Blackstone's Statutes Series 
Caddell & Johnson: Media Law 2eBlackstone's Statutes Series
Updates
Last updated November 2008: note that new material is indicated by an asterisk – thus*
Major changes
1. The Employment Act 2008 has been passed. It provides firstly for the repeal of the statutory dispute resolution procedure (Employment Act 2002 sections 29 to 33) but states that if a code of practice is unreasonably not complied with, then unfair dismissal compensation may be increased by up to 25%. Secondly it makes changes to the enforcement of the minimum wage. Thirdly it amends TULRCA 1992, s. 174 concerning the right not to be expelled from a trade union.
The changes to existing legislation are noted below.
2. The final form of the revised ACAS Code on Disciplinary and Grievance Procedures is now available. It has yet to be approved by Ministers.
See www.acas.org.uk/CHttpHandler.ashx?id=961&p=0
Minor amendments
Note: the numbers in blue in the text below indicate the source of the amendment as follows:-
(1) The Cross-border Railway Services (Working Time) Regulations 2008 SI No. 1660
(2) The Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008 SI 2008 No. 1966
(3) The Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulation 2008
(4) The Mental Health Act 2007 (Consequential Amendments) Order 2007
(5) The Employment Support Allowance (Consequential Provisions) (No. 3) Regulations 2008 SI No. 1879
(6) The Employment Act 2008 c.24
Trade Union and Labour Relations (Consolidation) Act 1992
*Page 87
(6)
In section 174 (right not to be excluded or expelled from union) after subsection (4B), insert—
“(4C) Conduct which consists in an individual’s being or having been a member of a political party is not conduct falling within subsection (4A) if membership of that political party is contrary to—
(a) a rule of the trade union, or
(b) an objective of the trade union.
(4D) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual’s being a member of a political party, an objective is to be disregarded—
(a) in relation to an exclusion, if it is not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual;
(b) in relation to an expulsion, if it is not reasonably practicable for the objective to be ascertained by a member of the union.
(4E) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual’s having been a member of a political party, an objective is to be disregarded—
(a) in relation to an exclusion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual;
(b) in relation to an expulsion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a member of the union.
(4F) Where the exclusion or expulsion of an individual from a trade union is wholly or mainly attributable to conduct which consists of an individual’s being or having been a member of a political party but which by virtue of subsection (4C) is not conduct falling within subsection (4A), the exclusion or expulsion is not permitted by virtue of subsection (2)(d) if any one or more of the conditions in subsection (4G) apply.
(4G) Those conditions are—
(a) the decision to exclude or expel is taken otherwise than in accordance with the union’s rules;
(b) the decision to exclude or expel is taken unfairly;
(c) the individual would lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union.
(4H) For the purposes of subsection (4G)(b) a decision to exclude or expel an individual is taken unfairly if (and only if)—
(a) before the decision is taken the individual is not given—
(i) notice of the proposal to exclude or expel him and the reasons for that proposal, and
(ii) a fair opportunity to make representations in respect of that proposal, or
(b) representations made by the individual in respect of that proposal are not considered fairly.”
*Page 88
(6)
In section 176 (remedies), in subsection (1D)(a), for “a member of the general public” substitute “a person working in the same trade, industry or profession as the complainant”.
*Page 99
(6)
After section 207 insert—
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) – (9) [omitted]
*Page 155
(6)
After Schedule A1 insert—
SCHEDULE A2 Section 207A
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).
Disability Discrimination Act 1995
Page 165
(4)
In section 68(1) of the Disability Discrimination Act 1995 (interpretation), the definition of “mental impairment” is repealed.
Employment Rights Act 1996
*Page 188
(6)
In section 24 (determination of complaints relating to deductions from wages or payments to employer)—
(a) the existing provision becomes subsection (1), and
(b) after that provision insert—
“(2) Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.”
Page 214
(5)
In section 90 of the Employment Rights Act 1996
(a) in the heading after “short-term incapacity benefit” insert “, contributory employment and support allowance”; and
(b) in subsection (1)(b) after “short-term incapacity benefit” insert “, contributory employment and support allowance”.
*Page 220
(6)
Section 98A is repealed
Page 223
(1)
In section 104(4)(d) (fairness in dismissal: assertion of statutory right) for “or the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004” substitute–
“, the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008”.
*Page 228
(6)
In section 112(5)(a), “or 98A(1)”is repealed.
*Page 231
(6)
In section 120(1A)(a), “or 98A(1)” is repealed.
*Page 233
(6)
In section 124A in paragraph (a), for the words from “section 31” to “procedures)” substitute “section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (effect of failure to comply with Code: adjustment of awards)”.
*Page 246
(6)
In section 163 (determination of questions relating to redundancy payments), at the end insert—
“(5) Where a tribunal determines under subsection (1) that an employee has a right to a redundancy payment it may order the employer to pay to the worker such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the non-payment of the redundancy payment.”
Employment Tribunals Act 1996
*Page 265
(6)
In section 4 (composition of employment tribunal), in subsection (3)(cd), for “section 19 or 22” substitute “section 19C”.
Page 267
(1)
In section 18(1) (conciliation)—
(i) at the end of paragraph (s) omit “or”, and
(ii) after paragraph (t) insert–
“, or
(u) under regulation 17 of the Cross-border Railway Services (Working Time) Regulations 2008”.
(6)
* In section 18(3), for the words from “shall act” to the end there is substituted “may endeavour to promote a settlement between the parties without proceedings being instituted”.
*Page 268
(6)
For subsection (5) substitute—
“(5) Where a conciliation officer acts pursuant to subsection (3) in a case where the person claiming as specified in paragraph (a) of that subsection has ceased to be employed by the employer and the proceedings which he claims could be brought by him are proceedings under section 111 of the Employment Rights Act 1996, the conciliation officer may in particular—
(a) seek to promote the reinstatement or re-engagement of that person by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or
(b) where the person does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to that person.”
Page 269
(1)
In section 21(1) (appeals from employment tribunals on questions of law)—
(i) at the end of paragraph (t) omit “or”, and
(ii) after paragraph (u) insert—
“, or
(v) the Cross-border Railway Services (Working Time) Regulations 2008”.
The National Minimum Wage Act 1998
*Page 273
(6)
The National Minimum Wage Act 1998, section 17 is amended as follows:-
(1) In section 17(1), after “shall” there is inserted “at any time (“the time of determination”)”.
(2) Also in s. 17(1), for “the amount described in subsection (2) below” there is substituted “whichever is the higher of—
(a) the amount described in subsection (2) below, and
(b) the amount described in subsection (4) below.”
(3) In section 17 (2), for “That amount” there is substituted “The amount referred to in subsection (1)(a) above”.
(4) After section 17(3) there is inserted—
“(4) The amount referred to in subsection (1)(b) above is the amount determined by the formula—
where—
A is the amount described in subsection (2) above,
R1 is the rate of national minimum wage which was payable in respect of the worker during the pay reference period, and
R2 is the rate of national minimum wage which would have been payable in respect of the worker during that period had the rate payable in respect of him during that period been determined by reference to regulations under section 1 and 3 above in force at the time of determination.
(5) Subsection (1) above ceases to apply to a worker in relation to any pay reference period when he is at any time paid the additional remuneration for that period to which he is at that time entitled under that subsection.
(6) Where any additional remuneration is paid to the worker under this section in relation to the pay reference period but subsection (1) above has not ceased to apply in relation to him, the amounts described in subsections (2) and (4) above shall be regarded as reduced by the amount of that remuneration.”
*Page 273 - 276
(6)
For sections 19 – 22F substitute the following:-
19 Notices of underpayment: arrears
(1) Subsection (2) below applies where an officer acting for the purposes of this Act is of the opinion that, on any day (“the relevant day”), a sum was due under section 17 above for any one or more pay reference periods ending before the relevant day to a worker who at any time qualified for the national minimum wage.
(2) Where this subsection applies, the officer may, subject to this section, serve a notice requiring the employer to pay to the worker, within the 28-day period, the sum due to the worker under section 17 above for any one or more of the pay reference periods referred to in subsection (1) above.
(3) In this Act, “notice of underpayment” means a notice under this section.
(4) A notice of underpayment must specify, for each worker to whom it relates—
(a) the relevant day in relation to that worker;
(b) the pay reference period or periods in respect of which the employer is required to pay a sum to the worker as specified in subsection (2) above;
(c) the amount described in section 17(2) above in relation to the worker in respect of each such period;
(d) the amount described in section 17(4) above in relation to the worker in respect of each of such period;
(e) the sum due under section 17 above to the worker for each such period.
(5) Where a notice of underpayment relates to more than one worker, the notice may identify the workers by name or by description.
(6) The reference in subsection (1) above to a pay reference period includes (subject to subsection (7) below) a pay reference period ending before the coming into force of this section.
(7) A notice of underpayment may not relate to a pay reference period ending more than six years before the date of service of the notice.
(8) In this section and sections 19A to 19C below “the 28-day period” means the period of 28 days beginning with the date of service of the notice of underpayment.
19A Notices of underpayment: financial penalty
(1) A notice of underpayment must, subject to this section, require the employer to pay a financial penalty specified in the notice to the Secretary of State within the 28-day period.
(2) The Secretary of State may by directions specify circumstances in which a notice of underpayment is not to impose a requirement to pay a financial penalty.
(3) Directions under subsection (2) may be amended or revoked by further such directions.
(4) The amount of any financial penalty is, subject as follows, to be 50% of the total of the amounts referred to in subsection (5) below.
(5) Those amounts are the amounts specified under section 19(4)(c) above for all workers to whom the notice relates in respect of pay reference periods specified under section 19(4)(b) above which commence after the coming into force of this section.
(6) If a financial penalty as calculated under subsection (4) above would be less than £100, the financial penalty specified in the notice shall be that amount.
(7) If a financial penalty as calculated under subsection (4) above would be more than £5000, the financial penalty specified in the notice shall be that amount.
(8) – (11) [omitted]
19B – 19C [omitted]
19D Non-compliance with notice of underpayment: recovery of arrears
(1) If a requirement to pay a sum to a worker contained in a notice of underpayment is not complied with in whole or in part, an officer acting for the purposes of this Act may, on behalf of any worker to whom the requirement relates—
(a) present a complaint under section 23(1)(a) of the Employment Rights Act 1996 (deductions from worker’s wages in contravention of section 13 of that Act) to an employment tribunal in respect of any sums due to the worker by virtue of section 17 above; or
(b) in relation to Northern Ireland, present a complaint under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996 (deductions from worker’s wages in contravention of Article 45 of that Order) to an industrial tribunal in respect of any sums due to the worker by virtue of section 17 above; or
(c) commence other civil proceedings for the recovery, on a claim in contract, of any sums due to the worker by virtue of section 17 above.
(2) The powers conferred by subsection (1) above for the recovery of sums due from an employer to a worker shall not be in derogation of any right which the worker may have to recover such sums by civil proceedings.
19E Non-compliance with notice of underpayment: recovery of penalty
A financial penalty payable under a notice of underpayment—
(a) in England and Wales, is recoverable, if a county court so orders, under section 85 of the County Courts Act 1984 or otherwise as if it were payable under an order of that court;
(b) in Scotland, may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland;
(c) in Northern Ireland, is recoverable, if the county court so orders, as if it were payable under an order of that court.
19F – 19H [omitted]
*Page 278
(6)
In section 31 (offences), in subsection (9), for the words from “on summary conviction” to the end substitute—
“(a) on conviction on indictment, to a fine, or
(b) on summary conviction, to a fine not exceeding the statutory maximum”.
*Page 280
(6)
In section 44, after subsection (1) insert—
“(1A) For the purposes of subsection (1)(a) above, expenses which—
(a) are incurred in order to enable the worker to perform his duties,
(b) are reasonably so incurred, and
(c) are not accommodation expenses,
are to be regarded as actually incurred in the performance of his duties.”
The Employment Act 2002
*Page 289
(6)
Sections 30 – 32 are repealed.
*Page 291 - 295
(6)
Schedules 2, 3 and 4 are repealed
*Page 296
(1)
At the end of Schedule 5 add:-
‘Regulation 17 of the Cross-border Railways Services (Working Time) Regulations 2008 (breach of regulations)’
Maternity and Parental Leave etc Regulations 1999
Page 328
(2)
In regulation 9 (application of terms and conditions during ordinary maternity leave)—
(a) in the heading, after “ordinary maternity leave”, insert “and additional maternity leave”;
(b) in paragraph (1), after “ordinary maternity leave”, insert “or additional maternity leave”;
(c) in paragraph (1)(b), for “the exception in section 71(4)(b)”, substitute “the exceptions in sections 71(4)(b) and 73(4)(b)”;
(d) in paragraph (2), for “section 71(5)”, substitute “sections 71(5) and 73(5)”;
(e) in paragraph (3), for “section 71”, substitute “sections 71 and 73” ; and
(f) after paragraph (3) insert—
“(4) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by Schedule 5 to the Social Security Act 1989(7), nothing in paragraph (1)(a) concerning the treatment of additional maternity leave shall be taken to impose a requirement which exceeds the requirements of paragraph 5 of that Schedule.”.
Page 330
(2)
In regulation 17 (application of terms and conditions during periods of leave), omit “additional maternity leave or”./p>
Page 331
(2)
In regulation 18A (incidents of the right to return)—
(a) for paragraph (1)(a), substitute—
“(a) with her seniority, pension rights and similar rights as they would have been if she had not been absent, and”,
(b) for paragraph (2), substitute—
“(2) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by Schedule 5 to the Social Security Act 1989, nothing in paragraph (1)(a) concerning the treatment of additional maternity leave shall be taken to impose a requirement which exceeds the requirements of paragraphs 5 and 6 of that Schedule.”, and
(c) in paragraph (3), for “in paragraph (1)(a)(ii) and (b)” substitute “in paragraph (1)”.
Page 332
(2)
In regulation 19 (protection from detriment)—
(a) in paragraph (2)(d), after “ordinary maternity leave” insert “or additional maternity leave”,
(b) omit paragraph (2)(e)(i), and
(c) after paragraph (3) insert—
“(3A) For the purposes of paragraph (2)(d), a woman avails herself of the benefits of additional maternity leave if, during her additional maternity leave period, she avails herself of the benefit of any of the terms and conditions of her employment preserved by section 73 of the 1996 Act and regulation 9 during that period.”.
Page 333
(2)
In regulation 20 (unfair dismissal)—
(a) in paragraph (3)(d), after “ordinary maternity leave” insert “or additional maternity leave”,
(b) omit paragraph (3)(e)(i), and
(c) for paragraph (5) substitute—
“(5) Paragraphs (3) and (3A) of regulation 19 apply for the purposes of paragraph (3)(d) as they apply for the purposes of paragraph (2)(d) of that regulation.”.
Fixed – term Employees (Prevention of Less Favourable Treatment) Regulations 2002
Page 352
(3)
For regulation 19(1) (agency workers) substitute—
“(1) Save in respect of paragraph 1 of Part 1 of Schedule 2, these Regulations shall not have effect in relation to employment under a fixed-term contract where the employee is an agency worker.”.
The Paternity and Adoption Leave Regulations 2002
Page 359
(2)
In regulation 19 (application of terms and conditions during ordinary adoption leave)—
(a) in the heading, after “ordinary adoption leave”, insert “and additional adoption leave”,
(b) in paragraph (1), after “ordinary adoption leave”, insert “or additional adoption leave”,
(c) in paragraph (1)(b), for “the exception in section 75A(3)(b)”, substitute “the exceptions in sections 75A(3)(b) and 75B(4)(b)”,
(d) in paragraph (2), for “section 75A(4)”, substitute “sections 75A(4) and 75B(5)”, and
(e) in paragraph (3), for “section 75A”, substitute “sections 75A and 75B”.
Page 360
(2)
Regulation 21 (application of terms and conditions during additional adoption leave) is revoked.
Page 361
(2)
In regulation 27 (incidents of the right to return from adoption leave)—
(a) for paragraph (1)(a) substitute—
“(a) with his seniority, pension rights and similar rights as they would have been if he had not been absent, and”,
(b) for paragraph (2), substitute—
“(2) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by Schedule 5 to the Social Security Act 1989, nothing in paragraph (1)(a) concerning the treatment of additional adoption leave shall be taken to impose a requirement which exceeds the requirements of paragraphs 5, 5B(10) and 6 of that Schedule .”, and
(c) in paragraph (3), for “in paragraph (1)(a)(ii) and (b)”, substitute “in paragraph (1)”.
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