Sections 29 to 32, 37 & 38 of the Employment Relations Act 2004
Sections 29 to 32 of the Employment Relations Act 2004 (inducements and detriments in respect of membership, etc of independent trade union) to come into force on 1 October 2004
Sections 29 to 32 of the Act introduce measures that establish rights for workers not to be offered inducements relating to trade union membership and collective bargaining and extend their rights not to suffer detrimental action in circumstances relating to union membership.
Section 29 of the Act inserts new sections 145A to F into the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). These sections contain protections for workers against being offered inducements by their employer not to be a member of a trade union, not to take part in the activities of or not to make use of the services of their union, and not to have, or to give up having, their terms and conditions of employment determined by a collective agreement negotiated by their union.
Section 30 of the Act amends sections 146 to 151 of the 1992 Act to extend the existing protections of employees against detrimental action by their employer for being, or not being, a member of a trade union or for taking part in the activities of their union to workers who are not employees.
Section 31 of the Act amends sections 146 to 151 of the 1992 Act to give protections to workers against detrimental action by their employer for making use of the services of their trade union or for refusing to accept any of the inducements described above.
Section 32 of the Act amends section 152 of the 1992 Act to make the dismissal of an employee for making use of the services of his union or refusing to accept any of the inducements described above unfair.
* This note is designed to assist the reader in their understanding of the provisions. It is not a comprehensive description of the legislation and carries no legal force
Sections 37 and 38 of the Employment Relations Act 2004 (role of companion at disciplinary or grievance hearing and extension of jurisdiction of EAT) to come into force on 1st October 200
The Employment Relations Act 1999 (“the 1999 Act”) provides a right for workers to be accompanied by certain trade union officials or fellow workers at non-trivial disciplinary and grievance hearings. The 1999 Act, in essence, provided that the companion could address meetings and confer with the worker but was not permitted to answer questions on behalf of the worker.
Section 37 of the new Employment Relations Act 2004 further clarifies the role of the companion at such disciplinary and grievance hearings, by amending section 10 of the1999 Act. Under the amended law, the employer must allow the companion to address the hearing to put the worker’s case; to sum up that case; and to respond on the worker’s behalf to any view expressed at the hearing. The companion may still confer with the worker during the hearing. The companion will therefore normally be able to address the hearing both at the beginning and end of the hearing and will also have the opportunity to respond to views expressed.
The amended law also provides that the employer is not required to permit the companion to answer questions on the worker’s behalf, address the hearing if the worker indicates that he does not wish the companion to do so, or use the powers in a way that prevents the employer from explaining his case or any other person making his contribution
Section 37 also amends section 12 of the 1999 Act to make it clear that where a worker attends a hearing as the companion of another worker, he is protected against detriment and dismissal not only in respect of the act of accompanying the worker but also for addressing or seeking to address the hearing.
Practical guidance on the role of the companion is provided in Section 3 of the ACAS Code of Practice on Disciplinary and Grievance Procedures, a new version of which comes into force on 1 October 2004.
Extension of jurisdiction of Employment Appeal Tribunal
Section 38 ensures that the Employment Appeal Tribunal has jurisdiction to hear appeals against employment tribunal decisions in relation to the “right to be accompanied”.
* This note is designed to assist the reader in their understanding of the provisions. It is not a comprehensive description of the legislation and carries no legal force.