212A Arbitration scheme for unfair dismissal cases etc.
(1) ACAS may prepare a scheme providing for arbitration in the case of disputes involving proceedings, or claims which could be the subject of proceedings, before an employment tribunal under, or arising out of a contravention or alleged contravention of—
(zza) section 63F(4), (5) or (6) or 63I(1)(b) of the Employment Rights Act 1996 (study and training);
(za) section 80G(1) or 80H(1)(b) of that Act (flexible working),
(a) Part X of that Act (unfair dismissal), or
(b) any enactment specified in an order made by the Secretary of State.
(2) When ACAS has prepared such a scheme it shall submit a draft of the scheme to the Secretary of State who, if he approves it, shall make an order—
(a) setting out the scheme, and
(b) making provision for it to come into effect.
(3) ACAS may from time to time prepare a revised version of such a scheme and, when it has done so, shall submit a draft of the revised scheme to the Secretary of State who, if he approves it, shall make an order—
(a) setting out the revised scheme, and
(b) making provision for it to come into effect.
(4) ACAS may take any steps appropriate for promoting awareness of a scheme prepared under this section.
(5) Where the parties to any dispute within subsection (1) agree in writing to submit the dispute to arbitration in accordance with a scheme having effect by virtue of an order under this section, ACAS shall refer the dispute to the arbitration of a person appointed by ACAS for the purpose (not being an officer or employee of ACAS).
(6) Nothing in the Arbitration Act 1996 shall apply to an arbitration conducted in accordance with a scheme having effect by virtue of an order under this section except to the extent that the order provides for any provision of Part I of that Act so to apply; and the order may provide for any such provision so to apply subject to modifications.
(7) A scheme set out in an order under this section may, in relation to an arbitration conducted in accordance with the law of Scotland, make provision—
(a) that a reference on a preliminary point may be made, or
(b) conferring a right of appeal which shall lie,
to the relevant court on such grounds and in respect of such matters as may be specified in the scheme; and in this subsection “relevant court” means such court, being the Court of Session or the Employment Appeal Tribunal, as may be specified in the scheme, and a different court may be specified as regards different grounds or matters.
(8) Where a scheme set out in an order under this section includes provision for the making of re-employment orders in arbitrations conducted in accordance with the scheme, the order setting out the scheme may require employment tribunals to enforce such orders—
(a) in accordance with section 117 of the Employment Rights Act 1996 (enforcement by award of compensation), or
(b) in accordance with that section as modified by the order.
For this purpose “re-employment orders” means orders requiring that persons found to have been unfairly dismissed be reinstated, re-engaged or otherwise re-employed.
(9) An order under this section setting out a scheme may provide that, in the case of disputes within subsection (1)(a), such part of an award made in accordance with the scheme as is specified by the order shall be treated as a basic award of compensation for unfair dismissal for the purposes of section 184(1)(d) of the Employment Rights Act 1996 (which specifies such an award as a debt which the Secretary of State must satisfy if the employer has become insolvent).
(10) An order under this section shall be made by statutory instrument.
(11) No order shall be made under subsection (1)(b) unless a draft of the statutory instrument containing it has been laid before Parliament and approved by a resolution of each House.
(12) A statutory instrument containing an order under this section (other than one of which a draft has been approved by resolution of each House of Parliament) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
ACAS may, in accordance with any dismissal procedures agreement (within the meaning of the Employment Rights Act 1996), refer any matter to the arbitration of a person appointed by ACAS for the purpose (not being an officer or employee of ACAS).
(1) ACAS may, on request or otherwise, give employers, employers’ associations, workers and trade unions such advice as it thinks appropriate on matters concerned with or affecting or likely to affect industrial relations.
(2) ACAS may also publish general advice on matters concerned with or affecting or likely to affect industrial relations.
(1) ACAS may, if it thinks fit, inquire into any question relating to industrial relations generally or to industrial relations in any particular industry or in any particular undertaking or part of an undertaking.
(2) The findings of an inquiry under this section, together with any advice given by ACAS in connection with those findings, may be published by ACAS if—
(a) it appears to ACAS that publication is desirable for the improvement of industrial relations, either generally or in relation to the specific question inquired into, and
(b) after sending a draft of the findings to all parties appearing to to be concerned and taking account of their views, it thinks fit.
(1) Where a trade dispute exists or is apprehended, the Secretary of State may inquire into the causes and circumstances of the dispute, and, if he thinks fit, appoint a court of inquiry and refer to it any matters appearing to him to be connected with or relevant to the dispute.
(2) The court shall inquire into the matters referred to it and report on them to the Secretary of State; and it may make interim reports if it thinks fit.
(3) Any report of the court, and any minority report, shall be laid before both Houses of Parliament as soon as possible.
(4) The Secretary of State may, before or after the report has been laid before Parliament, publish or cause to be published from time to time, in such manner as he thinks fit, any information obtained or conclusions arrived at by the court as the result or in the course of its inquiry.
(5) No report or publication made or authorised by the court or the Secretary of State shall include any information obtained by the court of inquiry in the course of its inquiry—
(a) as to any trade union, or
(b) as to any individual business (whether carried on by a person, firm, or company),
which is not available otherwise than through evidence given at the inquiry, except with the consent of the secretary of the trade union or of the person, firm, or company in question.
Nor shall any individual member of the court or any person concerned in the inquiry disclose such information without such consent.
(6) The Secretary of State shall from time to time present to Parliament a report of his proceedings under this section.
216 Constitution and proceedings of court of inquiry.
(1) A court of inquiry shall consist of—
(a) a chairman and such other persons as the Secretary of State thinks fit to appoint, or
(b) one person appointed by the Secretary of State,
as the Secretary of State thinks fit.
(2) A court may act notwithstanding any vacancy in its number.
(3) A court may conduct its inquiry in public or in private, at its discretion.
(4) The Secretary of State may make rules regulating the procedure of a court of inquiry, including rules as to summoning of witnesses, quorum, and the appointment of committees and enabling the court to call for such documents as the court may determine to be relevant to the subject-matter of the inquiry.
(5) A court of inquiry may, if and to such extent as may be authorised by rules under this section, by order require any person who appears to the court to have knowledge of the subject-matter of the inquiry—
(a) to supply (in writing or otherwise) such particulars in relation thereto as the court may require, and
(b) where necessary, to attend before the court and give evidence on oath;
and the court may administer or authorise any person to administer an oath for that purpose.
(6) Provision shall be made by rules under this section with respect to the cases in which persons may appear by a relevant lawyer in proceedings before a court of inquiry, and except as provided by those rules no person shall be entitled to appear in any such proceedings by a relevant lawyer.
(7) In subsection (6) “relevant lawyer” means—
(a) a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act, or
(b) an advocate or solicitor in Scotland.
217 Exclusion of power of arbiter to state case to Court of Session.
Section 3 of the Administration of Justice (Scotland) Act 1972 (power of arbiter to state case for opinion of Court of Session) does not apply to—
(a) any form of arbitration relating to a trade dispute, or
(b) any other arbitration arising from a collective agreement.
(1) In this Part “trade dispute” means a dispute between employers and workers, or between workers and workers, which is connected with one or more of the following matters—
(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
(c) allocation of work or the duties of employment as between workers or groups of workers;
(d) matters of discipline;
(e) the membership or non-membership of a trade union on the part of a worker;
(f) facilities for officials of trade unions; and
(g) machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures.
(2) A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated for the purposes of this Part as a dispute between an employer and those workers if the dispute relates—
(a) to matters which have been referred for consideration by a joint body on which, by virtue of any provision made by or under any enactment, that Minister is represented, or
(b) to matters which cannot be settled without that Minister exercising a power conferred on him by or under an enactment.
(3) There is a trade dispute for the purpose of this Part even though it relates to matters occurring outside Great Britain.
(4) A dispute to which a trade union or employer’s association is a party shall be treated for the purposes of this Part as a dispute to which workers or, as the case may be, employers are parties.
(5) In this section—
“employment” includes any relationship whereby one person personally does work or performs services for another; and
“worker”, in relation to a dispute to which an employer is a party, includes any worker even if not employed by that employer.
(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
(2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort.
(3) Nothing in subsections (1) and (2) prevents an act done in the course of picketing from being actionable in tort unless it is done in the course of attendance declared lawful by section 220 (peaceful picketing).
(4) Subsections (1) and (2) have effect subject to—
(a) sections 222 to 225 (action excluded from protection),
(b) section 226 (requirement of ballot before action by trade union), and
(c) section 234A (requirement of notice to employer of industrial action);
and in those sections “not protected” means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person.
(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend—
(a) at or near his own place of work, or
(b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,
for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.
(2) If a person works or normally works—
(a) otherwise than at any one place, or
(b) at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable,
his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.
(3) In the case of a worker not in employment where—
(a) his last employment was terminated in connection with a trade dispute, or
(b) the termination of his employment was one of the circumstances giving rise to a trade dispute,
in relation to that dispute his former place of work shall be treated for the purposes of subsection (1) as being his place of work.
(4) A person who is an official of a trade union by virtue only of having been elected or appointed to be a representative of some of the members of the union shall be regarded for the purposes of subsection (1) as representing only those members; but otherwise an official of a union shall be regarded for those purposes as representing all its members.
221 Restrictions on grant of injunctions and interdicts.
(1) Where—
(a) an application for an injunction or interdict is made to a court in the absence of the party against whom it is sought or any representative of his, and
(b) he claims, or in the opinion of the court would be likely to claim, that he acted in contemplation or furtherance of a trade dispute,
the court shall not grant the injunction or interdict unless satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the application and an opportunity of being heard with respect to the application have been given to him.
(2) Where—
(a) an application for an interlocutory injunction is made to a court pending the trial of an action, and
(b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute,
the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party’s succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) or section 220 (peaceful picketing).
This subsection does not extend to Scotland.
(1) An act is not protected if the reason, or one of the reasons, for which it is done is the fact or belief that a particular employer—
(a) is employing, has employed or might employ a person who is not a member of a trade union, or
(b) is failing, has failed or might fail to discriminate against such a person.
(2) For the purposes of subsection (1)(b) an employer discriminates against a person if, but only if, he ensures that his conduct in relation to—
(a) persons, or persons of any description, employed by him, or who apply to be, or are, considered by him for employment, or
(b) the provision of employment for such persons,
is different, in some or all cases, according to whether or not they are members of a trade union, and is more favourable to those who are.
(3) An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person—
(a) to incorporate in a contract to which that person is a party, or a proposed contract to which he intends to be a party, a term or condition which is or would be void by virtue of section 144 (union membership requirement in contract for goods or services), or
(b) to contravene section 145 (refusal to deal with person on grounds relating to union membership).
(4) References in this section to an employer employing a person are to a person acting in the capacity of the person for whom a worker works or normally works.
(5) References in this section to not being a member of a trade union are to not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.
Any such reference includes a reference to not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.
223 Action taken because of dismissal for taking unofficial action.
An act is not protected if the reason, or one of the reasons, for doing it is the fact or belief that an employer has dismissed one or more employees in circumstances such that by virtue of section 237 (dismissal in connection with unofficial action) they have no right to complain of unfair dismissal.
(1) An act is not protected if one of the facts relied on for the purpose of establishing liability is that there has been secondary action which is not lawful picketing.
(2) There is secondary action in relation to a trade dispute when, and only when, a person—
(a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or
(b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,
and the employer under the contract of employment is not the employer party to the dispute.
(3) Lawful picketing means acts done in the course of such attendance as is declared lawful by section 220 (peaceful picketing)—
(a) by a worker employed (or, in the case of a worker not in employment, last employed) by the employer party to the dispute, or
(b) by a trade union official whose attendance is lawful by virtue of subsection (1)(b) of that section.
(4) For the purposes of this section an employer shall not be treated as party to a dispute between another employer and workers of that employer; and where more than one employer is in dispute with his workers, the dispute between each employer and his workers shall be treated as a separate dispute.
In this subsection “worker” has the same meaning as in section 244 (meaning of “trade dispute”).
(5) An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute.
Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute.
(6) In this section “contract of employment” includes any contract under which one person personally does work or performs services for another, and related expressions shall be construed accordingly.
225 Pressure to impose union recognition requirement.
(1) An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person—
(a) to incorporate in a contract to which that person is a party, or a proposed contract to which he intends to be a party, a term or condition which is or would be void by virtue of section 186 (recognition requirement in contract for goods or services), or
(b) to contravene section 187 (refusal to deal with person on grounds of union exclusion).
(2) An act is not protected if—
(a) it interferes with the supply (whether or not under a contract) of goods or services, or can reasonably be expected to have that effect, and
(b) one of the facts relied upon for the purpose of establishing liability is that a person has—
(i) induced another to break a contract of employment or interfered or induced another to interfere with its performance, or
(ii) threatened that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance, and
(c) the reason, or one of the reasons, for doing the act is the fact or belief that the supplier (not being the employer under the contract of employment mentioned in paragraph (b)) does not, or might not—
(i) recognise one or more trade unions for the purpose of negotiating on behalf of workers, or any class of worker, employed by him, or
(ii) negotiate or consult with, or with an official of, one or more trade unions.
226 Requirement of ballot before action by trade union.
(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action —
(a) is not protected unless the industrial action has the support of a ballot, and
(b) where section 226A falls to be complied with in relation to the person’s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.
In this section “the relevant time”, in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.
(2) Industrial action shall be regarded as having the support of a ballot only if—
(a) the union has held a ballot in respect of the action—
(ai) in relation to which the requirements of section 226ZA were satisfied,
(i) in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,
(ii) in relation to which the requirements of sections 227 to 231 and Schedule A1A, so far as applicable were satisfied,...
(iia) in which at least 50% of those who were entitled to vote in the ballot did so, and
(iii) in which the majority voting in the ballot answered “Yes" to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;
(b) such of the requirements of the following sections as have fallen to be satisfied at the relevant time have been satisfied, namely—
(i) section 226B so far as applicable after the holding of the ballot, and
(ii) section 231B; . . .
(bb) section 232A does not prevent the industrial action from being regarded as having the support of the ballot; and
(c) the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.
Any reference in this subsection to a requirement of a provision which is disapplied or modified by section 232 has effect subject to that section.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2EA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where separate workplace ballots are held by virtue of section 228(1)—
(a) industrial action shall be regarded as having the support of a ballot if the conditions specified in subsection (2) are satisfied, and
(b) the trade union shall be taken to have complied with the requirements relating to a ballot imposed by section 226A if those requirements are complied with,
in relation to the ballot for the place of work of the person induced to take part, or continue to take part, in the industrial action.
(3A) If the requirements of section 231A fall to be satisfied in relation to an employer, as respects that employer industrial action shall not be regarded as having the support of a ballot unless those requirements are satisfied in relation to that employer.
(4) For the purposes of this section an inducement, in relation to a person, includes an inducement which is or would be ineffective, whether because of his unwillingness to be influenced by it or for any other reason.
226ZA Responsible person’s determination of means of voting
(1) Before the ballot is held, the responsible person for the ballot must make a determination about the means of voting in the ballot.
(2) The determination must set out which one or more of the permissible means of voting is available for the ballot.
(3) Where the determination provides that more than one permissible means of voting is available for the ballot, the determination must also set out—
(a) that each of those means is available for each person who is entitled to vote in the ballot, or
(b) which one or more of those means is available for one or more of the following—
(i) particular persons who are entitled to vote in the ballot;
(ii) particular descriptions of persons who are entitled to vote in the ballot.
(4) Where the determination includes provision under subsection (3)(b), the determination must be such that at least one permissible means of voting is available for each person who is entitled to vote in the ballot.
(5) A determination under this section must be such that merchant seamen and offshore workers are not eligible to vote by workplace voting.
(6) In subsection (5), “merchant seaman” and “offshore worker” have the meanings given in section 232(3) (balloting of overseas members).
(7) Where the determination provides—
(a) that more than one permissible means of voting is available for a particular person or description of persons, or
(b) that hybrid voting is available for the ballot,
the determination must include provision setting out which vote is to be counted in a case where a person casts more than one vote (and section 228C(4) applies for the purposes of construing the number of votes cast by a person).
(8) Schedule ZA1 sets out further requirements in relation to a determination by the responsible person.
(9) The responsible person for a ballot under section 226(1)(a) is the trade union to which the ballot relates.
(10) The permissible means of voting for a ballot under section 226(1)(a) are—
(a) postal voting;
(b) electronic voting;
(c) hybrid voting;
(d) workplace voting.
(11) In this Part—
(a) “selected means of voting” means, in relation to a ballot, a permissible means of voting that is available for the ballot as a result of a determination under this section;
(b) a person is “eligible to vote” in a ballot by a particular means of voting if the determination under this section for the ballot sets out that that means is available for the person (see subsection (3)).
226A Notice of ballot and sample voting materials for employers.
(1) The trade union must take such steps as are reasonably necessary to ensure that—
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and
(b) not later than the third day before the opening day of the ballot, the sample voting materials specified in subsection (2F),
is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and
(c) containing—
(i) the lists mentioned in subsection (2A) and the number mentioned in subsection (2B), or
(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and that number or the information mentioned in subsection (2C).
(2A) The lists are—
(a) a list of the categories of employee to which the employees concerned belong, and
(b) a list of the workplaces at which the employees concerned work.
(2B) The number is the total number of employees concerned.
(2C) The information referred to in subsection (2)(c)(ii) is such information as will enable the employer readily to deduce—
(a) the total number of employees concerned,
(b) the categories of employee to which the employees concerned belong ..., and
(c) the workplaces at which the employees concerned work ....
(2D) The lists and the number supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).
(2E) For the purposes of subsection (2D) information is in the possession of the union if it is held, for union purposes—
(a) in a document, whether in electronic form or any other form, and
(b) in the possession or under the control of an officer or employee of the union.
(2F) The sample voting materials referred to in paragraph (b) of subsection (1) are—
(a) a sample of the form of either or both of the following, as applicable—
(i) the voting paper which is to be sent or otherwise provided to the employees concerned;
(ii) the electronic voting form which is to be used for the ballot, or
(b) where the employees concerned are not all to be sent or otherwise provided with the same form of voting materials, a sample of each form of voting materials which is to be sent or otherwise provided to any of them.
(2G) Nothing in this section requires a union to supply an employer with the names of the employees concerned.
(2H) In this section references to the “employees concerned” are references to those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.
((2I)) For the purposes of this section, the workplace at which an employee works is—
(a) in relation to an employee who works at or from a single set of premises, those premises, and
(b) in relation to any other employee, the premises with which his employment has the closest connection.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) In this section references to the opening day of the ballot are references to the earlier of the following, so far as applicable—
(a) the first day when a voting paper is sent or otherwise provided to any person entitled to vote in the ballot;
(b) the first day when a voting access method is sent to any person entitled to vote in the ballot.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The trade union shall, before the ballot in respect of the industrial action is held, appoint a qualified person (“the scrutineer”) whose terms of appointment shall require him to carry out in relation to the ballot the functions of—
(za) in relation to voting papers sent or to be sent in accordance with paragraph 14(1) of Schedule A1A or provided in accordance with paragraph 16(5)(a) of that Schedule, supervising the production of the voting papers, undertaking the distribution of the voting papers and being the person to whom the voting papers are returned;
(zb) where electronic voting forms are to be used for the ballot—
(i) generating and distributing the voting access methods;
(ii) maintaining the electronic voting system;
(iii) maintaining the audit logs;
(iv) appropriately retaining relevant personal information, voting information, voting access method information and the audit logs;
(zc) in the case of a ballot for which workplace voting is a selected means of voting—
(i) supervising the production of the voting papers;
(ii) sending notice of the ballot in accordance with section 230D;
(iii) providing voting papers to persons entitled to vote in the ballot;
(iv) setting up and maintaining voting stations (within the meaning of section 230E(3));
(v) counting the votes cast by the return of voting papers at voting stations;
(a) taking such steps as appear to him to be appropriate for the purpose of enabling him to make a report to the trade union (see section 231B); and
(b) making the report as soon as reasonably practicable after the date of the ballot and, in any event, not later than the end of the period of four weeks beginning with that date.
(2) A person is a qualified person in relation to a ballot if—
(a) he satisfies such conditions as may be specified for the purposes of this section by order of the Secretary of State or is himself so specified; ...
(b) the trade union has no grounds for believing either that he will carry out the functions conferred on him under subsection (1) otherwise than competently or that his independence in relation to the union, or in relation to the ballot, might reasonably be called into question , and
(c) in the case of a ballot for which electronic voting or hybrid voting is a selected means of voting, the computer networks and systems which the person intends to use for conducting the ballot are covered by one or more qualifying Cyber Essentials Plus certificates awarded to the person.
An order under paragraph (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(2A) For the purposes of subsection (2)—
(a) “Cyber Essentials Plus certificate” means a certificate awarded in accordance with Cyber Essentials Plus Test Specification v3.2, or a later version of that document, published by the Government Communications Headquarters;
(b) a Cyber Essentials Plus certificate awarded to a person is a “qualifying Cyber Essentials Plus certificate” if its expiry date is such that the certificate will remain valid for the duration of the ballot for which the person is appointed.
(3) The trade union shall ensure that the scrutineer duly carries out the functions conferred on him under subsection (1) and that there is no interference with the carrying out of those functions from the union or any of its members, officials or employees.
(4) The trade union shall comply with all reasonable requests made by the scrutineer for the purposes of, or in connection with, the carrying out of those functions.
(5) The trade union must, so far as reasonably practicable, send to the scrutineer at least one of the following in respect of each person who is eligible to vote by electronic voting—
(a) an email address which meets the requirements in subsection (6);
(b) a mobile telephone number which meets the requirements in subsection (6).
(6) The requirements are that the email address or mobile telephone number—
(a) was not provided to the person by and is not controlled by—
(i) the person’s employer in their capacity as the person’s employer, or
(ii) the trade union,
(b) has not been provided to the scrutineer in respect of any other person for the purposes of the ballot, and
(c) has been provided by the person to the trade union for the purpose of communication between the person and the trade union.
(7) Where workplace voting is a selected means of voting for a ballot, the trade union must send to the scrutineer a list of the names of the persons eligible to vote by workplace voting.
In the case of a ballot for which postal voting is the only selected means of voting, nothing in section 226B, section 229(1A)(a) or section 231B shall impose a requirement on a trade union unless—
(a) the number of members entitled to vote in the ballot, or
(b) where separate workplace ballots are held in accordance with section 228(1), the aggregate of the number of members entitled to vote in each of them,
exceeds 50.
(1) Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others.
(2) The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held and was denied entitlement to vote in the ballot is induced by the union to take part or, as the case may be, to continue to take part in the industrial action.
(1) Subject to subsection (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace.
(2) This section does not apply if the union reasonably believes that all those members have the same workplace.
(3) Subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who—
(a) are entitled to vote by virtue of section 227, and
(b) have that workplace.
(4) In this section and section 228A “workplace” in relation to a person who is employed means—
(a) if the person works at or from a single set of premises, those premises, and
(b) in any other case, the premises with which the person’s employment has the closest connection.
228A Separate workplaces: single and aggregate ballots.
(1) Where section 228(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of subsections (2) to (4) is satisfied in relation to it.
(2) This subsection is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union who is affected by the dispute.
(3) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who—
(a) according to the union’s reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation, and
(b) are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.
(4) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.
(5) For the purposes of subsection (2) the following are members of the union affected by a dispute—
(a) if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in subsection (1)(a), (b) or (c) of section 244 (meaning of “trade dispute”), members whom the decision directly affects,
(b) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(d) of that section, members whom the matter directly affects,
(c) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(e) of that section, persons whose membership or non-membership is in dispute,
(d) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(f) of that section, officials of the union who have used or would use the facilities concerned in the dispute.
(1) Every person who is entitled to vote in the ballot must—
(a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and
(b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to themselves.
(2) Subsection (1)(b) does not apply in relation to voting at an off-site location (within the meaning of section 230F(6)).
(3) So far as is reasonably practicable, every person who is entitled to vote in the ballot must be given a convenient opportunity to vote.
(4) A ballot must be conducted so as to secure that—
(a) so far as is reasonably practicable, those voting do so in secret, and
(b) the votes given in the ballot are fairly and accurately counted.
For the purposes of paragraph (b) an inaccuracy in counting must be disregarded if it is accidental and on a scale which could not affect the result of the ballot.
228C Counting of votes where multiple votes cast by same person
(1) This section applies where the responsible person for the ballot has determined that a person is eligible to vote in the ballot by more than one means of voting, or that a person is eligible to vote in the ballot by hybrid voting.
(2) Where this section applies—
(a) only one vote cast by the person is to be counted,
(b) the vote which is to be counted is to be determined in accordance with provision in the determination made by virtue of section 226ZA(7),
(c) that provision and an explanation of its effect must be sent to the person along with the voting materials for the ballot, and
(d) where the person is eligible to vote by workplace voting, the provision mentioned in paragraph (b) and an explanation of its effect must also be sent along with the notice mentioned in section 230D.
(3) In this section—
“responsible person” is to be interpreted in accordance with section 226ZA;
“voting materials” means—
voting papers, and
voting access methods.
(4) For the purposes of this section, each of the following is to be treated as casting a separate vote—
(a) returning a voting paper which was sent in accordance with paragraph 14(1) of Schedule A1A or provided in accordance with paragraph 16(5)(a) of that Schedule;
(b) submitting an electronic voting form where the voting access method used to access the electronic voting form was sent in accordance with paragraph 14(1) of Schedule A1A or provided in accordance with paragraph 16(5)(a) of that Schedule.
229 Postal voting and workplace voting: voting paper
(A1) This section sets out requirements that apply in relation to the voting paper for a ballot for which either or both of the following are selected means of voting—
(a) postal voting;
(b) workplace voting.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1A) Each voting paper must—
(a) state the name of the independent scrutineer,
(b) where it is produced for the purpose of voting in accordance with section 230 (postal voting: conduct of ballot), clearly specify the address to which, and the date by which, it is to be returned,
(c) be given one of a series of consecutive whole numbers every one of which is used in giving a different number in that series to each voting paper printed or otherwise produced for the purposes of the ballot, and
(d) be marked with its number.
This subsection, in its application to a ballot in which merchant seamen to whom section 230(2A) applies are entitled to vote, shall have effect with the substitution, for the reference to the address to which the voting paper is to be returned, of a reference to the ship to which the seamen belong.
(2) The voting paper must contain at least one of the following questions—
(a) a question (however framed) which requires the person answering it to say, by answering “Yes" or “No", whether he is prepared to take part or, as the case may be, to continue to take part in a strike;
(b) a question (however framed) which requires the person answering it to say, by answering “Yes" or “No", whether he is prepared to take part or, as the case may be, to continue to take part in industrial action short of a strike.
(2A) For the purposes of subsection (2) an overtime ban and a call-out ban constitute industrial action short of a strike.
(2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The voting paper must specify who, in the event of a vote in favour of industrial action, is authorised for the purposes of section 233 to call upon members to take part or continue to take part in the industrial action.
The person or description of persons so specified need not be authorised under the rules of the union but must be within section 20(2) (persons for whose acts the union is taken to be responsible).
(4) The following statement must (without being qualified or commented upon by anything else on the voting paper) appear on every voting paper—
“If you take part in a strike or other industrial action, you may be in breach of your contract of employment."
However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair ....
230 Postal voting: additional requirements for conduct of ballot
(A1) Where postal voting is a selected means of voting for a ballot, this section applies in relation to postal voting in the ballot.
(A2) Where a person chooses to vote by postal voting, the method of voting is by the marking of a voting paper by the person voting.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Except as regards persons falling within subsection (2A), so far as is reasonably practicable, every person who is entitled to vote in the ballot must—
(a) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A) Subsection (2B) applies to a merchant seaman if the trade union reasonably believes that—
(a) he will be employed in a ship either at sea or at a place outside Great Britain at some time in the period during which votes may be cast, and
(b) it will be convenient for him to receive a voting paper and to vote while on the ship or while at a place where the ship is rather than in accordance with subsection (2).
(2B) Where this subsection applies to a merchant seaman he shall, if it is reasonably practicable—
(a) have a voting paper made available to him while on the ship or while at a place where the ship is, and
(b) be given an opportunity to vote while on the ship or while at a place where the ship is.
(2C) In subsections (2A) and (2B) “merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Where electronic voting is a selected means of voting for a ballot, Parts 1 and 2 of Schedule A1A apply in relation to electronic voting in the ballot (and Part 4 of that Schedule applies for the purposes of Parts 1 and 2).
Where hybrid voting is a selected means of voting for a ballot, Parts 1 and 3 of Schedule A1A apply in relation to hybrid voting in the ballot (and Part 4 of that Schedule applies for the purposes of Parts 1 and 3).
Every person eligible to vote by workplace voting must be sent a notice stating—
(a) the location they need to attend to cast their vote;
(b) the operating hours and duration of the ballot;
(c) the times at which the employer of the persons eligible to vote by workplace voting will permit those persons to vote;
(d) the questions which will be included on the voting paper in accordance with section 229(2).
230E Workplace voting: additional requirements for conduct of ballot
(1) So far as is reasonably practicable, there must be as many voting stations as is necessary to give every person who is eligible to vote by workplace voting a convenient opportunity to vote.
(2) In the case of a ballot which is held for more than one workplace, a voting station may serve more than one workplace only where the voting station is near all of the workplaces it serves.
(3) In subsections (1) and (2), “voting station” means an area—
(a) in a qualifying location, and
(b) where—
(i) a person who is eligible to vote by workplace voting can do so in accordance with subsections (4) to (6), and
(ii) there is one or more qualifying ballot box.
(4) In order to vote, a person must—
(a) attend the qualifying location for a ballot,
(b) provide the scrutineer with their name and a form of identification which the scrutineer considers acceptable,
(c) be provided with a voting paper in accordance with subsection (6),
(d) mark the voting paper, and
(e) place the marked voting paper in a qualifying ballot box.
(5) When a person attends the qualifying location and provides the scrutineer with their name and identification, the scrutineer must ascertain—
(a) whether the person’s name is on the workplace voting list, and
(b) whether the person’s identification is acceptable.
(6) The scrutineer must provide a person with a voting paper where the scrutineer finds that—
(a) the person’s name is on the workplace voting list, and
(b) the person’s identification is acceptable.
(7) If a voting paper is, after having been provided in accordance with subsection (6), removed from the qualifying location before being placed in the qualifying ballot box, it becomes invalid.
(8) The scrutineer must ensure that the workplace voting list is not seen by anyone who is not involved in administering the ballot.
(9) In this section—
“qualifying ballot box” means a box, used for storing marked voting papers, which—
is possessed solely by the scrutineer throughout the ballot, and
is secured with a seal which remains unbroken until the ballot is complete;
“qualifying location” is to be interpreted in accordance with section 230F;
“workplace voting list” means the list of the names of the persons eligible to vote by workplace voting sent in accordance with section 226B(7).
(1) A qualifying location is a location that satisfies the following requirements—
(a) it is a location which the employer of the persons who are eligible to vote by workplace voting has agreed may be used for the purposes of the ballot;
(b) it is capable of being secured against unauthorised entry of persons;
(c) so far as reasonably practicable, it is not monitored by the employer during the carrying out of the ballot;
(d) it is a suitable location or environment for the purposes of enabling the carrying out of the ballot.
(2) The qualifying location must be a workplace location unless it is not possible to secure a workplace location for the ballot.
(3) If it is not possible to secure a workplace location for the ballot, the qualifying location must be a workplace installation, unless it is not possible to secure a workplace installation for the ballot.
(4) If it is not possible to secure a workplace location or a workplace installation for the ballot, the qualifying location must be an off-site location.
(5) Subsections (2) to (4) do not apply in relation to a voting station which is to serve more than one workplace.
(6) In this section—
“off-site location” means a location which is near the workplace of those who are eligible to vote by workplace voting;
“workplace installation” means a vehicle or structure which is—
controlled by the scrutineer,
placed in the workplace of those who are eligible to vote by workplace voting during the ballot, and
provided at the cost of the trade union;
“workplace location” means a location in the workplace of those who are eligible to vote by workplace voting which is not a workplace installation.
(1) Before the ballot takes place, an agreement in writing must be made between the trade union and the employer of persons eligible to vote by workplace voting.
(2) The agreement must include provision about the following matters—
(a) the qualifying location at which the ballot will be conducted;
(b) access by the scrutineer to the workplace of persons eligible to vote by workplace voting, where this is necessary for the conduct of the ballot;
(c) where relevant, the employer’s right to access the qualifying location in the case of an emergency;
(d) the operating hours and duration of the ballot;
(e) the times at which the employer of the persons eligible to vote by workplace voting will permit those persons to vote.
(3) The agreement must include the following provisions—
(a) the employer must not unreasonably prevent persons who are eligible to vote by workplace voting from voting by this means;
(b) the employer must not monitor the qualifying location;
(c) the employer must co-operate with the scrutineer and the trade union for the purposes of carrying out the ballot.
(4) The agreement must provide for the consequences of a breach of the agreement by the employer, including—
(a) which party is responsible for the costs arising from such a breach, and
(b) where such a breach prevents the completion of a ballot, the status of any votes cast in the ballot.
(5) Where provision under subsection (4) requires the employer to pay costs, it must require the employer to pay the trade union directly.
(6) In this section “qualifying location” is to be interpreted in accordance with section 230F.
As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are told—
(a) the number of individuals who were entitled to vote in the ballot,
(b) the number of votes cast in the ballot,
(c) the number of individuals answering “Yes” to the question, or as the case may be, to each question,
(d) the number of individuals answering “No” to the question, or as the case may be, to each question,
(e) the number of spoiled or otherwise invalid voting papers returned and electronic voting forms submitted, and
(f) whether or not the number of votes cast in the ballot is at least 50% of the number of individuals who were entitled to vote in the ballot, ...
(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) As soon as reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that every relevant employer is informed of the matters mentioned in section 231.
(2) In subsection (1) “relevant employer” means a person who it is reasonable for the trade union to believe (at the time when the steps are taken) was at the time of the ballot the employer of any persons entitled to vote.
(1) The scrutineer’s report on the ballot shall state whether the scrutineer is satisfied—
(a) that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot,
(b) that the arrangements made with respect to the following matters, so far as relevant, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur—
(i) the production, storage, distribution, return or other handling of the voting papers used in the ballot;
(ii) the production, distribution and storage of voting access methods and the maintenance of the electronic voting system;
(iii) the counting of the votes,
(c) that he has been able to carry out the functions conferred on him under section 226B(1) without any interference from the trade union or any of its members, officials or employees;
and if he is not satisfied as to any of those matters, the report shall give particulars of his reason for not being satisfied as to that matter.
(1A) The scrutineer’s report must also include, so far as relevant—
(a) the means of voting by which votes have been cast in the ballot,
(b) the number of individuals who were entitled to vote in the ballot,
(c) the number of voting papers returned to the scrutineer by post,
(d) the number of electronic voting forms submitted,
(e) the number of voting papers returned in accordance with section 230E,
(f) the number of individuals answering “Yes” to the question, or as the case may be, to each question,
(g) the number of individuals answering “No” to the question, or as the case may be, to each question,
(h) the number of spoiled or otherwise invalid voting papers returned and electronic voting forms submitted,
(i) the number of submitted electronic voting forms which were discounted by the scrutineer following a request from the person who submitted the electronic voting form, and
(j) a description of any changes made to permissions to access and edit the electronic voting system during the ballot.
(2) If at any time within six months from the date of the ballot—
(a) any person entitled to vote in the ballot, or
(b) the employer of any such person,
requests a copy of the scrutineer’s report, the trade union must, as soon as practicable, provide him with one either free of charge or on payment of such reasonable fee as may be specified by the trade union.
(1) A trade union which has overseas members may choose whether or not to accord any of those members entitlement to vote in a ballot; and nothing in sections 226ZA, 226B to 230H, 231B and 232B applies in relation to an overseas member or a vote cast by such a member.
(2) Where overseas members have voted in the ballot—
(a) the references in sections 231 and 231A to persons entitled to vote in the ballot do not include overseas members, and
(b) those sections shall be read as requiring the information mentioned in section 231 to distinguish between overseas members and other members.
(3) An “overseas member” of a trade union means a member (other than a merchant seaman or offshore worker) who is outside Great Britain throughout the period during which votes may be cast.
For this purpose—
“merchant seaman” means a person whose employment, or the greater part of it, is carried out on board sea-going ships; and
“offshore worker” means a person in offshore employment, other than one who is in such employment in an area where the law of Northern Ireland applies.
(4) A member who throughout the period during which votes may be cast is in Northern Ireland shall not be treated as an overseas member—
(a) where the ballot is one to which section 228(1) or (2) applies (workplace ballots) and his place of work is in Great Britain, or
(b) where the ballot is one to which section 228(3) applies (general ballots) and relates to industrial action involving members both in Great Britain and in Northern Ireland.
(5) In relation to offshore employment the references in subsection (4) to Northern Ireland include any area where the law of Northern Ireland applies and the references to Great Britain include any area where the law of England and Wales or Scotland applies.