the principal reason) for which the employee was selected
 
 
for dismissal was—
15
 
(a)
the reason specified in subsection (1) (a) or (5) of
 
 
section 104BB ,
 
 
(b)
the reason specified in subsection (1) (b) of that section
 
 
(read with subsection (2) of that section), or
 
 
(c)
the reason specified in subsection (3) of that section
20
 
(read with subsection (4) of that section).”
 
 
17
In section 108 (qualifying period of employment), in subsection (3)—
 
 
(a)
after paragraph (gh) insert—
 
 
“(gha)
any of the following provisions of section 104BA
 
 
applies—
25
 
(i)
subsection (1) (a) or (5) ,
 
 
(ii)
subsection (1) (b) (read with subsection (2) of
 
 
that section), or
 
 
(iii)
subsection (3) (read with subsection (4) of that
 
 
section),”;
30
 
(b)
after paragraph (gha) (inserted by paragraph (a)) insert—
 
 
“(ghb)
any of the following provisions of section 104BB
 
 
applies—
 
 
(i)
subsection (1) (a) or (5) ,
 
 
(ii)
subsection (1) (b) (read with subsection (2) of
35
 
that section), or
 
 
(iii)
subsection (3) (read with subsection (4) of that
 
 
section),”.
 
 
18
In section 184 (debts to which Part 12 of the Act (insolvency of employers)
 
 
applies), in subsection (2), before paragraph (a) insert—
40
 
“(za)
a payment under section 27BP (1) or paragraph 22 (1) of
 
 
Schedule A1 ,”.
 

Page 205

 
19
In section 192 (armed forces), in subsection (2)(e), after “103” insert “, 104BA ,
 
 
104BB ”.
 
 
20
(1)
Section 194 (House of Lords staff) is amended as follows.
 
 
(2)
After subsection (2)(a) insert—
 
 
“(aza)
Part 2A, apart from Chapter 1 of that Part,”.
5
 
(3)
In subsection (2)(c), for “and 47E” substitute “, 47E and 47H ”.
 
 
21
(1)
Section 195 (House of Commons staff) is amended as follows.
 
 
(2)
After subsection (2)(a) insert—
 
 
“(aza)
Part 2A, apart from Chapter 1 of that Part,”.
 
 
(3)
In subsection (2)(c), for “and 47E” substitute “, 47E and 47H ”.
10
 
22
(1)
Section 199 (mariners) is amended as follows.
 
 
(2)
In subsection (8), for paragraph (b) substitute—
 
 
“(b)
Part 2,
 
 
(bza)
Part 2A, apart from Chapter 1 of that Part,
 
 
(bzb)
Parts 2B, 3 and 5,”.
15
 
(3)
After subsection (8) insert—
 
 
“(9)
In the application of subsection (7) to the provisions mentioned in
 
 
subsection (8) (bza) , the reference in subsection (7)(b) to a contract
 
 
of employment is to be read as a reference to a worker’s contract.”
 
 
23
In section 200 (police officers), in subsection (1)—
20
 
(a)
after “8 to 10,” insert “Chapters 2 to 4 of Part 2A,”;
 
 
(b)
after “47C,” insert “ 47H ,”.
 
 
24
(1)
Section 202 (national security restrictions on disclosure of information) is
 
 
amended as follows.
 
 
(2)
In subsection (2), after paragraph (a) insert—
25
 
“(aa)
Chapters 2 to 6 of Part 2A (including Schedule A1 ),”.
 
 
(3)
In subsection (2)(b), for “and 47C” substitute “, 47C, 47H and 47I ”.
 
 
(4)
In subsection (2)(g)(i)—
 
 
(a)
for “or 103” substitute “, 103, 104BA or 104BB ”;
 
 
(b)
after “application” insert “in relation to rights conferred by Chapters
30
 
2 to 6 of Part 2A (including Schedule A1 ) or”.
 
 
(5)
In subsection (2)(g)(ii), for “or (6)” substitute “, (6), (7BZA) or (7BZB) ”.
 
 
25
(1)
Section 205 (remedy for infringement of certain rights) is amended as
 
 
follows.
 
 
(2)
In subsection (1), after “section 8,” insert “Chapters 2 to 4 of Part 2A,”.
35

Page 206

 
(3)
After subsection (1A) insert—
 
 
“(1B)
In relation to the rights conferred by—
 
 
(a)
Chapters 2 to 4 of Part 2A, and
 
 
(b)
section 47H ,
 
 
the reference in subsection (1) to an employee has effect as a
5
 
reference to a worker, read (where relevant) in accordance with
 
 
section 27BJ (7) or 27BP (9) (as the case may be).”
 
 
(4)
After subsection (2) insert—
 
 
“(3)
The remedy of an agency worker (within the meaning of Part 2A)
 
 
for infringement of any of the rights conferred by Parts 1 to 3 of
10
 
Schedule A1 and section 47I is, where provision is made for a
 
 
complaint to an employment tribunal, by way of such a complaint
 
 
and not otherwise.”
 
 
26
(1)
Section 206 (institution or continuance of tribunal proceedings) is amended
 
 
as follows.
15
 
(2)
In subsection (2), after paragraph (a) insert—
 
 
“(aa)
Chapters 2 to 6 of Part 2A (including Schedule A1 ),”.
 
 
(3)
After subsection (9) insert—
 
 
“(10)
In the application of this section and section 207 in relation to
 
 
Chapter 2 , 3 or 4 of Part 2A, or Chapter 6 of Part 2A so far as
20
 
relating to Chapter 2 of that Part, references to an employee are to
 
 
be read as if they were references to a worker within the meaning
 
 
of the relevant Chapter of that Part.
 
 
(11)
In the application of this section and section 207 in relation to
 
 
Chapter 3 or 4 of Part 2A, references to an employer are to be read
25
 
as if they were references to an employer within the meaning of
 
 
the relevant Chapter of that Part.
 
 
(12)
In the application of this section and section 207 in relation to
 
 
Chapter 5 of Part 2A (including Schedule A1 ), or Chapter 6 of Part
 
 
2A so far as relating to Part 1 of Schedule A1 —
30
 
(a)
references to an employer are to be read as if they were
 
 
references to—
 
 
(i)
a hirer, or
 
 
(ii)
a work-finding agency, and
 
 
(b)
references to an employee are to be read as if they were
35
 
references to an agency worker,
 
 
within the meaning of Chapter 5 of Part 2A (including Schedule
 
 
A1 ).
 
 
(13)
In the application of this section and section 207 in relation to section
 
 
47H —
40

Page 207

 
(a)
references to an employer are to be read as if they were
 
 
references to an employer within the meaning of that section;
 
 
(b)
references to an employee are to be read as if they were
 
 
references to a worker within the meaning of that section.
 
 
(14)
In the application of this section and section 207 in relation to section
5
 
47I —
 
 
(a)
references to an employer are to be read as if they were
 
 
references to a relevant person within the meaning of that
 
 
section;
 
 
(b)
references to an employee are to be read as if they were
10
 
references to an agency worker within the meaning of Part
 
 
2A.”
 
 
27
In section 225 (calculation date for purposes of working out a week’s pay),
 
 
before subsection (1) insert—
 
 
“(A1)
Where the calculation is for the purposes of section 27BI , the
15
 
calculation date is—
 
 
(a)
where the complaint is under section 27BG (1) , (2) , (3) or (7)
 
 
, the latest day of the reference period to which the complaint
 
 
relates on which the worker was employed by the employer
 
 
under a worker’s contract;
20
 
(b)
where the complaint is under section 27BG (8) —
 
 
(i)
the date on which the complaint was presented to
 
 
the employment tribunal, or
 
 
(ii)
if the worker was not employed by the employer
 
 
under a worker’s contract on that date, the latest day
25
 
before that date on which the worker was so
 
 
employed.
 
 
(B1)
Where the calculation is for the purposes of section 27BI as applied
 
 
by section 27BY (6) (a) in relation to a complaint under section
 
 
27BY (5) , the calculation date is the latest day of the reference period
30
 
to which the complaint relates on which the worker was employed
 
 
by the employer under a worker’s contract.”
 
 
28
In section 227 (maximum amount of week’s pay), in subsection (1), before
 
 
paragraph (zza) insert—
 
 
“(zzza)
an award of compensation under section 27BI (1) (b) ,”.
35
 
29
In section 235 (definitions for purposes of the Act)—
 
 
(a)
in subsection (1), in paragraph (b) of the definition of “week”, after
 
 
“86” insert “and paragraph 11 of Schedule A1 ”;
 
 
(b)
in subsection (2A) (definition of “limited-term contract”), after
 
 
“contract of employment” insert “or other worker’s contract”;
40
 
(c)
in subsection (2B) (definition of “limiting event”), in the words
 
 
before paragraph (a) , after “contract of employment” insert “or other
 
 
worker’s contract”.
 

Page 208

 
30
In section 236 (orders and regulations), in subsection (3) (regulations subject
 
 
to affirmative procedure)—
 
 
(a)
after “27B,” insert “ 27BA (3) (a) (ii) or (d) , (6) or (15) , 27BB (2) , (5) or
 
 
(9) (c) , 27BD (6) , 27BJ (1) (b) , (2) (a) or (4) , 27BK (3) , 27BP (1) , (2) (c) , (3) (a) ,
 
 
(7) or (10) , 27BR (1) (c) , 27BU (2) , 27BZ,”;
5
 
(b)
after “209,” insert “or under paragraph 1 (3) (b) , (6) or (10) , 2 (2) , (5)
 
 
or (7) (c) , 5 (6) , 12 (1) , 13 (3) , 14 (2) , 15 (3) , 16 (4) , 22 (1) , (3) or (5), 24 (1) (c)
 
 
or (2) , 26 (9) , 27 (2) or 28 (2) of Schedule A1 ,”.
 

Bankruptcy (Scotland) Act 2016

 
 
31
In the Bankruptcy (Scotland) Act 2016 (asp 21), in Schedule 3 (preferred
10
 
debts), in paragraph 10(2)—
 
 
(a)
before paragraph (a) insert—
 
 
“(za)
a payment under section 27BP (1) of, or paragraph
 
 
22 (1) of Schedule A1 to, the Employment Rights Act
 
 
1996 (payment for a cancelled, moved or curtailed
15
 
shift),”;
 
 
(b)
in paragraph (a), for “the Employment Rights Act 1996” substitute
 
 
“that Act”.
 
 
Schedule 3
Section 25
 

Right not to be unfairly dismissed: removal of qualifying period, etc

20

Right not to be unfairly dismissed

 
 
1
Section 108 of the Employment Rights Act 1996 (qualifying period of
 
 
employment) is amended as follows—
 
 
(a)
in subsection (1) omit “two years” and insert “six months”;
 
 
(b)
after subsection (5), insert—
25
 
“(6)
Subsection (1) does not apply if section 4(3)(b) of the
 
 
Rehabilitation of Offenders Act 1974 (read with any order
 
 
made under section 4(4) of that Act) applies.”.
 

Power to make provision about dismissal during initial period of employment

 
 
2
(1)
The Employment Rights Act 1996 is amended as follows.
30
 
(2)
In Part 10, after section 98 insert—
 
“98ZZA
Dismissal during initial period of employment
 
 
(1)
The Secretary of State may make regulations modifying the
 
 
application of section 98(4) in relation to the dismissal of an
 
 
employee that meets the conditions in subsections (2) and (3).
35
 
(2)
The condition in this subsection is that—
 

Page 209

 
(a)
the effective date of termination falls on or before the last
 
 
day of the initial period of employment beginning with the
 
 
day after the employee has been continuously employed for
 
 
the period set out in section 108(1) of the Employment Rights
 
 
Act 1996 (see subsection (4)), or
5
 
(b)
the employer gives notice to the employee to terminate the
 
 
contract of employment before the end of the initial period
 
 
of employment and the effective date of termination falls
 
 
during the period of three months beginning with the day
 
 
after the last day of the initial period of employment.
10
 
(3)
The condition in this subsection is that the reason (or, if more than
 
 
one, the principal reason) shown for the dismissal by the employer
 
 
is—
 
 
(a)
a reason falling within paragraph (a), (b) or (d) of section
 
 
98(2), or
15
 
(b)
some other substantial reason relating to the employee.
 
 
(4)
In this section “the initial period of employment”, in relation to an
 
 
employee, means a period specified in, or determined in accordance
 
 
with, regulations made by the Secretary of State.
 
 
(5)
The provision that may be made by regulations under this section
20
 
includes, among other things—
 
 
(a)
provision specifying circumstances in which two or more
 
 
periods of continuous employment are to be treated as a
 
 
single period of continuous employment;
 
 
(b)
provision for determining whether a reason does, or does
25
 
not, relate to an employee;
 
 
(c)
provision for the dismissal of an employee to be treated as
 
 
fair if, or only if, the employer has taken any steps specified
 
 
in the regulations.”
 
 
(3)
In section 236 (orders and regulations), in subsection (3) (regulations subject
30
 
to affirmative resolution procedure), before “99” insert “98ZZA,”.
 
 
3
In section 15 of the Enterprise and Regulatory Reform Act 2013 (power by
 
 
order to increase or decrease limit of compensatory award), after subsection
 
 
(5) insert—
 
 
“(5A)
The power conferred by subsection (1) includes power to provide
35
 
that, in the case of the dismissal of an employee that meets the
 
 
conditions in section 98ZZA(2) and (3) of the Employment Rights
 
 
Act 1996 (dismissal during initial period of employment), the limit
 
 
imposed for the time being by subsection (1) of section 124 of that
 
 
Act is a different amount from that otherwise imposed by that
40
 
subsection.
 
 
(5B)
Subsections (3), (4)(a) and (5) do not apply for the purposes of
 
 
specifying the amount of the limit in such a case.”
 

Page 210

Consequential amendments

 
 
4
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
as follows.
 
 
(2)
In Schedule A1 (collective bargaining: recognition), in paragraph 160 (right
 
 
not to be subjected to detriment: compensation), in sub-paragraph (2)(b)—
5
 
(a)
for “124(1)” substitute “124”;
 
 
(b)
at the end insert “(ignoring any different sum specified as the limit
 
 
for a dismissal that meets the conditions in section 98ZZA(2) and
 
 
(3) of that Act).”
 
 
5
(1)
The Employment Rights Act 1996 is amended as follows.
10
 
(2)
In section 92 (right to written statement of reasons for dismissal)—
 
 
(a)
in subsection (3), for the words from “unless” to the end substitute
 
 
“if the dismissal occurs before the employee has been continuously
 
 
employed for the period set out in section 108(1) or during the initial
 
 
period of employment (see subsection (3A)).”;
15
 
(b)
after that subsection insert—
 
 
“(3A)
A reference in this section to a dismissal that occurs during
 
 
the initial period of employment is a reference to a dismissal
 
 
that meets the condition in section 98ZZA(2).”;
 
 
(c)
in subsection (4), for “she has been continuously employed for any
20
 
period” substitute “she has been continuously employed for any
 
 
period or the dismissal occurred during the initial period of
 
 
employment”;
 
 
(d)
in subsection (4A), for “he has been continuously employed for any
 
 
period” substitute “he has been continuously employed for any
25
 
period or the dismissal occurred during the initial period of
 
 
employment”.
 
 
(3)
In section 98 (fairness: general), in subsection (6)(a), for “98A” substitute
 
 
“98ZZA”.
 
 
6
(1)
The National Minimum Wage Act 1998 is amended as follows.
30
 
(2)
In section 24 (enforcement of right not to be subjected to detriment), in
 
 
subsection (4)(b)—
 
 
(a)
for “124(1)” substitute “124”;
 
 
(b)
after “section 123 of that Act” insert “(ignoring any different sum
 
 
specified as the limit for a dismissal that meets the conditions in
35
 
section 98ZZA(2) and (3) of that Act)”.
 
 
(3)
In section 25, omit subsection (3).
 
 
7
(1)
The Employment Relations Act 1999 is amended as follows.
 
 
(2)
In section 34 (indexation of amounts, etc)—
 
 
(a)
in subsection (1)(c), for “124(1)” substitute “124”;
40
 
(b)
omit subsection (4);
 

Page 211

 
(c)
in subsection (4A), for “124(1)” substitute “124”;
 
 
(d)
in subsection (4B)—
 
 
(i)
for “124(1)” substitute “124”;
 
 
(ii)
after “1996” insert “in relation to cases of any description”;
 
 
(iii)
for the words from “such a sum” to “that date” substitute “,
5
 
with effect from a day within 12 months before that date, a
 
 
sum specified in that section in relation to cases of that
 
 
description”.
 
 
8
In the Employment Relations Act 2004, omit section 35.
 
 
9
(1)
In Part 1 of the Pensions Act 2008 (pension scheme membership for
10
 
jobholders), Chapter 3 (safeguards: employment and pre-employment) is
 
 
amended as follows.
 
 
(2)
In section 56 (enforcement of right not to be subjected to detriment), in
 
 
subsection (4)(b)—
 
 
(a)
for “124(1)” substitute “124”;
15
 
(b)
at the end insert “(ignoring any different sum specified as the limit
 
 
for a dismissal that meets the conditions in section 98ZZA(2) and
 
 
(3) of that Act).”
 
 
Schedule 4
Section 41
 

Pay and conditions of school support staff in England

20

The School Support Staff Negotiating Body

 
 
1
In the Education Act 2002, after Part 8 insert—
 

Part 8A

 

School support staff in England

 

The School Support Staff Negotiating Body

25
148A
The School Support Staff Negotiating Body
 
 
(1)
There is to be an unincorporated body of persons known as the
 
 
School Support Staff Negotiating Body (“the SSSNB”).
 
 
(2)
The SSSNB has the functions conferred on it by this Part.
 
 
(3)
Schedule 12A makes further provision about the SSSNB.
30
148B
Matters within the SSSNB’s remit
 
 
(1)
For the purposes of this Part, the matters within the SSSNB’s remit
 
 
are matters relating to the following—
 

Page 212

 
(a)
the remuneration of school support staff;
 
 
(b)
terms and conditions of employment of school support staff;
 
 
(c)
the training of school support staff;
 
 
(d)
career progression for school support staff.
 
 
(2)
The Secretary of State may by regulations provide that, for the
5
 
purposes of subsection (1) —
 
 
(a)
a payment or entitlement of a prescribed kind is, or is not,
 
 
to be treated as remuneration;
 
 
(b)
a prescribed matter is, or is not, to be treated as relating to
 
 
terms and conditions of employment of school support staff;
10
 
(c)
a prescribed matter is, or is not, to be treated as relating to
 
 
the training of school support staff;
 
 
(d)
a prescribed matter is, or is not, to be treated as relating to
 
 
career progression for school support staff.
 
 
(3)
The SSSNB must not restrict employers from introducing innovative
15
 
or improved terms and conditions of employment beyond the
 
 
national framework, provided that such terms meet or exceed any
 
 
minimum standards set by the SSSNB.
 
148C
Meaning of “school support staff”
 
 
(1)
This section has effect for the purposes of this Part.
20
 
(2)
“School support staff” means persons who meet the conditions in
 
 
subsections (3) and (4) .
 
 
(3)
The condition in this subsection is that the person—
 
 
(a)
is employed by a local authority in England, or the governing
 
 
body of a school maintained by a local authority in England,
25
 
under a contract of employment providing for the person
 
 
to work wholly at one or more schools maintained by a local
 
 
authority in England, or
 
 
(b)
is employed by the proprietor of an Academy under a
 
 
contract of employment which—
30
 
(i)
provides for the person to work wholly at one or
 
 
more Academies, or
 
 
(ii)
provides for the person to carry out work of a
 
 
prescribed description for the purposes of one or
 
 
more Academies.
35
 
(4)
The condition in this subsection is that the person is not—
 
 
(a)
a school teacher, or
 
 
(b)
a person of a prescribed description.
 
 
(5)
In this section “school teacher” means—
 
 
(a)
a person who is a school teacher for the purposes of section
40
 
122, or
 

Page 213

 
(b)
a qualified teacher who is employed by the proprietor of an
 
 
Academy to work as a teacher.
 

Consideration of matters by the SSSNB

 
148D
Referral of matter to the SSSNB for consideration: general
 
 
(1)
The Secretary of State may refer a matter within the SSSNB’s remit
5
 
to the SSSNB for consideration by it.
 
 
(2)
For provision about referrals of matters relating to—
 
 
(a)
the remuneration of school support staff, or
 
 
(b)
terms and conditions of employment of school support staff,
 
 
see section 148E (and sections 148H to 148J ).
10
 
(3)
For provision about referrals of matters relating to the training or
 
 
career progression of school support staff, see section 148F .
 
 
148E
Referral of matters relating to remuneration or conditions of
 
 
employment
 
 
(1)
This section applies if the Secretary of State refers a matter to the
15
 
SSSNB under section 148D that relates to—
 
 
(a)
the remuneration of school support staff, or
 
 
(b)
terms and conditions of employment of school support staff.
 
 
(2)
The Secretary of State may specify—
 
 
(a)
factors to which the SSSNB must have regard in considering
20
 
the matter;
 
 
(b)
a date by which the SSSNB must comply with subsection
 
 
(4) .
 
 
(3)
The SSSNB must consider the matter, having regard to any factors
 
 
specified under subsection (2) (a) .
25
 
(4)
When it has considered the matter, the SSSNB must—
 
 
(a)
if it has reached an agreement about the matter, submit the
 
 
agreement to the Secretary of State;
 
 
(b)
if it has been unable to reach an agreement about the matter,
 
 
notify the Secretary of State of that fact.
30
 
(5)
If the Secretary of State specifies a date under subsection (2) (b) , the
 
 
SSSNB must comply with subsection (4) no later than that date.
 
 
(6)
The Secretary of State may, at any time before the SSSNB has
 
 
complied with subsection (4) in relation to a matter—
 
 
(a)
withdraw or vary the reference of the matter;
35

Page 214

 
(b)
if factors have been specified under paragraph (a) of
 
 
subsection (2), withdraw or vary those factors, or specify
 
 
further factors under that paragraph;
 
 
(c)
if a date has been specified under paragraph (b) of subsection
 
 
(2), specify a later date under that paragraph.
5
148F
Referral of matters relating to training or career progression
 
 
(1)
This section applies if the Secretary of State refers a matter to the
 
 
SSSNB under section 148D that relates to the training or career
 
 
progression of school support staff.
 
 
(2)
The Secretary of State may specify—
10
 
(a)
factors to which the SSSNB must have regard in considering
 
 
the matter;
 
 
(b)
a date by which the SSSNB must comply with subsection
 
 
(4) .
 
 
(3)
The SSSNB must consider the matter, having regard to any factors
15
 
specified under subsection (2) (a) .
 
 
(4)
When it has considered the matter, the SSSNB must submit a report
 
 
about the matter (including any recommendations it makes about
 
 
the matter) to the Secretary of State.
 
 
(5)
If the Secretary of State specifies a date under subsection (2) (b) , the
20
 
SSSNB must comply with subsection (4) no later than that date.
 
 
(6)
The Secretary of State may, at any time before the SSSNB has
 
 
complied with subsection (4) in relation to a matter—
 
 
(a)
withdraw or vary the reference of the matter;
 
 
(b)
if factors have been specified under paragraph (a) of
25
 
subsection (2), withdraw or vary those factors, or specify
 
 
further factors under that paragraph;
 
 
(c)
if a date has been specified under paragraph (b) of subsection
 
 
(2), specify a later date under that paragraph.
 
148G
Consideration of matters by the SSSNB without a referral
30
 
(1)
The SSSNB may, with the agreement of the Secretary of State,
 
 
consider a matter within its remit, even if the matter has not been
 
 
referred to it by the Secretary of State under section 148D .
 
 
(2)
If—
 
 
(a)
the matter relates to the remuneration of school support
35
 
staff, or terms and conditions of employment of school
 
 
support staff, and
 
 
(b)
the SSSNB reaches an agreement about the matter,
 
 
it may submit the agreement to the Secretary of State.
 

Page 215

 
(3)
If the matter relates to training or career progression of school
 
 
support staff, the SSSNB may submit a report about the matter
 
 
(including any recommendations it makes about the matter) to the
 
 
Secretary of State.
 

Powers of Secretary of State on submission of SSSNB agreement

5
148H
Agreement submitted by the SSSNB under section
 
 
(1)
This section applies if the SSSNB submits an agreement to the
 
 
Secretary of State under section 148E (4) (a) or 148G (2) .
 
 
(2)
The Secretary of State may—
 
 
(a)
make regulations ratifying the agreement (see section 148M ),
10
 
or
 
 
(b)
if the Secretary of State thinks that it would be inappropriate
 
 
to make regulations ratifying the agreement, refer the
 
 
agreement back to the SSSNB for reconsideration (see section
 
 
148I ).
15
 
(3)
Regulations under subsection (2) (a) may ratify the agreement—
 
 
(a)
in full, or
 
 
(b)
to the extent prescribed in the regulations.
 

Reconsideration by the SSSNB

 
148I
Reconsideration of agreement by the SSSNB
20
 
(1)
This section applies if, under section 148H (2) (b) or section 148J (2) (b) ,
 
 
the Secretary of State refers an agreement back to the SSSNB for
 
 
reconsideration.
 
 
(2)
The Secretary of State may specify—
 
 
(a)
factors to which the SSSNB must have regard in the
25
 
reconsideration;
 
 
(b)
a date by which the SSSNB must comply with subsection
 
 
(4) .
 
 
(3)
The SSSNB must reconsider the agreement, having regard to any
 
 
factors specified under subsection (2) (a) .
30
 
(4)
After completing its reconsideration, the SSSNB must—
 
 
(a)
if it has agreed revisions to the agreement, submit to the
 
 
Secretary of State a new version of the agreement
 
 
incorporating the revisions;
 
 
(b)
if it has not agreed revisions to the agreement, submit the
35
 
existing version of the agreement to the Secretary of State.
 

Page 216

 
(5)
If the Secretary of State specifies a date under subsection (2) (b) , the
 
 
SSSNB must comply with subsection (4) no later than that date.
 
 
(6)
The Secretary of State may, at any time before the SSSNB has
 
 
complied with subsection (4) in relation to an agreement referred
 
 
back to it for reconsideration—
5
 
(a)
withdraw the reference of the agreement;
 
 
(b)
if factors have been specified under paragraph (a) of
 
 
subsection (2), withdraw or vary those factors, or specify
 
 
further factors under that paragraph;
 
 
(c)
if a date has been specified under paragraph (b) of subsection
10
 
(2), specify a later date under that paragraph.
 
148J
Powers of Secretary of State following reconsideration under section
 
 
148I
 
 
(1)
This section applies if the SSSNB submits an agreement about a
 
 
matter to the Secretary of State under section 148I .
15
 
(2)
The Secretary of State may—
 
 
(a)
make regulations ratifying the agreement—
 
 
(i)
in full, or
 
 
(ii)
to the extent prescribed in the regulations;
 
 
(b)
refer the agreement back to the SSSNB for reconsideration
20
 
(see section 148I );
 
 
(c)
make regulations requiring prescribed persons to have regard
 
 
to the agreement in exercising prescribed functions;
 
 
(d)
by regulations make provision, in relation to a matter to
 
 
which the agreement relates, otherwise than in the terms of
25
 
the agreement (see section 148N ).
 
 
This is subject to subsections (3) and (4) .
 
 
(3)
The Secretary of State may refer an agreement about a matter back
 
 
to the SSSNB for reconsideration only if it appears to the Secretary
 
 
of State that the condition in subsection (5) is met.
30
 
(4)
The Secretary of State may make regulations under subsection (2) (d)
 
 
in relation to a matter only if it appears to the Secretary of State
 
 
that—
 
 
(a)
the condition in subsection (5) is met, and
 
 
(b)
there is an urgent need to make provision in relation to the
35
 
matter.
 
 
(5)
The condition is that one or more of the following applies—
 
 
(a)
the agreement does not properly address the matter;
 
 
(b)
it is not practicable to implement the agreement;
 
 
(c)
the SSSNB failed in reconsidering the agreement to have
40
 
regard to factors specified under section 148I (2) (a) .
 

Page 217

Additional powers of Secretary of State

 
148K
Powers of Secretary of State in absence of SSSNB agreement
 
 
(1)
Subsection (2) applies if—
 
 
(a)
the SSSNB notifies the Secretary of State under section
 
 
148E (4) (b) that it has been unable to reach an agreement on
5
 
a matter referred to it, or
 
 
(b)
the SSSNB fails to comply with section 148E (4) in relation
 
 
to a matter by any date specified under section 148E (2) (b) .
 
 
(2)
The Secretary of State may—
 
 
(a)
if a date has been specified under paragraph (b) of section
10
 
148E (2) in relation to the matter, specify a later date under
 
 
that paragraph, or
 
 
(b)
if it appears to the Secretary of State that there is an urgent
 
 
need to do so, by regulations make provision in relation to
 
 
the matter (see section 148N ).
15
 
(3)
Subsection (4) applies if the SSSNB fails to comply with section
 
 
148I (4) in relation to an agreement by any date specified under
 
 
section 148I (2) (b) .
 
 
(4)
The Secretary of State may—
 
 
(a)
if a date has been specified under paragraph (b) of section
20
 
148I (2) in relation to the SSSNB’s reconsideration of the
 
 
agreement, specify a later date under that paragraph, or
 
 
(b)
if it appears to the Secretary of State that there is an urgent
 
 
need to do so, by regulations make provision in relation to
 
 
a matter to which the agreement relates (see section 148N ).
25
 
(5)
Before making any regulations under subsection (2) (b) or (4) (b) , the
 
 
Secretary of State must consult the SSSNB.
 
148L
Powers of Secretary of State where SSSNB fails to submit report
 
 
(1)
This section applies if the SSSNB fails to comply with section 148F (4)
 
 
in relation to a matter by any date specified under section 148F (2) (b) .
30
 
(2)
The Secretary of State may—
 
 
(a)
specify a later date under section 148F (2) (b) , or
 
 
(b)
if it appears to the Secretary of State appropriate to do so,
 
 
issue guidance under section 148P in relation to the matter
 
 
without waiting for the SSSNB to submit a report about it.
35

Page 218

Regulations

 
148M
Effect of regulations ratifying agreement
 
 
(1)
This section applies if the Secretary of State makes regulations
 
 
ratifying (to any extent) an agreement submitted by the SSSNB.
 
 
(2)
If the agreement relates to a person’s remuneration, the person’s
5
 
remuneration is to be determined and paid in accordance with the
 
 
agreement.
 
 
(3)
A provision of the agreement that relates to any other term or
 
 
condition of a person’s employment has effect as a term of the
 
 
person’s contract of employment.
10
 
(4)
A term of the person’s contract of employment has no effect to the
 
 
extent that it makes provision that is prohibited by, or is otherwise
 
 
inconsistent with, the agreement.
 
 
(5)
Where the person is employed by the proprietor of an Academy,
 
 
any provision of the Academy arrangements relating to the Academy
15
 
has no effect to the extent that it makes provision that is prohibited
 
 
by, or is otherwise inconsistent with, the agreement.
 
 
(6)
Subsections (2) to (5) —
 
 
(a)
do not apply in relation to a term or condition of a person’s
 
 
employment if, and to the extent that, giving effect to the
20
 
agreement would alter the term or condition to the person’s
 
 
detriment;
 
 
(b)
do not prevent the terms and conditions of a person’s
 
 
employment from including a term or condition that is more
 
 
favourable to the person than that which would otherwise
25
 
have effect by virtue of those subsections.
 
 
148N
Effect of regulations making provision otherwise than in terms of
 
 
agreement
 
 
(1)
This section applies if the Secretary of State makes regulations under
 
 
section 148J (2) (d) or 148K (2) (b) or (4) (b)
30
 
(2)
The regulations must either—
 
 
(a)
require prescribed persons, in exercising prescribed functions,
 
 
to have regard to the regulations, or
 
 
(b)
provide that the regulations are to have effect for determining
 
 
the terms and conditions of employment of persons to whom
35
 
the regulations apply.
 
 
(3)
If the regulations make provision within subsection (2) (b) ,
 
 
subsections (4) to (7) apply (but see subsection (8) ).
 

Page 219

 
(4)
If the regulations relate to a person’s remuneration, the person’s
 
 
remuneration is to be determined and paid in accordance with the
 
 
regulations.
 
 
(5)
A provision of the regulations that relates to any other term or
 
 
condition of a person’s employment has effect as a term of the
5
 
person’s contract of employment.
 
 
(6)
A term of the person’s contract of employment has no effect to the
 
 
extent that it makes provision that is prohibited by, or is otherwise
 
 
inconsistent with, the regulations.
 
 
(7)
Where the person is employed by the proprietor of an Academy,
10
 
any provision of the Academy arrangements relating to the Academy
 
 
has no effect to the extent that it makes provision that is prohibited
 
 
by, or is otherwise inconsistent with, the regulations.
 
 
(8)
Subsections (4) to (7) —
 
 
(a)
do not apply in relation to a term or condition of a person’s
15
 
employment if, and to the extent that, giving effect to the
 
 
regulations would alter the term or condition to the person’s
 
 
detriment;
 
 
(b)
do not prevent the terms and conditions of a person’s
 
 
employment from including a term or condition that is more
20
 
favourable to the person than that which would otherwise
 
 
have effect by virtue of those subsections.
 
148O
Regulations: supplementary
 
 
(1)
Regulations under this Part may make provision that has
 
 
retrospective effect.
25
 
(2)
Regulations under this Part may make provision by reference to—
 
 
(a)
an agreement submitted to the Secretary of State by the
 
 
SSSNB, or
 
 
(b)
any other document.
 
 
(3)
If regulations under this Part make provision by virtue of subsection
30
 
(2) , they must include provision about the publication of the
 
 
agreement or other document.
 
 
(4)
A reference in section 148N (4) to (8) to regulations under section
 
 
148J (2) (d) or 148K (2) (b) or (4) (b) , or to a provision of such
 
 
regulations, includes a reference to a provision of a document
35
 
referred to by such regulations.
 

Page 220

Guidance

 
148P
Guidance
 
 
(1)
The SSSNB may, with the approval of the Secretary of State, issue
 
 
guidance relating to—
 
 
(a)
an agreement that has been ratified by regulations under
5
 
this Part;
 
 
(b)
an agreement to which regulations under section 148J (2) (c)
 
 
require persons to have regard.
 
 
(2)
The Secretary of State may issue guidance relating to—
 
 
(a)
an agreement that has been ratified by regulations under
10
 
this Part;
 
 
(b)
an agreement to which regulations under section 148J (2) (c)
 
 
require persons to have regard;
 
 
(c)
regulations made under section 148J (2) (d) or 148K (2) (b) or
 
 
(4) (b) ;
15
 
(d)
any matter relating to training or career progression of school
 
 
support staff (but see subsection (3) ).
 
 
(3)
The Secretary of State may issue guidance under subsection (2) (d)
 
 
about a matter only if—
 
 
(a)
the SSSNB has submitted a report about the matter to the
20
 
Secretary of State under section 148F (4) or 148G (3) , and
 
 
(b)
the Secretary of State has had regard to the report and any
 
 
recommendations it makes.
 
 
This is subject to section 148L (power to issue guidance where the
 
 
SSSNB fails to submit a report by the specified date).
25
 
(4)
In exercising functions in respect of school support staff, each of
 
 
the following is to have regard to guidance issued under this
 
 
section—
 
 
(a)
a local authority in England;
 
 
(b)
the governing body of a school maintained by a local
30
 
authority in England;
 
 
(c)
the proprietor of an Academy.
 

Supplementary and general

 
148Q
Agreements of SSSNB not to be collective agreements, etc
 
 
(1)
Nothing done by the SSSNB, or by members of the SSSNB acting
35
 
in that capacity, is to be regarded as collective bargaining for the
 
 
purposes of section 178 of the Trade Union and Labour Relations
 
 
(Consolidation) Act 1992.
 

Page 221

 
(2)
Accordingly, any reference to a collective agreement within the
 
 
meaning of that Act does not include an agreement which the SSSNB
 
 
reaches under this Part.
 
148R
Interpretation of this Part
 
 
(1)
In this Part—
5
 
“Academy” and “Academy arrangements” have the same
 
 
meaning as in the Academies Act 2010 (but see subsection
 
 
(2));
 
 
“contract of employment” has the meaning given by section
 
 
230(2) of the Employment Rights Act 1996;
10
 
“school maintained by a local authority” means any of the
 
 
following—
 
 
(a)
a community, foundation or voluntary school;
 
 
(b)
a community or foundation special school;
 
 
(c)
a maintained nursery school;
15
 
(d)
a pupil referral unit;
 
 
“school support staff” has the meaning given by section 148C ;
 
 
“the SSSNB” means the School Support Staff Negotiating Body.
 
 
(2)
In this Part—
 
 
(a)
a reference to an Academy includes a reference to a city
20
 
technology college and a city college for the technology of
 
 
the arts, and
 
 
(b)
a reference to Academy arrangements includes a reference
 
 
to an agreement under section 482 of the Education Act 1996.
 
 
(3)
Any reference in this Part to an agreement that has been ratified is,
25
 
in a case where the agreement is ratified in part, a reference to so
 
 
much of the agreement as has been ratified.”
 
 
2
In the Education Act 2002, after Schedule 12 insert—
 
 
“Schedule 12A
Section 148A(3)
 

The School Support Staff Negotiating Body

30

Constitution

 
 
1
(1)
The SSSNB is to be constituted in accordance with arrangements
 
 
made by the Secretary of State.
 
 
(2)
Before making or revising arrangements under sub-paragraph
 
 
(1), the Secretary of State must consult—
35
 
(a)
the prescribed school support staff organisations, and
 
 
(b)
the prescribed school support staff employer organisations.
 

Page 222

 
(3)
References in this Schedule to the SSSNB’s constitutional
 
 
arrangements are to arrangements made under sub-paragraph
 
 
(1).
 
 
(4)
References in this Schedule to the prescribed organisations are
 
 
to the organisations prescribed under sub-paragraph (2).
5
 
(5)
Before making any regulations prescribing an organisation under
 
 
sub-paragraph (2)(a), the Secretary of State must consult the
 
 
Trades Union Congress.
 

Membership

 
 
2
(1)
The SSSNB’s constitutional arrangements must provide for the
10
 
members of the SSSNB to include persons representing the
 
 
interests of—
 
 
(a)
the prescribed organisations;
 
 
(b)
the Secretary of State.
 
 
(2)
The arrangements may also provide for the members of the SSSNB
15
 
to include other persons who do not represent the interests of—
 
 
(a)
school support staff organisations, or
 
 
(b)
school support staff employer organisations.
 
 
3
(1)
The SSSNB’s constitutional arrangements must provide for the
 
 
members of the SSSNB to include a person appointed to chair
20
 
the SSSNB.
 
 
(2)
The arrangements must provide for that person to be a person
 
 
who, in the opinion of the Secretary of State, does not represent
 
 
the interests of—
 
 
(a)
a school support staff organisation,
25
 
(b)
a school support staff employer organisation,
 
 
(c)
the Secretary of State, or
 
 
(d)
any other person or organisation represented on the
 
 
SSSNB.
 

Proceedings

30
 
4
(1)
The SSSNB’s constitutional arrangements may not provide for a
 
 
member of the SSSNB to be entitled to vote in respect of its
 
 
proceedings unless the member is a person representing the
 
 
interests of any of the prescribed organisations.
 
 
(2)
Subject to sub-paragraph (1), the arrangements may make
35
 
provision about the proceedings of the SSSNB (including provision
 
 
allowing the SSSNB to determine its own proceedings).
 

Page 223

Administrative support

 
 
5
The SSSNB’s constitutional arrangements may make provision
 
 
about the provision of administrative support by the Secretary
 
 
of State to the SSSNB.
 

Annual reports

5
 
6
(1)
The SSSNB’s constitutional arrangements must provide for the
 
 
SSSNB to prepare a report, in respect of each successive period
 
 
of 12 months beginning with the day on which it is established,
 
 
about the performance of its functions in that period.
 
 
(2)
The arrangements may—
10
 
(a)
require the SSSNB to send copies of the report to specified
 
 
persons;
 
 
(b)
require the SSSNB otherwise to publish the report in a
 
 
specified manner.
 
 
In this sub-paragraph “specified” means specified in the
15
 
arrangements.
 

Fees and expenses

 
 
7
The SSSNB’s constitutional arrangements may make provision
 
 
about—
 
 
(a)
the payment of fees by the Secretary of State to the person
20
 
appointed to chair the SSSNB;
 
 
(b)
the payment by the Secretary of State of expenses incurred
 
 
by the SSSNB.
 

Interpretation

 
 
8
In this Schedule—
25
 
“school support staff organisation” means an organisation
 
 
that, in the opinion of the Secretary of State, represents
 
 
the interests of school support staff;
 
 
“school support staff employer organisation” means an
 
 
organisation that, in the opinion of the Secretary of State,
30
 
represents the interests of employers of school support
 
 
staff.”
 

Consequential amendments

 
 
3
In the House of Commons Disqualification Act 1975, in Part 3 of Schedule
 
 
1 (other disqualifying offices), at the appropriate place insert—
35
 
“Person appointed to chair the School Support Staff Negotiating
 
 
Body.”
 

Page 224

 
4
In Schedule 2 to the Education Act 2002 (effect on staffing of suspension
 
 
of delegated budget)—
 
 
(a)
after paragraph 10 insert—
 
 
“10A
Paragraph 8 has effect subject to—
 
 
(a)
any provision made by regulations under section
5
 
148H (2)(a) or 148J (2) (a) ;
 
 
(b)
any provision made by regulations under section
 
 
148J (2) (d) or 148K (2) (b) or (4) (b) , where the
 
 
regulations provide that they are to have effect for
 
 
determining the terms and conditions of
10
 
employment of persons to whom they apply.”;
 
 
(b)
omit paragraph 11.
 

Pre-commencement consultation

 
 
5
If, before the coming into force of paragraph 2 (which inserts Schedule 12A
 
 
to the Education Act 2002), any consultation takes place which would have
15
 
satisfied the requirement for consultation under paragraph 1(5) of that
 
 
Schedule to any extent if it had been in force, that requirement is to be
 
 
taken as having been satisfied to that extent.
 
 
Schedule 5
Section 59
 

Seafarers’ wages and working conditions

20

Amendment of Seafarers’ Wages Act 2023

 
 
1
The Seafarers’ Wages Act 2023 (“the Act”) is amended in accordance with
 
 
paragraphs 2 to 23 .
 

Part 1 of the Act: relevant services

 
 
2
For the italic heading before section 1 substitute—
25

Part 1

 

Relevant services

 
 
3
In section 1 (services to which this Act applies)—
 
 
(a)
for the heading substitute “Relevant services”;
 
 
(b)
in subsection (1), for “This Act applies to” substitute “In this Act,
30
 
“relevant service” means”;
 
 
(c)
in subsection (2), for “this Act does not apply to” substitute
 
 
““relevant service” does not include”;
 
 
(d)
for subsection (4) substitute—
 
 
“(4)
In this Act, “ship”—
35

Page 225

 
(a)
includes—
 
 
(i)
any kind of vessel used in navigation, and
 
 
(ii)
hovercraft;
 
 
(b)
includes a ship which is registered in a State other
 
 
than the United Kingdom.”
5

Chapter 1 of Part 2 of the Act: non-qualifying seafarers

 
 
4
After section 1 insert—
 

Part 2

 

Remuneration of seafarers

 

Chapter 1

10

Non-qualifying seafarers

 
 
5
In section 2 (non-qualifying seafarers), in paragraph (a), for “service to
 
 
which this Act applies” substitute “relevant service”.
 

Chapter 2 of Part 2 of the Act: national minimum wage equivalence declarations

 
 
6
For the italic heading before section 3 substitute—
15

Chapter 2

 

National minimum wage equivalence declarations

 
 
7
In section 3 (request for declaration)—
 
 
(a)
in the heading, after “for” insert “equivalence”;
 
 
(b)
in subsection (1)—
20
 
(i)
for “Act applies” substitute “Chapter applies (see subsection
 
 
(4A) )”;
 
 
(ii)
at the end insert “(see section 19 for the meaning of “relevant
 
 
year”)”;
 
 
(c)
after subsection (4) insert—
25
 
“(4A)
This Chapter applies to a relevant service, subject to
 
 
provision made by remuneration regulations in reliance on
 
 
section 4A (6) .”;
 
 
(d)
omit subsections (5) and (6).
 
 
8
In section 4 (nature of declaration)—
30
 
(a)
in the heading, after “of” insert “equivalence”;
 
 
(b)
after subsection (5) insert—
 
 
“(5A)
For the meaning of “UK work”, see section 19.
 

Page 226

 
(5B)
For the meaning of “national minimum wage equivalent”,
 
 
see section 4D (1) .”;
 
 
(c)
omit subsections (6) to (10).
 

Chapters 3 and 4 of Part 2 of the Act: remuneration regulations and declarations

 
 
9
After section 4 insert—
5

Chapter 3

 

Remuneration regulations and declarations

 

Remuneration regulations

 
4A
Remuneration regulations
 
 
(1)
Regulations may specify requirements relating to the remuneration
10
 
of non-qualifying seafarers in respect of their work carried out in
 
 
relation to the provision of a relevant service (whether or not in the
 
 
territorial waters of the United Kingdom).
 
 
(2)
In this Act, regulations under subsection (1) are referred to as
 
 
“remuneration regulations”.
15
 
(3)
Remuneration regulations may relate to remuneration in respect of
 
 
only some of the work carried out in relation to the provision of a
 
 
relevant service, and may frame such provision by reference to the
 
 
waters in which the work is carried out or in any other way.
 
 
(4)
Remuneration regulations may apply to—
20
 
(a)
all relevant services, or
 
 
(b)
one or more relevant services of a specified description.
 
 
(5)
For the purposes of subsection (4) (b) , a service may be described
 
 
by reference to (among other things) the route operated by the
 
 
service.
25
 
(6)
Remuneration regulations may provide that Chapter 2 does not
 
 
apply to any extent to a relevant service to which the regulations
 
 
apply.
 

Remuneration declarations

 
4B
Request for remuneration declaration
30
 
(1)
Subsection (2) applies where a harbour authority has reasonable
 
 
grounds to believe that ships providing a service to which
 
 
remuneration regulations apply will enter, or have entered, its
 
 
harbour on at least—
 
 
(a)
120 occasions, or
35

Page 227

 
(b)
if remuneration regulations specify a higher number in
 
 
relation to services of a specified description and the service
 
 
is of that description, that higher number of occasions,
 
 
during a relevant year (see section 19 for the meaning of “relevant
 
 
year”).
5
 
(2)
The harbour authority must, within such period as is determined
 
 
by regulations under this subsection, request that the operator of
 
 
the service provide the authority with a remuneration declaration
 
 
in respect of the service for the relevant year.
 
 
(3)
The duty under subsection (2) is subject to any direction given by
10
 
the Secretary of State under section 16(1)(a).
 
 
(4)
A harbour authority which fails to comply with subsection (2) is
 
 
guilty of an offence and liable on summary conviction—
 
 
(a)
in England and Wales, to a fine, or
 
 
(b)
in Scotland and Northern Ireland, to a fine not exceeding
15
 
level 5 on the standard scale.
 
4C
Nature of remuneration declaration
 
 
(1)
A remuneration declaration in respect of a service for a relevant
 
 
year is a declaration within any of subsections (2) to (5) .
 
 
(2)
A declaration is within this subsection if it is provided before the
20
 
beginning of the relevant year and it is to the effect that—
 
 
(a)
in the relevant year there will be no non-qualifying seafarers
 
 
working on ships providing the service, or
 
 
(b)
in the relevant year non-qualifying seafarers working on
 
 
ships providing the service will be remunerated in respect
25
 
of their work in relation to the service in accordance with
 
 
the remuneration regulations that apply in relation to them.
 
 
(3)
A declaration is within this subsection if it is provided during the
 
 
relevant year and it is to the effect that—
 
 
(a)
in what remains of the relevant year there will be no
30
 
non-qualifying seafarers working on ships providing the
 
 
service, or
 
 
(b)
in what remains of the relevant year non-qualifying seafarers
 
 
working on ships providing the service will be remunerated
 
 
in respect of their work in relation to the service in
35
 
accordance with the remuneration regulations that apply in
 
 
relation to them.
 
 
(4)
A declaration is within this subsection if it is provided during the
 
 
relevant year and it is to the effect that—
 
 
(a)
in so much of the relevant year as has already occurred—
40
 
(i)
there have been no non-qualifying seafarers working
 
 
on ships providing the service, or
 

Page 228

 
(ii)
non-qualifying seafarers working on ships providing
 
 
the service have been remunerated in respect of their
 
 
work in relation to the service in accordance with the
 
 
remuneration regulations that apply in relation to
 
 
them, and
5
 
(b)
in what remains of the relevant year—
 
 
(i)
there will be no non-qualifying seafarers working on
 
 
ships providing the service, or
 
 
(ii)
non-qualifying seafarers working on ships providing
 
 
the service will be remunerated in respect of their
10
 
work in relation to the service in accordance with the
 
 
remuneration regulations that apply in relation to
 
 
them.
 
 
(5)
A declaration is within this subsection if it is provided after the end
 
 
of the relevant year and it is to the effect that—
15
 
(a)
in the relevant year there were no non-qualifying seafarers
 
 
working on ships providing the service, or
 
 
(b)
in the relevant year non-qualifying seafarers working on
 
 
ships providing the service were remunerated in respect of
 
 
their work in relation to the service in accordance with the
20
 
remuneration regulations that apply in relation to them.
 

Chapter 4

 

Chapters 2 and 3: supplementary regulations

 
4D
Regulations about national minimum wage equivalent etc
 
 
(1)
For the purposes of this Part, the national minimum wage equivalent
25
 
is an hourly rate specified in regulations.
 
 
(2)
Regulations may make provision for determining for the purposes
 
 
of this Part—
 
 
(a)
the hourly rate at which a non-qualifying seafarer is
 
 
remunerated in any period in respect of any work, and
30
 
(b)
whether, or the extent to which, a non-qualifying seafarer’s
 
 
work in relation to a relevant service is UK work.
 
 
(3)
Regulations under subsection (2) (a) may in particular make—
 
 
(a)
any provision referred to in section 2(2) to (6) of the National
 
 
Minimum Wage Act 1998;
35
 
(b)
provision relating to currency conversion.
 
 
(4)
Subsection (5) applies for the purposes of—
 
 
(a)
section 4, and
 
 
(b)
remuneration regulations that are framed by reference to the
 
 
national minimum wage equivalent.
40

Page 229

 
(5)
The Secretary of State must in making regulations under this section
 
 
seek to secure that a non-qualifying seafarer is remunerated at a
 
 
rate equal to the national minimum wage equivalent only if their
 
 
remuneration is in all the circumstances broadly equivalent to the
 
 
remuneration they would receive if they qualified for the national
5
 
minimum wage.”
 

Part 3 of the Act: seafarers’ working conditions

 
 
10
After section 4D (inserted by paragraph 9 of this Schedule) insert—
 

Part 3

 

Seafarers’ working conditions

10

Safe working regulations

 
4E
Safe working regulations
 
 
(1)
In this Part, “seafarer” means a person who works on a ship
 
 
providing a relevant service.
 
 
(2)
Regulations may specify conditions relating to the working pattern
15
 
and rest requirements of seafarers who carry out work relating to
 
 
the provision of a relevant service, including conditions about—
 
 
(a)
their maximum periods of work in a specified period;
 
 
(b)
their minimum periods of rest in a specified period.
 
 
(3)
Regulations may make provision for the purpose of managing and
20
 
mitigating risks arising from fatigue suffered by seafarers when
 
 
carrying out their work relating to the provision of a relevant service.
 
 
(4)
Regulations under subsection (3) may, among other things—
 
 
(a)
require the operator of a relevant service to produce a plan
 
 
to manage and mitigate risks arising from fatigue suffered
25
 
by seafarers when carrying out their work relating to the
 
 
provision of the service (a “fatigue management plan”);
 
 
(b)
make provision about the contents of such a plan by
 
 
reference to a specified document as amended from time to
 
 
time.
30
 
(5)
Regulations may make provision for and in connection with the
 
 
training of seafarers who carry out work relating to the provision
 
 
of a relevant service, for the purpose of ensuring—
 
 
(a)
the safety of the ship on which they work,
 
 
(b)
the safety of things on the ship, or
35
 
(c)
the health or safety of persons on the ship.
 
 
(6)
In this Act, regulations under subsection (2) , (3) or (5) are referred
 
 
to as “safe working regulations”.
 

Page 230

 
(7)
Safe working regulations may impose requirements on the operator
 
 
of a relevant service.
 
 
(8)
Safe working regulations may apply to—
 
 
(a)
all relevant services, or
 
 
(b)
one or more relevant services of a specified description.
5
 
(9)
For the purposes of subsection (8) (b) , a service may be described
 
 
by reference to (among other things) the route operated by the
 
 
service.
 

Safe working declarations

 
4F
Request for safe working declaration
10
 
(1)
Subsection (2) applies where a harbour authority has reasonable
 
 
grounds to believe that ships providing a service to which safe
 
 
working regulations apply will enter, or have entered, its harbour
 
 
on at least—
 
 
(a)
120 occasions, or
15
 
(b)
if safe working regulations specify a higher number in
 
 
relation to services of a specified description and the service
 
 
is of that description, that higher number of occasions,
 
 
during a relevant year (see section 19 for the meaning of “relevant
 
 
year”).
20
 
(2)
The harbour authority must, within such period as is determined
 
 
by regulations under this subsection, request that the operator of
 
 
the service provide the authority with a safe working declaration
 
 
in respect of the service for the relevant year.
 
 
(3)
The duty under subsection (2) is subject to any direction given by
25
 
the Secretary of State under section 16(1)(a).
 
 
(4)
A harbour authority which fails to comply with subsection (2) is
 
 
guilty of an offence and liable on summary conviction—
 
 
(a)
in England and Wales, to a fine, or
 
 
(b)
in Scotland and Northern Ireland, to a fine not exceeding
30
 
level 5 on the standard scale.
 
4G
Nature of safe working declaration
 
 
(1)
A safe working declaration in respect of a service for a relevant
 
 
year is a declaration within any of subsections (2) to (5) .
 
 
(2)
A declaration is within this subsection if it is provided before the
35
 
beginning of the relevant year and it is to the effect that the safe
 
 
working conditions will be met in relation to the service in the
 
 
relevant year.
 

Page 231

 
(3)
A declaration is within this subsection if it is provided during the
 
 
relevant year and it is to the effect that the safe working conditions
 
 
will be met in relation to the service in what remains of the relevant
 
 
year.
 
 
(4)
A declaration is within this subsection if it is provided during the
5
 
relevant year and it is to the effect that—
 
 
(a)
the safe working conditions have been met in relation to the
 
 
service in so much of the relevant year as has already
 
 
occurred, and
 
 
(b)
the safe working conditions will be met in relation to the
10
 
service in what remains of the relevant year.
 
 
(5)
A declaration is within this subsection if it is provided after the end
 
 
of the relevant year and it is to the effect that the safe working
 
 
conditions were met in relation to the service in the relevant year.
 
 
(6)
For the purposes of this section the safe working conditions are met
15
 
in relation to a service at a particular time if at that time—
 
 
(a)
the service is operated in compliance with regulations under
 
 
section 4E (2) or (3) that apply to the service,
 
 
(b)
the service is operated in compliance with a fatigue
 
 
management plan that is required for the service by
20
 
regulations under section 4E (3) (see section 4E (4) ), and
 
 
(c)
the service is operated in compliance with regulations under
 
 
section 4E (5) that apply to the service.
 
 
(7)
References in subsection (6) to the operation of a service include
 
 
references to its operation outside the territorial waters of the United
25
 
Kingdom.”
 

Part 4 of the Act: enforcement of Parts 2 and 3

 
 
11
After section 4G (inserted by paragraph 10 of this Schedule) insert—
 

Part 4

 

Enforcement of Parts 2 and 3

30

Offence of operating service inconsistently with declaration

 
 
12
In section 5 (offence of operating service inconsistently with declaration)—
 
 
(a)
in subsection (1)—
 
 
(i)
for “service to which this Act applies” substitute “relevant
 
 
service”;
35
 
(ii)
in paragraph (a), for “an equivalence declaration” substitute
 
 
“a declaration”;
 
 
(b)
in subsections (2), (3) and (4), omit “equivalence”.
 

Page 232

 
13
(1)
Section 6 (imposition of surcharges: failure to provide declaration in time)
 
 
is amended as follows.
 
 
(2)
In subsection (1)(a)—
 
 
(a)
for “service to which this Act applies” substitute “relevant service”;
 
 
(b)
for “an equivalence declaration” substitute “a declaration”.
5
 
(3)
In subsection (1)(b), for “an equivalence declaration” substitute “the
 
 
requested declaration”.
 
 
(4)
In subsection (2)(b)(ii), for “an equivalence declaration” substitute “the
 
 
requested declaration”.
 
 
(5)
In subsection (3)(b)(ii), for “an equivalence declaration” substitute “the
10
 
requested declaration”.
 
 
(6)
In subsection (5)(a), for “an equivalence declaration” substitute “the
 
 
requested declaration”.
 
 
(7)
In subsection (5)(b), for “section 4(4) or (5).” substitute “—
 
 
“(i)
section 4(4) or (5),
15
 
(ii)
section 4C (4) or (5) , or
 
 
(iii)
section 4G (4) or (5) ,
 
 
(whichever applies).”
 
 
(8)
In subsection (6)—
 
 
(a)
for “an equivalence declaration” substitute “a declaration”;
20
 
(b)
in the definition of “prescribed period”, for “3(5)(a)” substitute
 
 
“ 16A (1) (a) ”;
 
 
(c)
in the definition of “prescribed form and manner”, for “3(5)(b) and
 
 
(c)” substitute “ 16A (1) (b) and (c) ”.
 
 
14
In section 7 (imposition of surcharges: in-year declaration that is prospective
25
 
only), in subsection (1)—
 
 
(a)
in paragraph (a)—
 
 
(i)
for “service to which this Act applies” substitute “relevant
 
 
service”;
 
 
(ii)
for “an equivalence declaration” substitute “a declaration”;
30
 
(b)
in paragraph (b), for “3(5)” substitute “ 16A (1) ”;
 
 
(c)
in paragraph (c), for the words from “within subsection (3)” to the
 
 
end substitute “—
 
 
“(i)
within subsection (3) of section 4 (and not also
 
 
within subsection (4) of that section),
35
 
(ii)
within subsection (3) of section 4C (and not
 
 
also within subsection (4) of that section), or
 
 
(iii)
within subsection (3) of section 4G (and not
 
 
also within subsection (4) of that section),
 
 
(whichever applies).”
40

Page 233

 
15
(1)
Section 8 (imposition of surcharges: operating inconsistently with
 
 
declaration) is amended as follows.
 
 
(2)
In subsection (1)(a)—
 
 
(a)
for “service to which this Act applies” substitute “relevant service”;
 
 
(b)
for “an equivalence declaration” substitute “a declaration”.
5
 
(3)
In subsection (3), after “equivalence declaration” insert “, remuneration
 
 
declaration or safe working declaration (as the case may be)”.
 
 
(4)
In subsection (4)(a)—
 
 
(a)
for “service to which this Act applies” substitute “relevant service”;
 
 
(b)
for “an equivalence declaration” substitute “a declaration”.
10
 
(5)
In subsection (6), after “equivalence declaration” insert “, remuneration
 
 
declaration or safe working declaration (as the case may be)”.
 
 
16
In section 11 (refusal of harbour access for failure to pay surcharge), in
 
 
subsection (1), for “service to which this Act applies” substitute “relevant
 
 
service”.
15
 
17
(1)
Section 12 (provision of information by operators) is amended as follows.
 
 
(2)
In subsection (1)—
 
 
(a)
for “service to which this Act applies” substitute “relevant service”;
 
 
(b)
in paragraphs (a) and (b), for “an equivalence declaration” substitute
 
 
“a declaration”.
20
 
(3)
In subsection (2)—
 
 
(a)
in paragraph (b), at the beginning insert “for the purposes of Part
 
 
2,”;
 
 
(b)
after paragraph (b) insert—
 
 
“(c)
for the purposes of Part 3—
25
 
(i)
information relating to the working pattern,
 
 
working conditions or training of persons
 
 
working on ships providing the service;
 
 
(ii)
a fatigue management plan produced by the
 
 
operator of the service (see section 4E (4) (a) ).”
30
 
(4)
In subsection (5), for “service to which this Act applies” substitute “relevant
 
 
service”.
 
 
18
In section 13 (provision of information by harbour authorities), in subsection
 
 
(2)(b), omit “equivalence”.
 
 
19
In section 14 (inspections), in subsection (2)—
35
 
(a)
in paragraph (a), for “service to which this Act applies” substitute
 
 
“relevant service”;
 
 
(b)
in paragraphs (a) and (b), for “an equivalence declaration” substitute
 
 
“a declaration”.
 

Page 234

Part 5 of the Act: general and final provisions

 
 
20
After section 15 insert—
 

Part 5

 

General and final provisions

 
 
21
After section 16 insert—
5
“16A
Regulations about declarations
 
 
(1)
Regulations may make provision—
 
 
(a)
as to the period within which declarations are to be provided;
 
 
(b)
as to the wording of declarations and the form in which they
 
 
are to be provided;
10
 
(c)
as to the manner in which declarations are to be provided.
 
 
(2)
Regulations under subsection (1) (b) may specify a single form
 
 
combining different kinds of declarations (but a requirement to
 
 
provide a declaration in such a form does not require an operator
 
 
of a service to provide a declaration which a harbour authority has
15
 
not requested the operator to provide).”
 
 
22
In section 17 (regulations)—
 
 
(a)
in the heading, at the end insert “: general”;
 
 
(b)
in subsection (2)(a), for sub-paragraph (i) (but not the “or” after it)
 
 
substitute—
20
 
“(i)
relevant service,”.
 
 
23
(1)
Section 19 (general interpretation) is amended as follows.
 
 
(2)
After the definition of “the data protection legislation” insert—
 
 
““declaration” (without more) means—
 
 
(a)
an equivalence declaration,
25
 
(b)
a remuneration declaration, or
 
 
(c)
a safe working declaration;”.
 
 
(3)
Omit the definition of “national minimum wage equivalent”.
 
 
(4)
In the definition of “operator”, for “service to which this Act applies”
 
 
substitute “relevant service”.
30
 
(5)
After the definition of “operator” insert—
 
 
““relevant service” has the meaning given by section 1;”.
 
 
(6)
In the definition of “relevant year”, for “has the meaning given by section
 
 
3(6);” substitute “means—
 
 
“(a)
the period of 12 months beginning with a date specified in
35
 
regulations, and
 
 
(b)
each successive period of 12 months;”.
 

Page 235

 
(7)
After the definition of “relevant year” insert—
 
 
““remuneration declaration” has the meaning given by section 4C (1) ;
 
 
“remuneration regulations” has the meaning given by section 4A (2) ;
 
 
“safe working declaration” has the meaning given by section 4G (1) ;
 
 
“safe working regulations” has the meaning given by section 4E (6) ;”.
5
 
(8)
In the definition of “UK work”, for “has the meaning given by section 4(10)”
 
 
substitute “means work which is carried out in the United Kingdom or its
 
 
territorial waters”.
 

Amendment of title of the Act

 
 
24
(1)
The Seafarers’ Wages Act 2023 may be cited as the Seafarers (Wages and
10
 
Working Conditions) Act 2023.
 
 
(2)
For the words “Seafarers’ Wages Act 2023” wherever they occur in any
 
 
enactment substitute “Seafarers (Wages and Working Conditions) Act 2023”.
 
 
Schedule 6
Section 64
 

Trade union recognition

15

Part 1

 

Introduction

 
 
1
Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act
 
 
1992 is amended in accordance with Parts 2 to 5 of this Schedule.
 
 
2
Part 6 of this Schedule contains consequential amendments to the
20
 
Employment Relations Act 2004.
 

Part 2

 

Recognition

 

Meaning of “the application day”

 
 
3
In paragraph 2 (interpretation of Part 1 of Schedule A1), after sub-paragraph
25
 
(5) insert—
 
 
“(6)
In relation to an application under paragraph 11 or 12, a reference
 
 
to the application day is to the day on which the CAC receives
 
 
the application.”
 

Acceptance of applications

30
 
4
After paragraph 13 insert—
 
 
“13A
(1)
This paragraph applies if—
 

Page 236

 
(a)
the CAC has received an application under paragraph 11
 
 
or 12, and
 
 
(b)
it has given notice to the employer under paragraph 13
 
 
of receipt of the application.
 
 
(2)
The employer must comply with the following duties (so far as
5
 
it is reasonable to expect the employer to do so).
 
 
(3)
The duties are—
 
 
(a)
to give to the CAC, within the relevant period, the
 
 
specified information in relation to each of the relevant
 
 
workers;
10
 
(b)
if the relevant workers change as a result of an appropriate
 
 
bargaining unit being agreed by the parties or decided by
 
 
the CAC, to give to the CAC, within the relevant period,
 
 
the specified information in relation to each of those who
 
 
are now the relevant workers;
15
 
(c)
to take reasonable steps to ensure that the information
 
 
given to the CAC under paragraph (a) or (b) does not
 
 
include any information relating to an individual who is
 
 
not a relevant worker;
 
 
(d)
to inform the CAC, as soon as reasonably practicable, of
20
 
any worker in relation to whom information has been
 
 
given to the CAC under paragraph (a) or (b) and who
 
 
ceases to be a relevant worker (otherwise than by reason
 
 
of a change mentioned in paragraph (b) ).
 
 
(4)
The relevant period is—
25
 
(a)
in the case of the duty in sub-paragraph (3) (a) —
 
 
(i)
the period of 5 working days starting with the day
 
 
after that on which notice was given to the
 
 
employer of receipt of the application, or
 
 
(ii)
such longer period (so starting) as the CAC may
30
 
specify to the parties by notice containing reasons
 
 
for the extension;
 
 
(b)
in the case of the duty in sub-paragraph (3) (b) —
 
 
(i)
the period of 5 working days starting with the day
 
 
after that on which the bargaining unit is agreed
35
 
or the CAC’s decision is notified to the employer,
 
 
or
 
 
(ii)
such longer period (so starting) as the CAC may
 
 
specify to the parties by notice containing reasons
 
 
for the extension.
40
 
(5)
The specified information, in relation to a relevant worker, is—
 
 
(a)
the worker’s name;
 
 
(b)
the worker’s date of birth;
 
 
(c)
the category of worker to which the relevant worker
 
 
belongs.
45

Page 237

 
(6)
In the case of an application under paragraph 11(2) or 12(2), the
 
 
relevant workers are—
 
 
(a)
in relation to any time before an appropriate bargaining
 
 
unit is agreed by the parties or decided by the CAC, those
 
 
falling within the proposed bargaining unit, and
5
 
(b)
in relation to any time after an appropriate bargaining
 
 
unit is so agreed or decided, those falling within the
 
 
bargaining unit agreed or decided upon,
 
 
but excluding any worker who joined the bargaining unit after
 
 
the application day.
10
 
(7)
In the case of an application under paragraph 12(4), the relevant
 
 
workers are those falling within the bargaining unit agreed by
 
 
the parties, excluding any worker who joined the bargaining unit
 
 
after the application day.
 
 
13B
(1)
Sub-paragraph (2) applies if—
15
 
(a)
the CAC is satisfied that the employer has failed to fulfil
 
 
a duty mentioned in paragraph 13A (3) , and
 
 
(b)
the application under paragraph 11 or 12 is in progress.
 
 
(2)
The CAC may order the employer—
 
 
(a)
to take such steps to remedy the failure as the CAC
20
 
considers reasonable and specifies in the order, and
 
 
(b)
to do so within such period as the CAC considers
 
 
reasonable and specifies in the order;
 
 
and in this paragraph a “remedial order” means an order under
 
 
this sub-paragraph.
25
 
(3)
If—
 
 
(a)
the CAC is satisfied that the employer has failed to comply
 
 
with a remedial order, and
 
 
(b)
the application under paragraph 11 or 12 is in progress,
 
 
the CAC must, as soon as reasonably practicable, notify the
30
 
employer and the union (or unions) that it is satisfied that the
 
 
employer has failed to comply.
 
 
(4)
A remedial order and a notice under sub-paragraph (3) must
 
 
draw the recipient’s attention to the effect of sub-paragraphs (5)
 
 
and (6) .
35
 
(5)
Sub-paragraph (6) applies if—
 
 
(a)
the CAC is satisfied that the employer has failed to comply
 
 
with a remedial order,
 
 
(b)
the application under paragraph 11 or 12 is in progress,
 
 
(c)
the parties have agreed an appropriate bargaining unit or
40
 
the CAC has decided an appropriate bargaining unit, and
 

Page 238

 
(d)
in the case of an application under paragraph 11(2) or
 
 
12(2), the CAC, if required to do so, has decided under
 
 
paragraph 20 that the application is not invalid.
 
 
(6)
The CAC may issue a declaration that the union is (or unions
 
 
are) recognised as entitled to conduct collective bargaining on
5
 
behalf of the workers constituting the bargaining unit.
 
 
(7)
For the purposes of this paragraph, an application under
 
 
paragraph 11 or 12 is in progress if none of the following has
 
 
occurred—
 
 
(a)
the withdrawal of the application;
10
 
(b)
the CAC giving notice of a decision under paragraph 14(7)
 
 
which precludes it from accepting the application;
 
 
(c)
the CAC giving notice under paragraph 15(4)(a) in relation
 
 
to the application;
 
 
(d)
the CAC giving notice to the union (or unions) of a
15
 
decision under paragraph 20 that the application is invalid;
 
 
(e)
the CAC giving notice to the union (or unions) of a
 
 
declaration issued under paragraph 13B (6) , 19F(5), 19K (4)
 
 
or (5) , 19P (4) or (5) , 22(2) or 27(2) in relation to the
 
 
application;
20
 
(f)
the holding of any ballot arising from the application.”
 
 
5
(1)
Paragraph 14 (acceptance of applications: multiple applications) is amended
 
 
as follows.
 
 
(2)
After sub-paragraph (1) insert—
 
 
“(1A)
For the purposes of sub-paragraph (1)(b), any worker who joined
25
 
any of the relevant bargaining units after the application day is
 
 
to be disregarded.”
 
 
(3)
In sub-paragraph (4), for “10 per cent test” substitute “required percentage
 
 
test”.
 
 
(4)
In sub-paragraph (5)—
30
 
(a)
for “10 per cent test” substitute “required percentage test”;
 
 
(b)
for “at least 10 per cent” substitute “at least the required percentage
 
 
(see paragraph 171B)”.
 
 
(5)
After sub-paragraph (5) insert—
 
 
“(5A)
For the purposes of sub-paragraph (5), any worker who joined
35
 
the relevant bargaining unit after the application day is to be
 
 
disregarded.”
 
 
(6)
In sub-paragraph (7)—
 
 
(a)
in paragraph (a), for “10 per cent test” substitute “required
 
 
percentage test”;
40
 
(b)
in paragraph (b), for “10 per cent test” substitute “required
 
 
percentage test”.
 

Page 239

 
(7)
In sub-paragraph (8), for “10 per cent test” substitute “required percentage
 
 
test”.
 

Withdrawal of application

 
 
6
In paragraph 16 (withdrawal of application), in sub-paragraph (1)(a), for
 
 
“19F(5)” substitute “ 13B (6) , 19F(5), 19K (4) or (5) , 19P (4) or (5) ”.
5

Notice to cease consideration of application

 
 
7
In paragraph 17 (notice to cease consideration of application), in
 
 
sub-paragraph (3)(a), for “19F(5)” substitute “ 13B (6) , 19F(5), 19K (4) or (5) ,
 
 
19P (4) or (5) ”.
 

Communication with workers through independent person after application

10
 
8
(1)
Paragraph 19C (appointment of independent person to handle
 
 
communications between union and workers) is amended as follows.
 
 
(2)
After sub-paragraph (2) insert—
 
 
“(2A)
An application under sub-paragraph (2) is valid only if it is made
 
 
before the end of the period of 5 working days starting with the
15
 
day after the day on which the CAC gives the union (or unions)
 
 
notice under paragraph 15(5) that the application mentioned in
 
 
sub-paragraph (1) is accepted.”
 
 
(3)
In sub-paragraph (5)(c), for “19F(5)” substitute “ 13B (6) , 19F(5), 19K (4) or
 
 
(5) , 19P (4) or (5) ”.
20
 
(4)
In sub-paragraph (7), for “an application” substitute “a valid application”.
 

Access agreements

 
 
9
After paragraph 19F insert—
 

“Access agreements

 
 
19G
(1)
This paragraph applies if—
25
 
(a)
the CAC accepts an application under paragraph 11(2) or
 
 
12(2) or (4), and
 
 
(b)
the application is in progress.
 
 
(2)
The union (or unions) may, by giving notice to the CAC and the
 
 
employer within the access request period, request access to the
30
 
relevant workers in connection with the application.
 
 
(3)
In the case of an application under paragraph 11(2) or 12(2), the
 
 
relevant workers are—
 
 
(a)
in relation to any time before an appropriate bargaining
 
 
unit is agreed by the parties or decided by the CAC, those
35
 
falling within the proposed bargaining unit, and
 

Page 240

 
(b)
in relation to any time after an appropriate bargaining
 
 
unit is so agreed or decided, those falling within the
 
 
bargaining unit agreed or decided upon.
 
 
(4)
In the case of an application under paragraph 12(4), the relevant
 
 
workers are those falling within the bargaining unit agreed by
5
 
the parties.
 
 
(5)
The access request period is the period of 5 working days starting
 
 
with the day after the day on which the CAC gives the union (or
 
 
unions) notice under paragraph 15(5) that the application is
 
 
accepted.
10
 
(6)
For the purposes of this paragraph and paragraphs 19H to 19K
 
 
, an application under paragraph 11 or 12 is in progress if none
 
 
of the following has occurred—
 
 
(a)
the withdrawal of the application;
 
 
(b)
the CAC giving notice to the union (or unions) of a
15
 
decision under paragraph 20 that the application is invalid;
 
 
(c)
the CAC giving notice to the union (or unions) of a
 
 
declaration issued under paragraph 13B (6) , 19F(5), 19K (4)
 
 
or (5) , 19P (4) or (5) , 22(2) or 27(2) in relation to the
 
 
application;
20
 
(d)
the holding of any ballot arising from the application.
 
 
19H
(1)
This paragraph applies if—
 
 
(a)
the CAC accepts an application under paragraph 11(2) or
 
 
12(2) or (4),
 
 
(b)
the union requests (or unions request) access to the
25
 
relevant workers under paragraph 19G (2) in connection
 
 
with the application, and
 
 
(c)
the application is in progress.
 
 
(2)
The CAC must try to help the parties to reach agreement within
 
 
the negotiation period as to terms on which the union is (or
30
 
unions are) to have access to the relevant workers.
 
 
(3)
The negotiation period is, subject to any notice under
 
 
sub-paragraph (4) or (6) —
 
 
(a)
the period of 20 working days starting with the day after
 
 
the day on which the CAC gives the union (or unions)
35
 
notice under paragraph 15(5) that the application is
 
 
accepted, or
 
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by notice containing reasons for the
 
 
extension.
40
 
(4)
If, during the negotiation period, the CAC concludes that there
 
 
is no reasonable prospect of the parties’ agreeing terms on which
 
 
the union is (or unions are) to have access to the relevant workers
 
 
before the time when (apart from this sub-paragraph) the
 

Page 241

 
negotiation period would end, the CAC may, by a notice given
 
 
to the parties, declare that the negotiation period ends with the
 
 
date of the notice.
 
 
(5)
A notice under sub-paragraph (4) must contain reasons for
 
 
reaching the conclusion mentioned in that sub-paragraph.
5
 
(6)
If, during the negotiation period, the parties apply to the CAC
 
 
for a declaration that the negotiation period is to end with a date
 
 
(specified in the application) which is earlier or later than the
 
 
date with which it would otherwise end, the CAC may, by a
 
 
notice given to the parties, declare that the negotiation period
10
 
ends with the specified date.
 
 
19I
(1)
This paragraph applies if—
 
 
(a)
the CAC accepts an application under paragraph 11(2) or
 
 
12(2) or (4),
 
 
(b)
the union requests (or unions request) access to the
15
 
relevant workers under paragraph 19G (2) in connection
 
 
with the application,
 
 
(c)
the parties have not within the negotiation period agreed
 
 
terms on which the union is (or unions are) to have access
 
 
to the relevant workers, and
20
 
(d)
the application is in progress.
 
 
(2)
Within the adjudication period, the CAC must—
 
 
(a)
decide the terms on which the union is (or unions are) to
 
 
have access to the relevant workers, or
 
 
(b)
decide that the union is (or unions are) not to have access
25
 
to the relevant workers.
 
 
(3)
The adjudication period is—
 
 
(a)
the period of 10 working days starting with the day after
 
 
the day with which the negotiation period ends, or
 
 
(b)
such longer period (so starting) as the CAC may specify
30
 
to the parties by notice containing reasons for the
 
 
extension.
 
 
(4)
Any terms decided by the CAC must be terms that the CAC
 
 
regards as allowing such access to the relevant workers as is
 
 
reasonable to enable the union (or unions) to—
35
 
(a)
inform the workers of the object of the application or any
 
 
ballot arising from it, and
 
 
(b)
seek their support and their opinions on the issues
 
 
involved.
 
 
19J
(1)
This paragraph applies if—
40
 
(a)
an access agreement is entered into, and
 
 
(b)
the application under paragraph 11 or 12 is in progress.
 
 
(2)
“Access agreement” means—
 

Page 242

 
(a)
terms on which the union is (or unions are) to have access
 
 
to the relevant workers and which are agreed between
 
 
the parties under paragraph 19H during the negotiation
 
 
period, or
 
 
(b)
terms on which the union is (or unions are) to have access
5
 
to the relevant workers and which are decided by the
 
 
CAC under paragraph 19I ,
 
 
and such an agreement is “entered into” when the terms are so
 
 
agreed or decided.
 
 
(3)
The parties must comply with the access agreement.
10
 
(4)
The employer must refrain from making any offer to any or all
 
 
of the relevant workers which—
 
 
(a)
has or is likely to have the effect of inducing any or all
 
 
of them not to attend any relevant meeting between the
 
 
union (or unions) and the relevant workers, and
15
 
(b)
is not reasonable in the circumstances.
 
 
(5)
The employer must refrain from taking, or threatening to take,
 
 
any action against a worker solely or mainly on the grounds that
 
 
the worker—
 
 
(a)
attended or took part in any relevant meeting between
20
 
the union (or unions) and the relevant workers, or
 
 
(b)
indicated an intention to attend or take part in such a
 
 
meeting.
 
 
(6)
In the case of an application under paragraph 11(2) or 12(2), the
 
 
relevant workers are—
25
 
(a)
in relation to any time before an appropriate bargaining
 
 
unit is agreed by the parties or decided by the CAC, those
 
 
falling within the proposed bargaining unit, and
 
 
(b)
in relation to any time after an appropriate bargaining
 
 
unit is so agreed or decided, those falling within the
30
 
bargaining unit agreed or decided upon.
 
 
(7)
In the case of an application under paragraph 12(4), the relevant
 
 
workers are those falling within the bargaining unit agreed by
 
 
the parties.
 
 
(8)
A meeting is a relevant meeting in relation to a worker for the
35
 
purposes of sub-paragraphs (4) and (5) if—
 
 
(a)
it is organised in accordance with an access agreement or
 
 
as a result of a step ordered to be taken under paragraph
 
 
19K to remedy a failure to comply with the duty in
 
 
sub-paragraph (3) , and
40
 
(b)
it is one which the employer is, by such an agreement or
 
 
order as is mentioned in paragraph (a), required to permit
 
 
the worker to attend.
 

Page 243

 
(9)
The duties imposed by sub-paragraphs (4) and (5) do not confer
 
 
any rights on a worker; but that does not affect any other right
 
 
which a worker may have.
 
 
(10)
Any provision of an access agreement that would require personal
 
 
data relating to any of the relevant workers to be disclosed to
5
 
any person who is not an appointed person is of no effect for the
 
 
purposes of this Part of this Schedule.
 
 
(11)
In sub-paragraph (10) —
 
 
(a)
“appointed person” means—
 
 
(i)
a person appointed to handle communications
10
 
under paragraph 19C, or
 
 
(ii)
a person appointed to conduct a ballot under
 
 
paragraph 25;
 
 
(b)
“personal data” has the same meaning as in the Data
 
 
Protection Act 2018 (see section 3 of that Act).
15
 
(12)
An access agreement is to be conclusively presumed not to have
 
 
been intended by the parties to be a legally enforceable contract;
 
 
and, accordingly, where an access agreement is, or is part of, a
 
 
collective agreement, section 179(2) and (3)(a) do not apply to the
 
 
access agreement.
20
 
19K
(1)
Sub-paragraph (2) applies if—
 
 
(a)
the CAC is satisfied that a party has failed to fulfil any
 
 
of the duties imposed on that party by paragraph 19J , and
 
 
(b)
the application under paragraph 11 or 12 is in progress.
 
 
(2)
The CAC may order the party—
25
 
(a)
to take such steps to remedy the failure as the CAC
 
 
considers reasonable and specifies in the order, and
 
 
(b)
to do so within such period as the CAC considers
 
 
reasonable and specifies in the order.
 
 
(3)
Sub-paragraphs (4) and (5) apply if—
30
 
(a)
the CAC is satisfied that a party has failed to comply with
 
 
an order under sub-paragraph (2) ,
 
 
(b)
the application under paragraph 11 or 12 is in progress,
 
 
(c)
the parties have agreed an appropriate bargaining unit or
 
 
the CAC has decided an appropriate bargaining unit, and
35
 
(d)
in the case of an application under paragraph 11(2) or
 
 
12(2), the CAC, if required to do so, has decided under
 
 
paragraph 20 that the application is not invalid.
 
 
(4)
If the party that has failed to comply is the employer, the CAC
 
 
may issue a declaration that the union is (or unions are)
40
 
recognised as entitled to conduct collective bargaining on behalf
 
 
of the bargaining unit.
 

Page 244

 
(5)
If the party that has failed to comply is a union, the CAC may
 
 
issue a declaration that the union is (or unions are) not entitled
 
 
to be so recognised.
 
 
19L
(1)
Each of the powers specified in sub-paragraph (2) is to be taken
 
 
to include power to issue Codes of Practice about any matter
5
 
relating to requests for access under paragraph 19G (2) , including
 
 
(among other things)—
 
 
(a)
what access is reasonable for the purposes of paragraph
 
 
19I (4) ;
 
 
(b)
the duty in paragraph 19J (4) .
10
 
(2)
The powers are—
 
 
(a)
the power of ACAS under section 199(1);
 
 
(b)
the power of the Secretary of State under section 203(1)(a).”
 

Unfair practices

 
 
10
After paragraph 19L (inserted by paragraph 9 of this Schedule) insert—
15

“Unfair practices

 
 
19M
(1)
Each of the parties informed by the CAC under paragraph 15(5)
 
 
that an application under paragraph 11 or 12 is accepted must
 
 
refrain from using any unfair practice in relation to the
 
 
application.
20
 
(2)
A party uses an unfair practice if, with a view to influencing the
 
 
outcome of the application, the party does any of the following—
 
 
(a)
dismisses, or threatens to dismiss, a worker;
 
 
(b)
takes, or threatens to take, disciplinary action against a
 
 
worker;
25
 
(c)
subjects, or threatens to subject, a worker to any other
 
 
detriment;
 
 
(d)
offers to pay money, or give money’s worth, to a relevant
 
 
worker in return for the worker’s agreement to vote in a
 
 
particular way, or to abstain from voting, in a relevant
30
 
ballot;
 
 
(e)
makes an outcome-specific offer to a relevant worker;
 
 
(f)
coerces, or attempts to coerce, a relevant worker to
 
 
disclose—
 
 
(i)
whether the worker intends to vote, or to abstain
35
 
from voting, in any relevant ballot, or
 
 
(ii)
how the worker intends to vote, or has voted, in
 
 
any relevant ballot;
 
 
(g)
uses, or attempts to use, undue influence on a relevant
 
 
worker.
40
 
(3)
In sub-paragraph (2) —
 

Page 245

 
(a)
“relevant ballot” means any ballot that is or may be held
 
 
in which workers are asked whether they want the union
 
 
(or unions) to conduct collective bargaining on their behalf,
 
 
and
 
 
(b)
“relevant worker” means any worker who is or would be
5
 
entitled to vote in a relevant ballot.
 
 
(4)
For the purposes of sub-paragraph (2) (e) an “outcome-specific
 
 
offer” is an offer to pay money, or give money’s worth, which—
 
 
(a)
is conditional on the issuing by the CAC of a declaration
 
 
that—
10
 
(i)
the union is (or unions are) recognised as entitled
 
 
to conduct collective bargaining on behalf of a
 
 
bargaining unit, or
 
 
(ii)
the union is (or unions are) not entitled to be so
 
 
recognised, and
15
 
(b)
is not conditional on anything which is done or occurs as
 
 
a result of the declaration in question.
 
 
(5)
The duty imposed by this paragraph does not confer any rights
 
 
on a worker; but that does not affect any other right which a
 
 
worker may have.
20
 
(6)
Each of the following powers is to be taken to include power to
 
 
issue Codes of Practice about unfair practices for the purposes
 
 
of this paragraph—
 
 
(a)
the power of ACAS under section 199(1);
 
 
(b)
the power of the Secretary of State under section 203(1)(a).
25
 
19N
(1)
A party may complain to the CAC that another party has failed
 
 
to comply with paragraph 19M .
 
 
(2)
A complaint under sub-paragraph (1) may not be made after—
 
 
(a)
the application under paragraph 11 or 12 is withdrawn;
 
 
(b)
the CAC gives notice to the union (or unions) of a decision
30
 
under paragraph 20 that the application is invalid;
 
 
(c)
the CAC notifies the union (or unions) of a declaration
 
 
issued under paragraph 13B (6) , 19F(5), 19K (4) or (5) , 19P (4)
 
 
or (5) , 22(2) or 27(2) in relation to the application;
 
 
(d)
if the CAC informs the union (or unions) under paragraph
35
 
25(9) of a ballot in relation to the application, the fifth
 
 
working day after—
 
 
(i)
the date of the ballot, or
 
 
(ii)
if votes may be cast in the ballot on more than one
 
 
day, the last of those days.
40
 
(3)
Within the decision period the CAC must decide whether the
 
 
complaint is well-founded.
 

Page 246

 
(4)
A complaint is well-founded if the CAC finds that the party
 
 
complained against used an unfair practice.
 
 
(5)
The decision period is—
 
 
(a)
the period of 10 working days starting with the day after
 
 
the day on which the complaint under sub-paragraph (1)
5
 
was received by the CAC, or
 
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by a notice containing reasons for the
 
 
extension.
 
 
19O
(1)
This paragraph applies if the CAC decides that a complaint under
10
 
paragraph 19N is well-founded.
 
 
(2)
The CAC must, as soon as is reasonably practicable, issue a
 
 
declaration to that effect.
 
 
(3)
The CAC may order the party concerned to take any action
 
 
specified in the order within such period as may be so specified.
15
 
(4)
Sub-paragraph (5) applies if—
 
 
(a)
the parties have agreed an appropriate bargaining unit or
 
 
the CAC has decided an appropriate bargaining unit, and
 
 
(b)
the CAC has at any time informed the union (or unions)
 
 
under paragraph 25(9) of a ballot in relation to the
20
 
application (including a ballot that was cancelled or is
 
 
ineffective).
 
 
(5)
The CAC may give notice to the employer and to the union (or
 
 
unions) that it intends to arrange for the holding of a secret ballot
 
 
in which the workers constituting the bargaining unit, other than
25
 
those who joined the bargaining unit after the application day,
 
 
are asked whether they want the union (or unions) to conduct
 
 
collective bargaining on their behalf.
 
 
(6)
The CAC may make an order under sub-paragraph (3) , or give
 
 
a notice under sub-paragraph (5) , either at the same time as it
30
 
issues the declaration under sub-paragraph (2) or at any other
 
 
time before any of the following occurs—
 
 
(a)
the withdrawal of the application under paragraph 11 or
 
 
12;
 
 
(b)
the CAC giving notice to the union (or unions) of a
35
 
decision under paragraph 20 that the application is invalid;
 
 
(c)
the CAC notifying the union (or unions) of a declaration
 
 
issued under paragraph 13B (6) , 19F(5), 19K (4) or (5) , 19P (4)
 
 
or (5) , 22(2) or 27(2) in relation to the application;
 
 
(d)
if the CAC informs the union (or unions) under paragraph
40
 
25(9) of a ballot in relation to the application, the CAC
 
 
acting under paragraph 29 in relation to the ballot.
 
 
(7)
The action specified in an order under sub-paragraph (3) must
 
 
be such as the CAC considers reasonable in order to mitigate the
 

Page 247

 
effect of the failure of the party concerned to comply with the
 
 
duty imposed by paragraph 19M .
 
 
(8)
The CAC may make more than one order under sub-paragraph
 
 
(3) .
 
 
19P
(1)
Sub-paragraphs (4) to (6) apply if—
5
 
(a)
the CAC issues a declaration under paragraph 19O (2) that
 
 
a complaint that a party has failed to comply with
 
 
paragraph 19M is well-founded,
 
 
(b)
the application under paragraph 11 or 12 has not been
 
 
withdrawn,
10
 
(c)
the parties have agreed an appropriate bargaining unit or
 
 
the CAC has decided an appropriate bargaining unit,
 
 
(d)
in the case of an application under paragraph 11(2) or
 
 
12(2), the CAC, if required to do so, has decided under
 
 
paragraph 20 that the application is not invalid,
15
 
(e)
the CAC has not notified the union (or unions) of a
 
 
declaration issued under paragraph 13B (6) , 19F(5), 19K (4)
 
 
or (5) , 19P (4) or (5) , 22(2) or 27(2) in relation to the
 
 
application, and
 
 
(f)
sub-paragraph (2) or (3) applies.
20
 
(2)
This sub-paragraph applies if the declaration states that the unfair
 
 
practice used consisted of or included—
 
 
(a)
the use of violence, or
 
 
(b)
the dismissal of a union official.
 
 
(3)
This sub-paragraph applies if the CAC has made an order under
25
 
paragraph 19O (3) and—
 
 
(a)
it is satisfied that the party subject to the order has failed
 
 
to comply with it, or
 
 
(b)
it makes another declaration under paragraph 19O (2) in
 
 
relation to a complaint against that party.
30
 
(4)
If the party that has failed to comply is the employer, the CAC
 
 
may issue a declaration that the union is (or unions are)
 
 
recognised as entitled to conduct collective bargaining on behalf
 
 
of the bargaining unit.
 
 
(5)
If the party that has failed to comply is a union, the CAC may
35
 
issue a declaration that the union is (or unions are) not entitled
 
 
to be so recognised.
 
 
(6)
The powers conferred by this paragraph are in addition to those
 
 
conferred by paragraph 19O .”
 

Powers of CAC on proceeding with application

40
 
11
(1)
Paragraph 22 (powers of CAC where majority of workers are members of
 
 
union) is amended as follows.
 

Page 248

 
(2)
In sub-paragraph (1)(a), for “19F(5)” substitute “ 13B (6) , 19F(5), 19K (4) or
 
 
(5) or 19P (4) or (5) ”.
 
 
(3)
After sub-paragraph (1) insert—
 
 
“(1A)
For the purposes of sub-paragraph (1)(b), any worker who joined
 
 
the bargaining unit after the application day is to be disregarded.”
5
 
(4)
In sub-paragraph (3), after “bargaining unit” insert “, other than those who
 
 
joined the bargaining unit after the application day,”.
 
 
(5)
After sub-paragraph (4) insert—
 
 
“(4A)
For the purposes of sub-paragraph (4)(b) and (c), evidence from
 
 
or relating to a worker who joined the bargaining unit after the
10
 
application day is to be disregarded.”
 
 
12
(1)
Paragraph 23 (CAC to order ballot where majority of workers are not
 
 
members of union) is amended as follows.
 
 
(2)
In sub-paragraph (1)(a), for “19F(5)” substitute “ 13B (6) , 19F(5), 19K (4) or
 
 
(5) or 19P (4) or (5) ”.
15
 
(3)
After sub-paragraph (1) insert—
 
 
“(1A)
For the purposes of sub-paragraph (1)(b), any worker who joined
 
 
the bargaining unit after the application day is to be disregarded.”
 
 
(4)
In sub-paragraph (2), after “bargaining unit” insert “, other than those who
 
 
joined the bargaining unit after the application day,”.
20

Ballots

 
 
13
(1)
Paragraph 24 (notice of holding of ballot) is amended as follows.
 
 
(2)
In sub-paragraph (1), after “paragraph” insert “ 19O (5) , ”.
 
 
(3)
In sub-paragraph (5)—
 
 
(a)
before paragraph (a) insert—
25
 
“(za)
in the case of notice given under paragraph 19O (5)
 
 
, the period of 5 working days starting with the day
 
 
on which the union (or the last of the unions) receives
 
 
that notice,”;
 
 
(b)
in paragraph (a)—
30
 
(i)
at the beginning insert “in the case of notice given under
 
 
paragraph 22(3) or 23(2),”;
 
 
(ii)
for the words from “the CAC’s notice” to the end substitute
 
 
“that notice”;
 
 
(c)
in paragraph (b), for “so starting” substitute “starting with the day
35
 
mentioned in paragraph (za) or (a) (as the case may be)”.
 
 
(4)
In sub-paragraph (6)—
 

Page 249

 
(a)
before paragraph (a) insert—
 
 
“(za)
in the case of notice given under paragraph 19O (5)
 
 
, the period of 5 working days starting with the day
 
 
on which the union (or the last of the unions) receives
 
 
that notice,”;
5
 
(b)
in paragraph (a)—
 
 
(i)
at the beginning insert “in the case of notice given under
 
 
paragraph 22(3) or 23(2),”;
 
 
(ii)
for the words from “the CAC’s notice” to the end substitute
 
 
“that notice”;
10
 
(c)
in paragraph (b), for “so starting” substitute “starting with the day
 
 
mentioned in paragraph (za) or (a) (as the case may be)”.
 
 
14
In paragraph 25 (rules relating to ballot), after sub-paragraph (1) insert—
 
 
“(1A)
A worker who joined the bargaining unit after the application
 
 
day is not eligible to vote in the ballot.”
15
 
15
(1)
Paragraph 26 (duties of employer in relation to ballot) is amended as
 
 
follows.
 
 
(2)
In sub-paragraph (1), omit “five”.
 
 
(3)
In sub-paragraph (2)—
 
 
(a)
for “The first duty is to” substitute “The employer must”;
20
 
(b)
for “the second and third duties are not” substitute “no other duty
 
 
of the employer under this Part of this Schedule is”.
 
 
(4)
Omit sub-paragraph (3).
 
 
(5)
In sub-paragraph (4)—
 
 
(a)
in the words before paragraph (a), for “The third duty is to”
25
 
substitute “The employer must”;
 
 
(b)
in paragraph (a)—
 
 
(i)
for “to give” substitute “give”;
 
 
(ii)
for “constituting the bargaining unit” substitute “eligible to
 
 
vote in the ballot”;
30
 
(c)
omit paragraph (b);
 
 
(d)
in paragraph (c)—
 
 
(i)
for “to inform” substitute “inform”;
 
 
(ii)
omit “or (b)”.
 
 
(6)
After sub-paragraph (4) insert—
35
 
“(4ZA)
If the ballot is being held by virtue of paragraph 19O (5) , the duty
 
 
under sub-paragraph (4)(a) is limited to—
 
 
(a)
giving the CAC the names and home addresses of any
 
 
workers eligible to vote in the ballot which have not
 
 
previously been given to it in accordance with that duty;
40

Page 250

 
(b)
informing the CAC of any change to the name or home
 
 
address of a worker whose name and home address have
 
 
previously been given to the CAC in accordance with that
 
 
duty;
 
 
(c)
informing the CAC of any worker whose name had
5
 
previously been given to it in accordance with that duty
 
 
who has ceased to be within the bargaining unit.”
 
 
(7)
Omit sub-paragraphs (4A) to (4E), (4G), (8) and (9).
 
 
16
After paragraph 27 insert—
 
 
“27ZA
(1)
This paragraph applies if—
10
 
(a)
the union has (or unions have) been informed of a ballot
 
 
under paragraph 25(9), and
 
 
(b)
the CAC issues a declaration under paragraph 19K .
 
 
(2)
If the ballot has not been held, the CAC must take steps to cancel
 
 
it.
15
 
(3)
If the ballot is held, it is to have no effect.
 
 
27ZB
(1)
This paragraph applies if—
 
 
(a)
the union has (or unions have) been informed of a ballot
 
 
under paragraph 25(9),
 
 
(b)
a complaint is made under paragraph 19N , and
20
 
(c)
the ballot did not begin before the beginning of the
 
 
decision period referred to in paragraph 19N (5) .
 
 
(2)
The CAC may by notice to the parties and the qualified
 
 
independent person postpone the date on which the ballot is to
 
 
begin until a date which falls after the end of the decision period.
25
 
27ZC
(1)
This paragraph applies if—
 
 
(a)
the union has (or unions have) been informed of a ballot
 
 
under paragraph 25(9),
 
 
(b)
the CAC issues a declaration that a complaint under
 
 
paragraph 19N is well-founded, and
30
 
(c)
the CAC—
 
 
(i)
gives a notice under paragraph 19O (5) , or
 
 
(ii)
issues a declaration under paragraph 19P (4) or (5) .
 
 
(2)
If the ballot has not been held, the CAC must take steps to cancel
 
 
it.
35
 
(3)
If the ballot is held, it is to have no effect.
 
 
27ZD
(1)
This paragraph applies if—
 
 
(a)
the CAC gives a notice under paragraph 19O (5) , and
 
 
(b)
the CAC has previously made an order under paragraph
 
 
27(1) in relation to a cancelled or ineffective ballot in
40
 
connection with the application to which the notice relates.
 

Page 251

 
(2)
The order has effect, to the extent that the CAC specifies in a
 
 
notice to the parties, as if it were made for the purposes of the
 
 
ballot to which the notice under paragraph 19O (5) relates.”
 
 
17
Omit paragraphs 27A to 27F (unfair practices during ballot).
 
 
18
(1)
Paragraph 28 (costs of ballot) is amended as follows.
5
 
(2)
After sub-paragraph (1) insert—
 
 
“(1A)
If the ballot is one to which a notice under paragraph 19O (5)
 
 
relates, the gross costs of the ballot are to be borne by such of
 
 
the parties and in such proportions as the CAC may determine.”
 
 
(3)
In sub-paragraph (2), for “The gross costs” substitute “If the ballot is one
10
 
to which a notice under paragraph 22(3) or 23(2) relates, the gross costs”.
 
 
(4)
In sub-paragraph (4), for “the employer and the union (or each of the
 
 
unions)” substitute “the party or parties required to bear the costs”.
 
 
19
(1)
Paragraph 29 (result of ballot) is amended as follows.
 
 
(2)
For sub-paragraphs (1) and (1A) substitute—
15
 
“(1)
The CAC must act under this paragraph as soon as reasonably
 
 
practicable after—
 
 
(a)
the CAC is informed of the result of a ballot by the person
 
 
conducting it, and
 
 
(b)
the complaint period ends.
20
 
(1ZA)
The complaint period is the period of 5 working days starting
 
 
with the day after—
 
 
(a)
the date of the ballot, or
 
 
(b)
if votes may be cast in the ballot on more than one day,
 
 
the last of those days.
25
 
(1A)
The duty in sub-paragraph (1) does not apply—
 
 
(a)
if a complaint is made under paragraph 19N , on or before
 
 
the day on which the CAC decides whether the complaint
 
 
is well-founded;
 
 
(b)
if the CAC gives a notice under paragraph 19O (5) .”
30
 
(3)
For sub-paragraph (3) substitute—
 
 
“(3)
If the result is that the union is (or unions are) supported by a
 
 
majority of the workers voting, the CAC must issue a declaration
 
 
that the union is (or unions are) recognised as entitled to conduct
 
 
collective bargaining on behalf of the bargaining unit.”
35
 
(4)
Omit sub-paragraphs (5) to (7).
 

General provisions about admissibility of applications

 
 
20
(1)
Paragraph 35 (admissibility of applications: existing collective agreement)
 
 
is amended as follows.
 

Page 252

 
(2)
After sub-paragraph (1) insert—
 
 
“(1A)
For the purposes of sub-paragraph (1), any worker who joined
 
 
the relevant bargaining unit after the application day is to be
 
 
disregarded.”
 
 
(3)
After sub-paragraph (5) insert—
5
 
“(5A)
In applying sub-paragraph (1) an agreement for recognition (the
 
 
agreement in question) must be ignored if—
 
 
(a)
the union recognised under the agreement in question
 
 
does not have (or none of the unions recognised under
 
 
the agreement in question has) a certificate of
10
 
independence,
 
 
(b)
the union (or unions) making the application under
 
 
paragraph 11 or 12 made the application before the end
 
 
of the period of reflection, and
 
 
(c)
the agreement in question was entered into during the
15
 
restricted period.
 
 
(5B)
The period of reflection is the period of 20 working days starting
 
 
with the first day after the end of—
 
 
(a)
the first period referred to in paragraph 10(6), in the case
 
 
of an application under paragraph 11, or
20
 
(b)
the second period referred to in paragraph 10(7), in the
 
 
case of an application under paragraph 12.
 
 
(5C)
The restricted period is the period—
 
 
(a)
starting with the day on which the employer receives a
 
 
valid request for recognition under paragraph 4, and
25
 
(b)
ending with the day on which the CAC makes a decision
 
 
under paragraph 15.”
 
 
21
In paragraph 36 (admissibility of applications: minimum support), for
 
 
sub-paragraph (1) substitute—
 
 
“(1)
An application under paragraph 11 or 12 is not admissible unless
30
 
the CAC decides that members of the union (or unions) constitute
 
 
at least the required percentage (see paragraph 171B) of the
 
 
workers constituting the relevant bargaining unit.
 
 
(1A)
For the purposes of sub-paragraph (1), any worker who joined
 
 
the relevant bargaining unit after the application day is to be
35
 
disregarded.”
 
 
22
(1)
Paragraph 38 (admissibility of applications: overlapping bargaining unit)
 
 
is amended as follows.
 
 
(2)
In sub-paragraph (1)(d)—
 
 
(a)
for “19F(5),” substitute “ 13B (6) , 19F(5), 19K (4) or (5) , 19P (4) or (5) ,”;
40
 
(b)
omit “27D(3), 27D(4),”.
 

Page 253

 
(3)
After sub-paragraph (2) insert—
 
 
“(2A)
For the purposes of sub-paragraph (2)(a), any worker who joined
 
 
the relevant bargaining unit or the bargaining unit referred to in
 
 
sub-paragraph (1) after the application day is to be disregarded.”
 
 
23
In paragraph 39 (admissibility of applications: same bargaining unit), in
5
 
sub-paragraph (5), after “40” insert “, 40A”.
 
 
24
In paragraph 40 (admissibility of applications: union not entitled to be
 
 
recognised), in sub-paragraph (1)—
 
 
(a)
for “27D(4)” substitute “ 19K (5) , 19P (5) ”;
 
 
(b)
omit the words from “; and this is so” to the end.
10
 
25
After paragraph 40 insert—
 
 
“40A
(1)
This paragraph applies if the CAC issues a declaration under
 
 
paragraph 81E (5) , 81J (5) or 29(4) (where it applies by virtue of
 
 
paragraph 89(5)) that a union is (or unions are) not entitled to be
 
 
recognised as entitled to conduct collective bargaining on behalf
15
 
of a bargaining unit.
 
 
(2)
An application under paragraph 11 or 12 is not admissible if—
 
 
(a)
the application is made within the period of 3 years
 
 
starting with the day after the day on which the
 
 
declaration was issued,
20
 
(b)
the relevant bargaining unit is the same or substantially
 
 
the same as the bargaining unit mentioned in
 
 
sub-paragraph (1), and
 
 
(c)
the application is made by the union (or unions) which
 
 
made the application leading to the declaration.
25
 
(3)
The relevant bargaining unit is—
 
 
(a)
the proposed bargaining unit, where the application is
 
 
under paragraph 11(2) or 12(2);
 
 
(b)
the agreed bargaining unit, where the application is under
 
 
paragraph 12(4).”
30
 
26
In paragraph 41 (admissibility of applications: union required to cease
 
 
bargaining arrangements), in sub-paragraph (1)—
 
 
(a)
for “119D(4), 119H(5)” substitute “ 116E (5) , 116K (5) ”;
 
 
(b)
for “the ballot concerned is arranged” substitute “the declaration is
 
 
issued”.
35

General provisions about validity of applications

 
 
27
(1)
Paragraph 44 (validity of applications: existing collective agreement) is
 
 
amended as follows.
 

Page 254

 
(2)
After sub-paragraph (1) insert—
 
 
“(1A)
For the purposes of sub-paragraph (1), any worker who joined
 
 
the relevant bargaining unit after the application day is to be
 
 
disregarded.”
 
 
(3)
After sub-paragraph (5) insert—
5
 
“(6)
In applying sub-paragraph (1) an agreement for recognition (the
 
 
agreement in question) must be ignored if—
 
 
(a)
the union recognised under the agreement in question
 
 
does not have (or none of the unions recognised under
 
 
the agreement in question has) a certificate of
10
 
independence,
 
 
(b)
the union (or unions) making the application under
 
 
paragraph 11 or 12 made the application before the end
 
 
of the period of reflection, and
 
 
(c)
the agreement in question was entered into during the
15
 
restricted period.
 
 
(7)
The period of reflection is the period of 20 working days starting
 
 
with the first day after the end of—
 
 
(a)
the first period referred to in paragraph 10(6), in the case
 
 
of an application under paragraph 11, or
20
 
(b)
the second period referred to in paragraph 10(7), in the
 
 
case of an application under paragraph 12.
 
 
(8)
The restricted period is the period—
 
 
(a)
starting with the day on which the employer receives a
 
 
valid request for recognition under paragraph 4, and
25
 
(b)
ending with the day on which the CAC makes a decision
 
 
under paragraph 20.”
 
 
28
For paragraph 45 (validity of applications: minimum support) substitute—
 
 
“45
(1)
The application in question is invalid unless the CAC decides
 
 
that members of the union (or unions) constitute at least the
30
 
required percentage (see paragraph 171B) of the workers
 
 
constituting the relevant bargaining unit.
 
 
(2)
For the purposes of sub-paragraph (1), any worker who joined
 
 
the relevant bargaining unit after the application day is to be
 
 
disregarded.”
35
 
29
(1)
Paragraph 46 (validity of applications: overlapping bargaining unit) is
 
 
amended as follows.
 
 
(2)
In sub-paragraph (1)(d)—
 
 
(a)
for “19F(5),” substitute “ 13B (6) , 19F(5), 19K (4) or (5) , 19P (4) or (5) ,”;
 
 
(b)
omit “27D(3), 27D(4),”.
40

Page 255

 
(3)
After sub-paragraph (2) insert—
 
 
“(3)
For the purposes of sub-paragraph (2)(a), any worker who joined
 
 
the relevant bargaining unit or the bargaining unit referred to in
 
 
sub-paragraph (1) after the application day is to be disregarded.”
 
 
30
In paragraph 47 (validity of applications: same bargaining unit), in
5
 
sub-paragraph (3), after “48” insert “, 48A”.
 
 
31
In paragraph 48 (validity of applications: union not entitled to be
 
 
recognised), in sub-paragraph (1)—
 
 
(a)
for “27D(4)” substitute “ 19K (5) , 19P (5) ”;
 
 
(b)
omit the words from “; and this is so” to the end.
10
 
32
After paragraph 48 insert—
 
 
“48A
(1)
This paragraph applies if the CAC issues a declaration under
 
 
paragraph 81E (5) , 81J (5) or 29(4) (where it applies by virtue of
 
 
paragraph 89(5)) that a union is (or unions are) not entitled to be
 
 
recognised as entitled to conduct collective bargaining on behalf
15
 
of a bargaining unit.
 
 
(2)
The application in question is invalid if—
 
 
(a)
the application is made within the period of 3 years
 
 
starting with the date of the declaration,
 
 
(b)
the relevant bargaining unit is the same or substantially
20
 
the same as the bargaining unit mentioned in
 
 
sub-paragraph (1), and
 
 
(c)
the application is made by the union (or unions) which
 
 
made the application leading to the declaration.”
 
 
33
In paragraph 49 (validity of applications: union required to cease bargaining
25
 
arrangements), in sub-paragraph (1)—
 
 
(a)
for “119D(4), 119H(5)” substitute “ 116E (5) , 116K (5) ”;
 
 
(b)
for “the ballot concerned is arranged” substitute “the declaration is
 
 
issued”.
 

Competing applications

30
 
34
In paragraph 51 (competing applications), in sub-paragraph (2)(c), for “10
 
 
per cent test” substitute “required percentage test”.
 

Voluntary recognition

 
 
35
In paragraph 52 (voluntary recognition), in sub-paragraph (3)(f), for “19F(5)”
 
 
substitute “ 13B (6) , 19F(5), 19K (4) or (5) , 19P (4) or (5) ”.
35

Page 256

Part 3

 

Changes affecting bargaining unit after recognition

 

Changes relevant to appropriateness of bargaining unit

 
 
36
(1)
Paragraph 67 (admissibility of applications: employer or union believes
 
 
bargaining unit no longer appropriate) is amended as follows.
5
 
(2)
In sub-paragraph (2)(c), at the end insert “(but see sub-paragraph (3) ).”
 
 
(3)
After sub-paragraph (2) insert—
 
 
“(3)
In a case where the application was received by the CAC before
 
 
the end of the period of three years starting with the day on
 
 
which the declaration referred to in paragraph 64(1)(a) was issued,
10
 
the CAC must disregard the matter specified in sub-paragraph
 
 
(2)(c).”
 
 
37
(1)
Paragraph 70 (determination of bargaining unit by CAC) is amended as
 
 
follows.
 
 
(2)
In sub-paragraph (3)(c), at the end insert “(but see sub-paragraph (3A) ).”
15
 
(3)
After sub-paragraph (3) insert—
 
 
“(3A)
In a case where the application was received by the CAC before
 
 
the end of the period of three years starting with the day on
 
 
which the declaration referred to in paragraph 64(1)(a) was issued,
 
 
the CAC may not take into account the matter specified in
20
 
sub-paragraph (3)(c).”
 
 
38
In paragraph 75 (questions for CAC to decide where employer believes
 
 
bargaining unit has ceased to exist), in sub-paragraph (3)(c), at the end
 
 
insert “(but see paragraph 77 (4A) ).”
 
 
39
In paragraph 77 (CAC’s decision as to appropriateness of bargaining unit,
25
 
etc), after sub-paragraph (4) insert—
 
 
“(4A)
In a case where the copy of the notice given to the CAC by the
 
 
employer under paragraph 74(1) was received by the CAC before
 
 
the end of the period of three years starting with the day on
 
 
which the declaration referred to in paragraph 64(1)(a) was issued,
30
 
in deciding whether the original unit is no longer appropriate
 
 
the CAC must disregard the matter specified in paragraph
 
 
75(3)(c).”
 

Access agreements

 
 
40
After paragraph 81 insert—
35

“Access agreements

 
 
81A
(1)
This paragraph applies if—
 

Page 257

 
(a)
the CAC accepts an application under paragraph 66 or
 
 
75, and
 
 
(b)
the application is in progress.
 
 
(2)
The union (or unions) may, by giving notice to the CAC and the
 
 
employer within the access request period, request access to the
5
 
relevant workers in connection with the application.
 
 
(3)
The relevant workers are—
 
 
(a)
in relation to any time before the CAC decides that a
 
 
bargaining unit other than the original unit is an
 
 
appropriate bargaining unit, the workers constituting the
10
 
original unit, and
 
 
(b)
in relation to any time after the CAC decides that a
 
 
bargaining unit other than the original unit is an
 
 
appropriate bargaining unit, the workers constituting the
 
 
new unit (see paragraph 82(4)).
15
 
(4)
But, where there is more than one new unit, references to the
 
 
relevant workers are references to the workers constituting each
 
 
new unit separately.
 
 
(5)
The access request period is the period of 5 working days starting
 
 
with the day after the day on which the CAC gives the union (or
20
 
unions) notice under paragraph 68(5) or 76(5) that the application
 
 
is accepted.
 
 
(6)
For the purposes of this paragraph and paragraphs 81B to 81E
 
 
, an application under paragraph 66 or 75 is in progress if none
 
 
of the following has occurred—
25
 
(a)
the withdrawal of the application;
 
 
(b)
the CAC issuing a declaration under paragraph 69(3),
 
 
78(3), 81E (4) or (5) or 81J (4) or (5) in relation to the
 
 
application;
 
 
(c)
the CAC notifying the union (or unions) of its decision
30
 
under paragraph 77(2) or 77(3);
 
 
(d)
in relation to the new unit (or, if there is more than one,
 
 
all of the new units)—
 
 
(i)
the CAC issuing a declaration under paragraph
 
 
83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2)
35
 
(where it applies by virtue of paragraph 89(5)),
 
 
(ii)
the union (or unions) notifying the CAC under
 
 
paragraph 89(1), or
 
 
(iii)
the holding of any ballot arising from the
 
 
application.
40
 
81B
(1)
This paragraph applies if—
 
 
(a)
the CAC accepts an application under paragraph 66 or
 
 
75,
 

Page 258

 
(b)
the union requests (or unions request) access to the
 
 
relevant workers under paragraph 81A (2) in connection
 
 
with the application, and
 
 
(c)
the application is in progress.
 
 
(2)
The CAC must try to help the parties to reach agreement within
5
 
the negotiation period as to terms on which the union is (or
 
 
unions are) to have access to the relevant workers.
 
 
(3)
The negotiation period is, subject to any notice under
 
 
sub-paragraph (4) or (6) —
 
 
(a)
the period of 20 working days starting with the day after
10
 
the day on which the CAC gives the union (or unions)
 
 
notice under paragraph 68(5) or 76(5) that the application
 
 
is accepted, or
 
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by notice containing reasons for the
15
 
extension.
 
 
(4)
If, during the negotiation period, the CAC concludes that there
 
 
is no reasonable prospect of the parties’ agreeing terms on which
 
 
the union is (or unions are) to have access to the relevant workers
 
 
before the time when (apart from this sub-paragraph) the
20
 
negotiation period would end, the CAC may, by a notice given
 
 
to the parties, declare that the negotiation period ends with the
 
 
date of the notice.
 
 
(5)
A notice under sub-paragraph (4) must contain reasons for
 
 
reaching the conclusion mentioned in that sub-paragraph.
25
 
(6)
If, during the negotiation period, the parties apply to the CAC
 
 
for a declaration that the negotiation period is to end with a date
 
 
(specified in the application) which is earlier or later than the
 
 
date with which it would otherwise end, the CAC may, by a
 
 
notice given to the parties, declare that the negotiation period
30
 
ends with the specified date.
 
 
81C
(1)
This paragraph applies if—
 
 
(a)
the CAC accepts an application under paragraph 66 or
 
 
75,
 
 
(b)
the union requests (or unions request) access to the
35
 
relevant workers under paragraph 81A (2) in connection
 
 
with the application,
 
 
(c)
the parties have not within the negotiation period agreed
 
 
terms on which the union is (or unions are) to have access
 
 
to the relevant workers, and
40
 
(d)
the application is in progress.
 
 
(2)
Within the adjudication period, the CAC must—
 
 
(a)
decide the terms on which the union is (or unions are) to
 
 
have access to the relevant workers, or
 

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(b)
decide that the union is (or unions are) not to have access
 
 
to the relevant workers.
 
 
(3)
The adjudication period is—
 
 
(a)
the period of 10 working days starting with the day after
 
 
the day with which the negotiation period ends, or
5
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by notice containing reasons for the
 
 
extension.
 
 
(4)
Any terms decided by the CAC must be terms that the CAC
 
 
regards as allowing such access to the relevant workers as is
10
 
reasonable to enable the union (or unions) to—
 
 
(a)
inform the workers of the object of the application or any
 
 
ballot arising from it, and
 
 
(b)
seek their support and their opinions on the issues
 
 
involved.
15
 
81D
(1)
This paragraph applies if—
 
 
(a)
an access agreement is entered into, and
 
 
(b)
the application under paragraph 66 or 75 is in progress.
 
 
(2)
“Access agreement” means—
 
 
(a)
terms on which the union is (or unions are) to have access
20
 
to the relevant workers and which are agreed between
 
 
the parties under paragraph 81B during the negotiation
 
 
period, or
 
 
(b)
terms on which the union is (or unions are) to have access
 
 
to the relevant workers and which are decided by the
25
 
CAC under paragraph 81C ,
 
 
and such an agreement is “entered into” when the terms are so
 
 
agreed or decided.
 
 
(3)
The parties must comply with the access agreement.
 
 
(4)
The employer must refrain from making any offer to any or all
30
 
of the relevant workers which—
 
 
(a)
has or is likely to have the effect of inducing any or all
 
 
of them not to attend any relevant meeting between the
 
 
union (or unions) and the relevant workers, and
 
 
(b)
is not reasonable in the circumstances.
35
 
(5)
The employer must refrain from taking, or threatening to take,
 
 
any action against a worker solely or mainly on the grounds that
 
 
the worker—
 
 
(a)
attended or took part in any relevant meeting between
 
 
the union (or unions) and the relevant workers, or
40
 
(b)
indicated an intention to attend or take part in such a
 
 
meeting.
 
 
(6)
The relevant workers are—
 

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(a)
in relation to any time before the CAC decides that a
 
 
bargaining unit other than the original unit is an
 
 
appropriate bargaining unit, the workers constituting the
 
 
original unit, and
 
 
(b)
in relation to any time after the CAC decides that a
5
 
bargaining unit other than the original unit is an
 
 
appropriate bargaining unit, the workers constituting the
 
 
new unit (see paragraph 82(4)).
 
 
(7)
But, where there is more than one new unit, references to the
 
 
relevant workers are references to the workers constituting each
10
 
new unit separately.
 
 
(8)
A meeting is a relevant meeting in relation to a worker for the
 
 
purposes of sub-paragraphs (4) and (5) if—
 
 
(a)
it is organised in accordance with an access agreement or
 
 
as a result of a step ordered to be taken under paragraph
15
 
81E to remedy a failure to comply with the duty in
 
 
sub-paragraph (3) , and
 
 
(b)
it is one which the employer is, by such an agreement or
 
 
order as is mentioned in paragraph (a), required to permit
 
 
the worker to attend.
20
 
(9)
The duties imposed by sub-paragraphs (4) and (5) do not confer
 
 
any rights on a worker; but that does not affect any other right
 
 
which a worker may have.
 
 
(10)
Any provision of an access agreement that would require personal
 
 
data relating to any of the relevant workers to be disclosed to
25
 
any person other than a person appointed to conduct a ballot
 
 
under paragraph 25 (where it applies by virtue of paragraph
 
 
89(4)) is of no effect for the purposes of this Part of this Schedule.
 
 
(11)
“Personal data” has the same meaning as in the Data Protection
 
 
Act 2018 (see section 3 of that Act).
30
 
(12)
An access agreement is to be conclusively presumed not to have
 
 
been intended by the parties to be a legally enforceable contract;
 
 
and, accordingly, where an access agreement is, or is part of, a
 
 
collective agreement, section 179(2) and (3)(a) do not apply to the
 
 
access agreement.
35
 
81E
(1)
Sub-paragraph (2) applies if—
 
 
(a)
the CAC is satisfied that a party has failed to fulfil any
 
 
of the duties imposed on that party by paragraph 81D
 
 
, and
 
 
(b)
the application under paragraph 66 or 75 is in progress.
40
 
(2)
The CAC may order the party—
 
 
(a)
to take such steps to remedy the failure as the CAC
 
 
considers reasonable and specifies in the order, and
 

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(b)
to do so within such period as the CAC considers
 
 
reasonable and specifies in the order.
 
 
(3)
Sub-paragraphs (4) and (5) apply if—
 
 
(a)
the CAC is satisfied that a party has failed to comply with
 
 
an order under sub-paragraph (2) ,
5
 
(b)
the application under paragraph 66 or 75 is in progress,
 
 
and
 
 
(c)
the CAC has given notice under paragraph 70 or 79 of a
 
 
decision as to the bargaining unit which is (or units which
 
 
are) appropriate (each, a “new unit”).
10
 
(4)
If the party that has failed to comply is the employer, the CAC
 
 
may issue a declaration that the union is (or unions are)
 
 
recognised as entitled to conduct collective bargaining on behalf
 
 
of the new unit or units.
 
 
(5)
If the party that has failed to comply is a union, the CAC may
15
 
issue a declaration that the union is (or unions are) not entitled
 
 
to be so recognised.
 
 
81F
(1)
Each of the powers specified in sub-paragraph (2) is to be taken
 
 
to include power to issue Codes of Practice about any matter
 
 
relating to requests for access under paragraph 81A (2) , including
20
 
(among other things)—
 
 
(a)
what access is reasonable for the purposes of paragraph
 
 
81C (4) ;
 
 
(b)
the duty in paragraph 81D (4) .
 
 
(2)
The powers are—
25
 
(a)
the power of ACAS under section 199(1);
 
 
(b)
the power of the Secretary of State under section 203(1)(a).”
 

Unfair practices

 
 
41
After paragraph 81F (inserted by paragraph 40 of this Schedule) insert—
 

“Unfair practices

30
 
81G
(1)
Each of the parties informed by the CAC under paragraph 68(5)
 
 
or 76(5) that an application under paragraph 66 or 75 is accepted
 
 
must refrain from using any unfair practice in relation to the
 
 
application.
 
 
(2)
A party uses an unfair practice if, with a view to influencing the
35
 
outcome of the application, the party does any of the following—
 
 
(a)
dismisses, or threatens to dismiss, a worker;
 
 
(b)
takes, or threatens to take, disciplinary action against a
 
 
worker;
 
 
(c)
subjects, or threatens to subject, a worker to any other
40
 
detriment;
 

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(d)
offers to pay money, or give money’s worth, to a relevant
 
 
worker in return for the worker’s agreement to vote in a
 
 
particular way, or to abstain from voting, in a relevant
 
 
ballot;
 
 
(e)
makes an outcome-specific offer to a relevant worker;
5
 
(f)
coerces, or attempts to coerce, a relevant worker to
 
 
disclose—
 
 
(i)
whether the worker intends to vote, or to abstain
 
 
from voting, in any relevant ballot, or
 
 
(ii)
how the worker intends to vote, or has voted, in
10
 
any relevant ballot;
 
 
(g)
uses, or attempts to use, undue influence on a relevant
 
 
worker.
 
 
(3)
In sub-paragraph (2) —
 
 
(a)
“relevant ballot” means any ballot that is or may be held
15
 
in which workers are asked whether they want the union
 
 
(or unions) to conduct collective bargaining on their behalf,
 
 
and
 
 
(b)
“relevant worker” means any worker who is or would be
 
 
entitled to vote in a relevant ballot.
20
 
(4)
For the purposes of sub-paragraph (2) (e) an “outcome-specific
 
 
offer” is an offer to pay money, or give money’s worth, which—
 
 
(a)
is conditional on the issuing by the CAC of a declaration
 
 
that—
 
 
(i)
the union is (or unions are) recognised as entitled
25
 
to conduct collective bargaining on behalf of a
 
 
bargaining unit, or
 
 
(ii)
the union is (or unions are) not entitled to be so
 
 
recognised, and
 
 
(b)
is not conditional on anything which is done or occurs as
30
 
a result of the declaration in question.
 
 
(5)
The duty imposed by this paragraph does not confer any rights
 
 
on a worker; but that does not affect any other right which a
 
 
worker may have.
 
 
(6)
Each of the following powers is to be taken to include power to
35
 
issue Codes of Practice about unfair practices for the purposes
 
 
of this paragraph—
 
 
(a)
the power of ACAS under section 199(1);
 
 
(b)
the power of the Secretary of State under section 203(1)(a).
 
 
81H
(1)
A party may complain to the CAC that another party has failed
40
 
to comply with paragraph 81G .
 
 
(2)
A complaint under sub-paragraph (1) may not be made after a
 
 
conclusion event occurs.
 

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(3)
The following are conclusion events—
 
 
(a)
the withdrawal of the application under paragraph 66 or
 
 
75;
 
 
(b)
the CAC issuing a declaration under paragraph 69(3),
 
 
78(3), 81E (4) or (5) or 81J (4) or (5) in relation to the
5
 
application;
 
 
(c)
the CAC notifying the union (or unions) of its decision
 
 
under paragraph 77(2) or 77(3);
 
 
(d)
if the CAC has given notice under paragraph 70 or 79 of
 
 
a decision as to the bargaining unit which is (or units
10
 
which are) appropriate (each, a “new unit”), any of the
 
 
following occurring in relation to the new unit (or, if there
 
 
is more than one, all of the new units)—
 
 
(i)
the CAC issuing a declaration under paragraph
 
 
83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2)
15
 
(where it applies by virtue of paragraph 89(5));
 
 
(ii)
the union (or unions) notifying the CAC under
 
 
paragraph 89(1);
 
 
(iii)
the post-ballot complaint period having ended.
 
 
(4)
The post-ballot complaint period is, in relation to any ballot held
20
 
arising from the application, the period of 5 working days after—
 
 
(a)
the date of the ballot, or
 
 
(b)
if votes may be cast in the ballot on more than one day,
 
 
the last of those days.
 
 
(5)
Within the decision period the CAC must decide whether the
25
 
complaint is well-founded.
 
 
(6)
A complaint is well-founded if the CAC finds that the party
 
 
complained against used an unfair practice.
 
 
(7)
The decision period is—
 
 
(a)
the period of 10 working days starting with the day after
30
 
the day on which the complaint under sub-paragraph (1)
 
 
was received by the CAC, or
 
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by a notice containing reasons for the
 
 
extension.
35
 
81I
(1)
This paragraph applies if the CAC decides that a complaint under
 
 
paragraph 81H is well-founded.
 
 
(2)
The CAC must, as soon as is reasonably practicable, issue a
 
 
declaration to that effect.
 
 
(3)
The CAC may order the party concerned to take any action
40
 
specified in the order within such period as may be so specified.
 
 
(4)
Sub-paragraph (5) applies if—
 

Page 264

 
(a)
the CAC has given notice under paragraph 70 or 79 of a
 
 
decision as to the bargaining unit which is (or units which
 
 
are) appropriate (each, a “new unit”), and
 
 
(b)
the CAC has at any time informed the union (or unions)
 
 
under paragraph 25(9) (where it applies by virtue of
5
 
paragraph 89(4)) of a ballot in relation to the application
 
 
(including a ballot that was cancelled or is ineffective).
 
 
(5)
The CAC may give notice to the employer and to the union (or
 
 
unions) that it intends to arrange for the holding of a secret ballot
 
 
(or secret ballots) in which the workers constituting the new unit
10
 
(or each of the new units) are asked whether they want the union
 
 
(or unions) to conduct collective bargaining on their behalf.
 
 
(6)
The CAC may make an order under sub-paragraph (3) , or give
 
 
a notice under sub-paragraph (5) , either at the same time as it
 
 
issues the declaration under sub-paragraph (2) or at any other
15
 
time before any of the following occurs—
 
 
(a)
the withdrawal of the application under paragraph 66 or
 
 
75;
 
 
(b)
the CAC issuing a declaration under paragraph 69(3),
 
 
78(3), 81E (4) or (5) or 81J (4) or (5) in relation to the
20
 
application;
 
 
(c)
the CAC notifying the union (or unions) of its decision
 
 
under paragraph 77(2) or 77(3);
 
 
(d)
in relation to the new unit (or, if there is more than one,
 
 
all of the new units)—
25
 
(i)
the CAC issuing a declaration under paragraph
 
 
83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2)
 
 
(where it applies by virtue of paragraph 89(5)),
 
 
(ii)
the union (or unions) notifying the CAC under
 
 
paragraph 89(1), or
30
 
(iii)
if the CAC informs the union (or unions) under
 
 
paragraph 25(9) (where it applies by virtue of
 
 
paragraph 89(4)) of any ballot arising from the
 
 
application, the CAC acting under paragraph 29
 
 
(where it applies by virtue of paragraph 89(5)) in
35
 
relation to the ballot.
 
 
(7)
The action specified in an order under sub-paragraph (3) must
 
 
be such as the CAC considers reasonable in order to mitigate the
 
 
effect of the failure of the party concerned to comply with the
 
 
duty imposed by paragraph 81G .
40
 
(8)
The CAC may make more than one order under sub-paragraph
 
 
(3) .
 
 
81J
(1)
Sub-paragraphs (4) to (6) apply if—
 

Page 265

 
(a)
the CAC issues a declaration under paragraph 81I (2) that
 
 
a complaint that a party has failed to comply with
 
 
paragraph 81G is well-founded,
 
 
(b)
the application under paragraph 66 or 75 has not been
 
 
withdrawn,
5
 
(c)
the CAC has given notice under paragraph 70 or 79 of a
 
 
decision as to the bargaining unit which is (or units which
 
 
are) appropriate (each, a “new unit”),
 
 
(d)
the CAC has not issued a declaration under paragraph
 
 
69(3), 78(3), 81E (4) or (5) or 81J (4) or (5) in relation to the
10
 
application,
 
 
(e)
the CAC has not notified the union (or unions) of its
 
 
decision under paragraph 77(2) or 77(3),
 
 
(f)
in relation to the new unit (or, if there is more than one,
 
 
all of the new units), neither of the following has
15
 
occurred—
 
 
(i)
the CAC issuing a declaration under paragraph
 
 
83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2)
 
 
(where it applies by virtue of paragraph 89(5)), or
 
 
(ii)
the union (or unions) notifying the CAC under
20
 
paragraph 89(1), and
 
 
(g)
sub-paragraph (2) or (3) applies.
 
 
(2)
This sub-paragraph applies if the declaration states that the unfair
 
 
practice used consisted of or included—
 
 
(a)
the use of violence, or
25
 
(b)
the dismissal of a union official.
 
 
(3)
This sub-paragraph applies if the CAC has made an order under
 
 
paragraph 81I (3) and—
 
 
(a)
it is satisfied that the party subject to the order has failed
 
 
to comply with it, or
30
 
(b)
it makes another declaration under paragraph 81I (2) in
 
 
relation to a complaint against that party.
 
 
(4)
If the party that has failed to comply is the employer, the CAC
 
 
may issue a declaration that the union is (or unions are)
 
 
recognised as entitled to conduct collective bargaining on behalf
35
 
of the new unit or units.
 
 
(5)
If the party that has failed to comply is a union, the CAC may
 
 
issue a declaration that the union is (or unions are) not entitled
 
 
to be so recognised.
 
 
(6)
The powers conferred by this paragraph are in addition to those
40
 
conferred by paragraph 81I .”
 

Page 266

Powers of CAC where CAC decides new unit appropriate

 
 
42
(1)
Paragraph 86 (new bargaining unit: assessment of support) is amended as
 
 
follows.
 
 
(2)
For sub-paragraph (2) substitute—
 
 
“(2)
The CAC must decide whether members of the union (or unions)
5
 
constitute at least the required percentage (see paragraph 171B)
 
 
of the workers constituting the new unit.”
 
 
(3)
In sub-paragraph (3), for “one or both of the questions in the negative”
 
 
substitute “that members of the union (or unions) do not constitute at least
 
 
the required percentage of the workers constituting the new unit”.
10
 
43
In paragraph 87 (powers of CAC where majority of workers are members
 
 
of union), for sub-paragraph (1) substitute—
 
 
“(1)
This paragraph applies if, following a decision under paragraph
 
 
86(2), the CAC is satisfied that a majority of workers constituting
 
 
the new unit are members of the union (or unions).”
15
 
44
In paragraph 88 (powers of CAC where majority of workers are not
 
 
members of union), for sub-paragraph (1) substitute—
 
 
“(1)
This paragraph applies if—
 
 
(a)
the CAC decides under paragraph 86(2) that members of
 
 
the union (or unions) constitute at least the required
20
 
percentage of the workers constituting the new unit, but
 
 
(b)
the CAC is not satisfied that a majority of workers
 
 
constituting the new unit are members of the union (or
 
 
unions).”
 
 
45
(1)
Paragraph 89 (ballots) is amended as follows.
25
 
(2)
In sub-paragraph (4), at the end insert “, but as if paragraph 25 (1A) were
 
 
omitted.”
 
 
(3)
In sub-paragraph (5)—
 
 
(a)
omit the “and” at the end of paragraph (a);
 
 
(b)
after paragraph (a) insert—
30
 
“(aa)
references to provisions of paragraphs 19G to 19P
 
 
were references to the corresponding provisions of
 
 
paragraphs 81A to 81J ,
 
 
(ab)
the duty in paragraph 26(4) included—
 
 
(i)
a duty to give to the CAC, as soon as is
35
 
reasonably practicable, the name and home
 
 
address of any worker who joins the
 
 
bargaining unit after the employer has
 
 
complied with paragraph 26(4)(a), and
 
 
(ii)
a duty to inform the CAC, as soon as is
40
 
reasonably practicable, of any worker whose
 

Page 267

 
name has been given to the CAC under that
 
 
duty and who ceases to be within the
 
 
bargaining unit, and”;
 
 
(c)
in paragraph (b), for “26(4F) to (4H)” substitute “26(4F) and (4H)”.
 
 
(4)
In sub-paragraph (8), for “or 27D(3)” substitute “, 81E (4) or 81J (4) ”.
5
 
(5)
In sub-paragraph (9), for “27D(4)” substitute “ 81E (5) or 81J (5) ”.
 

Withdrawal of application

 
 
46
In paragraph 93 (withdrawal of application), in sub-paragraph (1)(a), for
 
 
“or 78(3)” substitute “, 78(3), 81E (4) or (5) or 81J (4) or (5) ”.
 

Part 4

10

Derecognition

 

Access agreements

 
 
47
After paragraph 116 insert—
 

“Access agreements

 
 
116A
(1)
This paragraph applies if—
15
 
(a)
the CAC accepts an application under paragraph 106, 107
 
 
or 112, and
 
 
(b)
the application is in progress.
 
 
(2)
The union (or unions) may, by giving notice to the CAC and the
 
 
employer within the access request period, request access to the
20
 
workers constituting the bargaining unit in connection with the
 
 
application.
 
 
(3)
The access request period is the period of 5 working days starting
 
 
with the day after the day on which the CAC gives the union (or
 
 
unions) notice under paragraph 111(5) or 115(5) that the
25
 
application is accepted.
 
 
(4)
For the purposes of this paragraph and paragraphs 116B to 116E
 
 
, an application under paragraph 106, 107 or 112 is in progress if
 
 
none of the following has occurred—
 
 
(a)
in the case of an application under paragraph 106 or 107,
30
 
the withdrawal of the application;
 
 
(b)
in the case of an application under paragraph 112, an
 
 
agreement or withdrawal as described in paragraph 116(1);
 
 
(c)
the CAC refusing the application under paragraph
 
 
116E (4) (a), 116K (4) (a) or (6) or 119(2);
35
 
(d)
the CAC notifying the union (or unions) of a declaration
 
 
issued under paragraph 116E (5) or 116K (5) in relation to
 
 
the application;
 
 
(e)
the holding of any ballot arising from the application.
 

Page 268

 
116B
(1)
This paragraph applies if—
 
 
(a)
the CAC accepts an application under paragraph 106, 107
 
 
or 112,
 
 
(b)
the union requests (or unions request) access to the
 
 
workers constituting the bargaining unit under paragraph
5
 
116A (2) in connection with the application, and
 
 
(c)
the application is in progress.
 
 
(2)
The CAC must try to help the parties to reach agreement within
 
 
the negotiation period as to terms on which the union is (or
 
 
unions are) to have access to the workers.
10
 
(3)
The negotiation period is, subject to any notice under
 
 
sub-paragraph (4) or (6) —
 
 
(a)
the period of 20 working days starting with the day after
 
 
the day on which the CAC gives the union (or unions)
 
 
notice under paragraph 111(5) or 115(5) that the
15
 
application is accepted, or
 
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by notice containing reasons for the
 
 
extension.
 
 
(4)
If, during the negotiation period, the CAC concludes that there
20
 
is no reasonable prospect of the parties’ agreeing terms on which
 
 
the union is (or unions are) to have access to the workers before
 
 
the time when (apart from this sub-paragraph) the negotiation
 
 
period would end, the CAC may, by a notice given to the parties,
 
 
declare that the negotiation period ends with the date of the
25
 
notice.
 
 
(5)
A notice under sub-paragraph (4) must contain reasons for
 
 
reaching the conclusion mentioned in that sub-paragraph.
 
 
(6)
If, during the negotiation period, the parties apply to the CAC
 
 
for a declaration that the negotiation period is to end with a date
30
 
(specified in the application) which is earlier or later than the
 
 
date with which it would otherwise end, the CAC may, by a
 
 
notice given to the parties, declare that the negotiation period
 
 
ends with the specified date.
 
 
116C
(1)
This paragraph applies if—
35
 
(a)
the CAC accepts an application under paragraph 106, 107
 
 
or 112,
 
 
(b)
the union requests (or unions request) access to the
 
 
workers constituting the bargaining unit under paragraph
 
 
116A (2) in connection with the application,
40
 
(c)
the parties have not within the negotiation period agreed
 
 
terms on which the union is (or unions are) to have access
 
 
to the workers, and
 
 
(d)
the application is in progress.
 

Page 269

 
(2)
Within the adjudication period, the CAC must—
 
 
(a)
decide the terms on which the union is (or unions are) to
 
 
have access to the workers, or
 
 
(b)
decide that the union is (or unions are) not to have access
 
 
to the workers.
5
 
(3)
The adjudication period is—
 
 
(a)
the period of 10 working days starting with the day after
 
 
the day with which the negotiation period ends, or
 
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by notice containing reasons for the
10
 
extension.
 
 
(4)
Any terms decided by the CAC must be terms that the CAC
 
 
regards as allowing such access to the workers constituting the
 
 
bargaining unit as is reasonable to enable the union (or unions)
 
 
to—
15
 
(a)
inform the workers of the object of the application or any
 
 
ballot arising from it, and
 
 
(b)
seek their support and their opinions on the issues
 
 
involved.
 
 
116D
(1)
This paragraph applies if—
20
 
(a)
an access agreement is entered into, and
 
 
(b)
the application under paragraph 106, 107 or 112 is in
 
 
progress.
 
 
(2)
“Access agreement” means—
 
 
(a)
terms on which the union is (or unions are) to have access
25
 
to the workers constituting the bargaining unit and which
 
 
are agreed between the parties under paragraph 116B
 
 
during the negotiation period, or
 
 
(b)
terms on which the union is (or unions are) to have access
 
 
to the workers constituting the bargaining unit and which
30
 
are decided by the CAC under paragraph 116C ,
 
 
and such an agreement is to be treated as “entered into” when
 
 
the terms are so agreed or decided.
 
 
(3)
The parties must comply with the access agreement.
 
 
(4)
The employer must refrain from making any offer to any or all
35
 
of the workers constituting the bargaining unit which—
 
 
(a)
has or is likely to have the effect of inducing any or all
 
 
of them not to attend any relevant meeting between the
 
 
union (or unions) and the workers constituting the
 
 
bargaining unit, and
40
 
(b)
is not reasonable in the circumstances.
 

Page 270

 
(5)
The employer must refrain from taking, or threatening to take,
 
 
any action against a worker solely or mainly on the grounds that
 
 
the worker—
 
 
(a)
attended or took part in any relevant meeting between
 
 
the union (or unions) and the workers constituting the
5
 
bargaining unit, or
 
 
(b)
indicated an intention to attend or take part in such a
 
 
meeting.
 
 
(6)
A meeting is a relevant meeting in relation to a worker for the
 
 
purposes of sub-paragraphs (4) and (5) if—
10
 
(a)
it is organised in accordance with an access agreement or
 
 
as a result of a step ordered to be taken under paragraph
 
 
116E to remedy a failure to comply with the duty in
 
 
sub-paragraph (3) , and
 
 
(b)
it is one which the employer is, by such an agreement or
15
 
order as is mentioned in paragraph (a), required to permit
 
 
the worker to attend.
 
 
(7)
The duties imposed by sub-paragraphs (4) and (5) do not confer
 
 
any rights on a worker; but that does not affect any other right
 
 
which a worker may have.
20
 
(8)
Any provision of an access agreement that would require personal
 
 
data relating to any of the relevant workers to be disclosed to a
 
 
person other than a person appointed under paragraph 117 to
 
 
conduct a ballot is of no effect for the purposes of this Part of
 
 
this Schedule.
25
 
(9)
“Personal data” has the same meaning as in the Data Protection
 
 
Act 2018 (see section 3 of that Act).
 
 
(10)
An access agreement is to be conclusively presumed not to have
 
 
been intended by the parties to be a legally enforceable contract;
 
 
and, accordingly, where an access agreement is, or is part of, a
30
 
collective agreement, section 179(2) and (3)(a) do not apply to the
 
 
access agreement.
 
 
116E
(1)
Sub-paragraph (2) applies if—
 
 
(a)
the CAC is satisfied that a party has failed to fulfil any
 
 
of the duties imposed on that party by paragraph 116D
35
 
, and
 
 
(b)
the application under paragraph 106, 107 or 112 is in
 
 
progress.
 
 
(2)
The CAC may order the party—
 
 
(a)
to take such steps to remedy the failure as the CAC
40
 
considers reasonable and specifies in the order, and
 
 
(b)
to do so within such period as the CAC considers
 
 
reasonable and specifies in the order.
 
 
(3)
Sub-paragraphs (4) and (5) apply if—
 

Page 271

 
(a)
the CAC is satisfied that a party has failed to comply with
 
 
an order under sub-paragraph (2) , and
 
 
(b)
the application under paragraph 106, 107 or 112 is in
 
 
progress.
 
 
(4)
If the party that has failed to comply is the employer, the CAC
5
 
may—
 
 
(a)
refuse the employer’s application under paragraph 106 or
 
 
107;
 
 
(b)
order the employer to refrain from any campaigning in
 
 
relation to an application under paragraph 112.
10
 
(5)
If the party that has failed to comply is a union, the CAC may
 
 
issue a declaration that the bargaining arrangements are to cease
 
 
to have effect; and the bargaining arrangements cease to have
 
 
effect accordingly.
 
 
116F
(1)
This paragraph applies if the CAC has made an order under
15
 
paragraph 116E (4) (b) in relation to an application under paragraph
 
 
112.
 
 
(2)
The worker making the application (or each of the workers
 
 
making the application) and the union (or each of the unions)
 
 
are entitled to enforce obedience to the order.
20
 
(3)
The order may be enforced—
 
 
(a)
in England and Wales, in the same way as an order of
 
 
the county court;
 
 
(b)
in Scotland, in the same way as an order of the sheriff.
 
 
116G
(1)
Each of the powers specified in sub-paragraph (2) is to be taken
25
 
to include power to issue Codes of Practice about any matter
 
 
relating to requests for access under paragraph 116A (2) , including
 
 
(among other things)—
 
 
(a)
what access is reasonable for the purposes of paragraph
 
 
116C (4) ;
30
 
(b)
the duty in paragraph 116D (4) .
 
 
(2)
The powers are—
 
 
(a)
the power of ACAS under section 199(1);
 
 
(b)
the power of the Secretary of State under section 203(1)(a).”
 

Unfair practices

35
 
48
After paragraph 116G (inserted by paragraph 47 of this Schedule) insert—
 

“Unfair practices

 
 
116H
(1)
Each of the parties informed by the CAC under paragraph 111(5)
 
 
or 115(5) that an application under paragraph 106, 107 or 112 is
 
 
accepted must refrain from using any unfair practice in relation
40
 
to the application.
 

Page 272

 
(2)
A party uses an unfair practice if, with a view to influencing the
 
 
outcome of the application, the party does any of the following—
 
 
(a)
dismisses, or threatens to dismiss, a worker;
 
 
(b)
takes, or threatens to take, disciplinary action against a
 
 
worker;
5
 
(c)
subjects, or threatens to subject, a worker to any other
 
 
detriment;
 
 
(d)
offers to pay money, or give money’s worth, to a relevant
 
 
worker in return for the worker’s agreement to vote in a
 
 
particular way, or to abstain from voting, in a relevant
10
 
ballot;
 
 
(e)
makes an outcome-specific offer to a relevant worker;
 
 
(f)
coerces, or attempts to coerce, a relevant worker to
 
 
disclose—
 
 
(i)
whether the worker intends to vote, or to abstain
15
 
from voting, in any relevant ballot, or
 
 
(ii)
how the worker intends to vote, or has voted, in
 
 
any relevant ballot;
 
 
(g)
uses, or attempts to use, undue influence on a relevant
 
 
worker.
20
 
(3)
In sub-paragraph (2) —
 
 
(a)
“relevant ballot” means any ballot that is or may be held
 
 
in which workers are asked whether the bargaining
 
 
arrangements should be ended, and
 
 
(b)
“relevant worker” means any worker who is or would be
25
 
entitled to vote in a relevant ballot.
 
 
(4)
For the purposes of sub-paragraph (2) (e) an “outcome-specific
 
 
offer” is an offer to pay money, or give money’s worth, which—
 
 
(a)
is conditional on—
 
 
(i)
the issuing by the CAC of a declaration that the
30
 
bargaining arrangements are to cease to have effect,
 
 
or
 
 
(ii)
the refusal by the CAC of an application under
 
 
paragraph 106, 107 or 112, and
 
 
(b)
is not conditional on anything which is done or occurs as
35
 
a result of that declaration, or, as the case may be, of that
 
 
refusal.
 
 
(5)
For the purposes of this paragraph and paragraphs 116I to 116K
 
 
as they apply in relation to an application under paragraph 112,
 
 
references to a party are to be read as including references to the
40
 
worker or workers making the application.
 
 
(6)
The duty imposed by this paragraph does not confer any rights
 
 
on a worker; but that does not affect any other right which a
 
 
worker may have.
 

Page 273

 
(7)
Each of the following powers is to be taken to include power to
 
 
issue Codes of Practice about unfair practices for the purposes
 
 
of this paragraph—
 
 
(a)
the power of ACAS under section 199(1);
 
 
(b)
the power of the Secretary of State under section 203(1)(a).
5
 
116I
(1)
A party may complain to the CAC that another party has failed
 
 
to comply with paragraph 116H .
 
 
(2)
A complaint under sub-paragraph (1) may not be made after—
 
 
(a)
in the case of an application under paragraph 106 or 107,
 
 
the application is withdrawn;
10
 
(b)
in the case of an application under paragraph 112, an
 
 
agreement or withdrawal as described in paragraph 116(1);
 
 
(c)
the CAC refuses the application under paragraph
 
 
116E (4) (a), 116K (4) (a) or (6) or 119(2);
 
 
(d)
the CAC notifies the union (or unions) of a declaration
15
 
issued under paragraph 116E (5) or 116K (5) in relation to
 
 
the application;
 
 
(e)
if the CAC informs the union (or unions) under paragraph
 
 
117(11) of a ballot, the fifth working day after—
 
 
(i)
the date of the ballot, or
20
 
(ii)
if votes may be cast in the ballot on more than one
 
 
day, the last of those days.
 
 
(3)
Within the decision period the CAC must decide whether the
 
 
complaint is well-founded.
 
 
(4)
A complaint is well-founded if the CAC finds that the party
25
 
complained against used an unfair practice.
 
 
(5)
The decision period is—
 
 
(a)
the period of 10 working days starting with the day after
 
 
the day on which the complaint under sub-paragraph (1)
 
 
was received by the CAC, or
30
 
(b)
such longer period (so starting) as the CAC may specify
 
 
to the parties by a notice containing reasons for the
 
 
extension.
 
 
116J
(1)
This paragraph applies if the CAC decides that a complaint under
 
 
paragraph 116I is well-founded.
35
 
(2)
The CAC must, as soon as is reasonably practicable, issue a
 
 
declaration to that effect.
 
 
(3)
The CAC may order the party concerned to take any action
 
 
specified in the order within such period as may be so specified.
 
 
(4)
Sub-paragraph (5) applies if the CAC has at any time informed
40
 
the union (or unions) under paragraph 117(11) of a ballot in
 

Page 274

 
relation to the application (including a ballot that was cancelled
 
 
or is ineffective).
 
 
(5)
The CAC may make arrangements for the holding of a secret
 
 
ballot in which the workers constituting the bargaining unit are
 
 
asked whether the bargaining arrangements should be ended.
5
 
(6)
The CAC may make an order under sub-paragraph (3) , or make
 
 
arrangements under sub-paragraph (5) , either at the same time
 
 
as it issues the declaration under sub-paragraph (2) or at any
 
 
other time before any of the following occurs—
 
 
(a)
in the case of an application under paragraph 106 or 107,
10
 
the withdrawal of the application;
 
 
(b)
in the case of an application under paragraph 112, an
 
 
agreement or withdrawal as described in paragraph 116(1);
 
 
(c)
the CAC refusing the application under paragraph
 
 
116E (4) (a), 116K (4) (a) or (6) or 119(2);
15
 
(d)
the CAC notifying the union (or unions) of a declaration
 
 
issued under paragraph 116E (5) or 116K (5) in relation to
 
 
the application;
 
 
(e)
if the CAC informs the union (or unions) under paragraph
 
 
117(11) of a ballot, the CAC acting under paragraph 121
20
 
in relation to the ballot.
 
 
(7)
The action specified in an order under sub-paragraph (3) must
 
 
be such as the CAC considers reasonable in order to mitigate the
 
 
effect of the failure of the party concerned to comply with the
 
 
duty imposed by paragraph 116H .
25
 
(8)
The CAC may make more than one order under sub-paragraph
 
 
(3) .
 
 
116K
(1)
Sub-paragraphs (4) to (7) apply if—
 
 
(a)
the CAC issues a declaration under paragraph 116J (2) that
 
 
a complaint that a party has failed to comply with
30
 
paragraph 116H is well-founded,
 
 
(b)
the application under paragraph 106, 107 or 112 has not
 
 
been withdrawn or, in the case of an application under
 
 
paragraph 112, there has been no agreement as described
 
 
in paragraph 116(1),
35
 
(c)
the CAC has not refused the application under paragraph
 
 
116E (4) (a), 116K (4) (a) or (6) or 119(2),
 
 
(d)
the CAC has not notified the union (or unions) of a
 
 
declaration issued under paragraph 116E (5) or 116K (5) in
 
 
relation to the application, and
40
 
(e)
sub-paragraph (2) or (3) applies.
 
 
(2)
This sub-paragraph applies if the declaration states that the unfair
 
 
practice used consisted of or included—
 
 
(a)
the use of violence, or
 

Page 275

 
(b)
the dismissal of a union official.
 
 
(3)
This sub-paragraph applies if the CAC has made an order under
 
 
paragraph 116J (3) and—
 
 
(a)
it is satisfied that the party subject to the order has failed
 
 
to comply with it, or
5
 
(b)
it makes another declaration under paragraph 116J (2) in
 
 
relation to a complaint against that party.
 
 
(4)
If the party that has failed to comply is the employer, the CAC
 
 
may—
 
 
(a)
refuse the employer’s application under paragraph 106 or
10
 
107;
 
 
(b)
order the employer to refrain from any campaigning in
 
 
relation to an application under paragraph 112.
 
 
(5)
If the party that has failed to comply is a union, the CAC may
 
 
issue a declaration that the bargaining arrangements are to cease
15
 
to have effect on a date specified by the CAC in the declaration;
 
 
and the bargaining arrangements cease to have effect accordingly.
 
 
(6)
If the party that has failed to comply is the worker making an
 
 
application under paragraph 112 (or any of the workers making
 
 
an application under paragraph 112), the CAC may refuse the
20
 
application.
 
 
(7)
The powers conferred by this paragraph are in addition to those
 
 
conferred by paragraph 116J .
 
 
116L
(1)
This paragraph applies if the CAC has made an order against
 
 
the employer under paragraph 116J (3) or 116K (4) (b) in relation
25
 
to an application under paragraph 112.
 
 
(2)
The worker making the application (or each of the workers
 
 
making the application) and the union (or each of the unions)
 
 
are entitled to enforce obedience to the order.
 
 
(3)
The order may be enforced—
30
 
(a)
in England and Wales, in the same way as an order of
 
 
the county court;
 
 
(b)
in Scotland, in the same way as an order of the sheriff.”
 

Ballots

 
 
49
(1)
Paragraph 117 (ballots: general) is amended as follows.
35
 
(2)
In sub-paragraph (1), for “This paragraph” substitute “Sub-paragraph (3)”.
 
 
(3)
In sub-paragraph (2), for “This paragraph” substitute “Sub-paragraph (3)”.
 
 
(4)
In sub-paragraph (4), for “The ballot” substitute “A ballot arranged under
 
 
sub-paragraph (3), or under paragraph 116J (5) ,”.
 

Page 276

 
50
(1)
Paragraph 118 (duties of employer in relation to ballot) is amended as
 
 
follows.
 
 
(2)
In sub-paragraph (1), omit “five”.
 
 
(3)
In sub-paragraph (2)—
 
 
(a)
for “The first duty is to” substitute “The employer must”;
5
 
(b)
for “the second and third duties are not” substitute “no other duty
 
 
of the employer under this Part of this Schedule is”.
 
 
(4)
Omit sub-paragraph (3).
 
 
(5)
In sub-paragraph (4)—
 
 
(a)
in the words before paragraph (a), for “The third duty is to”
10
 
substitute “The employer must”;
 
 
(b)
in paragraph (a), for “to give” substitute “give”;
 
 
(c)
in paragraph (b), for “to give” substitute “give”;
 
 
(d)
in paragraph (c), for “to inform” substitute “inform”.
 
 
(6)
After sub-paragraph (4) insert—
15
 
“(4ZA)
If the ballot is arranged under paragraph 116J (5) , the duty under
 
 
sub-paragraph (4)(a) is limited to—
 
 
(a)
giving the CAC the names and home addresses of any
 
 
workers in the bargaining unit which have not previously
 
 
been given to it in accordance with that duty;
20
 
(b)
giving the CAC the names and home addresses of those
 
 
workers who have joined the bargaining unit since the
 
 
employer last gave the CAC information in accordance
 
 
with that duty;
 
 
(c)
informing the CAC of any change to the name or home
25
 
address of a worker whose name and home address have
 
 
previously been given to the CAC in accordance with that
 
 
duty;
 
 
(d)
informing the CAC of any worker whose name had
 
 
previously been given to it in accordance with that duty
30
 
who has ceased to be within the bargaining unit.”
 
 
(7)
Omit sub-paragraphs (4A) to (4E), (8) and (9).
 
 
51
In paragraph 119 (breach of paragraph 118), after sub-paragraph (4) insert—
 
 
“(5)
If—
 
 
(a)
the ballot has been arranged in consequence of an
35
 
application under paragraph 112,
 
 
(b)
the CAC has made an order against the employer under
 
 
sub-paragraph (1), and
 
 
(c)
the ballot has not been held,
 
 
the worker making the application (or each of the workers making
40
 
the application) and the union (or each of the unions) are entitled
 
 
to enforce obedience to the order.
 

Page 277

 
(6)
The order may be enforced—
 
 
(a)
in England and Wales, in the same way as an order of
 
 
the county court;
 
 
(b)
in Scotland, in the same way as an order of the sheriff.”
 
 
52
After paragraph 119 insert—
5
 
“119ZA
(1)
This paragraph applies if—
 
 
(a)
the union has (or unions have) been informed of a ballot
 
 
under paragraph 117(11), and
 
 
(b)
the CAC refuses an application or issues a declaration
 
 
under paragraph 116E .
10
 
(2)
If the ballot has not been held, the CAC must take steps to cancel
 
 
it.
 
 
(3)
If the ballot is held, it is to have no effect.
 
 
119ZB
(1)
This paragraph applies if—
 
 
(a)
the union has (or unions have) been informed of a ballot
15
 
under paragraph 117(11),
 
 
(b)
a complaint is made under paragraph 116I , and
 
 
(c)
the ballot did not begin before the beginning of the
 
 
decision period referred to in paragraph 116I (5) .
 
 
(2)
The CAC may by notice to the parties and the qualified
20
 
independent person postpone the date on which the ballot is to
 
 
begin until a date which falls after the end of the decision period.
 
 
(3)
In relation to an application under paragraph 112, “the parties”
 
 
includes the worker or workers making the application.
 
 
119ZC
(1)
This paragraph applies if—
25
 
(a)
the union has (or unions have) been informed of a ballot
 
 
under paragraph 117(11),
 
 
(b)
the CAC issues a declaration that a complaint under
 
 
paragraph 116I is well-founded, and
 
 
(c)
the CAC—
30
 
(i)
makes arrangements under paragraph 116J (5) ,
 
 
(ii)
refuses under paragraph 116K (4) (a) or (6) an
 
 
application under paragraph 106, 107 or 112, or
 
 
(iii)
issues a declaration under paragraph 116K (5) .
 
 
(2)
If the ballot has not been held, the CAC must take steps to cancel
35
 
it.
 
 
(3)
If the ballot is held, it is to have no effect.
 
 
119ZD
(1)
This paragraph applies if—
 
 
(a)
the CAC makes arrangements under paragraph 116J (5)
 
 
, and
40

Page 278

 
(b)
the CAC has previously given an order under paragraph
 
 
119(1) in relation to a cancelled or ineffective ballot in
 
 
connection with the application to which the notice relates.
 
 
(2)
The order has effect, to the extent that the CAC specifies in a
 
 
notice to the parties, as if it were made for the purposes of the
5
 
ballot for which arrangements are made under paragraph 116J (5) .
 
 
(3)
In relation to an application under paragraph 112, “the parties”
 
 
includes the worker or workers making the application.”
 
 
53
Omit paragraphs 119A to 119I (unfair practices during ballot).
 
 
54
(1)
Paragraph 120 (costs of ballot) is amended as follows.
10
 
(2)
In sub-paragraph (1), after “paragraph” insert “ 116J (5) or”.
 
 
(3)
After sub-paragraph (1) insert—
 
 
“(1A)
If the holding of the ballot is arranged under paragraph 116J (5)
 
 
, the gross costs of the ballot are to be borne by such of the parties
 
 
and in such proportions as the CAC may determine.
15
 
(1B)
In relation to an application under paragraph 112, “the parties”
 
 
includes the worker or workers making the application.”
 
 
(4)
In sub-paragraph (2), for “The gross costs” substitute “If the holding of the
 
 
ballot is arranged under paragraph 117(3), the gross costs”.
 
 
(5)
In sub-paragraph (4), for “the employer and the union (or each of the
20
 
unions)” substitute “the party or parties required to bear the costs”.
 
 
55
In paragraph 121 (result of ballot), for sub-paragraphs (1) and (1A)
 
 
substitute—
 
 
“(1)
The CAC must act under this paragraph as soon as reasonably
 
 
practicable after—
25
 
(a)
the CAC is informed of the result of a ballot by the person
 
 
conducting it, and
 
 
(b)
the complaint period ends.
 
 
(1ZA)
The complaint period is the period of 5 working days starting
 
 
with the day after—
30
 
(a)
the date of the ballot, or
 
 
(b)
if votes may be cast in the ballot on more than one day,
 
 
the last of those days.
 
 
(1A)
The duty in sub-paragraph (1) does not apply—
 
 
(a)
if a complaint is made under paragraph 116I , on or before
35
 
the day on which the CAC decides whether the complaint
 
 
is well-founded;
 
 
(b)
if the CAC makes arrangements under paragraph 116J (5) .”
 

Page 279

Derecognition where recognition automatic

 
 
56
In paragraph 122 (derecognition where recognition automatic on agreed
 
 
terms), in sub-paragraph (1)(a)—
 
 
(a)
for “19F(5),” substitute “ 13B (6) , 19F(5), 19K (4) , 19P (4) ,”;
 
 
(b)
for “, 27(2) or 27D(3)” substitute “or 27(2)”.
5
 
57
In paragraph 123 (derecognition where recognition automatic on specified
 
 
terms), in sub-paragraph (1)(a)—
 
 
(a)
for “19F(5),” substitute “ 13B (6) , 19F(5), 19K (4) , 19P (4) ,”;
 
 
(b)
for “, 27(2) or 27D(3)” substitute “or 27(2)”.
 
 
58
In paragraph 124 (derecognition where recognition automatic following
10
 
changes to bargaining unit), in sub-paragraph (1), after “paragraph” insert
 
 
“ 81E (4) , 81J (4) or”.
 
 
59
After paragraph 132 insert—
 

“Access agreements

 
 
132A
Paragraphs 116A to 116E apply if the CAC accepts an application
15
 
under paragraph 128 (as well as in the cases mentioned in
 
 
paragraph 116A (1) ), as if—
 
 
(a)
the references in paragraphs 116A (1) and (4) , 116B (1) (a) ,
 
 
116C (1) (a) , 116D (1) (b) and 116E (1) (b) and (3) (b) to
 
 
paragraph 106, 107 or 112 were to paragraph 106, 107, 112
20
 
or 128;
 
 
(b)
the references in paragraphs 116A(3) and 116B(3)(a) to
 
 
paragraph 111(5) or 115(5) were to paragraph 111(5), 115(5)
 
 
or 132(5);
 
 
(c)
the references in paragraphs 116A (4) (a) and 116E (4) (a) to
25
 
paragraph 106 or 107 were to paragraph 106, 107 or 128.”
 
 
60
After paragraph 132A (inserted by paragraph 59 of this Schedule) insert—
 

“Unfair practices

 
 
132B
Paragraphs 116H to 116K apply if the CAC accepts an application
 
 
under paragraph 128 (as well as in the cases mentioned in
30
 
paragraph 116H ), as if—
 
 
(a)
the references in paragraphs 116H (1) and (4) (a) (ii) and
 
 
116K (1) (b) to paragraph 106, 107 or 112 were to paragraph
 
 
106, 107, 112 or 128;
 
 
(b)
the reference in paragraph 116H (1) to paragraph 111(5)
35
 
or 115(5) were to paragraph 111(5), 115(5) or 132(5);
 
 
(c)
the references in paragraphs 116I (2) (a) , 116J (6) (a) and
 
 
116K (4) (a) to paragraph 106 or 107 were to paragraph 106,
 
 
107 or 128.”
 
 
61
(1)
Paragraph 133 (ballot on derecognition) is amended as follows.
40
 
(2)
In sub-paragraph (1), for “and (2)” substitute “, (2) and (4)”.
 

Page 280

 
(3)
In sub-paragraph (2)—
 
 
(a)
in paragraph (a), for “references in paragraphs 119(2)(a) and 119D(3)”
 
 
substitute “reference in paragraph 119(2)(a)”;
 
 
(b)
in paragraph (b), for “119A(3)(a)(ii), 119E(1)(b)” substitute
 
 
“ 119ZC (1) (c) (ii) ”.
5

Derecognition where union not independent

 
 
62
After paragraph 146 insert—
 

“Access agreements

 
 
146A
Paragraphs 116A to 116F apply if the CAC accepts an application
 
 
under paragraph 137 (as well as in the cases mentioned in
10
 
paragraph 116A (1) ), as if—
 
 
(a)
the references in paragraphs 116A (1) and (4) , 116B (1) (a) ,
 
 
116C (1) (a) , 116D (1) (b) and 116E (1) (b) and (3) (b) to
 
 
paragraph 106, 107 or 112 were to paragraph 106, 107, 112
 
 
or 137;
15
 
(b)
the references in paragraphs 116A (4) (b) , 116E (4) (b) and
 
 
116F (1) to paragraph 112 were to paragraph 112 or 137;
 
 
(c)
the references in paragraphs 116A(3) and 116B(3)(a) to
 
 
paragraph 111(5) or 115(5) were to paragraph 111(5), 115(5)
 
 
or 141(5);
20
 
(d)
the reference in paragraph 116A (4) (b) to paragraph 116(1)
 
 
were to paragraph 116(1), 142(1) or 145(3).”
 
 
63
After paragraph 146A (inserted by paragraph 62 of this Schedule) insert—
 

“Unfair practices

 
 
146B
Paragraphs 116H to 116L apply if the CAC accepts an application
25
 
under paragraph 137 (as well as in the cases mentioned in
 
 
paragraph 116H ), as if—
 
 
(a)
the references in paragraphs 116H (1) and (4) (a) (ii) and
 
 
116K (1) (b) to paragraph 106, 107 or 112 were to paragraph
 
 
106, 107, 112 or 137;
30
 
(b)
the reference in paragraph 116H (1) to paragraph 111(5)
 
 
or 115(5) were to paragraph 111(5), 115(5) or 141(5);
 
 
(c)
the references in paragraphs 116H (5) , 116I (2) (b) , 116J (6) (b) ,
 
 
116K (1) (b) , (4) (b) and (6) and 116L (1) to paragraph 112
 
 
were to paragraph 112 or 137;
35
 
(d)
the references in paragraphs 116I (2) (b) and 116J (6) (b) to
 
 
paragraph 116(1) were to paragraph 116(1), 142(1) or
 
 
145(3).”
 
 
64
(1)
Paragraph 147 (ballot on derecognition) is amended as follows.
 
 
(2)
In sub-paragraph (1), for “and (2)” substitute “, (2) and (4)”.
40

Page 281

 
(3)
In sub-paragraph (2)—
 
 
(a)
in paragraph (a), for “references in paragraphs 119H(1) and
 
 
119I(1)(a)” substitute “reference in paragraph 119(5)(a)”;
 
 
(b)
in paragraph (b), for “119A(3)(a)(ii), 119E(1)(b)” substitute
 
 
“ 119ZC (1) (c) (ii) ”;
5
 
(c)
after paragraph (c) insert—
 
 
“(d)
the reference in paragraph 119ZA (1) (b) to the CAC
 
 
refusing an application included a reference to it
 
 
being required to give notice under paragraph 146(5).”
 

Part 5

10

Meaning of “the required percentage”

 
 
65
After paragraph 171A insert—
 

““The required percentage”

 
 
171B
(1)
In this Schedule, “the required percentage” means 10%.
 
 
(2)
The Secretary of State may by regulations amend this paragraph
15
 
so that the required percentage is a percentage—
 
 
(a)
not greater than 10%, and
 
 
(b)
not less than 2%.
 
 
(3)
Regulations under sub-paragraph (2)—
 
 
(a)
are to be made by statutory instrument;
20
 
(b)
may include supplementary, incidental, saving or
 
 
transitional provision, including provision amending this
 
 
Schedule;
 
 
(c)
may make different provision for different cases.
 
 
(4)
A statutory instrument containing regulations under
25
 
sub-paragraph (2) may not be made unless a draft of the
 
 
instrument has been laid before and approved by a resolution of
 
 
each House of Parliament.”
 

Part 6

 

Consequential amendments

30
 
66
(1)
The Employment Relations Act 2004 is amended as follows.
 
 
(2)
In section 9—
 
 
(a)
omit subsections (1) to (4);
 
 
(b)
in subsection (5), for “that Schedule” substitute “Schedule A1 to the
 
 
1992 Act”;
35
 
(c)
omit subsections (6) to (9).
 
 
(3)
Omit section 10.
 

Page 282

 
(4)
Omit section 13.
 
 
(5)
In paragraph 23 of Schedule 1—
 
 
(a)
in sub-paragraph (10), omit paragraph (b) (and the “and” before it);
 
 
(b)
in sub-paragraph (11), omit paragraph (b) (and the “and” before it);
 
 
(c)
in sub-paragraph (13), omit paragraph (b) (and the “and” before it);
5
 
(d)
in sub-paragraph (14), omit paragraph (b) (and the “and” before it);
 
 
(e)
omit sub-paragraph (19);
 
 
(f)
in sub-paragraph (26), omit paragraph (a) (and the “and” after it);
 
 
(g)
in sub-paragraph (27), omit paragraph (a) (and the “and” after it).
 
 
Schedule 7
Section 93 (1)
10

Legislation subject to enforcement under Part 5

 

Part 1

 

Relevant labour market legislation

 

Employment Agencies Act 1973

 
 
1
The Employment Agencies Act 1973 (employment agencies and employment
15
 
businesses).
 
 
2
Regulations under section 5 of that Act (conduct of employment agencies
 
 
and businesses).
 

Social Security Contributions and Benefits Act 1992

 
 
3
Section 151(1) of the Social Security Contributions and Benefits Act 1992
20
 
(employer’s liability to pay statutory sick pay).
 
 
4
Regulations under section 153(5)(b) of that Act (requirement to provide
 
 
statement about entitlement).
 

Social Security Administration Act 1992

 
 
5
Regulations under section 5 of the Social Security Administration Act 1992
25
 
(regulations about claims for and payments of benefit), so far as relating
 
 
to statutory sick pay.
 
 
6
Section 14(3) of that Act (duty of employers to provide certain information
 
 
to employees in relation to statutory sick pay).
 
 
7
Regulations under section 130 of that Act (duties of employers), so far as
30
 
relating to statutory sick pay.
 

Page 283

Social Security Contributions and Benefits (Northern Ireland) Act 1992

 
 
8
Section 147(1) of the Social Security Contributions and Benefits (Northern
 
 
Ireland) Act 1992 (employer’s liability to pay statutory sick pay).
 
 
9
Regulations under section 149(5)(b) of that Act (requirement to provide
 
 
statement about entitlement).
5

Social Security Administration (Northern Ireland) Act 1992

 
 
10
Regulations under section 5 of the Social Security Administration (Northern
 
 
Ireland) Act 1992 (regulations about claims for and payments of benefit),
 
 
so far as relating to statutory sick pay.
 
 
11
Section 12(3) of that Act (duty of employers to provide certain information
10
 
to employees in relation to statutory sick pay).
 
 
12
Regulations under section 122 of that Act (duties of employers), so far as
 
 
relating to statutory sick pay.
 

Employment Tribunals Act 1996

 
 
13
Part 2A of the Employment Tribunals Act 1996 (financial penalties for
15
 
failure to pay sums ordered to be paid or settlement sums).
 

National Minimum Wage Act 1998

 
 
14
Section 1 of the National Minimum Wage Act 1998 (entitlement to the
 
 
national minimum wage).
 
 
15
Regulations under section 9 of that Act (duty of employers to keep records).
20
 
16
Section 10 of that Act (worker’s right of access to records).
 
 
17
Regulations under section 12 of that Act (employer to provide worker with
 
 
national minimum wage statement).
 
 
18
Section 17 of that Act (non-compliance: worker entitled to additional
 
 
remuneration).
25
 
19
Section 23 of that Act (right not to suffer detriment).
 
 
20
Section 31 of that Act (offences).
 

Working Time Regulations 1998

 
 
21
The following provisions of the Working Time Regulations 1998 (S.I.
 
 
1998/1833)—
30
 
(a)
regulations 13 to 15E (entitlement to annual leave, etc);
 
 
(b)
regulation 16 (right to payment in respect of periods of leave);
 
 
(c)
regulation 16A (rolled-up holiday pay for irregular hours workers
 
 
and part-year workers);
 
 
(d)
regulation 16B(1) (duty to keep records relating to annual leave
35
 
entitlement);
 

Page 284

 
(e)
regulation 29(1) (offences), so far as relating to regulation 16B(1).
 

Gangmasters (Licensing) Act 2004

 
 
22
Section 6 of the Gangmasters (Licensing) Act 2004 (prohibition of unlicensed
 
 
activities).
 
 
23
Rules under section 8 of that Act (power to make rules in connection with
5
 
licensing of persons acting as gangmasters).
 
 
24
Section 9 of that Act (modification, revocation or transfer of licence).
 
 
25
Sections 12 and 13 of that Act (offences).
 
 
26
The references in paragraphs 22 and 25 to the Gangmasters (Licensing) Act
 
 
2004 are to that Act only so far as it applies in relation to England and
10
 
Wales and Scotland.
 

Fraud Act 2006

 
 
27
Section 1 of the Fraud Act 2006, so far as relating to an offence which—
 
 
(a)
is committed under the law of England and Wales by virtue of
 
 
section 4 of that Act (fraud by abuse of position), and
15
 
(b)
is committed in relation to a worker.
 

Modern Slavery Act 2015

 
 
28
Section 1 of the Modern Slavery Act 2015 (offence of slavery, servitude and
 
 
forced or compulsory labour).
 
 
29
Sections 2 and 4 of that Act (human trafficking), so far as relating to an
20
 
offence—
 
 
(a)
which is committed in relation to a worker, or
 
 
(b)
which is otherwise committed in circumstances where subsection
 
 
(2) of section 3 of that Act applies.
 
 
30
(1)
Part 2 of that Act (prevention orders), so far as relating to—
25
 
(a)
the making of orders under that Part on the application of the
 
 
Secretary of State,
 
 
(b)
offences committed in relation to orders made under that Part on
 
 
such an application, or
 
 
(c)
offences committed in relation to orders within sub-paragraph (2).
30
 
(2)
An order is within this sub-paragraph if—
 
 
(a)
the order was made under section 14 of that Act following—
 
 
(i)
the conviction of the defendant of a relevant offence, or
 
 
(ii)
a finding of a kind mentioned in section 14(1)(b) or (c) of
 
 
that Act in connection with a relevant offence, and
35
 
(b)
the prosecution resulted from an investigation conducted by or on
 
 
behalf of the Secretary of State.
 
 
(3)
In sub-paragraph (2) “relevant offence” means—
 

Page 285

 
(a)
an offence under section 1 of the Modern Slavery Act 2015;
 
 
(b)
an offence under section 2 or 4 of that Act falling within paragraph
 
 
29 ;
 
 
(c)
an ancillary offence relating to an offence within paragraph (a) or
 
 
(b).
5

Employment Rights Act 2025

 
 
31
Section 50 (2) of this Act (entitlement of social care workers to be paid in
 
 
accordance with ratified agreements of Negotiating Body).
 
 
32
Section 51 (5) (entitlement of social care workers to be paid in accordance
 
 
with regulations made by Secretary of State, etc).
10
 
33
Sections 122 to 132 and 142 (LME undertakings and orders).
 
 
34
Sections 143 and 145 (offences relating to Part 5).
 

Part 2

 

Power to amend Part 1

 
 
35
(1)
The Secretary of State may by regulations amend Part 1 of this Schedule
15
 
in order to—
 
 
(a)
add an enactment to the list of legislation in that Part, or
 
 
(b)
vary a reference to an enactment in that list.
 
 
(2)
Regulations under this paragraph may add an enactment only if it relates
 
 
to—
20
 
(a)
rights or entitlements conferred on employees or workers;
 
 
(b)
the treatment of employees or workers;
 
 
(c)
requirements, restrictions or prohibitions imposed on employers;
 
 
(d)
trade unions, employers’ associations, industrial action or labour
 
 
relations.
25
 
(3)
Regulations under this paragraph may not add an enactment that deals
 
 
with a transferred matter, or vary a reference to such an enactment, without
 
 
the consent of the appropriate Northern Ireland department.
 
 
(4)
For the purposes of sub-paragraph (3) —
 
 
“the appropriate Northern Ireland department” , in relation to an
30
 
enactment that deals with a transferred matter, means the Northern
 
 
Ireland department which has responsibility for that matter;
 
 
“deals with” is to be read in accordance with section 98(2) and (3) of
 
 
the Northern Ireland Act 1998;
 
 
“transferred matter” has the meaning given by section 4(1) of that Act.
35
 
(5)
Regulations under this paragraph may amend any of the following
 
 
provisions in consequence of an amendment of Part 1 of this Schedule—
 
 
(a)
section 94 (enforcement functions of Secretary of State);
 
 
(b)
section 95 (delegation of functions);
 

Page 286

 
(c)
section 106 (power to give notice of underpayment);
 
 
(d)
section 153 (meaning of “non-compliance with relevant labour market
 
 
legislation”).
 
 
(6)
Regulations under this paragraph that add an enactment which—
 
 
(a)
confers a right or entitlement to the payment of any sum to an
5
 
individual, or
 
 
(b)
prohibits or restricts the withholding of payment of any sum to an
 
 
individual,
 
 
may provide that a notice of underpayment relating to sums due under or
 
 
by virtue of the enactment may relate to sums becoming due before the
10
 
coming into force of the regulations.
 
 
(7)
Regulations under this paragraph are subject to the affirmative resolution
 
 
procedure.
 
 
Schedule 8
Section 134 (5)
 

Warrants under Part 5: further provision

15

Part 1

 

Application of this Schedule

 
 
1
This Schedule applies in relation to—
 
 
(a)
applications for warrants under section 101 or 105 , and
 
 
(b)
warrants issued under section 101 or 105 .
20

Part 2

 

Warrants: applications and safeguards

 

Applications for warrants

 
 
2
(1)
Where an enforcement officer applies for a warrant, the officer must—
 
 
(a)
state the ground on which the application is made,
25
 
(b)
state the provision of this Act under which the warrant would be
 
 
issued,
 
 
(c)
specify the premises which it is desired to enter, and
 
 
(d)
identify, so far as is practicable, the purpose for which entry is
 
 
desired.
30
 
(2)
An application for a warrant must be made without notice and must be
 
 
supported by an information in writing or, in Scotland, evidence on oath.
 
 
(3)
The officer must answer on oath any question that the justice hearing the
 
 
application asks the officer.
 

Page 287

Safeguards in connection with power of entry conferred by warrant

 
 
3
A warrant authorises an entry on one occasion only.
 
 
4
(1)
A warrant must specify—
 
 
(a)
the name of the person who applies for it,
 
 
(b)
the date on which it is issued,
5
 
(c)
the provision of this Act under which it is issued, and
 
 
(d)
the premises to be entered.
 
 
(2)
A warrant must identify, so far as is practicable, the purpose for which
 
 
entry is desired.
 
 
5
(1)
Two copies are to be made of a warrant.
10
 
(2)
In the case of a warrant issued in electronic form, the copies must be clearly
 
 
marked as copies.
 
 
(3)
In the case of a warrant issued otherwise than in electronic form, the copies
 
 
must be clearly certified as copies.
 

Part 3

15

Execution of warrants

 

Warrant to be executed within three months

 
 
6
Execution of a warrant must be within three months from the date of its
 
 
issue.
 

Time of entry

20
 
7
Execution of a warrant must be at a reasonable time, unless it appears to
 
 
the officer executing it that there are grounds for suspecting that the purpose
 
 
of entering the premises may be frustrated if the officer seeks to enter at
 
 
a reasonable time.
 

Evidence of authority etc

25
 
8
(1)
Where the occupier of premises to be entered under a warrant is present
 
 
at the time when an enforcement officer seeks to execute the warrant, the
 
 
following requirements must be satisfied—
 
 
(a)
the officer must produce to the occupier documentary evidence of
 
 
the fact that the officer is an enforcement officer;
30
 
(b)
if the officer is asked for it, the occupier must be told the officer’s
 
 
name;
 
 
(c)
the officer must produce the warrant to the occupier;
 
 
(d)
the officer must supply the occupier with a copy of the warrant
 
 
that is marked or certified as a copy in accordance with paragraph
35
 
5 .
 
 
(2)
Where—
 

Page 288

 
(a)
the occupier of premises to be entered under a warrant is not present
 
 
when an enforcement officer seeks to execute it, but
 
 
(b)
some other person who appears to the officer to be in charge of the
 
 
premises is present,
 
 
sub-paragraph (1) has effect as if any reference to the occupier were a
5
 
reference to that other person.
 
 
(3)
If there is no person present who appears to the enforcement officer to be
 
 
in charge of the premises, the officer must leave a copy of the warrant,
 
 
marked or certified as a copy in accordance with paragraph 5 , in a
 
 
prominent place on the premises.
10

Securing premises after entry

 
 
9
An enforcement officer who enters premises under a warrant must take
 
 
reasonable steps to ensure that when the officer leaves the premises they
 
 
are as secure as they were before the officer entered.
 

Return and retention of warrants

15
 
10
(1)
A warrant which—
 
 
(a)
has been executed, or
 
 
(b)
has not been executed within the time authorised for its execution,
 
 
must be returned to the appropriate person.
 
 
(2)
For the purposes of sub-paragraph (1) the appropriate person is—
20
 
(a)
in the case of a warrant issued in England and Wales, the designated
 
 
officer for the local justice area in which the justice was acting when
 
 
the warrant was issued;
 
 
(b)
in the case of a warrant issued in Scotland by a justice of the peace,
 
 
the clerk of the justice of the peace court in the sheriffdom for which
25
 
the justice of the peace was appointed;
 
 
(c)
in the case of a warrant issued in Scotland by a sheriff or a summary
 
 
sheriff, the sheriff clerk;
 
 
(d)
in the case of a warrant issued in Northern Ireland, the clerk of
 
 
petty sessions.
30
 
(3)
A warrant that is returned under this paragraph must be retained by the
 
 
person to whom it is returned for a period of 12 months.
 
 
(4)
If during that period the occupier of the premises to which the warrant
 
 
relates asks to inspect it, the occupier must be allowed to do so.
 

Page 289

 
Schedule 9
Section 138 (5)
 

Persons to whom information may be disclosed under section

 

Authorities with functions in connection with the labour market or the workplace etc

 
 
The Commissioners for His Majesty’s Revenue and Customs.
 
 
The Health and Safety Executive.
5
 
An enforcing authority within the meaning of Part 1 of the Health and Safety
 
 
at Work etc. Act 1974 (see section 18(7) of that Act).
 
 
An inspector appointed by such an enforcing authority (see section 19 of that
 
 
Act).
 
 
An officer acting for the purposes of Part 2 of the Employment (Miscellaneous
10
 
Provisions) (Northern Ireland) Order 1981 (S.I. 1981/839 (N.I. 20)).
 
 
An enforcement authority within the meaning of regulation 28 of the Working
 
 
Time Regulations 1998 (S.I. 1998/1833).
 
 
An inspector appointed by such an enforcement authority (see Schedule 3 to
 
 
those Regulations).
15
 
The Advisory, Conciliation and Arbitration Service.
 
 
The Low Pay Commission.
 
 
The Pensions Regulator.
 
 
The Pensions Ombudsman.
 
 
The Security Industry Authority.
20

Law enforcement and border security

 
 
A chief officer of police of a police force maintained for a police area in England
 
 
and Wales.
 
 
A local policing body.
 
 
The Chief Constable of the British Transport Police Force.
25
 
The chief constable of the Police Service of Scotland.
 
 
The Chief Constable of the Police Service of Northern Ireland.
 
 
The National Crime Agency.
 
 
A person appointed as an immigration officer under paragraph 1 of Schedule
 
 
2 to the Immigration Act 1971.
30

Local government

 
 
A county council or district council in England.
 
 
A London borough council.
 
 
The Greater London Authority.
 

Page 290

 
The Common Council of the City of London in its capacity as a local authority.
 
 
The Council of the Isles of Scilly.
 
 
A county council or county borough council in Wales.
 
 
A council constituted under section 2 of the Local Government etc. (Scotland)
 
 
Act 1994.
5
 
A district council in Northern Ireland.
 

Health and social care bodies

 
 
The Care Quality Commission.
 
 
A National Health Service trust established under section 25 of the National
 
 
Health Service Act 2006 or section 18 of the National Health Service (Wales)
10
 
Act 2006.
 
 
An NHS foundation trust within the meaning given by section 30 of the National
 
 
Health Service Act 2006.
 
 
A Local Health Board established under section 11 of the National Health
 
 
Service (Wales) Act 2006.
15
 
A Health Board constituted under section 2 of the National Health Service
 
 
(Scotland) Act 1978.
 
 
A Special Health Board constituted under that section.
 
 
Healthcare Improvement Scotland.
 
 
Social Care Wales.
20
 
Social Care and Social Work Improvement Scotland.
 
 
The Scottish Social Services Council.
 
 
The Health and Social Care Regulation and Quality Improvement Authority
 
 
in Northern Ireland.
 

Other persons

25
 
The Equality and Human Rights Commission.
 
 
The Independent Anti-slavery Commissioner.
 
 
The Welsh Ministers.
 
 
A Northern Ireland department.
 

Page 291

 
Schedule 10
Section 152 (1)
 

Consequential amendments relating to Part

 

Part 1

 

Existing powers under relevant labour market legislation

 

Employment Agencies Act 1973

5
 
1
The Employment Agencies Act 1973 is amended as follows.
 
 
2
Omit section 8A (appointment of officers).
 
 
3
Omit section 9 (inspection).
 
 
4
(1)
Section 11A (offences: extension of time limit) is amended as follows.
 
 
(2)
In subsection (1), omit “9(4)(b) or”.
10
 
(3)
In subsection (3), omit “9(4)(b) or”.
 

Part 2A of Employment Tribunals Act 1996

 
 
5
Part 2A of the Employment Tribunals Act 1996 (financial penalties for
 
 
failure to pay sums ordered to be paid or settlement sums) is amended as
 
 
follows.
15
 
6
In section 37D (unpaid amount of relevant sum: further provision), in
 
 
subsection (6), for “an enforcement officer” substitute “the Secretary of
 
 
State”.
 
 
7
(1)
Section 37E (warning notice) is amended as follows.
 
 
(2)
In subsection (1), for “an enforcement officer” substitute “the Secretary of
20
 
State”.
 
 
(3)
In subsection (2)—
 
 
(a)
for “officer” substitute “Secretary of State”;
 
 
(b)
for “officer’s” substitute “Secretary of State’s”.
 
 
(4)
In subsection (3), for “officer” substitute “Secretary of State”.
25
 
8
(1)
Section 37F (penalty notice) is amended as follows.
 
 
(2)
In subsection (1), for “an enforcement officer” substitute “the Secretary of
 
 
State”.
 
 
(3)
In subsection (2), for “officer” substitute “Secretary of State”.
 
 
9
In section 37G (appeal against penalty notice), in subsection (3)(b), for
30
 
“enforcement officer” substitute “Secretary of State”.
 
 
10
In section 37I (withdrawal of warning notice), in subsection (1)—
 
 
(a)
in paragraph (b), for “an enforcement officer” substitute “the
 
 
Secretary of State”;
 
 
(b)
in the closing words, for “officer” substitute “Secretary of State”.
35

Page 292

 
11
In section 37J (withdrawal of penalty notice), in subsection (1)—
 
 
(a)
in paragraph (b), for “an enforcement officer” substitute “the
 
 
Secretary of State”;
 
 
(b)
in the closing words, for “officer” substitute “Secretary of State”.
 
 
12
In section 37K (replacement penalty notice), in subsection (1)—
5
 
(a)
for “an enforcement officer” substitute “the Secretary of State”;
 
 
(b)
for “the officer” substitute “the Secretary of State”.
 
 
13
Omit section 37M (enforcement officers).
 
 
14
In section 37O (modification in particular cases), in subsection (4)(a), for
 
 
“enforcement officer” substitute “Secretary of State”.
10
 
15
In section 37P (giving of notices), in subsection (1)(a), for “an enforcement
 
 
officer” substitute “the Secretary of State”.
 
 
16
In section 37Q(1) (interpretation), omit the definition of “enforcement
 
 
officer”.
 

National Minimum Wage Act 1998

15
 
17
The National Minimum Wage Act 1998 is amended as follows.
 
 
18
Omit section 13 (appointment of officers) and the italic heading before that
 
 
section.
 
 
19
Omit section 14 (powers of officers).
 
 
20
Omit section 15 (information obtained by officers).
20
 
21
Omit section 16 (information obtained by agricultural wages officers).
 
 
22
In section 16A (disclosure of information by officers), in subsection (5)—
 
 
(a)
in the definition of “enforcement officer”, omit paragraph (a) (and
 
 
the “or” after it);
 
 
(b)
in the definition of “the relevant legislation”, omit paragraph (a)
25
 
(and the “and” after it).
 
 
23
Omit sections 19 to 19H (notices of underpayment).
 
 
24
In section 31 (offences), omit subsection (5).
 

Gangmasters (Licensing) Act 2004

 
 
25
The Gangmasters (Licensing) Act 2004 is amended as follows.
30
 
26
Omit the italic heading before section 1.
 
 
27
Omit section 2 (directions etc to the Gangmasters and Labour Abuse
 
 
Authority).
 
 
28
In section 3 (work to which Act applies), for subsection (6) substitute—
 
 
“(6)
Before making regulations under subsection (5), the Secretary of
35
 
State must consult the Advisory Board established under section 96
 
 
of the Employment Rights Act 2025.”
 

Page 293

 
29
(1)
Section 7 (grant of licence) is amended as follows.
 
 
(2)
In subsection (1)—
 
 
(a)
for “Authority” substitute “Secretary of State”;
 
 
(b)
for “it” substitute “the Secretary of State”.
 
 
(3)
In subsection (2), for “Authority” substitute “Secretary of State”.
5
 
(4)
In subsection (5), for “Authority” substitute “Secretary of State”.
 
 
30
(1)
Section 8 (general power to make rules) is amended as follows.
 
 
(2)
In the heading, omit “of Authority”.
 
 
(3)
In subsection (1)—
 
 
(a)
for the words from the beginning to “State” substitute “The Secretary
10
 
of State may”;
 
 
(b)
for “it” substitute “the Secretary of State”.
 
 
31
(1)
Section 9 (modification, revocation or transfer of licence) is amended as
 
 
follows.
 
 
(2)
In subsection (1)—
15
 
(a)
for “Authority” substitute “Secretary of State”;
 
 
(b)
in paragraph (b), for “him” substitute “the Secretary of State”.
 
 
(3)
In subsection (2), for “Authority” substitute “Secretary of State”.
 
 
(4)
In subsection (3), for “Authority”, in both places it occurs, substitute
 
 
“Secretary of State”.
20
 
32
In section 10 (appeals), in subsection (1), for “Authority” substitute
 
 
“Secretary of State”.
 
 
33
(1)
Section 11 (register of licences) is amended as follows.
 
 
(2)
In subsection (1), for “The Authority shall establish and” substitute “The
 
 
Secretary of State must”.
25
 
(3)
In subsection (2), for “Authority” substitute “Secretary of State”.
 
 
(4)
In subsection (3), for “Authority” substitute “Secretary of State”.
 
 
34
In section 12 (offences: acting as a gangmaster, etc), in subsection (6)(b),
 
 
for “Authority” substitute “Gangmasters and Labour Abuse Authority or
 
 
the Secretary of State”.
30
 
35
(1)
Section 14 (offences: supplementary provisions) is amended as follows.
 
 
(2)
In subsection (1), for “section 24A of the Police and Criminal Evidence Act
 
 
1984 (c. 60)” substitute “Article 26A of the Police and Criminal Evidence
 
 
Act (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))”.
 
 
(3)
Omit subsection (2A).
35
 
(4)
In subsection (3), after “do not apply” insert “in England and Wales or”.
 
 
36
(1)
Section 15 (enforcement and compliance officers) is amended as follows.
 
 
(2)
For the heading substitute “Enforcement officers: Northern Ireland”.
 

Page 294

 
(3)
In subsection (1)—
 
 
(a)
for “Secretary of State” substitute “Department of Agriculture,
 
 
Environment and Rural Affairs in Northern Ireland (“the
 
 
Department”)”;
 
 
(b)
after “this Act” insert “, so far as it applies in relation to Northern
5
 
Ireland”.
 
 
(4)
In subsection (2), for “Secretary of State” substitute “Department”.
 
 
(5)
In subsection (3)—
 
 
(a)
omit paragraph (a);
 
 
(b)
after paragraph (b) insert—
10
 
“(ba)
any Minister within the meaning of the Northern
 
 
Ireland Act 1998 or any Northern Ireland
 
 
department,”;
 
 
(c)
omit paragraphs (c) and (d).
 
 
(6)
After subsection (3) insert—
15
 
“(3A)
Arrangements made under subsection (2) with a relevant authority
 
 
within paragraph (b) or (e) of subsection (3) may provide for
 
 
payments to be made by the Department in respect of the
 
 
performance of any function to which the arrangements relate.
 
 
(3B)
Any sums received by virtue of subsection (3A) by a Minister of
20
 
the Crown or government department are to be paid into the
 
 
Consolidated Fund.”
 
 
(7)
Omit subsection (4).
 
 
(8)
In subsection (5), omit “or a compliance officer”.
 
 
(9)
In subsection (6), omit “or a compliance officer”.
25
 
(10)
After subsection (6) insert—
 
 
“(6ZA)
For powers to enforce this Act so far as it applies in relation to
 
 
England and Wales and Scotland, see Part 5 of the Employment
 
 
Rights Act 2025.”
 
 
(11)
Omit subsection (6A).
30
 
37
(1)
Section 16 (powers of officers) is amended as follows.
 
 
(2)
Omit subsection (A1).
 
 
(3)
In subsection (1), omit “or a compliance officer”.
 
 
38
(1)
Section 17 (entry by warrant) is amended as follows.
 
 
(2)
Omit subsection (A1).
35
 
(3)
In subsection (1), for “written information” substitute “a written complaint”.
 

Page 295

 
(4)
After subsection (4) insert—
 
 
“(4A)
In this section a reference to section 6 is a reference to that section
 
 
only so far as it applies in relation to Northern Ireland.”
 
 
(5)
Omit subsection (5).
 
 
39
(1)
Section 18 (obstruction of officers) is amended as follows.
5
 
(2)
In subsection (1)(a)—
 
 
(a)
omit “or compliance officer”;
 
 
(b)
omit the words from “or functions” to “officers)”.
 
 
(3)
In subsection (2), omit “or compliance officer”.
 
 
(4)
In subsection (3)—
10
 
(a)
omit paragraph (a);
 
 
(b)
in paragraph (b), omit “Scotland or”;
 
 
(c)
omit the words after paragraph (b).
 
 
40
(1)
Section 19 (information relating to gangmasters) is amended as follows.
 
 
(2)
In subsection (1)—
15
 
(a)
omit paragraph (aa) (but not the “and” after it);
 
 
(b)
in paragraph (b), before sub-paragraph (i) insert—
 
 
“(zi)
the enforcement of this Act so far as it applies
 
 
in relation to England and Wales and
 
 
Scotland,”.
20
 
(3)
In subsection (1A), omit paragraph (b) (and the “and” before it).
 
 
(4)
Omit subsection (1B).
 
 
(5)
In subsection (2)—
 
 
(a)
for “subsection (1)(aa) or (b)” substitute “subsection (1)(b)”;
 
 
(b)
after “supplied to” insert “, or used by,”.
25
 
41
Omit section 22A (relationship with other agencies: requests for assistance).
 
 
42
Omit section 24 (financial provision).
 
 
43
(1)
Section 25 (regulations, rules and orders) is amended as follows.
 
 
(2)
In subsection (3), after “regulations” insert “, rules”.
 
 
(3)
Omit subsection (4).
30
 
(4)
In subsection (5)—
 
 
(a)
omit paragraph (a);
 
 
(b)
omit paragraph (c) (and the “or” before it).
 
 
(5)
In subsection (6)(b), omit “made by the Authority” and “of Authority”.
 
 
44
Omit Schedule 1 (consequential amendments of enactments).
35
 
45
(1)
Schedule 2 (application of Act to Northern Ireland) is amended as follows.
 
 
(2)
Omit paragraphs 3 to 6.
 

Page 296

 
(3)
In paragraph 9 (grant of licences), for “Authority” substitute “Secretary of
 
 
State”.
 
 
(4)
In the italic heading before paragraph 10, omit “of Authority”.
 
 
(5)
In paragraph 10 (general power to make rules)—
 
 
(a)
in sub-paragraph (1), omit “of Authority”;
5
 
(b)
omit sub-paragraph (2);
 
 
(c)
in sub-paragraph (3), for “Authority” substitute “Secretary of State”.
 
 
(6)
For paragraph 11 substitute—
 
 
“11
Regulations under section 10 that make provision for appeals
 
 
against decisions made in connection with Northern Ireland
10
 
licences may, if the relevant Northern Ireland department so
 
 
agrees, confer functions on the relevant Northern Ireland
 
 
department.”
 
 
(7)
In paragraph 12 (register of licences), for “The Authority shall establish
 
 
and” substitute “The Secretary of State must”.
15
 
(8)
Omit paragraph 14 (offences: supplementary provision).
 
 
(9)
Omit paragraph 15 (enforcement and compliance officers).
 
 
(10)
Omit paragraph 16 (entry by warrant).
 
 
(11)
In paragraph 16A (information relating to gangmasters), in sub-paragraph
 
 
(1), omit paragraphs (a) and (b) (and the “and” before paragraph (c)).
20
 
(12)
Omit paragraph 16B (relationship with other agencies: requests for
 
 
assistance).
 
 
(13)
Omit paragraph 18 (financial provision).
 

Modern Slavery Act 2015

 
 
46
The Modern Slavery Act 2015 is amended as follows.
25
 
47
Omit section 11A (enforcement of Part 1 by Gangmasters and Labour Abuse
 
 
Authority).
 
 
48
(1)
Section 15 (slavery and trafficking prevention orders on application) is
 
 
amended as follows.
 
 
(2)
In subsection (1), for paragraph (d) substitute—
30
 
“(ca)
if it appears that an offence under this Part which is a labour
 
 
market offence has been, is being or may be committed, the
 
 
Secretary of State.”
 
 
(3)
In subsection (7)—
 
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
35
 
of State”;
 
 
(b)
for “the Authority” substitute “the Secretary of State”.
 
 
(4)
In subsection (8)(b)—
 

Page 297

 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
 
 
(b)
for “the Authority” substitute “the Secretary of State”.
 
 
49
In section 19 (requirement to provide name and address), in subsection
 
 
(7)—
5
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
 
 
(b)
for “the Authority” substitute “the Secretary of State”.
 
 
50
(1)
Section 20 (variation, renewal and discharge) is amended as follows.
 
 
(2)
In subsection (2)(g), for “the Gangmasters and Labour Abuse Authority,
10
 
the Authority” substitute “the Secretary of State, the Secretary of State”.
 
 
(3)
In subsection (9)—
 
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
 
 
(b)
for “the Authority”, in both places it occurs, substitute “the Secretary
15
 
of State”.
 
 
51
(1)
Section 23 (slavery and trafficking risk orders) is amended as follows.
 
 
(2)
In subsection (1), for paragraph (d) substitute—
 
 
“(ca)
if it appears that an offence under this Part which is a labour
 
 
market offence has been, is being or may be committed, the
20
 
Secretary of State.”
 
 
(3)
In subsection (6)—
 
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
 
 
(b)
for “the Authority” substitute “the Secretary of State”.
25
 
(4)
In subsection (7)(b)—
 
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
 
 
(b)
for “the Authority” substitute “the Secretary of State”.
 
 
52
In section 26 (requirement to provide name and address), in subsection
30
 
(7)—
 
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
 
 
(b)
for “the Authority” substitute “the Secretary of State”.
 
 
53
(1)
Section 27 (variation, renewal and discharge) is amended as follows.
35
 
(2)
In subsection (2)(g), for “the Gangmasters and Labour Abuse Authority,
 
 
the Authority” substitute “the Secretary of State, the Secretary of State”.
 
 
(3)
In subsection (7)—
 
 
(a)
for “Gangmasters and Labour Abuse Authority” substitute “Secretary
 
 
of State”;
40

Page 298

 
(b)
for “the Authority”, in both places it occurs, substitute “the Secretary
 
 
of State”.
 
 
54
Omit section 30A (enforcement of Part 2 by Gangmasters and Labour Abuse
 
 
Authority).
 
 
55
In section 33 (guidance), in subsection (1), for “, the Director General of
5
 
the National Crime Agency and the Gangmasters and Labour Abuse
 
 
Authority” substitute “and the Director General of the National Crime
 
 
Agency”.
 
 
56
In section 34 (interpretation of Part 2), in subsection (1), after the definition
 
 
of “interim slavery and trafficking risk order” insert—
10
 
““labour market offence” has the same meaning as in Part 5 of the
 
 
Employment Rights Act 2025;”.
 

Part 2

 

Other consequential amendments

 

Public Records Act 1958

15
 
57
In Schedule 1 to the Public Records Act 1958 (definition of public records),
 
 
in Part 2 of the Table at the end of paragraph 3, omit the entry relating to
 
 
the Gangmasters and Labour Abuse Authority.
 

Parliamentary Commissioner Act 1967

 
 
58
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments
20
 
etc subject to investigation), omit the entries relating to—
 
 
(a)
the Director of Labour Market Enforcement, and
 
 
(b)
the Gangmasters and Labour Abuse Authority.
 

Superannuation Act 1972

 
 
59
In Schedule 1 to the Superannuation Act 1972 (kinds of employment to
25
 
which that Act applies), omit the entries relating to—
 
 
(a)
the Director of Labour Market Enforcement, and
 
 
(b)
the Gangmasters and Labour Abuse Authority.
 

House of Commons Disqualification Act 1975

 
 
60
In Schedule 1 to the House of Commons Disqualification Act 1975 (offices
30
 
disqualifying for membership)—
 
 
(a)
in Part 2, omit the entry relating to the Gangmasters and Labour
 
 
Abuse Authority;
 
 
(b)
in Part 3, omit the entry relating to the Director of Labour Market
 
 
Enforcement.
35

Page 299

Northern Ireland Assembly Disqualification Act 1975

 
 
61
In Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975
 
 
(offices disqualifying for membership)—
 
 
(a)
in Part 2, omit the entry relating to the Gangmasters and Labour
 
 
Abuse Authority;
5
 
(b)
in Part 3, omit the entry relating to the Director of Labour Market
 
 
Enforcement.
 

Employment Protection Act 1975

 
 
62
In Schedule 13 to the Employment Protection Act 1975, omit paragraph 6.
 

Police and Criminal Evidence Act 1984

10
 
63
(1)
Section 114B of the Police and Criminal Evidence Act 1984 (application of
 
 
Act to labour abuse prevention officers) is amended as follows.
 
 
(2)
In the heading, for “labour abuse prevention officers” substitute
 
 
“enforcement officers”.
 
 
(3)
In subsection (1), for “labour abuse prevention officers” substitute
15
 
“enforcement officers”.
 
 
(4)
Omit subsections (3), (4), (8) and (9).
 
 
(5)
In subsection (10), for “Any other” substitute “A”.
 
 
(6)
For subsection (11) substitute—
 
 
“(11)
In this section—
20
 
“enforcement officer” has the meaning given by section 93 (3)
 
 
of the Employment Rights Act 2025;
 
 
“labour market offence” has the same meaning as in Part 5 of
 
 
that Act (see section 154 (1) of that Act).”
 

Companies Act 1985

25
 
64
In Schedule 15C to the Companies Act 1985, omit paragraph 7D.
 

Trade Union and Labour Relations (Consolidation) Act 1992

 
 
65
In section 251B of the Trade Union and Labour Relations (Consolidation)
 
 
Act 1992 (prohibition on disclosure of information), in subsection (2), omit
 
 
paragraph (ca).
30

Criminal Justice and Public Order Act 1994

 
 
66
(1)
The Criminal Justice and Public Order Act 1994 is amended as follows.
 
 
(2)
In section 36 (effect of accused’s failure or refusal to account for objects,
 
 
substances or marks), after subsection (5) insert—
 
 
“(5A)
This section applies in relation to enforcement officers who—
35

Page 300

 
(a)
are appointed by the Secretary of State under section 93 of
 
 
the Employment Rights Act 2025, and
 
 
(b)
are acting in the exercise of functions conferred on them by
 
 
virtue of section 114B of the Police and Criminal Evidence
 
 
Act 1984,
5
 
as it applies in relation to constables.”
 
 
(3)
In section 37 (effect of accused’s failure or refusal to account for presence
 
 
at a particular place), after subsection (4) insert—
 
 
“(4A)
This section applies in relation to enforcement officers who—
 
 
(a)
are appointed by the Secretary of State under section 93 of
10
 
the Employment Rights Act 2025, and
 
 
(b)
are acting in the exercise of functions conferred on them by
 
 
virtue of section 114B of the Police and Criminal Evidence
 
 
Act 1984,
 
 
as it applies in relation to constables.”
15

Deregulation and Contracting Out Act 1994

 
 
67
In Schedule 10 to the Deregulation and Contracting Out Act 1994, omit
 
 
paragraph 1(4).
 

Employment Tribunals Act 1996

 
 
68
(1)
The Employment Tribunals Act 1996 is amended as follows.
20
 
(2)
In section 18 (conciliation: relevant proceedings etc), in subsection (1)(c),
 
 
omit “, 19D(1)(a)”.
 
 
(3)
In section 19A (conciliation: recovery of sums payable under settlements),
 
 
omit subsection (10A).
 
 
(4)
In section 21 (jurisdiction of Employment Appeal Tribunal), in subsection
25
 
(1), after paragraph (ge) insert—
 
 
“(gf)
Part 5 of the Employment Rights Act 2025,”.
 

Employment Relations Act 1999

 
 
69
In Schedule 7 to the Employment Relations Act 1999, omit paragraph 4.
 

Immigration and Asylum Act 1999

30
 
70
In Schedule A1 to the Immigration and Asylum Act 1999, omit paragraph
 
 
17.
 

Finance Act 2000

 
 
71
In the Finance Act 2000, omit section 148 (use of minimum wage
 
 
information).
35

Page 301

Regulation of Investigatory Powers Act 2000

 
 
72
In Part 1 of Schedule 1 to the Regulation of Investigatory Powers Act 2000
 
 
(relevant public authorities for purposes of sections 28 and 29 of that Act),
 
 
omit paragraph 20E.
 

Freedom of Information Act 2000

5
 
73
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (bodies etc
 
 
that are public authorities for the purposes of the Act), omit the entries
 
 
relating to—
 
 
(a)
the Director of Labour Market Enforcement, and
 
 
(b)
the Gangmasters and Labour Abuse Authority.
10

Police Reform Act 2002

 
 
74
(1)
The Police Reform Act 2002 is amended as follows.
 
 
(2)
In section 10 (general functions of Director General of Independent Office
 
 
for Police Conduct)—
 
 
(a)
in subsection (1), for paragraph (ga) substitute—
15
 
“(ga)
to carry out such corresponding functions in relation
 
 
to enforcement officers (within the meaning of Part
 
 
5 of the Employment Rights Act 2025) acting in the
 
 
exercise of functions conferred on them by virtue of
 
 
section 114B of the Police and Criminal Evidence Act
20
 
1984;”;
 
 
(b)
in subsection (3)—
 
 
(i)
after paragraph (bc) insert—
 
 
“(bca)
any regulations under section 26CA of this
 
 
Act (enforcement officers appointed under
25
 
Employment Rights Act 2025);”;
 
 
(ii)
omit paragraph (bd).
 
 
(3)
After section 26C insert—
 
 
“26CA
Enforcement officers appointed under Employment Rights Act
 
 
2025
30
 
(1)
The Secretary of State may make regulations conferring functions
 
 
on the Director General in relation to enforcement officers acting in
 
 
the exercise of functions conferred on them by virtue of section 114B
 
 
of the Police and Criminal Evidence Act 1984.
 
 
(2)
In this section “enforcement officer” means a person appointed by
35
 
the Secretary of State under section 93 of the Employment Rights
 
 
Act 2025.
 
 
(3)
Regulations under this section may, in particular—
 

Page 302

 
(a)
apply (with or without modifications), or make provision
 
 
similar to, any provision of or made under this Part;
 
 
(b)
make provision for payment by the Secretary of State to, or
 
 
in respect of, the Office or in respect of the Director General.
 
 
(4)
The Director General and the Parliamentary Commissioner for
5
 
Administration may jointly investigate a matter in relation to
 
 
which—
 
 
(a)
the Director General has functions by virtue of this section,
 
 
and
 
 
(b)
the Parliamentary Commissioner for Administration has
10
 
functions by virtue of the Parliamentary Commissioner Act
 
 
1967.
 
 
(5)
The Secretary of State or an enforcement officer may disclose
 
 
information to the Director General, or to a person acting on the
 
 
Director General’s behalf, for the purposes of the exercise by the
15
 
Director General, or by any person acting on the Director General’s
 
 
behalf, of a relevant complaints function.
 
 
(6)
The Director General and the Parliamentary Commissioner for
 
 
Administration may disclose information to each other for the
 
 
purposes of the exercise of a function—
20
 
(a)
by virtue of this section, or
 
 
(b)
under the Parliamentary Commissioner Act 1967.
 
 
(7)
Regulations under this section may, in particular, make—
 
 
(a)
further provision about the disclosure of information under
 
 
subsection (5) or (6);
25
 
(b)
provision about the further disclosure of information that
 
 
has been so disclosed.
 
 
(8)
A disclosure of information authorised by this section does not
 
 
breach—
 
 
(a)
any obligation of confidence owed by the person making
30
 
the disclosure, or
 
 
(b)
any other restriction on the disclosure of information
 
 
(however imposed).
 
 
(9)
But this section does not authorise a disclosure of information that—
 
 
(a)
would contravene the data protection legislation (but in
35
 
determining whether a disclosure would do so, the power
 
 
conferred by this section is to be taken into account), or
 
 
(b)
is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9
 
 
of the Investigatory Powers Act 2016.
 
 
(10)
In this section—
40
 
“the data protection legislation” has the same meaning as in
 
 
the Data Protection Act 2018 (see section 3 of that Act);
 

Page 303

 
“relevant complaints function” means a function in relation to
 
 
the exercise of functions by enforcement officers.”
 
 
(4)
Omit section 26D (labour abuse prevention officers).
 

Employment Relations Act 2004

 
 
75
In Schedule 1 to the Employment Relations Act 2004, omit paragraphs 40
5
 
and 41.
 

Civil Partnership Act 2004

 
 
76
In Schedule 27 to the Civil Partnership Act 2004, omit paragraph 155.
 

Pensions Act 2004

 
 
77
In Schedule 3 to the Pensions Act 2004 (certain permitted disclosures of
10
 
restricted information held by the Pensions Regulator), omit the entry
 
 
relating to the Director of Labour Market Enforcement.
 

Serious Organised Crime and Police Act 2005

 
 
78
In Schedule 7 to the Serious Organised Crime and Police Act 2005, omit
 
 
paragraph 62.
15

Natural Environment and Rural Communities Act 2006

 
 
79
In Schedule 7 to the Natural Environment and Rural Communities Act
 
 
2006 (designated bodies), omit paragraph 13.
 

Regulatory Enforcement and Sanctions Act 2008

 
 
80
In Schedule 5 to the Regulatory Enforcement and Sanctions Act 2008
20
 
(designated regulators), omit the entry relating to the Gangmasters and
 
 
Labour Abuse Authority.
 

Employment Act 2008

 
 
81
In the Employment Act 2008, omit the following—
 
 
(a)
section 9(1) and (2);
25
 
(b)
section 16;
 
 
(c)
section 18.
 

Equality Act 2010

 
 
82
In Schedule 19 to the Equality Act 2010 (public authorities subject to public
 
 
sector equality duty), omit the entry relating to the Gangmasters and Labour
30
 
Abuse Authority.
 

Page 304

Financial Services Act 2012

 
 
83
In Schedule 18 to the Financial Services Act 2012, omit paragraph 36.
 

Modern Slavery Act 2015

 
 
84
(1)
The Modern Slavery Act 2015 is amended as follows.
 
 
(2)
In section 52 (duty to notify Secretary of State about suspected victims of
5
 
slavery or human trafficking), in subsection (5), omit paragraph (k).
 
 
(3)
Omit section 54A (Gangmasters and Labour Abuse Authority: information
 
 
gateways).
 
 
(4)
In section 58(4) (regulations), omit paragraph (ja).
 
 
(5)
In section 60 (extent)—
10
 
(a)
in subsection (1), omit “and section 54A, and Schedule 4A, in Part
 
 
7”;
 
 
(b)
in subsection (3), omit “(except for section 54A and Schedule 4A)”.
 
 
(6)
In Schedule 3, omit the following—
 
 
(a)
the entry relating to the Gangmasters and Labour Abuse Authority;
15
 
(b)
the entry relating to the Director of Labour Market Enforcement;
 
 
(c)
the heading “Regulators”.
 
 
(7)
Omit Schedule 4A.
 

Small Business, Enterprise and Employment Act 2015

 
 
85
In the Small Business, Enterprise and Employment Act 2015, omit the
20
 
following—
 
 
(a)
in section 150, subsections (4) and (7);
 
 
(b)
section 152.
 

Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern

 

Ireland) 2015

25
 
86
In Schedule 3 to the Human Trafficking and Exploitation (Criminal Justice
 
 
and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)) (slavery
 
 
and trafficking prevention orders), in Part 3, in paragraph 18(7), in the
 
 
definition of “relevant function”, omit “or the Gangmasters and Labour
 
 
Abuse Authority”.
30

Immigration Act 2016

 
 
87
In the Immigration Act 2016, omit the following—
 
 
(a)
sections 2 to 9;
 
 
(b)
section 10;
 
 
(c)
section 11(2);
35
 
(d)
section 12(2);
 

Page 305

 
(e)
section 13;
 
 
(f)
sections 14 to 30;
 
 
(g)
sections 32 and 33;
 
 
(h)
Schedule 1;
 
 
(i)
in Schedule 2, paragraphs 1 to 7, 9, 16 and 17;
5
 
(j)
in Schedule 3, paragraphs 1 to 12, 14 to 16, 17(b), 18 to 22, 23(4)(b),
 
 
24(2) and (3) and 25 to 36.
 

Investigatory Powers Act 2016

 
 
88
(1)
The Investigatory Powers Act 2016 is amended as follows.
 
 
(2)
In Part 1 of Schedule 4, in the Table, omit the entry relating to the
10
 
Gangmasters and Labour Abuse Authority.
 
 
(3)
In Schedule 10, omit paragraph 35.
 

Policing and Crime Act 2017

 
 
89
In Schedule 9 to the Policing and Crime Act 2017, omit paragraph 36.
 

Data Protection Act 2018

15
 
90
In Schedule 19 to the Data Protection Act 2018, omit paragraphs 191 and
 
 
197.
 

Sentencing Act 2020

 
 
91
In section 379(1) of the Sentencing Act 2020 (other behaviour orders etc),
 
 
after the entry for the Northern Ireland Troubles (Legacy and Reconciliation)
20
 
Act 2023 insert—
 
 
“Employment Rights Act
 
 
2025
 
 
section 128
 
 
labour market
 
 
enforcement order
25
 
offence within the
25
 
meaning of Part 5 of
 
 
that Act.”
 

Police, Crime, Sentencing and Courts Act 2022

 
 
92
In Part 2 of Schedule 3 to the Police, Crime, Sentencing and Courts Act
 
 
2022 (extraction of information from electronic devices: authorised persons
30
 
in relation to all purposes within section 37), after the entry relating to
 
 
section 15 of the Gangmasters (Licensing) Act 2004 insert—
 
 
“A person who is an enforcement officer for the purposes of Part
 
 
5 of the Employment Rights Act 2025.”
 

Page 306

Procurement Act 2023

 
 
93
(1)
The Procurement Act 2023 is amended as follows.
 
 
(2)
In Part 1 of Schedule 6 (mandatory exclusion grounds: offences), in
 
 
paragraph 26, for “section 27 of the Immigration Act 2016” substitute
 
 
“section 142 of the Employment Rights Act 2025”.
5
 
(3)
In Schedule 7 (discretionary exclusion grounds), in paragraph 1(d), for
 
 
“section 18 of the Immigration Act 2016” substitute “section 126 of the
 
 
Employment Rights Act 2025”.
 
 
Schedule 11
Section 152 (2) and (3)
 

Transitional and saving provision relating to Part 5

10

Part 1

 

Abolition of existing enforcement authorities: transfer schemes

 

Staff transfer schemes

 
 
1
(1)
The Secretary of State may make a scheme (a “staff transfer scheme”)
 
 
providing—
15
 
(a)
for a designated employee of the GLAA to become a member of
 
 
staff of the Secretary of State (and accordingly to become employed
 
 
in the civil service of the state);
 
 
(b)
so far as may be consistent with employment in the civil service of
 
 
the state, for the terms and conditions of the employee’s employment
20
 
with the GLAA to have effect as if they were the conditions of
 
 
service as a member of the Secretary of State’s staff;
 
 
(c)
for the transfer to the Secretary of State of the rights, powers, duties
 
 
and liabilities of the GLAA under or in connection with the
 
 
employee’s contract of employment;
25
 
(d)
for anything done (or having effect as if done) before that transfer
 
 
by or in relation to the GLAA in respect of such a contract or the
 
 
employee to be treated as having been done by or in relation to the
 
 
Secretary of State.
 
 
(2)
A staff transfer scheme may provide for a period before the employee
30
 
became a member of the Secretary of State’s staff to count as a period
 
 
during which the employee was a member of the Secretary of State’s staff
 
 
(and for the operation of the scheme not to be treated as having interrupted
 
 
the continuity of that period).
 
 
(3)
A staff transfer scheme may provide for the employee not to become a
35
 
member of the Secretary of State’s staff if the employee gives notice
 
 
objecting to the operation of the scheme in relation to the employee.
 

Page 307

 
(4)
A staff transfer scheme may provide for a person who would be treated
 
 
(by an enactment or otherwise) as being dismissed by the operation of the
 
 
scheme not to be so treated.
 
 
(5)
A staff transfer scheme may provide for an employee of the GLAA to
 
 
become a member of the Secretary of State’s staff despite any provision,
5
 
of whatever nature, which would otherwise prevent the person from being
 
 
employed in the civil service of the state.
 

Property transfer schemes

 
 
2
(1)
The Secretary of State may make a scheme (a “property transfer scheme”)
 
 
providing for the transfer from the GLAA or the Director to the Secretary
10
 
of State of designated property, rights or liabilities.
 
 
(2)
A property transfer scheme may—
 
 
(a)
create rights, or impose liabilities, in relation to property or rights
 
 
transferred by virtue of the scheme;
 
 
(b)
provide for anything done by or in relation to the GLAA or the
15
 
Director in connection with any property, rights or liabilities
 
 
transferred by the scheme to be treated as done, or to be continued,
 
 
by or in relation to the Secretary of State;
 
 
(c)
apportion property, rights and liabilities;
 
 
(d)
make provision about the continuation of legal proceedings.
20
 
(3)
The things that may be transferred by a property transfer scheme include—
 
 
(a)
property, rights and liabilities that could not otherwise be
 
 
transferred;
 
 
(b)
property acquired, and rights and liabilities arising, after the making
 
 
of the scheme.
25

Continuity

 
 
3
A transfer by virtue of a staff transfer scheme or a property transfer scheme
 
 
does not affect the validity of anything done by or in relation to the GLAA
 
 
or the Director before the transfer takes effect.
 

Supplementary provision, etc

30
 
4
A staff transfer scheme or a property transfer scheme may include
 
 
supplementary, incidental, transitional or consequential provision.
 

Interpretation

 
 
5
In this Part of this Schedule—
 
 
“designated” , in relation to a staff transfer scheme or a property
35
 
transfer scheme, means specified in, or determined in accordance
 
 
with, the scheme;
 
 
“the Director” means the Director of Labour Market Enforcement;
 
 
“the GLAA” means the Gangmasters and Labour Abuse Authority.
 

Page 308

Part 2

 

Other transitional and saving provision

 

General

 
 
6
(1)
Anything which—
 
 
(a)
was done by or in relation to a relevant person for the purpose of,
5
 
or in connection with, any function of the person under a provision
 
 
amended or repealed by Part 1 of Schedule 10 , and
 
 
(b)
is in effect immediately before the day on which the amendment
 
 
or repeal comes into force,
 
 
has effect, on and after that day, as if done by or in relation to the Secretary
10
 
of State.
 
 
(2)
Anything (including legal proceedings) which—
 
 
(a)
relates to a function of a relevant person under a provision amended
 
 
or repealed by Part 1 of Schedule 10 , and
 
 
(b)
immediately before the day on which the amendment or repeal
15
 
comes into force, is in the process of being done by or in relation
 
 
to that person,
 
 
may be continued, on and after that day, by or in relation to the Secretary
 
 
of State.
 
 
(3)
Where anything mentioned in sub-paragraph (1) or (2) was done, or is in
20
 
the process of being done, under a provision repealed by Schedule 10 , that
 
 
thing has effect as if done under, or may be continued under, the
 
 
corresponding provision of this Act.
 
 
(4)
In this paragraph “relevant person” means—
 
 
(a)
an officer acting for the purposes of the Employment Agencies Act
25
 
1973;
 
 
(b)
an officer acting for the purposes of Part 2A of the Employment
 
 
Tribunals Act 1996;
 
 
(c)
an officer acting for the purposes of the National Minimum Wage
 
 
Act 1998;
30
 
(d)
the Gangmasters and Labour Abuse Authority;
 
 
(e)
an enforcement officer acting for the purposes of the Gangmasters
 
 
(Licensing) Act 2004, other than an enforcement officer appointed
 
 
by virtue of paragraph 15 of Schedule 2 to that Act (enforcement
 
 
officers in Northern Ireland);
35
 
(f)
a compliance officer acting for the purposes of that Act;
 
 
(g)
an officer of the Gangmasters and Labour Abuse Authority acting
 
 
for the purposes of any other enactment.
 
 
(5)
Sub-paragraphs (1) to (3) are subject to the remaining provisions of this
 
 
Schedule (and see also section 158 , which confers power to make transitional
40
 
or saving provision).
 

Page 309

Powers to obtain documents etc

 
 
7
(1)
Any requirement to provide documents or information which—
 
 
(a)
was made under a repealed provision before the commencement
 
 
day, and
 
 
(b)
immediately before the commencement day, has not been complied
5
 
with,
 
 
is to be treated, on and after that day, as having been made under the
 
 
corresponding provision of this Act.
 
 
(2)
Any document which, immediately before the commencement day, was
 
 
retained in the exercise of a power conferred by a repealed provision is to
10
 
be treated, on and after that day, as retained under section 103 .
 
 
(3)
In this paragraph—
 
 
“the commencement day” , in relation to a repealed provision, means
 
 
the day on which the repeal of that provision comes into force;
 
 
“repealed provision” means a provision repealed by Part 1 of Schedule
15
 
10 .
 

Labour abuse prevention officers

 
 
8
(1)
Anything which—
 
 
(a)
was done by or in relation to a labour abuse prevention officer in,
 
 
or in connection with, the exercise of a function conferred on the
20
 
officer by virtue of section 114B of the Police and Criminal Evidence
 
 
Act 1984 (“PACE”), and
 
 
(b)
is in effect immediately before the day on which paragraph 63 of
 
 
Schedule 10 comes into force (“the relevant day”),
 
 
has effect, on and after that day, as if done by or in relation to a relevant
25
 
enforcement officer.
 
 
(2)
Anything which—
 
 
(a)
relates to a function conferred on a labour abuse prevention officer
 
 
by virtue of section 114B of PACE, and
 
 
(b)
immediately before the relevant day, is in the process of being done
30
 
by or in relation to such an officer,
 
 
may be continued, on and after that day, by or in relation to a relevant
 
 
enforcement officer.
 
 
(3)
In this paragraph—
 
 
“labour abuse prevention officer” has the meaning given by section
35
 
114B of PACE (as that section had effect immediately before the
 
 
relevant day);
 
 
“relevant enforcement officer” , in relation to a function conferred by
 
 
virtue of section 114B of PACE, means an enforcement officer on
 
 
whom that function is conferred by virtue of that section (as it has
40
 
effect on and after the relevant day).
 

Page 310

Warrants

 
 
9
(1)
This paragraph applies to an application for a warrant under section 17 of
 
 
the Gangmasters (Licensing) Act 2004 (“the 2004 Act”) which—
 
 
(a)
is made in England and Wales or Scotland before the day on which
 
 
paragraph 38 of Schedule 10 comes into force, and
5
 
(b)
is not determined or withdrawn before that day.
 
 
(2)
The application is to be treated, on and after that day, as an application
 
 
made by an enforcement officer for a warrant under section 105 of this
 
 
Act.
 
 
10
(1)
This paragraph applies to a warrant under section 17 of the 2004 Act
10
 
which—
 
 
(a)
is issued under that section before the day on which paragraph 38
 
 
of Schedule 10 comes into force, and
 
 
(b)
is not executed before that day.
 
 
(2)
The warrant is to be treated for the purposes of section 105 of this Act as
15
 
if it had been issued under that section.
 
 
(3)
That section applies in relation to the warrant as if—
 
 
(a)
in subsection (4) (a) , after “bring” there were inserted “any persons
 
 
or”, and
 
 
(b)
after subsection (4) there were inserted—
20
 
“(4A)
On leaving any premises which an enforcement officer is
 
 
authorised to enter by a warrant under this section, the
 
 
officer must, if the premises are unoccupied or the occupier
 
 
is temporarily absent, leave the premises as effectively
 
 
secured against trespassers as the officer found them.”
25
 
(4)
Section 134 and Schedule 8 do not apply in relation to the warrant.
 

LME undertakings and orders

 
 
11
(1)
Anything which—
 
 
(a)
was done by an enforcing authority for the purpose of, or in
 
 
connection with, any of sections 14 to 30 of the Immigration Act
30
 
2016 (“the 2016 Act”), and
 
 
(b)
is in effect immediately before the commencement day,
 
 
has effect, on and after that day, as if done by the Secretary of State under
 
 
the corresponding provision of this Act.
 
 
(2)
Anything (including legal proceedings) which—
35
 
(a)
relates to a function of an enforcing authority under any of sections
 
 
14 to 30 of the 2016 Act, and
 
 
(b)
immediately before the commencement day, is in the process of
 
 
being done by or in relation to the enforcing authority,
 
 
may be continued, on and after that day, by or in relation to the Secretary
40
 
of State under the corresponding provision of this Act.
 

Page 311

 
(3)
Accordingly—
 
 
(a)
any undertaking given under section 14(3) of the 2016 Act and
 
 
having effect immediately before the commencement day is to be
 
 
treated, on and after that day, as an LME undertaking;
 
 
(b)
any order made under section 18 or 20 of the 2016 Act and having
5
 
effect immediately before the commencement day is to be treated,
 
 
on and after that day, as an LME order.
 
 
(4)
In this paragraph—
 
 
“the commencement day” means the day on which the repeal of
 
 
sections 14 to 30 of the 2016 Act comes into force;
10
 
“enforcing authority” has the meaning given by section 14(5) of the
 
 
2016 Act (as it had effect immediately before the commencement
 
 
day).
 

Information

 
 
12
(1)
This paragraph applies to information which—
15
 
(a)
was obtained in the course of—
 
 
(i)
exercising the powers conferred by section 9 of the
 
 
Employment Agencies Act 1973 (“the 1973 Act”), or
 
 
(ii)
exercising powers by virtue of section 26(1) of the
 
 
Immigration Act 2016, and
20
 
(b)
immediately before the coming into force of paragraph 2 of Schedule
 
 
10 , is held by an officer acting for the purposes of the 1973 Act.
 
 
(2)
On the coming into force of that paragraph, information to which this
 
 
paragraph applies vests in the Secretary of State.
 
 
13
(1)
Any reference in section 138 to information obtained by the Secretary of
25
 
State in connection with the exercise of any enforcement function includes
 
 
a reference to—
 
 
(a)
any information which the Secretary of State obtains by virtue of
 
 
paragraph 12 ;
 
 
(b)
any information which, immediately before the coming into force
30
 
of paragraph 20 of Schedule 10 , the Secretary of State holds by
 
 
virtue of section 15(2) of the National Minimum Wage Act 1998;
 
 
(c)
any information which, immediately before the coming into force
 
 
of paragraph 21 of that Schedule, the Secretary of State holds by
 
 
virtue of section 16(2) of that Act;
35
 
(d)
any information which the Secretary of State obtains by virtue of a
 
 
property transfer scheme under paragraph 2 of this Schedule.
 
 
(2)
Any reference in section 140 to HMRC information includes a reference to
 
 
any information mentioned in sub-paragraph (1)(a) or (d) which—
 
 
(a)
was disclosed to the Director of Labour Market Enforcement or a
40
 
person falling within paragraph (a) , (d) , (e) , (f) or (g) of paragraph
 
 
6 (4) by the Commissioners for His Majesty’s Revenue and Customs
 
 
or a person acting on behalf of the Commissioners, and
 

Page 312

 
(b)
was not obtained by an officer in the course of acting for the
 
 
purposes of the National Minimum Wage Act 1998 or by virtue of
 
 
section 26(2) of the Immigration Act 2016.
 
 
14
The repeal of section 9 of the Employment Agencies Act 1973 (inspection)
 
 
by paragraph 3 of Schedule 10 does not prevent the use in evidence against
5
 
a person, in criminal proceedings taking place on or after the day on which
 
 
that repeal comes into force, of a statement made before that day by the
 
 
person in compliance with a requirement under that section (subject to
 
 
subsection (2B) of that section).
 

Orders under Modern Slavery Act 2015

10
 
15
The reference in paragraph 30 (2)(b) of Schedule 7 to an investigation
 
 
conducted by or on behalf of the Secretary of State includes, in relation to
 
 
any order made under section 14 of the Modern Slavery Act 2015 before
 
 
the coming into force of that paragraph, a reference to an investigation
 
 
conducted by a labour abuse prevention officer (within the meaning of
15
 
section 114B of the Police and Criminal Evidence Act 1984 as that section
 
 
had effect before the coming into force of paragraph 63 of Schedule 10 ).
 
 
16
(1)
Where—
 
 
(a)
a slavery and trafficking prevention order requires a person to notify
 
 
the Gangmasters and Labour Abuse Authority in accordance with
20
 
section 19 of the Modern Slavery Act 2015 (“the 2015 Act”), and
 
 
(b)
immediately before the day on which paragraph 49 of Schedule 10
 
 
comes into force, that requirement has not been complied with,
 
 
that requirement has effect, on and after that day, as a requirement to notify
 
 
the Secretary of State.
25
 
(2)
On and after the coming into force of paragraph 50 of Schedule 10 , the
 
 
reference in section 20(2)(g) of the 2015 Act (as amended by that paragraph)
 
 
to a slavery and trafficking prevention order made on an application under
 
 
section 15 of that Act by the Secretary of State includes a reference to such
 
 
an order made on an application under that section by the Gangmasters
30
 
and Labour Abuse Authority.
 
 
(3)
In this paragraph “slavery and trafficking prevention order” has the same
 
 
meaning as in the 2015 Act.
 
 
17
(1)
Where—
 
 
(a)
a slavery and trafficking risk order requires a person to notify the
35
 
Gangmasters and Labour Abuse Authority in accordance with
 
 
section 26 of the Modern Slavery Act 2015 (“the 2015 Act”), and
 
 
(b)
immediately before the day on which paragraph 52 of Schedule 10
 
 
comes into force, that requirement has not been complied with,
 
 
that requirement has effect, on and after that day, as a requirement to notify
40
 
the Secretary of State.
 
 
(2)
On and after the coming into force of paragraph 53 of Schedule 10 , the
 
 
reference in section 27(2)(g) of the 2015 Act (as amended by that paragraph)
 

Page 313

 
to a slavery and trafficking risk order made on an application under section
 
 
23 of that Act by the Secretary of State includes a reference to such an
 
 
order made on an application under that section by the Gangmasters and
 
 
Labour Abuse Authority.
 
 
(3)
In this paragraph “slavery and trafficking risk order” has the same meaning
5
 
as in the 2015 Act.
 

Notices of underpayment under the National Minimum Wage Act 1998

 
 
18
Except so far as provided for by paragraph 6 (1) or (2) of this Schedule, the
 
 
repeal of sections 19 to 19H of the National Minimum Wage Act 1998 by
 
 
paragraph 23 of Schedule 10 does not apply in relation to any notice served
10
 
under any of those sections before the coming into force of that repeal (and
 
 
accordingly paragraph 6 (3) of this Schedule does not apply in relation to
 
 
things done, or in the process of being done, under any of those sections).
 

Enforcement of agricultural wages legislation

 
 
19
The amendments made by paragraphs 17 to 24 , 68 (2) , 81 (a) and 85 (b) of
15
 
Schedule 10 do not affect any provision of the National Minimum Wage
 
 
Act 1998 so far as it has effect for the purposes of any of the following—
 
 
(a)
the Agricultural Wages Act 1948;
 
 
(b)
the Agricultural Sector (Wales) Act 2014 (anaw 6);
 
 
(c)
the Agricultural Wages (Scotland) Act 1949;
20
 
(d)
the Agricultural Wages (Regulation) (Northern Ireland) Order 1977
 
 
(S.I. 1977/2151 (N.I. 22)).
 

Appeals under the Gangmasters (Licensing) Act 2004: Northern Ireland licences

 
 
20
The amendment made by paragraph 45 (6) of Schedule 10 does not affect
 
 
any regulations under section 10 of the Gangmasters (Licensing) Act 2004
25
 
(appeals) made by a Northern Ireland department in reliance on paragraph
 
 
11 of Schedule 2 to that Act as that paragraph had effect immediately before
 
 
the coming into force of that amendment.
 
 
Schedule 12
Section 155
 

Increase in time limits for making claims

30

Safety Representatives and Safety Committees Regulations 1977

 
 
1
(1)
In regulation 11 of the Safety Representatives and Safety Committees
 
 
Regulations 1977 (S.I. 1977/500) (time off for safety representatives), in
 
 
paragraph (2), for “three”, in both places it occurs, substitute “six”.
 
 
(2)
In regulation 12 of those Regulations—
35
 
(a)
in paragraph (2), for “three” substitute “six”;
 

Page 314

 
(b)
in paragraph (3), for “three” substitute “six”;
 
 
(c)
in paragraph (4), for “three” substitute “six”.
 

Trade Union and Labour Relations (Consolidation) Act 1992

 
 
2
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 is amended
 
 
as follows.
5
 
(2)
In section 66 (unjustifiable discipline by union), in subsection (2)(a), for
 
 
“three” substitute “six”.
 
 
(3)
In section 68A (unauthorised deduction of union subscriptions), in
 
 
subsection (1)(a), for “three” substitute “six”.
 
 
(4)
In section 70C (collective bargaining: obligations relating to training), in
10
 
subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(5)
In section 87 (unlawful deduction of contributions to political fund), in
 
 
subsection (2)(a), for “three” substitute “six”.
15
 
(6)
In section 139 (refusal of employment on grounds related to union
 
 
membership), in subsection (1)(a), for “three” substitute “six”.
 
 
(7)
In section 145C (inducements), in subsection (1)(a), for “three” substitute
 
 
“six”.
 
 
(8)
In section 147 (detriment for trade union activities), in subsection (1)(a),
20
 
for “three” substitute “six”.
 
 
(9)
In section 171 (time off for trade union activities), in subsection (1)(a), for
 
 
“three” substitute “six”.
 
 
(10)
In section 189 (consultation in collective redundancy), in subsection (5)—
 
 
(a)
in paragraph (b), for “three” substitute “six”;
25
 
(b)
in paragraph (c), for “three” substitute “six”.
 
 
(11)
In section 192 (remuneration under protective award), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(12)
In paragraph 157 of Schedule A1 (detriment in relation to trade union
30
 
recognition), in sub-paragraph (1)(a), for “3” substitute “6”.
 

Pension Schemes Act 1993

 
 
3
In section 126 of the Pension Schemes Act 1993 (unpaid pension
 
 
contributions), in subsection (2), for “three” substitute “six”.
 

Employment Rights Act 1996

35
 
4
(1)
The Employment Rights Act 1996 is amended as follows.
 
 
(2)
In section 11 (written statements), in subsection (4)—
 

Page 315

 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(3)
In section 23 (protection of wages)—
 
 
(a)
in subsection (2), for “three” substitute “six”;
 
 
(b)
in subsection (4), for “three” substitute “six”.
5
 
(4)
In section 27N (information relating to tips etc)—
 
 
(a)
in subsection (2), for “three” substitute “six”;
 
 
(b)
in subsection (3), for “three” substitute “six”.
 
 
(5)
In section 34 (guarantee payments), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
10
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(6)
In section 48 (detriment in employment), in subsection (3)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(7)
In section 51 (time off for public duties), in subsection (2)—
15
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(8)
In section 54 (time off following redundancy), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
20
 
(9)
In section 57 (time off for ante-natal care), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(10)
In section 57ZC (time off for ante-natal care: agency workers), in subsection
 
 
(3)—
25
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(11)
In section 57ZF (time off to accompany to ante-natal appointment), in
 
 
subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
30
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(12)
In section 57ZH (time off to accompany to ante-natal appointment: agency
 
 
workers), in subsection (3)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
35
 
(13)
In section 57ZM (time off to attend adoption appointments), in subsection
 
 
(2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 

Page 316

 
(14)
In section 57ZQ (time off to attend adoption appointments: agency workers),
 
 
in subsection (3)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(15)
In section 57B (time off for dependants), in subsection (2)—
5
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(16)
In section 60 (time off for pension scheme trustees), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
10
 
(17)
In section 63 (time off for employee representatives), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(18)
In section 63C (time off for study or training), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
15
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(19)
In section 63I (requests in relation to study or training), in subsection (5)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(20)
In section 70 (rights following suspension from work)—
20
 
(a)
in subsection (2)—
 
 
(i)
in paragraph (a), for “three” substitute “six”;
 
 
(ii)
in paragraph (b), for “three” substitute “six”;
 
 
(b)
in subsection (5)—
 
 
(i)
in paragraph (a), for “three” substitute “six”;
25
 
(ii)
in paragraph (b), for “three” substitute “six”.
 
 
(21)
In section 70A (rights of agency worker where supply is ended on maternity
 
 
grounds)—
 
 
(a)
in subsection (2)—
 
 
(i)
in paragraph (a), for “three” substitute “six”;
30
 
(ii)
in paragraph (b), for “three” substitute “six”;
 
 
(b)
in subsection (5)—
 
 
(i)
in paragraph (a), for “three” substitute “six”;
 
 
(ii)
in paragraph (b), for “three” substitute “six”.
 
 
(22)
In section 80 (parental leave), in subsection (2)—
35
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(23)
In section 80H (right to request flexible working), in subsection (5)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
40

Page 317

 
(24)
In section 80N (carer’s leave), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(25)
In section 111 (unfair dismissal), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
5
 
(b)
in paragraph (b), for “three” substitute “six”.
 
 
(26)
In section 188 (rights on insolvency of employer), in subsection (2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 

Health and Safety (Consultation with Employees) Regulations 1996

10
 
5
(1)
In paragraph 3 of Schedule 2 to the Health and Safety (Consultation with
 
 
Employees) Regulations 1996 (S.I. 1996/1513) (time off for representatives
 
 
of employee safety etc), for “three”, in both places it occurs, substitute “six”.
 
 
(2)
In paragraph 3A of that Schedule—
 
 
(a)
in sub-paragraph (2), for “three” substitute “six”;
15
 
(b)
in sub-paragraph (3), for “three” substitute “six”;
 
 
(c)
in sub-paragraph (4), for “three” substitute “six”.
 

Working Time Regulations 1998

 
 
6
In regulation 30 of the Working Time Regulations 1998 (S.I. 1998/1833)
 
 
(rights as to working time), in paragraph (2)—
20
 
(a)
in sub-paragraph (a), for the words from “three months” to “six
 
 
months)” substitute “six months”;
 
 
(b)
in sub-paragraph (b), omit “three or, as the case may be,”.
 

National Minimum Wage Act 1998

 
 
7
In section 11 of the National Minimum Wage Act 1998 (access to records)—
25
 
(a)
in subsection (3), for “three” substitute “six”;
 
 
(b)
in subsection (4), for “three” substitute “six”.
 

Employment Relations Act 1999

 
 
8
In section 11 of the Employment Relations Act 1999 (right to be
 
 
accompanied), in subsection (2)—
30
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 

Transnational Information and Consultation of Employees Regulations 1999

 
 
9
(1)
In regulation 27 of the Transnational Information and Consultation of
 
 
Employees Regulations 1999 (S.I. 1999/3323) (time off for members of a
35
 
European Works Council etc)—
 

Page 318

 
(a)
in the heading, for “tribunals” substitute “employment tribunals in
 
 
Great Britain”;
 
 
(b)
in paragraph (1), for the words from “complaint,” to “, that”
 
 
substitute “complaint to an employment tribunal in Great Britain
 
 
that”;
5
 
(c)
in paragraph (2)—
 
 
(i)
in sub-paragraph (a), for “three” substitute “six”;
 
 
(ii)
in sub-paragraph (b), for “three” substitute “six”;
 
 
(d)
omit paragraph (2B).
 
 
(2)
In the heading of regulation 27A of those Regulations (extension of time
10
 
limit to facilitate conciliation before institution of proceedings), at the end
 
 
insert “in Great Britain”.
 
 
(3)
After regulation 27A of those Regulations insert—
 

“Right to time off: complaints to industrial tribunals in Northern Ireland

 
 
27AA.
(1)
An employee may present a complaint to an industrial
15
 
tribunal in Northern Ireland that the employee’s employer–
 
 
(a)
has unreasonably refused to permit the employee to take time off
 
 
as required by regulation 25; or
 
 
(b)
has failed to pay the whole or any part of any amount to which
 
 
the employee is entitled under regulation 26.
20
 
(2)
A tribunal shall not consider a complaint under this regulation unless
 
 
it is presented–
 
 
(a)
before the end of the period of three months beginning with the
 
 
day on which the time off was taken or on which it is alleged the
 
 
time off should have been permitted; or
25
 
(b)
within such further period as the tribunal considers reasonable in
 
 
a case where it is satisfied that it was not reasonably practicable
 
 
for the complaint to be presented before the end of that period of
 
 
three months.
 
 
(3)
Regulation 27B (extension of time limit to facilitate conciliation before
30
 
institution of proceedings in Northern Ireland) applies for the purposes of
 
 
paragraph (2).
 
 
(4)
Where a tribunal finds a complaint under this regulation well-founded,
 
 
the tribunal shall make a declaration to that effect.
 
 
(5)
If the complaint is that the employer has unreasonably refused to
35
 
permit the employee to take time off, the tribunal shall also order the
 
 
employer to pay to the employee an amount equal to the remuneration to
 
 
which the employee would have been entitled under regulation 26 if the
 
 
employer had not refused.
 
 
(6)
If the complaint is that the employer has failed to pay the employee
40
 
the whole or part of any amount to which the employee is entitled under
 

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regulation 26, the tribunal shall also order the employer to pay to the
 
 
employee the amount which it finds due to the employee.”
 
 
(4)
In regulation 27B of those Regulations (extension of time limit to facilitate
 
 
conciliation before institution of proceedings in Northern Ireland)—
 
 
(a)
in paragraph (2), for “27(2)(a)” substitute “27AA(2)(a)”;
5
 
(b)
in paragraph (3), for “27(2)(a)” substitute “27AA(2)(a)”;
 
 
(c)
in paragraph (4), for “27(2)(b)” substitute “27AA(2)(b)”.
 

Merchant Shipping (Working Time: Inland Waterways) Regulations 2003

 
 
10
In regulation 18 of the Merchant Shipping (Working Time: Inland
 
 
Waterways) Regulations 2003 (S.I. 2003/3049) (merchant shipping: rights
10
 
as to working time), in paragraph (2)—
 
 
(a)
in sub-paragraph (a), for “three” substitute “six”;
 
 
(b)
in sub-paragraph (b), for “three” substitute “six”.
 

Civil Aviation (Working Time) Regulations 2004

 
 
11
In regulation 18 of the Civil Aviation (Working Time) Regulations 2004
15
 
(S.I. 2004/756) (civil aviation: rights as to working time), in paragraph (2)—
 
 
(a)
in sub-paragraph (a), for “three” substitute “six”;
 
 
(b)
in sub-paragraph (b), for “three” substitute “six”.
 

Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004

 
 
12
In regulation 19 of the Fishing Vessels (Working Time: Sea-fishermen)
20
 
Regulations 2004 (S.I. 2004/1713) (fishing vessels: rights to rest and leave),
 
 
in paragraph (2)—
 
 
(a)
in sub-paragraph (a), for “three” substitute “six”;
 
 
(b)
in sub-paragraph (b), for “three” substitute “six”.
 

Transfer of Undertakings (Protection of Employment) Regulations 2006

25
 
13
(1)
The Transfer of Undertakings (Protection of Employment) Regulations 2006
 
 
(S.I. 2006/246) are amended as follows.
 
 
(2)
In regulation 12 (notification of employee liability information), in paragraph
 
 
(2)—
 
 
(a)
in sub-paragraph (a), for “three” substitute “six”;
30
 
(b)
in sub-paragraph (b), for “three” substitute “six”.
 
 
(3)
In regulation 15 (information and consultation requirements), in paragraph
 
 
(12)—
 
 
(a)
in the words before sub-paragraph (a), for “three” substitute “six”;
 
 
(b)
in the words after sub-paragraph (b), for “three” substitute “six”.
35

Page 320

Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous

 

Amendment) Regulations 2006

 
 
14
In the Schedule to the Occupational and Personal Pension Schemes
 
 
(Consultation by Employers and Miscellaneous Amendment) Regulations
 
 
2006 (S.I. 2006/349) (employment rights and protections in connection with
5
 
consultation), in paragraph 4(2)—
 
 
(a)
in paragraph (a), for “three” substitute “six”;
 
 
(b)
in paragraph (b), for “three” substitute “six”.
 

Cross-border Railway Services (Working Time) Regulations 2008

 
 
15
In regulation 17 of the Cross-border Railway Services (Working Time)
10
 
Regulations 2008 (S.I. 2008/1660) (cross-border railway services: rights as
 
 
to working time), in paragraph (2)—
 
 
(a)
in sub-paragraph (a), for “three” substitute “six”;
 
 
(b)
in sub-paragraph (b), for “three” substitute “six”.
 

European Public Limited-Liability Company (Employee Involvement) (Great Britain)

15

Regulations 2009

 
 
16
In regulation 28 of the European Public Limited-Liability Company
 
 
(Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401)
 
 
(time off for members of special negotiating body etc), in paragraph (2)—
 
 
(a)
in sub-paragraph (a), for “three” substitute “six”;
20
 
(b)
in sub-paragraph (b), for “three” substitute “six”.
 

Agency Workers Regulations 2010

 
 
17
In regulation 18 of the Agency Workers Regulations 2010 (S.I. 2010/93)
 
 
(rights of agency workers), in paragraph (4), for “three” substitute “six”.
 

Equality Act 2010

25
 
18
In section 123 of the Equality Act 2010 (discrimination etc at work), in
 
 
subsection (1)(a), for “3” substitute “6”.
 

Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018

 
 
19
In regulation 26 of the Merchant Shipping (Maritime Labour Convention)
 
 
(Hours of Work) Regulations 2018 (S.I. 2018/58) (rights of seafarers to
30
 
leave), in paragraph (6), for “three” substitute “six”.
 
Amendments

No amendments available.