Trade Union and Labour Relations (Consolidation) Act 1992

Action short of dismissal E+W+S

146 Action short of dismissal on grounds related to union membership or activities. E+W+S

(1) An employee has the right not to [F1 be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for the purpose of—

(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or

(c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In subsection (1)(b) “an appropriate time” means—

(a) a time outside the employee’s working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union;

and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3) An employee also has the right not to [F2 be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(4) For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as [F3 a detriment to which he has been subjected as an individual by an act of his employer taking place] for the purpose of enforcing a requirement of a kind mentioned in that subsection.

(5) An employee may present a complaint to an industrial tribunal on the ground that [F4 he has been subjected to a detriment]by his employer in contravention of this section.

[F5 (6) For the purposes of this section detriment is detriment short of dismissal.]

Textual Amendments

F1 Words in s. 146(1) substituted (25.20.1999) by 1999 c. 26, s.1, Sch. 2 paras. 1, 2(1)(2); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F2 Words in s. 146(3) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(1)(3); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F3 Words in s. 146(4) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(1)(4); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F4 Words in s. 146(5) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(1)(5); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F5 S. 146(6) inserted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(6); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch.3 para. 1)

Modifications etc. (not altering text)

C1 S. 146 modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch.

S. 146 modified (1.9.1999) by 1999/2256, art. 3, Sch.

C2 S. 146 modified (E.) (1.9.2003) by The Education (Modification of Enactments Relating to Employment) (England) Order 2003 (S.I. 2003/1964), art. 3, Sch.

147 Time limit for proceedings. E+W+S

[F6 (1)]An [F7 employment tribunal] shall not consider a complaint under section 146 unless it is presented—

(a) before the end of the period of three months beginning with the date of the [F8 act or failure to which the complaint relates or, 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 reasonable.

[F9 (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 shall be treated as done when it was decided on.

F9 (3) For the purposes of subsection (2), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.]

Textual Amendments

F6 S. 147: “(1)" inserted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 3(1)(2); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F7 Words in s. 147(1) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F8 Words in s. 147(1)(a) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 3(3); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F9 S. 147(2)(3) inserted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 3(4); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

Modifications etc. (not altering text)

C3 S. 147 modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch.

S. 147 modified (1.9.1999) by S.I. 1999/2256, art. 3, Sch.

C4 S. 147 modified (E.) (1.9.2003) by The Education (Modification of Enactments Relating to Employment) (England) Order 2003 (S.I. 2003/1964), art. 3, Sch.

C5 S. 147 modified (W.) (12.5.2006) by The Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 (S.I. 2006/1073), art. 3, Sch.

148 Consideration of complaint. E+W+S

(1) On a complaint under section 146 it shall be for the employer to show the purpose for which [F10 he acted or failed to act]

(2) In determining any question whether [F11 the employer acted or failed to act, or the purpose for which he did so], no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

[F12 F13 (3) In determining what was the purpose for which [F14 the employer acted or failed to act]] in a case where—

(a) there is evidence that the employer’s purpose was to further a change in his relationship with all or any class of his employees, and

(b) there is also evidence that his purpose was one falling within section 146,

the tribunal shall regard the purpose mentioned in paragraph (a) (and not the purpose mentioned in paragraph (b)) as the purpose for which the employer [F15 acted or failed to act, unless it considers that no reasonable employer would act or fail to act in the way concerned] having regard to the purpose mentioned in paragraph (a).

[F12 (4) Where the tribunal determines that—

(a) the complainant has been subjected to a detriment by an act or deliberate failure to act by his employer, and

(b) the act or failure took place in consequence of a previous act or deliberate failure to act by the employer,

paragraph (a) of subsection (3) is satisfied if the purpose mentioned in that paragraph was the purpose of the previous act or failure.]

(5) In subsection (3) “class”, in relation to an employer and his employees, means those employed at a particular place of work, those employees of a particular grade, category or description or those of a particular grade, category or description employed at a particular place of work.

Textual Amendments

F10 Words in s. 148(1) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 4(1)(2); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F11 Words in s. 148(2) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 para. 4(3); S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. I (with Sch. 3 para. 1)

F12 S. 148(4) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 para. 4(5); S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. I (with Sch. 3 para. 1)

F13 S. 148(3)-(5) inserted (30.8.1993) by 1993 c. 19, s. 13; S.I. 1993/1908, art. 2(1), Sch. 1

F14 Words in s. 3 substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 para. 4(4)(a); S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. I (with Sch. 1 para. 3)

F15 Words in s. 3 substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 para. 4(4)(b); S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. I (with Sch. 1 para. 3)

149 Remedies. E+W+S

(1) Where the [F16 employment tribunal] finds that a complaint under section 146 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant in respect of the [F17 act or failure] complained of.

(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the [F17 act or failure] which infringed his right.

(3) The loss shall be taken to include—

(a) any expenses reasonably incurred by the complainant in consequence of the [F17 act or failure]complained of, and

(b) loss of any benefit which he might reasonably be expected to have had but for that [F17 act or failure].

(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.

(5) In determining the amount of compensation to be awarded no account shall be taken of any pressure which was exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(6) Where the tribunal finds that the [F17 act or failure] complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

Textual Amendments

F16 Words in s. 149(1) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F17 Words in s. 149(1)-(3)(6) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 5; S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. I (with Sch. 3 para. 1)

150 Awards against third parties. E+W+S

(1) If in proceedings on a complaint under section 146—

(a) the complaint is made on the ground that [F18 the complainant has been subjected to detriment by an act or failure by his employer taking place] for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and

(b) either the complainant or the employer claims in proceedings before the tribunal that the employer was induced to [F19 act or fail to act in the way]complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so,

the complainant or the employer may request the tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings.

(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration that the complaint is well-founded.

(3) Where a person has been so joined or sisted as a party to proceedings and the tribunal—

(a) makes an award of compensation, and

(b) finds that the claim mentioned in subsection (1)(b) is well-founded,

it may order that the compensation shall be paid by the person joined instead of by the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable in the circumstances.

Textual Amendments

F18 Words in s. 150(1)(a) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 6(a); S.I. 1999/2830, art 2(1), Sch. 2 Pt. I (with Sch. 3 para. 1)

F19 Words in s. 150(1)(b) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 6(b); S.I. 1999/2830, art. 2(1), Sch. 2 Pt. I. (with Sch. 3 para. 1)

151 Interpretation and other supplementary provisions. E+W+S

(1) References in sections 146 to 150 to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union and to being, becoming or ceasing to remain a member of one of a number of particular branches or sections of that union; and references to taking part in the activities of a trade union shall be similarly construed.

(2) The remedy of an employee for infringement of the right conferred on him by section 146 is by way of a complaint to an [F20 employment tribunal] in accordance with this Part, and not otherwise.

Textual Amendments

F20 Words in s. 151(2) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1