Employment Act 2008

3 Non-compliance with statutory Codes of Practice U.K.

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is amended as specified in subsections (2) and (3).

(2) After section 207 there is inserted—

“207A Effect of failure to comply with Code: adjustment of awards

(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.

(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

(3) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employee has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the employee by no more than 25%.

(4) In subsections (2) and (3), “relevant Code of Practice” means a Code of Practice issued under this Chapter which relates exclusively or primarily to procedure for the resolution of disputes.

(5) Where an award falls to be adjusted under this section and under section 38 of the Employment Act 2002, the adjustment under this section shall be made before the adjustment under that section.

(6) The Secretary of State may by order amend Schedule A2 for the purpose of—

(a) adding a jurisdiction to the list in that Schedule, or

(b) removing a jurisdiction from that list.

(7) The power of the Secretary of State to make an order under subsection (6) includes power to make such incidental, supplementary, consequential or transitional provision as the Secretary of State thinks fit.

(8) An order under subsection (6) shall be made by statutory instrument.

(9) No order shall be made under subsection (6) unless a draft of the statutory instrument containing it has been laid before Parliament and approved by a resolution of each House.”

(3) After Schedule A1 there is inserted—

Section 207A

“SCHEDULE A2 U.K. Tribunal jurisdictions to which section 207A applies

• Section 2 of the Equal Pay Act 1970 (c. 41) (equality clauses)

• Section 63 of the Sex Discrimination Act 1975 (c. 65) (discrimination in the employment field)

• Section 54 of the Race Relations Act 1976 (c. 74) (discrimination in the employment field)

• Section 145A of this Act (inducements relating to union membership or activities)

• Section 145B of this Act (inducements relating to collective bargaining)

• Section 146 of this Act (detriment in relation to union membership and activities)

• Paragraph 156 of Schedule A1 to this Act (detriment in relation to union recognition rights)

• Section 17A of the Disability Discrimination Act 1995 (c. 50) (discrimination in the employment field)

• Section 23 of the Employment Rights Act 1996 (c. 18) (unauthorised deductions and payments)

• Section 48 of that Act (detriment in employment)

• Section 111 of that Act (unfair dismissal)

• Section 163 of that Act (redundancy payments)

• Section 24 of the National Minimum Wage Act 1998 (c. 39) (detriment in relation to national minimum wage)

• The Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623) (breach of employment contract and termination)

• The Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) (corresponding provision for Scotland)

• Regulation 30 of the Working Time Regulations 1998 (SI 1998/1833) (breach of regulations)

• Regulation 32 of the Transnational Information and Consultation of Employees Regulations 1999 (SI 1999/3323) (detriment relating to European Works Councils)

• Regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1660) (discrimination in the employment field)

• Regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1661) (discrimination in the employment field)

• Regulation 45 of the European Public Limited-Liability Company Regulations 2004 (SI 2004/2326) (detriment in employment)

• Regulation 33 of the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) (detriment in employment)

• Paragraph 8 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (SI 2006/349) (detriment in employment)

• Regulation 36 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031) (discrimination in the employment field)

• Regulation 34 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (SI 2006/2059) (detriment in relation to involvement in a European Cooperative Society)

• Regulation 17 of the Cross-border Railway Services (Working Time) Regulations 2008 (SI 2008/1660) (breach of regulations).”

(4) In section 124A of the Employment Rights Act 1996 (c. 18) (adjustments under the Employment Act 2002), in paragraph (a), for the words from “section 31” to “procedures)” there is substituted “ section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (effect of failure to comply with Code: adjustment of awards) ”.

Commencement Information

I1 S. 3 in force at 6.4.2009 by S.I. 2008/3232, art. 2 (with art. 3, Sch.)