Part III Rights in relation to union membership and activities
F1Detriment
146F2Detriment on grounds related to union membership or activities.
(1)
F3A worker has the right not to F4be 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 F5the sole or main 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, F6. . .
F7(ba)
preventing or deterring him from making use of trade union services 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 F8(1)“an appropriate time” means—
(a)
a time outside the F9worker'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 F10or (as the case may be) make use of trade union services;
F13(2A)
In this section—
(a)
“trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and
(b)
references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.
(2B)
If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba).
(2C)
A worker also has the right not to 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 because of the worker’s failure to accept an offer made in contravention of section 145A or 145B.
(2D)
For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).
(3)
F3A worker also has the right not to F14be 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 F5the sole or main purpose of enforcing a requirement (whether or not imposed by F15a 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 F11a worker 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 F16a detriment to which he has been subjected as an individual by an act of his employer taking place for F5the sole or main purpose of enforcing a requirement of a kind mentioned in that subsection.
(5)
F19(5A)
This section does not apply where—
(a)
the worker is an employee; and
(b)
the detriment in question amounts to dismissal.
147 Time limit for proceedings.
F20(1)An F21employment 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 F22act 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.
F23(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.
F23(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.
148 Consideration of complaint.
(1)
(2)
In determining any question whether F26the 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.
(3)
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(4)
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(5)
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149 Remedies.
(1)
(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 F29act 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 F29act or failurecomplained of, and
(b)
loss of any benefit which he might reasonably be expected to have had but for that F29act 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 F29act 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.
150 Awards against third parties.
(1)
If in proceedings on a complaint under section 146—
(a)
the complaint is made on the ground that F30the complainant has been subjected to detriment by an act or failure by his employer taking place for F31the sole or main 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 F32act or fail to act in the waycomplained 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.
151 Interpretation and other supplementary provisions.
(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 F33. . . .
F34(1A)
References in those sections—
(a)
to taking part in the activities of a trade union, and
(b)
to services made available by a trade union by virtue of membership of the union,
shall be construed in accordance with subsection (1).
F35(1B)
In sections 146 to 150—
“worker” means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and
“employer” means—
(a)
in relation to a worker, the person for whom he works;
(b)
in relation to a former worker, the person for whom he worked.