Trade Union and Labour Relations (Consolidation) Act 1992

Part IV Industrial Relations

Chapter I Collective bargaining

Introductory

178 Collective agreements and collective bargaining

(1) In this Act “collective agreement” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations and relating to one or more of the matters specified below; and “collective bargaining” means negotiations relating to or connected with one or more of those matters.

(2) The matters referred to above are—

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker’s membership or non-membership of a trade union;

(f) facilities for officials of trade unions; and

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(3) In this Act “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “recognised” and other related expressions shall be construed accordingly.

Enforceability of collective agreements

179 Whether agreement intended to be a legally enforceable contract

(1) A collective agreement shall be conclusively presumed not to have been intended by the parties to be a legally enforceable contract unless the agreement—

(a) is in writing, and

(b) contains a provision which (however expressed) states that the parties intend that the agreement shall be a legally enforceable contract.

(2) A collective agreement which does satisfy those conditions shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract.

(3) If a collective agreement is in writing and contains a provision which (however expressed) states that the parties intend that one or more parts of the agreement specified in that provision, but not the whole of the agreement, shall be a legally enforceable contract, then—

(a) the specified part or parts shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract, and

(b) the remainder of the agreement shall be conclusively presumed not to have been intended by the parties to be such a contract.

(4) A part of a collective agreement which by virtue of subsection (3)(b) is not a legally enforceable contract may be referred to for the purpose of interpreting a part of the agreement which is such a contract.

180 Effect of provisions restricting right to take industrial action

(1) Any terms of a collective agreement which prohibit or restrict the right of workers to engage in a strike or other industrial action, or have the effect of prohibiting or restricting that right, shall not form part of any contract between a worker and the person for whom he works unless the following conditions are met.

(2) The conditions are that the collective agreement—

(a) is in writing,

(b) contains a provision expressly stating that those terms shall or may be incorporated in such a contract,

(c) is reasonably accessible at his place of work to the worker to whom it applies and is available for him to consult during working hours, and

(d) is one where each trade union which is a party to the agreement is an independent trade union;

and that the contract with the worker expressly or impliedly incorporates those terms in the contract.

(3) The above provisions have effect notwithstanding anything in section 179 and notwithstanding any provision to the contrary in any agreement (including a collective agreement or a contract with any worker).

Disclosure of information for purposes of collective bargaining

181 General duty of employers to disclose information

(1) An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.

In this section and sections 182 to 185 “representative”, in relation to a trade union, means an official or other person authorised by the union to carry on such collective bargaining.

(2) The information to be disclosed is all information relating to the employer’s undertaking which is in his possession, or that of an associated employer, and is information—

(a) without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and

(b) which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.

(3) A request by trade union representatives for information under this section shall, if the employer so requests, be in writing or be confirmed in writing.

(4) In determining what would be in accordance with good industrial relations practice, regard shall be had to the relevant provisions of any Code of Practice issued by ACAS, but not so as to exclude any other evidence of what that practice is.

(5) Information which an employer is required by virtue of this section to disclose to trade union representatives shall, if they so request, be disclosed or confirmed in writing.

182 Restrictions on general duty

(1) An employer is not required by section 181 to disclose information—

(a) the disclosure of which would be against the interests of national security, or

(b) which he could not disclose without contravening a prohibition imposed by or under an enactment, or

(c) which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

(d) which relates specifically to an individual (unless that individual has consented to its being disclosed), or

(e) the disclosure of which would cause substantial injury to his undertaking for reasons other than its effect on collective bargaining, or

(f) obtained by him for the purpose of bringing, prosecuting or defending any legal proceedings.

In formulating the provisions of any Code of Practice relating to the disclosure of information, ACAS shall have regard to the provisions of this subsection.

(2) In the performance of his duty under section 181 an employer is not required—

(a) to produce, or allow inspection of, any document (other than a document prepared for the purpose of conveying or confirming the information) or to make a copy of or extracts from any document, or

(b) to compile or assemble any information where the compilation or assembly would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

183 Complaint of failure to disclose information

(1) A trade union may present a complaint to the Central Arbitration Committee that an employer has failed—

(a) to disclose to representatives of the union information which he was required to disclose to them by section 181, or

(b) to confirm such information in writing in accordance with that section.

The complaint must be in writing and in such form as the Committee may require.

(2) If on receipt of a complaint the Committee is of the opinion that it is reasonably likely to be settled by conciliation, it shall refer the complaint to ACAS and shall notify the trade union and employer accordingly, whereupon ACAS shall seek to promote a settlement of the matter.

If a complaint so referred is not settled or withdrawn and ACAS is of the opinion that further attempts at conciliation are unlikely to result in a settlement, it shall inform the Committee of its opinion.

(3) If the complaint is not referred to ACAS or, if it is so referred, on ACAS informing the Committee of its opinion that further attempts at conciliation are unlikely to result in a settlement, the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether it finds the complaint well-founded, wholly or in part, and stating the reasons for its findings.

(4) On the hearing of a complaint any person who the Committee considers has a proper interest in the complaint is entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned does not affect the validity of any decision of the Committee in those proceedings.

(5) If the Committee finds the complaint wholly or partly well-founded, the declaration shall specify—

(a) the information in respect of which the Committee finds that the complaint is well founded,

(b) the date (or, if more than one, the earliest date) on which the employer refused or failed to disclose or, as the case may be, to confirm in writing, any of the information in question, and

(c) a period (not being less than one week from the date of the declaration) within which the employer ought to disclose that information, or, as the case may be, to confirm it in writing.

(6) On a hearing of a complaint under this section a certificate signed by or on behalf of a Minister of the Crown and certifying that a particular request for information could not be complied with except by disclosing information the disclosure of which would have been against the interests of national security shall be conclusive evidence of that fact.

A document which purports to be such a certificate shall be taken to be such a certificate unless the contrary is proved.

184 Further complaint of failure to comply with declaration

(1) After the expiration of the period specified in a declaration under section 183(5)(c) the trade union may present a further complaint to the Central Arbitration Committee that the employer has failed to disclose or, as the case may be, to confirm in writing to representatives of the union information specified in the declaration.

The complaint must be in writing and in such form as the Committee may require.

(2) On receipt of a further complaint the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether they find the complaint well-founded, wholly or in part, and stating the reasons for their finding.

(3) On the hearing of a further complaint any person who the Committee consider has a proper interest in that complaint shall be entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned shall not affect the validity of any decision of the Committee in those proceedings.

(4) If the Committee find the further complaint wholly or partly well-founded the declaration shall specify the information in respect of which the Committee find that that complaint is well-founded.

185 Determination of claim and award

(1) On or after presenting a further complaint under section 184 the trade union may present to the Central Arbitration Committee a claim, in writing, in respect of one or more descriptions of employees (but not workers who are not employees) specified in the claim that their contracts should include the terms and conditions specified in the claim.

(2) The right to present a claim expires if the employer discloses or, as the case may be, confirms in writing, to representatives of the trade union the information specified in the declaration under section 183(5) or 184(4); and a claim presented shall be treated as withdrawn if the employer does so before the Committee make an award on the claim.

(3) If the Committee find, or have found, the further complaint wholly or partly well-founded, they may, after hearing the parties, make an award that in respect of any description of employees specified in the claim the employer shall, from a specified date, observe either—

(a) the terms and conditions specified in the claim; or

(b) other terms and conditions which the Committee consider appropriate.

The date specified may be earlier than that on which the award is made but not earlier than the date specified in accordance with section 183(5)(b) in the declaration made by the Committee on the original complaint.

(4) An award shall be made only in respect of a description of employees, and shall comprise only terms and conditions relating to matters in respect of which the trade union making the claim is recognised by the employer.

(5) Terms and conditions which by an award under this section an employer is required to observe in respect of an employee have effect as part of the employee’s contract of employment as from the date specified in the award, except in so far as they are superseded or varied—

(a) by a subsequent award under this section,

(b) by a collective agreement between the employer and the union for the time being representing that employee, or

(c) by express or implied agreement between the employee and the employer so far as that agreement effects an improvement in terms and conditions having effect by virtue of the award.

(6) Where—

(a) by virtue of any enactment, other than one contained in this section, providing for minimum remuneration or terms and conditions, a contract of employment is to have effect as modified by an award, order or other instrument under that enactment, and

(b) by virtue of an award under this section any terms and conditions are to have effect as part of that contract,

that contract shall have effect in accordance with that award, order or other instrument or in accordance with the award under this section, whichever is the more favourable, in respect of any terms and conditions of that contract, to the employee.

(7) No award may be made under this section in respect of terms and conditions of employment which are fixed by virtue of any enactment.

Prohibition of union recognition requirements

186 Recognition requirement in contract for goods or services void

A term or condition of a contract for the supply of goods or services is void in so far as it purports to require a party to the contract—

(a) to recognise one or more trade unions (whether or not named in the contract) for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

(b) to negotiate or consult with, or with an official of, one or more trade unions (whether or not so named).

187 Refusal to deal on grounds of union exclusion prohibited

(1) A person shall not refuse to deal with a supplier or prospective supplier of goods or services if the ground or one of the grounds for his action is that the person against whom it is taken does not, or is not likely to—

(a) recognise one or more trade unions for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or

(b) negotiate or consult with, or with an official of, one or more trade unions.

(2) A person refuses to deal with a person if—

(a) where he maintains (in whatever form) a list of approved suppliers of goods or services, or of persons from whom tenders for the supply of goods or services may be invited, he fails to include the name of that person in that list; or

(b) in relation to a proposed contract for the supply of goods or services—

(i) he excludes that person from the group of persons from whom tenders for the supply of the goods or services are invited, or

(ii) he fails to permit that person to submit such a tender; or

(c) he otherwise determines not to enter into a contract with that person for the supply of the goods or services.

(3) The obligation to comply with this section is a duty owed to the person with whom there is a refusal to deal and to any other person who may be adversely affected by its contravention; and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

Chapter II Procedure for Handling Redundancies

Duty of employer to consult trade union representatives

188 Duty of employer to consult trade union representatives

(1) An employer proposing to dismiss as redundant an employee of a description in respect of which an independent trade union is recognised by him shall consult representatives of the union about the dismissal in accordance with this section.

(2) The consultation must begin at the earliest opportunity, and in any event—

(a) where the employer is proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days or less, at least 90 days before the first of those dismissals takes effect;

(b) where the employer is proposing to dismiss as redundant at least 10 but less than 100 employees at one establishment within a period of 30 days or less, at least 30 days before the first of those dismissals takes effect.

(3) In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

(4) For the purposes of the consultation the employer shall disclose in writing to the trade union representatives—

(a) the reasons for his proposals,

(b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

(c) the total number of employees of any such description employed by the employer at the establishment in question,

(d) the proposed method of selecting the employees who may be dismissed, and

(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect.

(5) That information shall be delivered to the trade union representatives, or sent by post to an address notified by them to the employer, or sent by post to the union at the address of its head or main office.

(6) In the course of the consultation the employer shall—

(a) consider any representations made by the trade union representatives, and

(b) reply to those representations and, if he rejects any of those representations, state his reasons.

(7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.

(8) This section does not confer any rights on a trade union or an employee except as provided by sections 189 to 192 below.

189 Complaint by trade union and protective award

(1) Where an employer has dismissed as redundant, or is proposing to dismiss as redundant, one or more employees of a description in respect of which an independent trade union is recognised by him, and has not complied with the requirements of section 188, the union may present a complaint to an industrial tribunal on that ground.

(2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

(3) A protective award is an award in respect of one or more descriptions of employees—

(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

(4) The protected period—

(a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;

but shall not exceed 90 days in a case falling within section 188(2)(a), 30 days in a case falling within section 188(2)(b), or 28 days in any other case.

(5) An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a) before the proposed dismissal takes effect, or

(b) before the end of the period of three months beginning with the date on which the dismissal takes effect, or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it considers reasonable.

(6) If on a complaint under this section a question arises—

(a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or

(b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

it is for the employer to show that there were and that he did.

190 Entitlement under protective award

(1) Where an industrial tribunal has made a protective award, every employee of a description to which the award relates is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period.

(2) The rate of remuneration payable is a week’s pay for each week of the period; and remuneration in respect of a period less than one week shall be calculated by reducing proportionately the amount of a week’s pay.

(3) Any payment made to an employee by an employer in respect of a period falling within a protected period—

(a) under the employee’s contract of employment, or

(b) by way of damages for breach of that contract,

shall go towards discharging the employer’s liability to pay remuneration under the protective award in respect of that first mentioned period.

Conversely, any payment of remuneration under a protective award in respect of any period shall go towards discharging any liability of the employer under, or in respect of any breach of, the contract of employment in respect of that period.

(4) An employee is not entitled to remuneration under a protective award in respect of a period during which he is employed by the employer unless he would be entitled to be paid by the employer in respect of that period—

(a) by virtue of his contract of employment, or

(b) by virtue of Schedule 3 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (rights of employee in period of notice),

if that period fell within the period of notice required to be given by section 49(1) of that Act.

(5) Schedule 14 to the Employment Protection (Consolidation) Act 1978 applies with respect to the calculation of a week’s pay for the purposes of this section.

The calculation date for the purposes of Part II of that Schedule is the date on which the protective award was made or, in the case of an employee who was dismissed before the date on which the protective award was made, the date which by virtue of paragraph 7(1)(k) or (l) of that Schedule is the calculation date for the purpose of computing the amount of a redundancy payment in relation to that dismissal (whether or not the employee concerned is entitled to any such payment).

(6) If an employee of a description to which a protective award relates dies during the protected period, the award has effect in his case as if the protected period ended on his death.

191 Termination of employment during protected period

(1) Where the employee is employed by the employer during the protected period and—

(a) he is fairly dismissed by his employer for a reason other than redundancy, or

(b) he unreasonably terminates the contract of employment,

then, subject to the following provisions, he is not entitled to remuneration under the protective award in respect of any period during which but for that dismissal or termination he would have been employed.

(2) If an employer makes an employee an offer (whether in writing or not and whether before or after the ending of his employment under the previous contract) to renew his contract of employment, or to re-engage him under a new contract, so that the renewal or re-engagement would take effect before or during the protected period, and either—

(a) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract, or

(b) the offer constitutes an offer of suitable employment in relation to the employee,

the following subsections have effect.

(3) If the employee unreasonably refuses the offer, he is not entitled to remuneration under the protective award in respect of a period during which but for that refusal he would have been employed.

(4) If the employee’s contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of such an offer as is referred to in subsection (2)(b), there shall be a trial period in relation to the contract as renewed, or the new contract (whether or not there has been a previous trial period under this section).

(5) The trial period begins with the ending of his employment under the previous contract and ends with the expiration of the period of four weeks beginning with the date on which the he starts work under the contract as renewed, or the new contract, or such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract.

(6) Any such agreement—

(a) shall be made between the employer and the employee or his representative before the employee starts work under the contract as renewed or, as the case may be, the new contract,

(b) shall be in writing,

(c) shall specify the date of the end of the trial period, and

(d) shall specify the terms and conditions of employment which will apply in the employee’s case after the end of that period.

(7) If during the trial period—

(a) the employee, for whatever reason, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated, or

(b) the employer, for a reason connected with or arising out of the change to the renewed, or new, employment, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated,

the employee remains entitled under the protective award unless, in a case falling within paragraph (a), he acted unreasonably in terminating or giving notice to terminate the contract.

192 Complaint by employee to industrial tribunal

(1) An employee may present a complaint to an industrial tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award.

(2) An industrial tribunal shall not entertain a complaint under this section unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it may consider reasonable.

(3) Where the tribunal finds a complaint under this section well-founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

(4) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise.

Duty of employer to notify Secretary of State

193 Duty of employer to notify Secretary of State of certain redundancies

(1) An employer proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days or less shall notify the Secretary of State, in writing, of his proposal at least 90 days before the first of those dismissals takes effect.

(2) An employer proposing to dismiss as redundant 10 or more employees at one establishment within a period of 30 days or less shall notify the Secretary of State, in writing, of his proposal at least 30 days before the first of those dismissals takes effect.

(3) In determining how many employees an employer is proposing to dismiss as redundant within the period mentioned in subsection (1) or (2), no account shall be taken of employees in respect of whose proposed dismissal notice has already been given to the Secretary of State.

(4) A notice under this section shall—

(a) be given to the Secretary of State by delivery to him or by sending it by post to him, at such address as the Secretary of State may direct in relation to the establishment where the employees proposed to be dismissed are employed,

(b) in a case where consultation with trade union representatives is required by section 188, identify the trade union concerned and state the date when consultation began, and

(c) be in such form and contain such particulars, in addition to those required by paragraph (b), as the Secretary of State may direct.

(5) After receiving a notice under this section from an employer the Secretary of State may by written notice require the employer to give him such further information as may be specified in the notice.

(6) Where a notice given under subsection (1) or subsection (2) relates to employees of a description in respect of which an independent trade union is recognised by the employer, the employer shall give a copy of the notice to representatives of that union.

The copy shall be delivered to them or sent by post to an address notified by them to the employer, or sent by post to the union at the address of its head or main office.

(7) If in any case there are special circumstances rendering it not reasonably practicable for the employer to comply with any of the requirements of subsections (1) to (6), he shall take all such steps towards compliance with that requirement as are reasonably practicable in the circumstances.

194 Offence of failure to notify

(1) An employer who fails to give notice to the Secretary of State in accordance with section 193 commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) Proceedings in England or Wales for such an offence shall be instituted only by or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State.

An officer so authorised may, although not of counsel or a solicitor, prosecute or conduct proceedings for such an offence before a magistrates' court.

(3) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(4) Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Supplementary provisions

195 Meaning of “redundancy”

(1) In this Chapter, references to redundancy or to being redundant, in relation to an employee, are references to—

(a) the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee is or was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee is or was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he is or was so employed, have ceased or diminished or are expected to cease or diminish.

(2) In subsection (1)—

• “business” includes a trade or profession and includes any activity carried on by a body of persons, whether corporate or unincorporate; and

• “cease” means cease either permanently or temporarily and from whatever cause, and “diminish” has a corresponding meaning.

(3) For the purposes of any proceedings under this Chapter, the dismissal or proposed dismissal of an employee shall be presumed, unless the contrary is proved, to be by reason of redundancy.

196 Meaning of “trade union representative”

References in this Chapter to a trade union representative, in relation to an employer, are to an official or other person authorised by the trade union to carry on collective bargaining with that employer.

197 Power to vary provisions

(1) The Secretary of State may by order made by statutory instrument vary—

(a) the provisions of sections 188(2) and 193(1) (requirements as to consultation and notification), and

(b) the periods referred to at the end of section 189(4) (maximum protected period);

but no such order shall be made which has the effect of reducing to less than 30 days the periods referred to in sections 188(2) and 193(1) as the periods which must elapse before the first of the dismissals takes effect.

(2) No such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

198 Power to adapt provisions in case of collective agreement

(1) This section applies where there is in force a collective agreement which establishes—

(a) arrangements for providing alternative employment for employees to whom the agreement relates if they are dismissed as redundant by an employer to whom it relates, or

(b) arrangements for the handling of redundancies.

(2) On the application of all the parties to the agreement the Secretary of State may, if he is satisfied having regard to the provisions of the agreement that the arrangements are on the whole at least as favourable to those employees as the foregoing provisions of this Chapter, by order made by statutory instrument adapt, modify or exclude any of those provisions both in their application to all or any of those employees and in their application to any other employees of any such employer.

(3) The Secretary of State shall not make such an order unless the agreement—

(a) provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee to whom the agreement relates claims that any employer or other person to whom it relates has not complied with the provisions of the agreement, and

(b) provides that those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached,

or indicates that any such employee may present a complaint to an industrial tribunal that any such employer or other person has not complied with those provisions.

(4) An order under this section may confer on an industrial tribunal to whom a complaint is presented as mentioned in subsection (3) such powers and duties as the Secretary of State considers appropriate.

(5) An order under this section may be varied or revoked by a subsequent order thereunder either in pursuance of an application made by all or any of the parties to the agreement in question or without any such application.

Chapter III Codes of Practice

Codes of Practice issued by ACAS

199 Issue of Codes of Practice by ACAS

(1) ACAS may issue Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations.

(2) In particular, ACAS shall in one or more Codes of Practice provide practical guidance on the following matters—

(a) the time off to be permitted by an employer to a trade union official in accordance with section 168 (time off for carrying out trade union duties);

(b) the time off to be permitted by an employer to a trade union member in accordance with section 170 (time off for trade union activities); and

(c) the information to be disclosed by employers to trade union representatives in accordance with sections 181 and 182 (disclosure of information for purposes of collective bargaining).

(3) The guidance mentioned in subsection (2)(a) shall include guidance on the circumstances in which a trade union official is to be permitted to take time off under section 168 in respect of duties connected with industrial action; and the guidance mentioned in subsection (2)(b) shall include guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action.

(4) ACAS may from time to time revise the whole or any part of a Code of Practice issued by it and issue that revised Code.

200 Procedure for issue of Code by ACAS

(1) Where ACAS proposes to issue a Code of Practice, or a revised Code, it shall prepare and publish a draft of the Code, shall consider any representations made to it about the draft and may modify the draft accordingly.

(2) If ACAS determines to proceed with the draft, it shall transmit the draft to the Secretary of State who—

(a) if he approves of it, shall lay it before both Houses of Parliament, and

(b) if he does not approve of it, shall publish details of his reasons for withholding approval.

(3) A Code containing practical guidance on any of the matters referred to in section 199(2) shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft.

(4) In any other case the following procedure applies—

(a) if, within the period of 40 days beginning with the day on which the draft is laid before Parliament, (or, if copies are laid before the two Houses on different days, with the later of the two days) either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft;

(b) if no such resolution is passed, ACAS shall issue the Code in the form of the draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(5) A Code issued in accordance with this section shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.

The order may contain such transitional provisions or savings as appear to him to be necessary or expedient.

201 Consequential revision of Code issued by ACAS

(1) A Code of Practice issued by ACAS may be revised by it in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

“Subsequent statutory provisions” means provisions made by or under an Act of Parliament and coming into force after the Code was issued (whether before or after the commencement of this Act).

(2) Where ACAS proposes to revise a Code under this section, it shall transmit a draft of the revised Code to the Secretary of State who—

(a) if he approves of it, shall lay the draft before each House of Parliament, and

(b) if he does not approve of it, shall publish details of his reasons for withholding approval.

(3) If, within the period of 40 days beginning with the day on which the draft is laid before Parliament, (or, if copies are laid before the two Houses on different days, with the later of the two days) either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(4) If no such resolution is passed ACAS shall issue the Code in the form of the draft and it shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.

The order may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient.

202 Revocation of Code issued by ACAS

(1) A Code of Practice issued by ACAS may, at the request of ACAS, be revoked by the Secretary of State by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

(2) If ACAS requests the Secretary of State to revoke a Code and he decides not to do so, he shall publish details of his reasons for his decision.

(3) An order shall not be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Codes of Practice issued by the Secretary of State

203 Issue of Codes of Practice by the Secretary of State

(1) The Secretary of State may issue Codes of Practice containing such practical guidance as he thinks fit for the purpose—

(a) of promoting the improvement of industrial relations, or

(b) of promoting what appear to him to be to be desirable practices in relation to the conduct by trade unions of ballots and elections.

(2) The Secretary of State may from time to time revise the whole or any part of a Code of Practice issued by him and issue that revised Code.

204 Procedure for issue of Code by Secretary of State

(1) When the Secretary of State proposes to issue a Code of Practice, or a revised Code, he shall after consultation with ACAS prepare and publish a draft of the Code, shall consider any representations made to him about the draft and may modify the draft accordingly.

(2) If he determines to proceed with the draft, he shall lay it before both Houses of Parliament and, if it is approved by resolution of each House, shall issue the Code in the form of the draft.

(3) A Code issued under this section shall come into effect on such day as the Secretary of State may by order appoint.

The order may contain such transitional provisions or savings as appear to him to be necessary or expedient.

(4) An order under subsection (3) shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

205 Consequential revision of Code issued by Secretary of State

(1) A Code of Practice issued by the Secretary of State may be revised by him in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.

“Subsequent statutory provisions” means provisions made by or under an Act of Parliament and coming into force after the Code was issued (whether before or after the commencement of this Act).

(2) Where the Secretary of State proposes to revise a Code under this section, he shall lay a draft of the revised Code before each House of Parliament.

(3) If within the period of 40 days beginning with the day on which the draft is laid before Parliament, or, if copies are laid before the two Houses on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(4) If no such resolution is passed the Secretary of State shall issue the Code in the form of the draft and it shall come into effect on such day as he may appoint by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

206 Revocation of Code issued by Secretary of State

(1) A Code of Practice issued by the Secretary of State may be revoked by him by order made by statutory instrument.

The order may contain such transitional provisions and savings as appear to him to be appropriate.

(2) An order shall not be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.

Supplementary provisions

207 Effect of failure to comply with Code

(1) A failure on the part of any person to observe any provision of a Code of Practice issued under this Chapter shall not of itself render him liable to any proceedings.

(2) In any proceedings before an industrial tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

(3) In any proceedings before a court or industrial tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by the Secretary of State shall be admissible in evidence, and any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

208 Provisions of earlier Code superseded by later

(1) If ACAS is of the opinion that the provisions of a Code of Practice to be issued by it under this Chapter will supersede the whole or part of a Code previously issued under this Chapter, by it or by the Secretary of State, it shall in the new Code state that on the day on which the new Code comes into effect the old Code or a specified part of it shall cease to have effect.

(2) If the Secretary of State is of the opinion that the provisions of a Code of Practice to be issued by him under this Chapter will supersede the whole or part of a Code previously issued under this Chapter by him or by ACAS, he shall in the new Code state that on the day on which the new Code comes into effect the old Code or a specified part of it shall cease to have effect.

(3) The above provisions do not affect any transitional provisions or savings made by the order bringing the new Code into effect.

Chapter IV General

Functions of ACAS

209 General duty to promote improvement of industrial relations

It is the general duty of ACAS to promote the improvement of industrial relations, and in particular to encourage the extension of collective bargaining and the development and, where necessary, reform of collective bargaining machinery.

210 Conciliation

(1) Where a trade dispute exists or is apprehended ACAS may, at the request of one or more parties to the dispute or otherwise, offer the parties to the dispute its assistance with a view to bringing about a settlement.

(2) The assistance may be by way of conciliation or by other means, and may include the appointment of a person other than an officer or servant of ACAS to offer assistance to the parties to the dispute with a view to bringing about a settlement.

(3) In exercising its functions under this section ACAS shall have regard to the desirability of encouraging the parties to a dispute to use any appropriate agreed procedures for negotiation or the settlement of disputes.

211 Conciliation officers

(1) ACAS shall designate some of its officers to perform the functions of conciliation officers under any enactment (whenever passed) relating to matters which are or could be the subject of proceedings before an industrial tribunal.

(2) References in any such enactment to a conciliation officer are to an officer designated under this section.

212 Arbitration

(1) Where a trade dispute exists or is apprehended ACAS may, at the request of one or more of the parties to the dispute and with the consent of all the parties to the dispute, refer all or any of the matters to which the dispute relates for settlement to the arbitration of—

(a) one or more persons appointed by ACAS for that purpose (not being officers or employees of ACAS), or

(b) the Central Arbitration Committee.

(2) In exercising its functions under this section ACAS shall consider the likelihood of the dispute being settled by conciliation.

(3) Where there exist appropriate agreed procedures for negotiation or the settlement of disputes, ACAS shall not refer a matter for settlement to arbitration under this section unless—

(a) those procedures have been used and have failed to result in a settlement, or

(b) there is, in ACAS’s opinion, a special reason which justifies arbitration under this section as an alternative to those procedures.

(4) Where a matter is referred to arbitration under subsection (1)(a)—

(a) if more than one arbitrator or arbiter is appointed, ACAS shall appoint one of them to act as chairman; and

(b) the award may be published if ACAS so decides and all the parties consent.

(5) Part I of the [1950 c. 27.] Arbitration Act 1950 (general provisions as to arbitration) does not apply to an arbitration under this section.

213 Advice

(1) ACAS may give employers, employers' associations, workers and trade unions such advice as it thinks appropriate on matters concerned with industrial relations or employment policies.

The advice may be given on request or otherwise, and shall be without charge.

(2) The matters on which advice may be given include the following—

(a) the organisation of workers or employers for the purpose of collective bargaining;

(b) the recognition of trade unions by employers;

(c) machinery for the negotiation of terms and conditions of employment, and for joint consultation;

(d) procedures for avoiding and settling disputes and workers' grievances;

(e) questions relating to communication between employers and workers;

(f) facilities for officials of trade unions;

(g) procedures relating to the termination of employment;

(h) disciplinary matters;

(i) manpower planning, labour turnover and absenteeism;

(j) recruitment, retention, promotion and vocational training of workers;

(k) payment systems, including job evaluation and equal pay.

(3) ACAS may also publish general advice on matters concerned with industrial relations or employment policies, including any of the matters referred to above.

214 Inquiry

(1) ACAS may, if it thinks fit, inquire into any question relating to industrial relations generally or to industrial relations in any particular industry or in any particular undertaking or part of an undertaking.

(2) The findings of an inquiry under this section, together with any advice given by ACAS in connection with those findings, may be published by ACAS if—

(a) it appears to ACAS that publication is desirable for the improvement of industrial relations, either generally or in relation to the specific question inquired into, and

(b) after sending a draft of the findings to all parties appearing to to be concerned and taking account of their views, it thinks fit.

Courts of inquiry

215 Inquiry and report by court of inquiry

(1) Where a trade dispute exists or is apprehended, the Secretary of State may inquire into the causes and circumstances of the dispute, and, if he thinks fit, appoint a court of inquiry and refer to it any matters appearing to him to be connected with or relevant to the dispute.

(2) The court shall inquire into the matters referred to it and report on them to the Secretary of State; and it may make interim reports if it thinks fit.

(3) Any report of the court, and any minority report, shall be laid before both Houses of Parliament as soon as possible.

(4) The Secretary of State may, before or after the report has been laid before Parliament, publish or cause to be published from time to time, in such manner as he thinks fit, any information obtained or conclusions arrived at by the court as the result or in the course of its inquiry.

(5) No report or publication made or authorised by the court or the Secretary of State shall include any information obtained by the court of inquiry in the course of its inquiry—

(a) as to any trade union, or

(b) as to any individual business (whether carried on by a person, firm, or company),

which is not available otherwise than through evidence given at the inquiry, except with the consent of the secretary of the trade union or of the person, firm, or company in question.

Nor shall any individual member of the court or any person concerned in the inquiry disclose such information without such consent.

(6) The Secretary of State shall from time to time present to Parliament a report of his proceedings under this section.

216 Constitution and proceedings of court of inquiry

(1) A court of inquiry shall consist of—

(a) a chairman and such other persons as the Secretary of State thinks fit to appoint, or

(b) one person appointed by the Secretary of State,

as the Secretary of State thinks fit.

(2) A court may act notwithstanding any vacancy in its number.

(3) A court may conduct its inquiry in public or in private, at its discretion.

(4) The Secretary of State may make rules regulating the procedure of a court of inquiry, including rules as to summoning of witnesses, quorum, and the appointment of committees and enabling the court to call for such documents as the court may determine to be relevant to the subject-matter of the inquiry.

(5) A court of inquiry may, if and to such extent as may be authorised by rules under this section, by order require any person who appears to the court to have knowledge of the subject-matter of the inquiry—

(a) to supply (in writing or otherwise) such particulars in relation thereto as the court may require, and

(b) where necessary, to attend before the court and give evidence on oath;

and the court may administer or authorise any person to administer an oath for that purpose.

(6) Provision shall be made by rules under this section with respect to the cases in which persons may appear by counsel or solicitor in proceedings before a court of inquiry, and except as provided by those rules no person shall be entitled to appear in any such proceedings by counsel or solicitor.

Supplementary provisions

217 Exclusion of power of arbiter to state case to Court of Session

Section 3 of the [1972 c. 59.] Administration of Justice (Scotland) Act 1972 (power of arbiter to state case for opinion of Court of Session) does not apply to—

(a) any form of arbitration relating to a trade dispute, or

(b) any other arbitration arising from a collective agreement.

218 Meaning of “trade dispute” in Part IV

(1) In this Part “trade dispute” means a dispute between employers and workers, or between workers and workers, which is connected with one or more of the following matters—

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment as between workers or groups of workers;

(d) matters of discipline;

(e) the membership or non-membership of a trade union on the part of a worker;

(f) facilities for officials of trade unions; and

(g) machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures.

(2) A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated for the purposes of this Part as a dispute between an employer and those workers if the dispute relates—

(a) to matters which have been referred for consideration by a joint body on which, by virtue of any provision made by or under any enactment, that Minister is represented, or

(b) to matters which cannot be settled without that Minister exercising a power conferred on him by or under an enactment.

(3) There is a trade dispute for the purpose of this Part even though it relates to matters occurring outside Great Britain.

(4) A dispute to which a trade union or employer’s association is a party shall be treated for the purposes of this Part as a dispute to which workers or, as the case may be, employers are parties.

(5) In this section—

• “employment” includes any relationship whereby one person personally does work or performs services for another; and

• “worker”, in relation to a dispute to which an employer is a party, includes any worker even if not employed by that employer.