Employment Act 1980

Exclusion from trade union membership

4 Unreasonable exclusion or expulsion from trade union

(1) This section applies to employment by an employer with respect to which it is the practice, in accordance with a union membership agreement, for the employee to belong to a specified trade union or one of a number of specified trade unions.

(2) Every person who is, or is seeking to be, in employment to which this section applies shall have the right—

(a) not to have an application for membership of a specified trade union unreasonably refused ;

(b) not to be unreasonably expelled from a specified trade union.

(3) The rights conferred by subsection (2) above are in addition to and not in substitution for any right which exists apart from that subsection; and, without prejudice to any remedy for infringement of any such other right, the remedies for infringement of a right conferred by that subsection shall be those provided by the following provisions of this section and section 5 below.

(4) A complaint may be presented to an industrial tribunal against a trade union by a person that an application by him for membership of the union has been unreasonably refused, or that he has been unreasonably expelled from the union, in contravention of subsection (2) above.

(5) On a complaint under this section, the question whether a trade union has acted reasonably or unreasonably shall be determined in accordance with equity and the substantial merits of the case, and in particular a union shall not be regarded as having acted reasonably only because it has acted in accordance with the requirements of its rules or unreasonably only because it has acted in contravention of them.

(6) A tribunal shall not entertain a complaint under this section unless it is presented to the tribunal before the end of the period of six months beginning with the date of the refusal or expulsion, as the case may be, or 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 the period of six months.

(7) Where a tribunal finds that a complaint under this section is well-founded, the tribunal shall make a declaration to that effect.

(8) An appeal shall lie to the Employment Appeal Tribunal on any question of law or fact arising from any decision of, or arising in any proceedings before, an industrial tribunal under this section.

(9) For the purposes of this section and section 5 below—

(a) if an application for membership of a trade union has been neither granted nor rejected before the end of the period within which it might reasonably have been expected to be granted if it was to be granted, the application shall be treated as having been refused on the last day of that period, and

(b) if under the rules of a trade union any person ceases to be a member of the union on the happening of an event specified in the rules, he shall be treated as having been expelled from the union.

(10) Any expression used in any provision of this section or section 5 below and in the 1974 Act has the same meaning in that provision as it has in that Act, except that any reference in such a provision to a trade union includes a reference to a branch or section of a trade union.

(11) Any provision in an agreement shall be void in so far as it purports to exclude or limit the operation of, or to preclude any person from presenting a complaint or making an application under, this section or section 5 below; but this subsection shall not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action in accordance with section 133(2) or (3) of the 1978 Act.

5 Compensation

(1) A person who has made a complaint against a trade union under section 4 above which has been declared to be well-founded may make an application in accordance with subsection (2) below for an award of compensation to be paid to him by the union.

(2) If at the time when the application under this section is made the applicant has been admitted or re-admitted to membership of the union against which he made the complaint, the application shall be to an industrial tribunal; and if at that time he has not been so admitted or re-admitted, the application shall be to the Employment Appeal Tribunal.

(3) An industrial tribunal or the Employment Appeal Tribunal shall not entertain an application for compensation under this section if it is made before the end of the period of four weeks beginning with the date of the declaration under section 4 above or after the end of the period of six months beginning with that date.

(4) Subject to the following provisions of this section, the amount of compensation awarded on an application under this section—

(a) in the case of an application to an industrial tribunal, shall be such as the tribunal considers appropriate for the purpose of compensating the applicant for the loss sustained by him in consequence of the refusal or expulsion which was the subject of his complaint, and

(b) in the case of an application to the Employment Appeal Tribunal, shall be such as the Appeal Tribunal considers just and equitable in all the circumstances.

(5) In determining the amount of compensation to be awarded under this section, the industrial tribunal or the Employment Appeal 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 of Scotland, as the case may be.

(6) Where the industrial tribunal or the Employment Appeal Tribunal finds that the refusal or expulsion which was the subject of the applicant's complaint was to any extent caused or contributed to by any action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

(7) The amount of compensation awarded on an application to an industrial tribunal under this section shall not exceed the aggregate of—

(a) an amount equal to thirty times the limit for the time being imposed by paragraph 8(1)(b) of Schedule 14 to the 1978 Act (maximum amount of a week's pay for purpose of calculating basic award in unfair dismissal cases), and

(b) an amount equal to the limit for the time being imposed by section 75 of that Act (maximum compensatory award in such cases).

(8) The amount of compensation awarded on an application to the Employment Appeal Tribunal under this section shall not exceed the aggregate of—

(a) the amount referred to in paragraph (a) of subsection (7) above, and

(b) the amount referred to in paragraph (b) of that subsection, and

(c) an amount equal to fifty-two times the limit for the time being imposed by paragraph 8(1)(a) of Schedule 14 to the 1978 Act (maximum amount of a week's pay for purpose of calculating additional award of compensation in unfair dismissal cases).

(9) An appeal shall lie to the Employment Appeal Tribunal on a question of law arising from any decision of, or arising in proceedings before, an industrial tribunal under this section.