42 Consequential amendments, repeals and revocations
(1) The Secretary of State or the Treasury may by regulations make such provision as appears to the Secretary of State or the Treasury to be appropriate in consequence of this Act.
(2) The power conferred by subsection (1) includes power—
(a) to make transitional, transitory or saving provision;
(b) to amend, repeal, revoke or otherwise modify any provision made by or under an enactment (including an enactment passed or made in the same Session as this Act).
(3) Regulations under this section are to be made by statutory instrument.
(4) An instrument containing regulations under this section which amend, repeal or revoke any provision of primary legislation may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House of Parliament.
(5) Subject to that, an instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section—
“enactment” includes any provision of primary legislation;
“primary legislation” means—
an Act of Parliament,
an Act of the Scottish Parliament,
a Measure or Act of the National Assembly for Wales, and
Northern Ireland legislation.
The Secretary of State or the Treasury may by regulations made by statutory instrument make such transitional, transitory or saving provision as the Secretary of State or the Treasury considers appropriate in connection with the coming into force of any provision of this Act.
(1) The following provisions of this Act come into force on the day on which this Act is passed—
(a) any power to make regulations under Part 1 (Small Business Commissioner);
(b) section 14 (extension of business impact target to provisions made by regulators) for the purpose of enabling the exercise of the power to make regulations under subsection (9) of section 22 of the Small Business, Enterprise and Employment Act 2015 (as inserted by section 14);
(c) section 20 and Schedule 3 (extension of primary authority scheme) for the purpose of enabling the exercise of any power to make regulations under any provision of the Regulatory Enforcement and Sanctions Act 2008 inserted by that section or Schedule;
(d) section 33 and Schedule 5 (Sunday working) for the purpose of enabling the exercise of any power to make regulations under any provision of the Employment Rights Act 1996 inserted by that Schedule;
(e) section 38 (UK Green Investment Bank: transitional provision);
(f) paragraph 2 of Schedule 2 (things to be included in Secretary of State's report in respect of the business impact target), and section 14 (which introduces Schedule 2) so far as relating to that paragraph;
(g) this Part.
(2) The following provisions of this Act come into force at the end of the period of 2 months beginning with the day on which this Act is passed—
(a) section 14 (extension of business impact target to provisions made by regulators) (so far as not already in force under subsection (1));
(b) section 18 (application of regulators' principles and code: removal of restrictions);
(c) section 24 (public sector apprenticeship targets);
(d) section 31 (disclosure of HMRC information in connection with non-domestic rating);
(e) section 32 (alteration of non-domestic rating lists);
(f) sections 34 and 35 (industrial development);
(g) Schedule 2 (business impact target: consequential and related amendments) (so far as not already in force under subsection (1)).
(3) Sections 28 to 30 (late payment of insurance claims) come into force at the end of the period of one year beginning with the day on which this Act is passed (and section 23(2) of the Insurance Act 2015 (which provides for the coming into force of provisions of that Act) does not apply to the provisions inserted into that Act by those sections).
(4) The following provisions of this Act come into force on such day as the Treasury may by regulations appoint—
(a) section 36 (UK Government Investments Limited);
(b) section 41 and Schedule 6 (restriction on public sector exit payments).
(5) Subject to subsections (1) to (4), the provisions of this Act come into force on such day as the Secretary of State may by regulations appoint.
(6) Regulations under this section are to be made by statutory instrument.
(7) Regulations under this section may appoint different days—
(a) for different purposes;
(b) for different areas.
(1) The following provisions of this Act extend to England and Wales, Scotland and Northern Ireland—
(a) Part 1 (Small Business Commissioner) (except paragraphs 1, 15 and 18 to 21 of Schedule 1);
(b) subsections (5) to (9) of section 14 (application of changes relating to the business impact target in relation to the relevant period in which they come into force);
(c) section 26 (apprenticeships: information sharing);
(d) sections 28 and 29 (late payment of insurance claims);
(e) section 35 (grants etc towards electronic communications services and networks), except subsection (2);
(f) section 36 (UK Government Investments Limited);
(g) section 38 (UK Green Investment Bank: transitional provision);
(h) paragraphs 4 and 5(2) and (3) of Schedule 6 (public sector exit payments: amendments of public sector schemes);
(i) this Part.
(2) Paragraphs 1 and 15 of Schedule 1 (establishment of Small Business Commissioner as corporation sole and provisions about the application of the seal etc) extend to England and Wales and Northern Ireland.
(3) Section 23 (the Institute for Apprenticeships: transitional provision) extends to England and Wales.
(4) Subject to subsection (1), any amendment, repeal or revocation made by this Act has the same extent as the enactment amended, repealed or revoked.
Section 1
Status
1 The Commissioner is a corporation sole.
Appointment of Commissioner
2 The Commissioner is to be appointed by the Secretary of State.
Deputy Commissioners
3 The Secretary of State may appoint one or more Deputy Commissioners.
4 The Commissioner may delegate any of the Commissioner's functions to a Deputy Commissioner.
Term of office etc
5 A person holds and vacates office as the Commissioner or a Deputy Commissioner in accordance with the terms of the appointment, but—
(a) the initial term of office may not be more than 4 years,
(b) a person may be appointed for no more than 2 further terms of office (whether as the Commissioner or a Deputy Commissioner),
(c) a further term may not be more than 3 years,
(d) the person may resign by giving written notice to the Secretary of State, and
(e) the Secretary of State may dismiss the person if satisfied that the person is unable, unwilling or unfit to perform his or her functions.
Remuneration
6 The Secretary of State may pay to or in respect of the person holding office as the Commissioner or a Deputy Commissioner—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
Commissioner and Deputy Commissioners not civil servants
7 Service as the Commissioner or a Deputy Commissioner is not service in the civil service of the state.
Acting as Commissioner during vacancy etc
8 (1) The nominated person is to act as Commissioner—
(a) during any vacancy in the office of Commissioner, or
(b) if the Commissioner is disqualified.
(2) “The nominated person” means—
(a) if there is only one Deputy Commissioner who is not disqualified, that Deputy Commissioner,
(b) if there is more than one Deputy Commissioner who is not disqualified, such of them as the Secretary of State appoints to act as Commissioner, or
(c) if neither paragraph (a) nor (b) applies, a member of the Commissioner's staff appointed under paragraph 11, or seconded under paragraph 12, who is appointed by the Secretary of State to act as Commissioner.
(3) For the purposes of this paragraph a person is “disqualified” if the person is absent, subject to suspension or unable to act (whether as a result of arrangements under paragraph 9 or otherwise).
Conflicts of interest
9 (1) The Commissioner must make procedural arrangements for dealing with any conflict of interest affecting—
(a) the Commissioner,
(b) a Deputy Commissioner,
(c) a member of staff acting as the Commissioner under paragraph 8(2)(c), or
(d) any other staff working for the Commissioner.
(2) The Commissioner must consult the Secretary of State before making or revising the arrangements.
(3) The Commissioner must publish a summary of the arrangements.
Validity of acts
10 A defect in appointment does not affect the validity of things done by the Commissioner, a Deputy Commissioner or a member of staff acting as the Commissioner under paragraph 8(2)(c).
Staff
11 (1) The Commissioner may appoint staff.
(2) Staff are to be appointed on terms and conditions determined by the Commissioner.
(3) The terms and conditions on which a member of staff is appointed may provide for the Commissioner to pay to or in respect of the member of staff—
(a) remuneration;
(b) allowances;
(c) sums by way of or in respect of pensions.
(4) Service as a member of the Commissioner's staff appointed under sub-paragraph (1) is not service in the civil service of the state.
12 (1) The Commissioner may make arrangements for persons to be seconded to the Commissioner to serve as members of the Commissioner's staff.
(2) The arrangements may include provision for payments by the Commissioner to the person with whom the arrangements are made or directly to seconded staff (or both).
(3) A period of secondment to the Commissioner does not affect the continuity of a person's employment with the employer from whose service he or she is seconded (and, in particular, nothing in paragraph 11(4) affects such a person's continuity of service in the civil service of the state).
13 Before appointing staff under paragraph 11 or making arrangements under paragraph 12(1), the Commissioner must obtain the approval of the Secretary of State as to the Commissioner's policies on—
(a) the number of staff to be appointed or seconded;
(b) payments to be made to or in respect of staff;
(c) the terms and conditions on which staff are to be appointed or seconded.
Financial and other assistance from the Secretary of State
14 (1) The Secretary of State may make payments and provide other financial assistance to the Commissioner.
(2) The Secretary of State may—
(a) provide staff in accordance with arrangements made by the Secretary of State and the Commissioner under paragraph 12;
(b) provide premises, facilities or other assistance to the Commissioner.
Application of seal and proof of documents
15 (1) The application of the Commissioner's seal must be authenticated by the signature of—
(a) the Commissioner, or
(b) a person who has been authorised by the Commissioner for that purpose (whether generally or specially).
(2) A document purporting to be duly executed under the seal—
(a) is to be received in evidence, and
(b) is to be treated as duly executed unless the contrary is shown.
Incidental powers
16 The Commissioner may do anything that is calculated to facilitate the carrying out of the Commissioner's functions or is conducive or incidental to the carrying out of those functions.
Exemption from liability for damages
17 (1) The following are exempt from liability in damages for anything done or omitted in the exercise or purported exercise of their functions—
(a) the Commissioner,
(b) a Deputy Commissioner,
(c) a member of staff acting as the Commissioner under paragraph 8(2)(c), and
(d) any other staff working for the Commissioner.
(2) But sub-paragraph (1) does not apply—
(a) if the act or omission is shown to have been in bad faith, or
(b) so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful as a result of section 6(1) of the Human Rights Act 1998 (acts of public authorities).
Parliamentary Commissioner Act 1967
18 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc subject to investigation), at the appropriate place insert— “ Small Business Commissioner. ”
House of Commons Disqualification Act 1975
19 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (other disqualifying offices), at the appropriate place insert— “ Small Business Commissioner or Deputy Small Business Commissioner. ”
Northern Ireland Assembly Disqualification Act 1975
20 In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices), at the appropriate place insert— “ Small Business Commissioner or Deputy Small Business Commissioner. ”
Freedom of Information Act 2000
21 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public authorities), at the appropriate place insert— “ Small Business Commissioner. ”
SCHEDULE 3 Primary authority scheme: new Schedule 4A to RESA 2008
Section 20
This is the Schedule 4A to be substituted for Schedule 4 to the Regulatory Enforcement and Sanctions Act 2008—
SCHEDULE 4A
References to the Secretary of State
Sections 25B and 25C
PART 1 Enforcement action by primary authority
1 (1) If the primary authority notifies the regulated person, or a member of the regulated group, under section 25B(2)(a) that it proposes to take enforcement action against the regulated person or the member, the regulated person or the member may, with the consent of the Secretary of State, refer the proposed enforcement action to the Secretary of State.
(2) On a reference under sub-paragraph (1) the Secretary of State must—
(a) if satisfied as to the matters in sub-paragraph (3), direct the primary authority not to take the proposed enforcement action;
(b) otherwise, consent to the action.
(3) The matters referred to in sub-paragraph (2) are that—
(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically), and
(b) the advice or guidance was correct and properly given.
(4) If the Secretary of State directs the primary authority not to take the proposed enforcement action, the Secretary of State may direct the primary authority to take some other enforcement action (and section 25B does not apply in relation to that other action).
PART 2 Enforcement action other than by primary authority
Reference by an enforcing authority
2 (1) If the primary authority directs an enforcing authority under section 25C(4) not to take the proposed enforcement action, the enforcing authority may, with the consent of the Secretary of State, refer the proposed action to the Secretary of State.
(2) On a reference under sub-paragraph (1) the Secretary of State must—
(a) if satisfied as to the matters in sub-paragraph (3), confirm the direction;
(b) otherwise, revoke the direction.
(3) The matters referred to in sub-paragraph (2) are that—
(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically), and
(b) the advice or guidance was correct and properly given.
(4) If the Secretary of State confirms the direction, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 25C does not apply in relation to that other action).
Reference by regulated person or member of the regulated group
3 (1) If section 25C applies and the primary authority does not direct the enforcing authority (under subsection (4) of that section) not to take the proposed enforcement action, the regulated person or the member of the regulated group may, with the consent of the Secretary of State, refer the action to the Secretary of State.
(2) On a reference under sub-paragraph (1) the Secretary of State must—
(a) if satisfied as to the matters in sub-paragraph (3), direct the enforcing authority not to take the proposed enforcement action;
(b) otherwise, consent to the action.
(3) The matters referred to in sub-paragraph (2) are that—
(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically), and
(b) the advice or guidance was correct and properly given.
(4) If the Secretary of State directs the enforcing authority not to take the proposed enforcement action, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 25C does not apply in relation to that other action).
Reference by primary authority
4 (1) The primary authority may, with the consent of the Secretary of State, instead of making a determination under section 25C(4) as to whether to direct an enforcing authority not to take proposed enforcement action, refer the action to the Secretary of State.
(2) On a reference under this paragraph the Secretary of State must—
(a) if satisfied as to the matters in sub-paragraph (3), direct the enforcing authority not to take the proposed enforcement action;
(b) otherwise, consent to the action.
(3) The matters referred to in sub-paragraph (2) are that—
(a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically), and
(b) the advice or guidance was correct and properly given.
(4) If the Secretary of State directs the enforcing authority not to take the proposed enforcement action, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 25C does not apply in relation to that other action).
PART 3 General
Timing
5 (1) Any reference under this Schedule must be made as soon as is reasonably practicable, and in any event within the referral period.
(2) The “referral period” for the purposes of a reference under paragraph 1(1) is the period which—
(a) begins when the regulated person or the member is notified under section 25B(2)(a) of the proposed enforcement action, and
(b) ends at the end of the tenth working day after the day on which the period begins, or at such later time as the Secretary of State may direct.
(3) The “referral period” for the purposes of a reference under paragraph 2(1) is the period which—
(a) begins when the enforcing authority is directed under section 25C(4) not to take the proposed enforcement action, and
(b) ends at the end of the tenth working day after the day on which the period begins, or at such later time as the Secretary of State may direct.
(4) The “referral period” for the purposes of a reference under paragraph 3(1) is the period which—
(a) begins when the regulated person or the member is informed under section 25C(6)(a) that the enforcing authority continues to propose to take the enforcement action, and
(b) ends at the end of the tenth working day after the day on which the period begins, or at such later time as the Secretary of State may direct.
(5) The “referral period” for the purposes of a reference under paragraph 4(1) is the relevant period under section 25C(9).
(6) The Secretary of State must determine a reference under this Schedule within the period of 28 days beginning with the day on which the reference is made.
(7) The primary authority (in the case of a reference under paragraph 1(1)) or the enforcing authority (in the case of a reference under paragraph 2(1), 3(1) or 4(1)) may not take the proposed enforcement action at any time after the making of the reference and before its determination.
Consultation
6 (1) Before determining a reference under this Schedule, the Secretary of State—
(a) must consult any relevant regulator, where appropriate, and
(b) may consult other persons.
(2) In sub-paragraph (1)(a), “relevant regulator” means a person who has regulatory functions which relate to the matter to which the determination relates.
(3) But a person is not a “relevant regulator” within the meaning of sub-paragraph (1)(a) if—
(a) the person is a qualifying regulator, and
(b) the partnership function pursuant to which the proposed enforcement action would be taken is a relevant function of the person.
Information
7 (1) For the purposes of determining whether to consent to a reference under this Schedule, or of determining such a reference, the Secretary of State may require any of the following to provide the Secretary of State with information—
(a) the primary authority;
(b) in the case of a reference under paragraph 2(1), 3(1) or 4(1), the enforcing authority;
(c) the regulated person concerned or the member of the regulated group concerned.
(2) The information must be information which the authority, person or member may lawfully provide to the Secretary of State.
Secretary of State's costs
8 The Secretary of State may require the regulated person or a member of the regulated group to pay reasonable costs incurred by the Secretary of State as a result of—
(a) a reference by the regulated person or the member under paragraph 1(1) or 3(1), or
(b) an application by the regulated person or the member for consent to make such a reference.
Procedure
9 The Secretary of State may by regulations make further provision as to the procedure to be followed for the purposes of this Schedule.
Section 22
1 The Apprenticeships, Skills, Children and Learning Act 2009 is amended as follows.
2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3 Before section A1 insert— “ Introductory ”
4 In section A1 (meaning of “approved English apprenticeship”), in subsection (3)(a) for “the Secretary of State has published an approved apprenticeship standard under section A2” substitute “ an approved apprenticeship standard has been published under section A2 ”.
5 For section A2 (approved apprenticeship standards) substitute—
Publication of standards and assessment plans
Apprenticeship standards and assessment plans
A2 (1) The IfA must publish—
(a) standards for such sectors of work as the IfA considers appropriate for the purposes of this Chapter, and
(b) assessment plans in respect of published standards.
(2) Each standard must—
(a) describe the sector of work to which it relates, and
(b) if there is more than one standard for the sector, describe the kind of work within the sector to which it relates.
(3) Each standard must set out the outcomes that persons seeking to complete an approved English apprenticeship are expected to attain in order to achieve the standard.
(4) An assessment plan in respect of a standard is a plan in accordance with which a person's attainment of the outcomes set out in the standard is to be assessed.
(5) Each assessment plan must—
(a) specify the standard to which it relates, and
(b) set out the proposed arrangements for evaluating the quality of any assessment provided for by the plan.
(6) The following provisions supplement the provision made by this section—
section A2A makes provision about the preparation of apprenticeship standards and assessment plans;
sections A2B to A2D make provision related to ensuring the quality of apprenticeship assessments;
sections A2E and A2F make provision about the review, revision and withdrawal of apprenticeship standards and assessment plans;
section A2G makes provision for independent examinations of apprenticeship standards and assessment plans;
section A2H makes provision about the maintenance of a published list of apprenticeship standards and assessment plans;
section A2I provides for the automatic transfer to the IfA of copyright in apprenticeship standards and assessment plans.
Preparation of apprenticeship standards and assessment plans
A2A (1) Each standard or assessment plan published under section A2 must have been prepared by a group of persons and approved by the IfA.
(2) The group of persons that prepared a standard or assessment plan published under section A2 must have been approved by the IfA for the purposes of this section.
(3) The IfA may provide advice or assistance to a group of persons in connection with the preparation of a standard or assessment plan.
(4) The IfA must publish—
(a) information about matters that it takes into account when deciding whether or not to approve standards or plans for the purposes of subsection (1);
(b) information about matters that it takes into account when deciding whether or not to approve groups of persons for the purposes of subsection (2).
(5) When making a decision of the kind mentioned in subsection (4)(a) or (b) in a particular case, the IfA may also take into account such other matters as it considers appropriate in the case in question.
(6) Information published under subsection (4) may be revised or replaced, and the IfA must publish under that subsection any revised or replacement information.
Quality assurance
Evaluation of quality of apprenticeship assessments
A2B (1) The IfA must secure that evaluations are carried out of the quality of apprenticeship assessments provided by persons in relation to assessment plans published under section A2.
(2) “Apprenticeship assessment” means the assessment of a person's attainment of the outcomes set out in the standard to which the assessment plan relates.
(3) For the purposes of subsection (1) the IfA may approve or make arrangements for other persons to carry out evaluations.
Unsatisfactory apprenticeship assessments
A2C (1) If the IfA considers that the quality of any apprenticeship assessment provided by a person is or may become unsatisfactory, it may carry out a review of the assessment, or make arrangements with another person for the carrying out of such a review.
(2) The IfA may, in consequence of a review, make arrangements for the purpose of improving the quality of the assessment to which the review relates.
(3) If the IfA—
(a) considers that the quality of any apprenticeship assessment provided by a person is or may become unsatisfactory, or
(b) that a person who provides an apprenticeship assessment has failed to co-operate with a review carried out under this section or with arrangements made under subsection (2),
it may report the matter to the Secretary of State or such other person as the IfA considers appropriate.
(4) A report under subsection (3) may contain recommendations as to the action to be taken by the person to whom the report is made.
(5) The IfA may publish a report under subsection (3).
Committee to advise on quality evaluations etc
A2D (1) The IfA may establish a committee with—
(a) the function of giving the IfA advice on the performance of its functions under sections A2B and A2C, and
(b) such other functions as may be conferred on the committee by the IfA.
(2) A majority of the members of the committee—
(a) must be persons who appear to the IfA to have experience of the assessment of education or training, and
(b) must not be members of the IfA.
(3) Subject to that, Schedule A1 applies to a committee established under this section as it applies to committees established under paragraph 7 of that Schedule.
Review, revision and withdrawal
Regular reviews of published standards and assessment plans
A2E (1) The IfA must maintain arrangements for the review at regular intervals of each standard or assessment plan published under this Chapter, with a view to determining whether the standard or plan ought to be revised or withdrawn.
(2) In respect of each standard or assessment plan published under this Chapter, the IfA must publish information about the intervals at which those reviews are to be conducted.
Revision or withdrawal of published standards and assessment plans
A2F (1) The IfA may—
(a) publish a revised version of a standard or assessment plan published under this Chapter, or
(b) withdraw a standard or assessment plan published under this Chapter (with or without publishing another in its place).
(2) Section A2A applies in relation to a revised version of a standard or plan published under this section as it applies in relation to a standard or plan published under section A2.
Other provisions about English approved apprenticeships
Examinations by independent third parties
A2G (1) Before the IfA approves a standard or assessment plan for the purposes of section A2A(1) it must make arrangements for the carrying out of an examination of the standard or plan by an independent third party.
(2) The duty imposed by subsection (1) does not apply in relation to a revised version of a standard or assessment plan, but the IfA may, for the purposes of a review under section A2E or at any other time, make arrangements for the carrying out of an examination of a standard or assessment plan by an independent third party.
(3) Where an examination of a standard or assessment plan is carried out under this section, the IfA must take account of the finding of the examination in exercising its functions in relation to the standard or plan under this Chapter.
(4) Nothing in subsection (1) prevents the IfA deciding to reject a standard or assessment plan without first making arrangements for the carrying out of an examination by an independent third party.
List of published standards and assessment plans
A2H (1) The IfA must maintain a list of the standards and assessment plans published by it under this Chapter.
(2) In respect of each standard and plan listed (including any revised version), the list must include details of when it comes into force.
(3) Where a revised version is listed, the list must include a general description of the cases to which the revised version applies.
(4) Where a standard or plan has been withdrawn, the list must include details of when the withdrawal comes into force and a general description of the cases to which it applies.
(5) The IfA must secure that the list is available free of charge at all reasonable times.
Transfer of copyright in standards and assessment plans
A2I (1) This section applies where—
(a) a standard or assessment plan is approved by the IfA under section A2A, and
(b) a person (other than the IfA) is entitled, immediately before the time the approval is given, to any right or interest in any copyright in the standard or plan.
(2) The right or interest is, by virtue of this section, transferred from that person to the IfA at the time the approval is given.
(3) The IfA must ensure that a standard or assessment plan in relation to which a right or interest has transferred by virtue of subsection (2) is made available to the public, subject to any conditions that the IfA considers appropriate.
6 (1) Section A3 (power to issue apprenticeship certificate) is amended as follows.
(2) In subsection (1) for “to” substitute “ in respect of ”.
(3) In subsection (2), for paragraph (b) substitute—
(b) the supply by the Secretary of State of apprenticeship certificates issued under that subsection, and copies of those certificates, to—
(i) persons in respect of whom they were issued;
(ii) persons for whom those persons work or have worked under approved English apprenticeship agreements to which the certificates relate.
7 In section 122 (sharing of information for education and training purposes)—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) in subsection (5) (functions for the purposes of which information may be provided)—
(i) omit the “or” at the end of paragraph (b), and
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 33
Employment Rights Act 1996
1 The Employment Rights Act 1996 is amended as follows.
2 In section 41 (opted-out shop workers and betting workers), for subsection (3) substitute—
(3) In this Act “notice period”, in relation to an opted-out shop worker or an opted-out betting worker, means—
(a) in the case of an opted-out shop worker who does shop work in or about a large shop, the period of one month beginning with the day on which the opting-out notice concerned was given;
(b) in any other case, the period of three months beginning with that day.
This subsection is subject to sections 41D(2) and 42(2).
3 After section 41 insert—
Notice of objection by shop workers to working additional hours on Sunday
41A (1) A shop worker may at any time give to his or her employer a written notice, signed and dated by the shop worker, to the effect that he or she objects to doing shop work for additional hours on Sunday.
(2) In this Part—
“additional hours” means any number of hours of shop work that a shop worker is (or could be) required to work under a contract of employment on Sunday that are (or would be) in excess of the shop worker's normal Sunday working hours;
“objection notice” means a notice given under subsection (1).
(3) The “normal Sunday working hours” of a shop worker are to be calculated in accordance with regulations.
(4) Regulations under this section may provide—
(a) for the calculation to be determined (for example) by reference to the average number of hours that the shop worker has worked on Sundays during a period specified or described in the regulations;
(b) for a calculation of the kind mentioned in paragraph (a) to be varied in special cases;
(c) for the right to give an objection notice not to be exercisable in special cases (and subsection (1) is subject to provision made by virtue of this paragraph).
(5) Provision under subsection (4)(b) or (c) may, in particular, include provision—
(a) about how the calculation of normal Sunday working hours is to be made in the case of a shop worker who has not been employed for a sufficient period of time to enable a calculation to be made as otherwise provided for in the regulations;
(b) for the right to give an objection notice not to be exercisable by such a shop worker until he or she has completed a period of employment specified or described in the regulations.
(6) But regulations under this section may not include provision preventing a shop worker who has been continuously employed under a contract of employment for a period of one year or more from giving to the employer an objection notice.
(7) Regulations under this section may make different provision for different purposes.
Explanatory statement: persons who become shop workers
41B (1) This section applies where a person becomes a shop worker who, under a contract of employment, is or may be required to do shop work on Sundays.
(2) The employer must give to the shop worker a written statement informing the shop worker of the following rights—
(a) the right to object to working on Sundays by giving the employer an opting-out notice (if section 40 applies to the shop worker);
(b) the right to object to doing shop work for additional hours on Sundays by giving the employer an objection notice.
(3) The statement must be given before the end of the period of two months beginning with the day on which the person becomes a shop worker as mentioned in subsection (1).
(4) An employer does not fail to comply with subsections (2) and (3) in a case where, before the end of the period referred to in subsection (3), the shop worker has given to the employer an opting-out notice (and that notice has not been withdrawn).
(5) A statement under this section must comply with such requirements as to form and content as regulations may provide.
(6) Regulations under this section may make different provision for different purposes.
Explanatory statement: shop workers at commencement date
41C (1) This section applies where—
(a) under a contract of employment a shop worker is or may be required to do shop work on Sundays, and
(b) the shop worker was employed under that contract on the day before the commencement date.
(2) The shop worker's employer must give to the shop worker a written statement informing the shop worker of the rights mentioned in section 41B(2).
(3) The statement must be given before the end of the period of two months beginning with the commencement date.
(4) An employer does not fail to comply with subsections (2) and (3) in a case where, before the end of the period referred to in subsection (3), the shop worker has given to the employer an opting-out notice (and that notice has not been withdrawn).
(5) A statement under this section must comply with such requirements as to form and content as regulations may provide.
(6) Regulations under this section may make different provision for different purposes.
(7) In this section “commencement date” means the date appointed by regulations under section 44 of the Enterprise Act 2016 for the coming into force of section 33 of, and Schedule 5 to, that Act.
Failure to give explanatory statement under section 41B or 41C
41D (1) This section applies if an employer fails to give to a shop worker a written statement in accordance with—
(a) section 41B(2) and (3), or
(b) section 41C(2) and (3).
(2) If the shop worker gives to the employer an opting-out notice, the notice period under section 41(3) that applies in relation to the shop worker is varied as follows—
(a) if the notice period under that provision would have been one month, it becomes 7 days instead;
(b) if the notice period under that provision would have been three months, it becomes one month instead.
(3) If the shop worker gives to the employer an objection notice, the relevant period under section 43ZA(2) that applies in relation to the shop worker is varied as follows—
(a) if the relevant period under that provision would have been one month, it becomes 7 days instead;
(b) if the relevant period under that provision would have been three months, it becomes one month instead.
4 (1) Section 42 (explanatory statement) is amended as follows.
(2) In the heading, after “statement” insert “ : betting workers ”.
(3) In subsection (1) omit “shop worker or”.
(4) In subsection (2)—
(a) in paragraph (a) omit “shop worker or”;
(b) in paragraph (b)—
(i) after “the” omit “shop worker or”;
(ii) omit “an opted-out shop worker or”;
(c) in the words after paragraph (b), omit “shop worker or”.
(5) In subsection (3) omit “shop worker or”.
(6) Omit subsection (4).
(7) In subsection (6)—
(a) for “forms” substitute “ form ”;
(b) for “subsections (4) and (5)” substitute “ subsection (5) ”.
5 In the heading of section 43, after “work” insert “ : opting-out notices ”.
6 After section 43 (in Part 4) insert—
Contractual requirements relating to working additional hours on Sundays: objection notices
43ZA (1) Where a shop worker gives to his or her employer an objection notice, any agreement entered into between the shop worker and the employer becomes unenforceable to the extent that—
(a) it requires the shop worker to do shop work for additional hours on Sunday after the end of the relevant period, or
(b) it requires the employer to provide the shop worker with shop work for additional hours on Sunday after the end of that period.
(2) The “relevant period” is—
(a) in the case of a shop worker who is or may be required to do shop work in or about a large shop, the period of one month beginning with the day on which the objection notice is given;
(b) in any other case, the period of three months beginning with that day.
This subsection is subject to section 41D(3).
(3) A shop worker who has given an objection notice may revoke the notice by giving a further written notice to the employer.
(4) Where—
(a) a shop worker gives to the employer a notice under subsection (3), and
(b) after giving the notice the shop worker expressly agrees with the employer to do shop work for additional hours on Sunday (whether on Sundays generally or on a particular Sunday),
the contract of employment between the shop worker and the employer is to be taken to be varied to the extent necessary to give effect to the terms of the agreement.
(5) The reference in subsection (1) to any agreement—
(a) includes the contract of employment under which the shop worker is employed immediately before giving the objection notice;
(b) includes an agreement of a kind mentioned in subsection (4), or a contract of employment as taken to be varied under that subsection, only if an objection notice is given in relation to the working of additional hours under that agreement or contract as varied.
Interpretation
43ZB (1) In this Part—
“additional hours” has the meaning given in section 41A(2);
“large shop” means a shop which has a relevant floor area exceeding 280 square metres;
“objection notice” has the meaning given in section 41A(2);
“regulations” means regulations made by the Secretary of State.
(2) In the definition of “large shop” in subsection (1)—
(a) “shop” means any premises where there is carried on a trade or business consisting wholly or mainly of the sale of goods;
(b) “relevant floor area” means the internal floor area of so much of the large shop in question as consists of or is comprised in a building.
(3) For the purposes of subsection (2), any part of the shop which is not used for the serving of customers in connection with the sale or display of goods is to be disregarded.
(4) The references in subsections (2) and (3) to the sale of goods does not include—
(a) the sale of meals, refreshments or alcohol (within the meaning of the Licensing Act 2003 or, in relation to Scotland, the Licensing (Scotland) Act 2005 (asp 16)) for consumption on the premises on which they are sold, or
(b) the sale of meals or refreshments prepared to order for immediate consumption off those premises.
7 After section 45 insert—
Sunday working for shop workers: additional hours
45ZA (1) Subsection (2) applies where a shop worker has given an objection notice to his or her employer and the notice has not been withdrawn.
(2) The shop worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer done on the ground that the shop worker refused (or proposed to refuse) to do shop work for additional hours on Sunday or on a particular Sunday.
(3) Subsection (2) does not apply to anything done on the ground that the shop worker refused (or proposed to refuse) to do shop work for additional hours on any Sunday or Sundays falling before the end of the relevant period.
(4) A shop worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer on the ground that the shop worker gave (or proposed to give) an objection notice to the employer.
(5) Subsections (2) and (4) do not apply where the detriment in question amounts to dismissal (within the meaning of Part 10).
(6) For the purposes of this section, a shop worker who does not do shop work for additional hours on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—
(a) a failure to pay remuneration in respect of doing shop work for additional hours on Sunday which the shop worker has not done, or
(b) a failure to provide any other benefit where the failure results from the application (in relation to a Sunday on which the shop worker has not done shop work for additional hours) of a contractual term under which the extent of the benefit varies according to the number of hours worked by, or the remuneration paid to, the shop worker.
(7) Subsections (8) and (9) apply where—
(a) an employer offers to pay a sum specified in the offer to a shop worker if he or she agrees to do shop work for additional hours on Sunday or on a particular Sunday, and
(b) the shop worker—
(i) has given an objection notice to the employer that has not been withdrawn, or
(ii) is not obliged under a contract of employment to do shop work for additional hours on Sunday.
(8) A shop worker to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure—
(a) to make the offer to the shop worker, or
(b) to pay the shop worker the sum specified in the offer.
(9) A shop worker who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay the shop worker the sum specified in the offer.
(10) In this section—
“additional hours” and “objection notice” have the meanings given by section 41A(2);
“relevant period” means the period determined by section 43ZA(2) (but subject to section 41D(3)).
8 In section 48 (complaints to employment tribunals), after subsection (1) insert—
(1YA) A shop worker may present a complaint to an employment tribunal that he or she has been subjected to a detriment in contravention of section 45ZA.
9 After section 101 insert—
Shop workers who refuse to work additional hours on Sunday
101ZA (1) Subsection (2) applies where a shop worker has given an objection notice that has not been withdrawn and he or she is dismissed.
(2) The shop worker is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or the principal reason) for the dismissal is that he or she refused, or proposed to refuse, to do shop work for additional hours on Sunday or on a particular Sunday.
(3) Subsection (2) does not apply where the reason (or principal reason) for the dismissal is that the shop worker refused (or proposed to refuse) to do shop work for additional hours on any Sunday or Sundays falling before the end of the relevant period.
(4) A shop worker who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or principal reason) for the dismissal is that the worker gave (or proposed to give) an objection notice to the employer.
(5) In this section—
“additional hours” and “objection notice” have the meanings given by section 41A(2);
“relevant period” means the period determined by section 43ZA(2) (but subject to section 41D(3)).
10 In section 108 (qualifying period of employment), in subsection (3) after paragraph (d) insert—
(da) subsection (2) of section 101ZA applies (read with subsection (3) of that section) or subsection (4) of that section applies,
.
11 In section 236 (orders and regulations), in subsection (3) after “27B,” insert “ 41A that include provision under subsection (4)(c) of that section, ”.
Employment Act 2002
12 In section 38 of the Employment Act 2002 (failure to give statement of employment particulars etc)—
(a) in subsection (2)(b), after “change)” insert “ or under section 41B or 41C of that Act (duty to give a written statement in relation to rights not to work on Sunday) ”;
(b) in subsection (3)(b), after “1996” insert “ or under section 41B or 41C of that Act ”.
SCHEDULE 6 Restriction on public sector exit payments: consequential and related provision
Section 41
Small Business, Enterprise and Employment Act 2015
1 In section 154 of the Small Business, Enterprise and Employment Act 2015 (regulations in connection with repayment of public sector exit payments)—
(a) in subsection (4)(c), after “retirement” insert “ or in respect of the cost to a pension scheme of such a reduction not being made ”,
(b) after subsection (6), insert—
(7) In this section a reference to a payment made to a person includes a reference to a payment made in respect of that person to another person.
, and
(c) in the heading, after “with” insert “ repayment of ”.
2 In section 156 of that Act (power to make regulations exercisable by the Treasury or Scottish Ministers)—
(a) for subsection (4) substitute—
(4) The first regulations made by the Treasury under section 154(1) are subject to the affirmative resolution procedure.
(4A) The first regulations made by the Scottish Ministers under section 154(1) are subject to the affirmative procedure.
, and
(b) in the heading, after “regulations” insert “ under section 154(1) ”.
3 In section 161 of that Act (supplementary provision about regulations), in subsection (1), after “section 1” insert “ , 153A ”.
Power to amend public sector schemes
4 (1) Regulations may amend any relevant public sector scheme to ensure that if any exit payment restriction would have effect to prevent retirement benefits becoming immediately payable under the scheme without reduction—
(a) the retirement benefits may become immediately payable under the scheme subject to the appropriate early payment deduction, and
(b) the member may opt to buy out all or part of that deduction.
(2) Regulations may also amend any relevant public sector scheme to ensure that if any exit payment restriction has effect to prevent a payment being made by the employer under the scheme in respect of the whole or any part of an extra charge arising to the scheme as a result of retirement benefits becoming immediately payable to a member without reduction—
(a) the retirement benefits become payable immediately subject to the appropriate early payment deduction except to the extent that the extra charge arising to the scheme as a result of not making that deduction has been met by a payment made by the employer under the scheme, but
(b) the member may opt to buy out all or part of that early payment deduction.
(3) Regulations under this paragraph may be made—
(a) in relation to exit payments made by a relevant Scottish authority (other than exit payments to which section 153B(2) of the Small Business, Enterprise and Employment Act 2015 applies), by the Scottish Ministers, and
(b) in any other case, by—
(i) the Treasury, or
(ii) another Minister of the Crown with the consent of the Treasury.
(4) Regulations under this paragraph may make—
(a) consequential, incidental or supplemental provision;
(b) transitional or transitory provision, or savings;
(c) different provision for different purposes.
(5) Regulations under this paragraph (other than regulations made by the Scottish Ministers) are to be made by statutory instrument.
(6) A statutory instrument containing regulations under this paragraph is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) Regulations under this paragraph made by the Scottish Ministers are subject to the negative procedure.
(8) In this paragraph—
“the appropriate early payment deduction” means such adjustment as is shown as appropriate in actuarial guidance issued by the Secretary of State;
“exit payment restriction” means a restriction imposed by regulations under section 153A of the Small Business, Enterprise and Employment Act 2015;
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;
“relevant public sector scheme” has the same meaning as in section 153A of the Small Business, Enterprise and Employment Act 2015;
“relevant Scottish authority” has the meaning given by section 153B of that Act.