51ZC Postal voting: voting paper and method of voting
(1) So far as is reasonably practicable, every person who is eligible to vote by postal voting must have sent to them by post, at their home address or another address which they have requested the trade union in writing to treat as their postal address, a voting paper which either lists the candidates at the election or is accompanied by a separate list of those candidates.
(2) Each voting paper must—
(a) state the name of the independent scrutineer and clearly specify the address to which, and the date by which, it is to be returned,
(b) 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 election, and
(c) be marked with its number.
(3) Where a person chooses to vote by postal voting, the person votes by marking the voting paper sent to them.
51A Postal voting: counting of votes etc. by independent person
(1) The trade union shall ensure that—
(a) the storage and distribution of the voting papers for the purposes of the election, and
(b) the counting of the votes cast in the election,
are undertaken by one or more independent persons appointed by the union.
(2) A person is an independent person in relation to an election if—
(a) he is the scrutineer, or
(b) he is a person other than the scrutineer and the trade union has no grounds for believing either that he will carry out any functions conferred on him in relation to the election otherwise than competently or that his independence in relation to the union, or in relation to the election, might reasonably be called into question.
(3) An appointment under this section shall require the person appointed to carry out his functions so as to minimise the risk of any contravention of requirements imposed by or under any enactment or the occurrence of any unfairness or malpractice.
(4) The duty of confidentiality as respects the register is incorporated in an appointment under this section.
(5) Where the person appointed to undertake the counting of votes is not the scrutineer, his appointment shall require him to send the voting papers back to the scrutineer as soon as reasonably practicable after the counting has been completed.
(6) The trade union—
(a) shall ensure that nothing in the terms of an appointment under this section is such as to make it reasonable for any person to call into question the independence of the person appointed in relation to the union,
(b) shall ensure that a person appointed under this section duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call into question the independence of the person appointed in relation to the union, and
(c) shall comply with all reasonable requests made by a person appointed under this section for the purposes of, or in connection with, the carrying out of his functions.
Where electronic voting is a selected means of voting for an election, Parts 1 and 2 of Schedule A1A apply in relation to electronic voting at the election (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 an election, Parts 1 and 3 of Schedule A1A apply in relation to hybrid voting at the election (and Part 4 of that Schedule applies for the purposes of Parts 1 and 3).
(1) The scrutineer’s report on the election shall state , so far as relevant—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(aa) the means of voting by which votes have been cast at the election,
(ab) the number of persons who were entitled to vote at the election,
(b) the number of voting papers returned to the scrutineer,
(ba) the number of electronic voting forms submitted,
(c) the number of valid votes cast in the election for each candidate, . . .
(d) the number of spoiled or otherwise invalid voting papers returned and electronic voting forms submitted , ...
(e) the name of the person (or of each of the persons) appointed under section 51A or, if no person was so appointed, that fact,
(f) 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
(g) the changes made to permissions to access and edit the electronic voting system during the election.
(2) The report shall also 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 election,
(b) that the arrangements made (whether by him or any other person) 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 at the election;
(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 his functions without such interference as would make it reasonable for any person to call his independence in relation to the union into question;
and if he is not satisfied as to any of those matters, the report shall give particulars of his reasons for not being satisfied as to that matter.
(2A) The report shall also state—
(a) whether the scrutineer—
(i) has inspected the register of names and addresses of the members of the trade union, or
(ii) has examined the copy of the register as at the relevant date which is supplied to him in accordance with section 49(5A)(a),
(b) if he has, whether in the case of each inspection or examination he was acting on a request by a member of the trade union or candidate or at his own instance,
(c) whether he declined to act on any such request, and
(d) whether any inspection of the register, or any examination of the copy of the register, has revealed any matter which he considers should be drawn to the attention of the trade union in order to assist it in securing that the register is accurate and up-to-date,
but shall not state the name of any member or candidate who has requested such an inspection or examination.
(2B) Where one or more persons other than the scrutineer are appointed under section 51A, the statement included in the scrutineer’s report in accordance with subsection (2)(b) shall also indicate—
(a) whether he is satisfied with the performance of the person, or each of the persons, so appointed, and
(b) if he is not satisfied with the performance of the person, or any of them, particulars of his reasons for not being so satisfied.
(3) The trade union shall not publish the result of the election until it has received the scrutineer’s report.
(4) The trade union shall within the period of three months after it receives the report either—
(a) send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or
(b) take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.
(5) Any such copy or notification shall be accompanied by a statement that the union will, on request, supply any member of the union with a copy of the report, either free of charge or on payment of such reasonable fee as may be specified in the notification.
(6) The trade union shall so supply any member of the union who makes such a request and pays the fee (if any) notified to him.
53A Small accidental failures in relation to electronic voting to be disregarded
(1) If—
(a) in relation to an election there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and
(b) the failure is accidental and on a scale which is unlikely to affect the result of the election or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the election,
the failure (or failures), in so far as they relate to electronic voting, are to be disregarded for all purposes.
(2) The provisions are—
(a) section 48(1)(b) (requirement to distribute election addresses);
(b) section 49(7A) (requirement to send contact information to scrutineer);
(c) section 51(4)(b) (requirement to provide a convenient opportunity to vote);
(d) section 51ZA(2)(c) (requirement to send provision concerning how votes are counted where a person casts multiple votes);
(e) paragraph 12(1) of Schedule A1A (requirement to send electronic voting materials);
(f) paragraph 12(4) of Schedule A1A (requirement to use contact information provided by trade union).
54 Remedy for failure to comply with requirements: general.
(1) A person alleging a failure on the part of a trade union to comply with any of the requirements of this Chapter may apply for—
(a) a declaration under section 55 (by the Certification Officer), or
(b) a declaration under section 56 (by the court);
...
(2) An application for a declaration under section 55 or 56 may be made only—
(a) by a person who is a member of the trade union (provided, where the election has been held, he was also a member at the time when it was held), or
(b) by a person who is or was a candidate at the election;
and the references in those sections to a person having a sufficient interest are to such a person.
(3) Where an election has been held, no application under those sections with respect to that election may be made after the end of the period of one year beginning with the day on which the union announced the result of the election.
(1) Where the Certification Officer is satisfied that a trade union has failed to comply with any of the requirements of this Chapter ...—
(a) on an application by a person having a sufficient interest (see section 54(2)), ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the Officer may make a declaration to that effect.
(2) Before deciding the matter the Certification Officer—
(a) may make such enquiries as the Officer thinks fit,
(b) must give the union and the applicant ... an opportunity to make written representations, and
(c) may give the union and the applicant ... an opportunity to make oral representations.
(3) If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.
(4) Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration.
(5) Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings.
(5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements—
(a) to secure the holding of an election in accordance with the order;
(b) to take such other steps to remedy the declared failure as may be specified in the order;
(c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.
The Certification Officer shall in an order imposing any such requirement as is mentioned in paragraph (a) or (b) specify the period within which the union is to comply with the requirements of the order.
(5B) Where the Certification Officer makes an order requiring the union to hold a fresh election, he shall (unless he considers that it would be inappropriate to do so in the particular circumstances of the case) require the election to be conducted in accordance with the requirements of this Chapter and such other provisions as may be made by the order.
(5C) Where an enforcement order has been made—
(a) any person who is a member of the union and was a member at the time the order was made, or
(b) any person who is or was a candidate in the election in question,
is entitled to enforce obedience to the order as if he had made an application under this section.
(6) In exercising his functions under this section the Certification Officer shall ensure that, so far as is reasonably practicable, an application made to him is determined within six months of being made.
(7) Where he requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination ... notwithstanding that the information has not been furnished to him by the specified date.
(8) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.
(9) An enforcement order made by the Certification Officer under this section may be enforced (by the Certification Officer, the applicant or a person mentioned in subsection (5C)) in the same way as an order of the court.
(10) The following paragraphs have effect if a person applies under section 56 in relation to an alleged failure—
(a) that person may not apply under this section in relation to that failure;
(b) on an application by a different person under this section in relation to that failure, the Certification Officer shall have due regard to any declaration, order, observations or reasons made or given by the court regarding that failure and brought to the Certification Officer’s notice.
(1) A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the court for a declaration to that effect.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) If the court makes the declaration asked for, it shall specify in the declaration the provisions with which the trade union has failed to comply.
(4) Where the court makes a declaration it shall also, unless it considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements—
(a) to secure the holding of an election in accordance with the order;
(b) to take such other steps to remedy the declared failure as may be specified in the order;
(c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.
The court shall in an order imposing any such requirement as is mentioned in paragraph (a) or (b) specify the period within which the union is to comply with the requirements of the order.
(5) Where the court makes an order requiring the union to hold a fresh election, the court shall (unless it considers that it would be inappropriate to do so in the particular circumstances of the case) require the election to be conducted in accordance with the requirements of this Chapter and such other provisions as may be made by the order.
(6) Where an enforcement order has been made—
(a) any person who is a member of the union and was a member at the time the order was made, or
(b) any person who is or was a candidate in the election in question,
is entitled to enforce obedience to the order as if he had made the application on which the order was made.
(7) Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.
(8) The following paragraphs have effect if a person applies under section 55 in relation to an alleged failure—
(a) that person may not apply under this section in relation to that failure;
(b) on an application by a different person under this section in relation to that failure, the court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court’s notice.
An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under section 55.
(1) The provisions of this Chapter do not apply to a trade union until more than one year has elapsed since its formation (by amalgamation or otherwise).
For this purpose the date of formation of a trade union formed otherwise than by amalgamation shall be taken to be the date on which the first members of the executive of the union are first appointed or elected.
(2) Where a trade union is formed by amalgamation, the provisions of this Chapter do not apply in relation to a person who—
(a) by virtue of an election held a position to which this Chapter applies in one of the amalgamating unions immediately before the amalgamation, and
(b) becomes the holder of a position to which this Chapter applies in the amalgamated union in accordance with the instrument of transfer,
until after the end of the period for which he would have been entitled in accordance with this Chapter to continue to hold the first-mentioned position without being re-elected.
(3) Where a trade union transfers its engagements to another trade union, the provisions of this Chapter do not apply in relation to a person who—
(a) held a position to which this Chapter applies in the transferring union immediately before the transfer, and
(b) becomes the holder of a position to which this Chapter applies in the transferee union in accordance with the instrument of transfer,
until after the end of the period of one year beginning with the date of the transfer or, if he held the first-mentioned position by virtue of an election, any longer period for which he would have been entitled in accordance with this Chapter to continue to hold that position without being re-elected.
58 Exemption of certain persons nearing retirement.
(1) Section 46(1)(b) (requirement of re-election) does not apply to a person holding a position to which this Chapter applies if the following conditions are satisfied.
(2) The conditions are that—
(a) he holds the position by virtue of having been elected at an election in relation to which the requirements of this Chapter were satisfied,
(b) he is a full-time employee of the union by virtue of the position,
(c) he will reach retirement age within five years,
(d) he is entitled under the rules of the union to continue as the holder of the position until retirement age without standing for re-election,
(e) he has been a full-time employee of the union for a period (which need not be continuous) of at least ten years, and
(f) the period between the day on which the election referred to in paragraph (a) took place and the day immediately preceding that on which paragraph (c) is first satisfied does not exceed five years.
(3) For the purposes of this section “retirement age”, in relation to any person, means the earlier of—
(a) the age fixed by, or in accordance with, the rules of the union for him to retire from the position in question, or
(b) the age which is for the time being pensionable age (within the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995).
Where a person holds a position to which this Chapter applies immediately before an election at which he is not re-elected to that position, nothing in this Chapter shall be taken to require the union to prevent him from continuing to hold that position for such period (not exceeding six months) as may reasonably be required for effect to be given to the result of the election.
(1) A trade union which has overseas members may choose whether or not to accord any of those members entitlement to vote at an election for a position to which this Chapter applies.
(2) An “overseas member” means a member of the union (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.
(3) Where the union chooses to accord an overseas member entitlement to vote —
(a) the following provisions, so far as applicable, apply in relation to the member—
(i) section 46A (responsible person’s determination of means of voting);
(ii) section 51 (voting);
(iii) section 51ZA (counting of votes where multiple votes cast by same person);
(iv) section 51ZB (postal voting);
(v) section 51ZC (postal voting: voting paper and method of voting);
(vi) section 51B (electronic voting);
(vii) section 51C (hybrid voting);
(viii) Schedule A1A (certain requirements relating to electronic voting and hybrid voting);
(b) nothing in section 47 (candidates) or section 50 (entitlement to vote) applies in relation to an overseas member or in relation to a vote cast by such a member.
(1) For the purposes of this Chapter the date on which a contested election is held shall be taken, in the case of an election in which votes may be cast on more than one day, to be the last of those days.
(2) Nothing in this Chapter affects the validity of anything done by a person holding a position to which this Chapter applies.
(1) A member of a trade union who claims that members of the union, including himself, are likely to be or have been induced by the union to take part or to continue to take part in industrial action which does not have the support of a ballot may apply to the court for an order under this section.
In this section “the relevant time” means the time when the application is made.
(2) For this purpose the question whether industrial action is regarded as having the support of a ballot shall be determined in accordance with section 226(2).
(3) Where on an application under this section the court is satisfied that the claim is well-founded, it shall make such order as it considers appropriate for requiring the union to take steps for ensuring—
(a) that there is no, or no further, inducement of members of the union to take part or to continue to take part in the industrial action to which the application relates, and
(b) that no member engages in conduct after the making of the order by virtue of having been induced before the making of the order to take part or continue to take part in the action.
(4) Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.
(5) For the purposes of this section an act shall be taken to be done by a trade union if it is authorised or endorsed by the union; and the provisions of section 20(2) to (4) apply for the purpose of determining whether an act is to be taken to be so authorised or endorsed.
Those provisions also apply in relation to proceedings for failure to comply with an order under this section as they apply in relation to the original proceedings.
(6) In this section—
“inducement” includes an inducement which is or would be ineffective, whether because of the member’s unwillingness to be influenced by it or for any other reason; and
“industrial action” means a strike or other industrial action by persons employed under contracts of employment.
(7) Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between that person and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this section.
(8) References in this section to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.
(9) Nothing in this section shall be construed as requiring a trade union to hold separate ballots for the purposes of this section and sections 226 to 234 (requirement of ballot before action by trade union).
(1) This section applies where a matter is under the rules of a trade union required or allowed to be submitted for determination or conciliation in accordance with the rules of the union, but a provision of the rules purporting to provide for that to be a person’s only remedy has no effect (or would have no effect if there were one).
(2) Notwithstanding anything in the rules of the union or in the practice of any court, if a member or former member of the union begins proceedings in a court with respect to a matter to which this section applies, then if—
(a) he has previously made a valid application to the union for the matter to be submitted for determination or conciliation in accordance with the union’s rules, and
(b) the court proceedings are begun after the end of the period of six months beginning with the day on which the union received the application,
the rules requiring or allowing the matter to be so submitted, and the fact that any relevant steps remain to be taken under the rules, shall be regarded for all purposes as irrelevant to any question whether the court proceedings should be dismissed, stayed or sisted, or adjourned.
(3) An application shall be deemed to be valid for the purposes of subsection (2)(a) unless the union informed the applicant, before the end of the period of 28 days beginning with the date on which the union received the application, of the respects in which the application contravened the requirements of the rules.
(4) If the court is satisfied that any delay in the taking of relevant steps under the rules is attributable to unreasonable conduct of the person who commenced the proceedings, it may treat the period specified in subsection (2)(b) as extended by such further period as it considers appropriate.
(5) In this section—
(a) references to the rules of a trade union include any arbitration or other agreement entered into in pursuance of a requirement imposed by or under the rules; and
(b) references to the relevant steps under the rules, in relation to any matter, include any steps falling to be taken in accordance with the rules for the purposes of or in connection with the determination or conciliation of the matter, or any appeal, review or reconsideration of any determination or award.
(6) This section does not affect any enactment or rule of law by virtue of which a court would apart from this section disregard any such rules of a trade union or any such fact as is mentioned in subsection (2).
(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.
(2) For this purpose an individual is “disciplined” by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that—
(a) he should be expelled from the union or a branch or section of the union,
(b) he should pay a sum to the union, to a branch or section of the union or to any other person;
(c) sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose,
(d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union,
(e) another trade union, or a branch or section of it, should be encouraged or advised not to accept him as a member, or
(f) he should be subjected to some other detriment;
and whether an individual is “unjustifiably disciplined” shall be determined in accordance with section 65.
(3) Where a determination made in infringement of an individual’s right under this section requires the payment of a sum or the performance of an obligation, no person is entitled in any proceedings to rely on that determination for the purpose of recovering the sum or enforcing the obligation.
(4) Subject to that, the remedies for infringement of the right conferred by this section are as provided by sections 66 and 67, and not otherwise.
(5) The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this section; and, subject to section 66(4), nothing in this section or sections 65 to 67 affects any remedy for infringement of any such right.
(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is—
(a) conduct to which this section applies, or
(b) something which is believed by the union to amount to such conduct;
but subject to subsection (6) (cases of bad faith in relation to assertion of wrongdoing).
(2) This section applies to conduct which consists in—
(a) failing to participate in or support a strike or other industrial action (whether by members of the union or by others), or indicating opposition to or a lack of support for such action;
(b) failing to contravene, for a purpose connected with such a strike or other industrial action, a requirement imposed on him by or under a contract of employment;
(c) asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any enactment (whenever passed) or any rule of law;
(d) encouraging or assisting a person—
(i) to perform an obligation imposed on him by a contract of employment, or
(ii) to make or attempt to vindicate any such assertion as is mentioned in paragraph (c); . . .
(e) contravening a requirement imposed by or in consequence of a determination which infringes the individual’s or another individual’s right not to be unjustifiably disciplined.
(f) failing to agree, or withdrawing agreement, to the making from his wages (in accordance with arrangements between his employer and the union) of deductions representing payments to the union in respect of his membership,
(g) resigning or proposing to resign from the union or from another union, becoming or proposing to become a member of another union, refusing to become a member of another union, or being a member of another union,
(h) working with, or proposing to work with, individuals who are not members of the union or who are or are not members of another union,
(i) working for, or proposing to work for, an employer who employs or who has employed individuals who are not members of the union or who are or are not members of another union, or
(j) requiring the union to do an act which the union is, by any provision of this Act, required to do on the requisition of a member.
(3) This section applies to conduct which involves . . . the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject-matter of any such assertion as is mentioned in subsection (2)(c) above.
(4) This section also applies to conduct which consists in proposing to engage in, or doing anything preparatory or incidental to, conduct falling within subsection (2) or (3).
(5) This section does not apply to an act, omission or statement comprised in conduct falling within subsection (2), (3) or (4) above if it is shown that the act, omission or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts, omissions or statements were in connection with conduct within subsection (2) or (3) above.
(6) An individual is not unjustifiably disciplined if it is shown—
(a) that the reason for disciplining him, or one of them, is that he made such an assertion as is mentioned in subsection (2)(c), or encouraged or assisted another person to make or attempt to vindicate such an assertion,
(b) that the assertion was false, and
(c) that he made the assertion, or encouraged or assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith,
and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined.
(7) In this section—
“conduct” includes statements, acts and omissions;
“contract of employment”, in relation to an individual, includes any agreement between that individual and a person for whom he works or normally works; . . . , “employer” includes such a person and related expressions shall be construed accordingly;
“representative”, in relation to a union, means a person acting or purporting to act—
in his capacity as a member of the union, or
on the instructions or advice of a person acting or purporting to act in that capacity or in the capacity of an official of the union.
“require” (on the part of an individual) includes request or apply for, and “requisition” shall be construed accordinglyand.
“wages” shall be construed in accordance with the definitions of “contract of employment", “employer" and related expressions.
(8) Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between him and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this section.
(1) An individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the union to an employment tribunal.
(2) The tribunal shall not entertain such a complaint unless it is presented—
(a) before the end of the period of six months beginning with the date of the making of the determination claimed to infringe the right, or
(b) where the tribunal is satisfied—
(i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or
(ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,
within such further period as the tribunal considers reasonable.
(2A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).
(3) Where the tribunal finds the complaint well-founded, it shall make a declaration to that effect.
(4) Where a complaint relating to an expulsion which is presented under this section is declared to be well-founded, no complaint in respect of the expulsion shall be presented or proceeded with under section 174 (right not to be excluded or expelled from trade union).
(1) An individual whose complaint under section 66 has been declared to be well-founded may make an application to an employment tribunal for one or both of the following—
(a) an award of compensation to be paid to him by the union;
(b) an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in section 64(2)(b).
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) An application under this section shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The amount of compensation awarded shall, subject to the following provisions, be such as the . . . employment tribunal considers just and equitable in all the circumstances.
(6) In determining the amount of compensation to be awarded, the same rule shall be applied concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law in England and Wales or Scotland.
(7) Where the . . . employment tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
(8) The amount of compensation calculated in accordance with subsections (5) to (7) shall not exceed the aggregate of—
(a) an amount equal to 30 times the limit for the time being imposed by section 227(1)(a) of the Employment Rights Act 1996 (maximum amount of a week’s pay for basic award in unfair dismissal cases), and
(b) an amount equal to the limit for the time being imposed by section 124(1) of that Act (maximum compensatory award in such cases);
. . . .
(8A) If on the date on which the application was made—
(a) the determination infringing the applicant’s right not to be unjustifiably disciplined has not been revoked, or
(b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination,
the amount of compensation shall be not less than the amount for the time being specified in section 176(6A).
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
68 Right not to suffer deduction of unauthorised subscriptions
(1) Where arrangements (“subscription deduction arrangements") exist between the employer of a worker and a trade union relating to the making from workers’ wages of deductions representing payments to the union in respect of the workers’ membership of the union (“subscription deductions"), the employer shall ensure that no subscription deduction is made from wages payable to the worker on any day unless—
(a) the worker has authorised in writing the making from his wages of subscription deductions; and
(b) the worker has not withdrawn the authorisation.
(2) A worker withdraws an authorisation given for the purposes of subsection (1), in relation to a subscription deduction which falls to be made from wages payable to him on any day, if a written notice withdrawing the authorisation has been received by the employer in time for it to be reasonably practicable for the employer to secure that no such deduction is made.
(3) A worker’s authorisation of the making of subscription deductions from his wages shall not give rise to any obligation on the part of the employer to the worker to maintain or continue to maintain subscription deduction arrangements.
(4) In this section and section 68A, “employer", “wages" and “worker" have the same meanings as in the Employment Rights Act 1996.
(1) A worker may present a complaint to an employment tribunal that his employer has made a deduction from his wages in contravention of section 68—
(a) within the period of six months beginning with the date of the payment of the wages from which the deduction, or (if the complaint relates to more than one deduction) the last of the deductions, was made, or
(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable.
(1A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).
(2) Where a tribunal finds that a complaint under this section is well founded, it shall make a declaration to that effect and shall order the employer to pay to the worker the whole amount of the deduction, less any such part of the amount as has already been paid to the worker by the employer.
(3) Where the making of a deduction from the wages of a worker both contravenes section 68(1) and involves one or more of the contraventions specified in subsection (4) of this section, the aggregate amount which may be ordered by an employment tribunal or court (whether on the same occasion or on different occasions) to be paid in respect of the contraventions shall not exceed the amount, or (where different amounts may be ordered to be paid in respect of different contraventions) the greatest amount, which may be ordered to be paid in respect of any one of them.
(4) The contraventions referred to in subsection (3) are—
(a) a contravention of the requirement not to make a deduction without having given the particulars required by section 8 (itemised pay statements) or 9(1) (standing statements of fixed deductions) of the Employment Rights Act 1996,
(b) a contravention of section 13 of that Act (requirement not to make unauthorised deductions), and
(c) a contravention of section 86(1) or 90(1) of this Act (requirements not to make deductions of political fund contributions in certain circumstances).
In every contract of membership of a trade union, whether made before or after the passing of this Act, a term conferring a right on the member, on giving reasonable notice and complying with any reasonable conditions, to terminate his membership of the union shall be implied.
70 Membership of constituent or affiliated organisation.
In this Chapter “member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of the constituent or affiliated organisations.
(1) This section applies for the purposes of this Chapter.
(2) An “access agreement” is an agreement between a qualifying trade union and an employer that—
(a) provides for one or more officials of the union to physically enter a workplace or communicate with workers (or both) for any of the access purposes, and
(b) is entered into under section 70ZD or is treated as having been entered into under section 70ZE.
(3) A “qualifying trade union” is a trade union that has a certificate of independence.
(4) “Access” means—
(a) physical entry into a workplace;
(b) communication with workers.
(5) A reference to communication with workers is a reference to communication with workers (including the provision of information to workers) by any means, whether directly or indirectly.
(6) The “access purposes” are—
(a) to meet, support, represent, recruit or organise workers (whether or not they are members of a trade union);
(b) to facilitate collective bargaining.
(7) But the access purposes do not include organising industrial action.
(8) Sections 70ZB to 70ZF contain provision about entering into access agreements.
(9) Section 70ZG contains provision about the variation or revocation of access agreements.
(10) Sections 70ZH to 70ZK contain provision about the enforcement of access agreements.
(11) Section 70ZL contains general limitations on the provision that may be made under this Chapter, including in access agreements.
(1) A qualifying trade union may give an employer a request for access by one or more officials of the union for any of the access purposes.
(2) A request under subsection (1)—
(a) may request access on one or more occasions;
(b) may include the terms on which access is requested (including as to what (if any) assistance the employer is requested to provide in relation to the access).
(3) A request under subsection (1) must—
(a) be in the prescribed form;
(b) include the prescribed information;
(c) be given in the prescribed manner.
(4) An employer that has been given a request under subsection (1) may give the union a notice agreeing with the request or disagreeing with the request (in whole or in part).
(5) A notice under subsection (4) must—
(a) be in the prescribed form;
(b) include the prescribed information;
(c) be given in the prescribed manner.
(6) In this Chapter—
“access request” means a request under subsection (1) given in accordance with subsection (3);
“response notice” means a notice under subsection (4) given in accordance with subsection (5).
In sections 70ZD and 70ZE—
(a) “the response period” means a prescribed period beginning with the day on which an access request is given;
(b) “the negotiation period” means a prescribed period beginning with the day on which a response notice is given.
70ZD Entering into access agreement by negotiation
(1) An access agreement is entered into under this section if—
(a) a qualifying trade union gives an access request to an employer,
(b) the employer gives the union a response notice before the end of the response period,
(c) before the end of the negotiation period, the union and the employer agree in writing terms on which officials of the union are to have access, and
(d) the union and the employer jointly notify the Central Arbitration Committee of those terms in the prescribed form and manner.
(2) See section 70ZE for the case where an access agreement is treated as being entered into by virtue of a determination of the Central Arbitration Committee.
70ZE Determinations by the Central Arbitration Committee
(1) This section applies if a qualifying trade union has given an access request to an employer and either—
(a) the employer has not given a response notice to the union before the end of the response period, or
(b) the employer has given a response notice before the end of the response period and the negotiation period has ended without the union and the employer agreeing in writing terms on which officials of the union are to have access.
(2) The Central Arbitration Committee may, on an application under this section, make a determination that officials of the union are or are not to have access.
(3) If the Central Arbitration Committee makes a determination that officials of the union are to have access—
(a) the determination must specify the terms on which officials of the union are to have access (including as to what (if any) assistance the employer must provide in relation to the access), and
(b) an access agreement containing those terms (and no others) is treated as having been entered into between the union and the employer.
(4) An application for a determination under this section may be made—
(a) by the union, in the case referred to in subsection (1)(a);
(b) by the union or the employer, in the case referred to in subsection (1)(b).
(5) An application for a determination under this section—
(a) must be in writing and in such form as the Central Arbitration Committee may require;
(b) may not be made after the end of a prescribed period beginning with the day on which the access request is given.
(6) In considering an application for a determination under this section, the Central Arbitration Committee—
(a) may make such enquiries as it sees fit;
(b) may make reasonable requests to provide information or documents relevant to the application;
(c) so far as reasonably practicable, must give any person who it considers has a proper interest in the application an opportunity to be heard.
(7) A determination under this section must—
(a) be in writing, and
(b) state the reasons for the determination.
(8) Section 70ZF makes further provision about determinations under this section.
70ZF Determinations by the Central Arbitration Committee: further provision
(1) Subject to regulations under this section, a determination by the Central Arbitration Committee under section 70ZE must be consistent with the access principles.
(2) The access principles are—
(a) officials of a qualifying trade union should be able to physically enter a workplace or communicate with workers (or both) for any of the access purposes in any manner that does not unreasonably interfere with the employer’s business;
(b) an employer should take reasonable steps to facilitate access by officials of a qualifying trade union;
(c) physical entry into a workplace should not be refused solely on the basis that communication with workers by means not involving physical entry into a workplace is permitted;
(d) communication with workers by means not involving physical entry into a workplace should not be refused solely on the basis that physical entry into a workplace is permitted;
(e) access should be refused entirely only where it is reasonable in all the circumstances to do so.
(3) The Secretary of State may prescribe terms of an access agreement that the Central Arbitration Committee must consider to be terms that—
(a) would not unreasonably interfere with an employer’s business;
(b) would constitute reasonable steps that an employer should take to facilitate access;
(c) it would be reasonable for a union to comply with.
(4) The Secretary of State may prescribe—
(a) circumstances in which it is to be regarded as reasonable for the Central Arbitration Committee to make a determination that officials of a union that has given an access request to an employer are not to have access;
(b) circumstances in which the Central Arbitration Committee must make such a determination.
(5) The circumstances referred to in subsection (4) may be prescribed by reference to (among other matters)—
(a) the description of business carried on by the employer;
(b) the number of workers employed by the employer;
(c) the number of workers employed by the employer, or of a particular description, that are members of the union;
(d) a description of workplace;
(e) a description of workers;
(f) the ability of the employer to facilitate access;
(g) avoiding prejudice to the prevention or detection of offences;
(h) national security.
(6) The Secretary of State may prescribe matters to which the Central Arbitration Committee must have regard in considering an application for a determination under section 70ZE.
70ZG Variation and revocation of access agreements
(1) The parties to an access agreement may at any time vary or revoke the agreement.
(2) A variation or revocation of an access agreement must be in writing.
(3) An access agreement that is varied under this section continues to have effect as an access agreement for the purposes of this Chapter.
(4) The effect of an access agreement being revoked is that it ceases to be an access agreement for the purposes of this Chapter.
(5) A variation or revocation of an access agreement takes effect—
(a) only if the parties jointly notify the Central Arbitration Committee of the variation or revocation in the prescribed form and manner;
(b) only in respect of times after the day on which the Central Arbitration Committee is so notified.
70ZH Enforcement of access agreements: initial complaint
(1) A party to an access agreement may make a complaint to the Central Arbitration Committee on the ground that—
(a) the other party has breached the agreement;
(b) a person that is not a party to the agreement has taken or is taking steps to prevent access, or has prevented access, from taking place in accordance with the agreement.
(2) A complaint under subsection (1) must be made before the end of the period of three months beginning with the day on which the matter complained of is alleged to have occurred.
(3) On a complaint under subsection (1), the Central Arbitration Committee may—
(a) vary the agreement;
(b) make a declaration that the complaint is or is not well-founded;
(c) if it makes a declaration that the complaint is well-founded, make an order requiring a person to take any steps specified in the order for the purposes of ensuring that access takes place in accordance with the agreement.
(4) An access agreement that is varied under subsection (3)(a) continues to have effect as an access agreement for the purposes of this Chapter.
(5) An order under subsection (3)(c) may, where it appears to the Central Arbitration Committee necessary or appropriate to do so, make provision different from that made in the agreement.
(6) A declaration or order made by the Central Arbitration Committee under this section must—
(a) be in writing, and
(b) state the reasons for the declaration or order.
(7) For the purposes of this section, a reference to a person taking steps includes a reference to a person not doing something.
70ZI Enforcement of access agreements: subsequent complaint
(1) This section applies where the Central Arbitration Committee has made a declaration under section 70ZH(3) that a complaint about a person is well-founded.
(2) A party to an access agreement may make a complaint to the Central Arbitration Committee on any of the following grounds—
(a) that the person has, before the end of the relevant period, carried out the conduct complained of under section 70ZH again;
(b) where the complaint under section 70ZH was that the person breached the agreement, that the person has, before the end of the relevant period, breached the agreement again (whether or not in the way complained of under section 70ZH);
(c) that the person has breached an order under section 70ZH(3)(c).
(3) In subsection (2), “the relevant period” means the period of 12 months beginning with the date of the declaration.
(4) A complaint under subsection (2) must be made before the end of the period of three months beginning with the day on which the alleged conduct occurs.
(5) On a complaint about a person under subsection (2), the Central Arbitration Committee may—
(a) make a declaration that the complaint is or is not well-founded;
(b) if it makes a declaration that the complaint is well-founded, make an order requiring the person to pay an amount to the Central Arbitration Committee.
(6) An amount payable under subsection (5)(b) may be any amount that the Central Arbitration Committee considers appropriate, subject to regulations under section 70ZJ.
(7) A declaration or order made by the Central Arbitration Committee under this section must—
(a) be in writing, and
(b) state the reasons for the declaration or order.
(8) A declaration or order made by the Central Arbitration Committee under subsection (5) may be relied on (and enforced by the Central Arbitration Committee or a party to the access agreement) as if it were a declaration or order made by the court.
(9) The Central Arbitration Committee must pay into the Consolidated Fund any amounts received under subsection (5)(b).
(10) For the purposes of this section, a reference to conduct includes a reference to a person not doing something.
70ZJ Power to make provision about amounts payable under section 70ZI
(1) The Secretary of State may prescribe that an amount payable under section 70ZI(5)(b)—
(a) must be at least a prescribed amount;
(b) may not exceed a prescribed amount.
(2) An amount may be prescribed under subsection (1)(a) or (b)—
(a) as a fixed amount;
(b) by reference to one or more prescribed factors;
(c) as the highest or lowest of two or more prescribed amounts, whether prescribed as fixed amounts or by reference to one or more prescribed factors.
(3) The factors that may be prescribed under subsection (2)(b) or (c) include (among others)—
(a) the nature of the complaint under section 70ZI(2) against the person required to pay the amount (the “liable party”);
(b) whether the liable party has previously been subject to a complaint under section 70ZH(1) or 70ZI(2), or a prescribed number of such complaints, declared by the Central Arbitration Committee to be well-founded;
(c) whether the liable party is of a prescribed description;
(d) in the case of a liable party that is an undertaking, the turnover of the liable party in a prescribed period, including (in particular) worldwide, European or United Kingdom turnover;
(e) in the case of a liable party that is an employer—
(i) the number of workers employed by the liable party, or
(ii) the number of workers of a prescribed description employed by the liable party;
(f) in the case of a liable party that is a trade union, the number of members that the liable party has.
(4) The Secretary of State may prescribe matters to which the Central Arbitration Committee must have regard in considering what amount is payable under section 70ZI(5)(b).
70ZK Enforcement of access agreements: supplementary provision
(1) An access agreement—
(a) is enforceable only by means of a complaint under section 70ZH or 70ZI, and not by any other means;
(b) in particular, is to be conclusively presumed not to have been intended by the parties to be a legally enforceable contract.
(2) Accordingly, where an access agreement is, or is part of, a collective agreement, section 179(2) and (3)(a) do not apply to the access agreement.
(3) A complaint under section 70ZH or 70ZI must be in writing and in such form as the Central Arbitration Committee may require.
(4) In its consideration of a complaint under section 70ZH or 70ZI, the Central Arbitration Committee—
(a) may make such enquiries as it sees fit;
(b) may make reasonable requests to provide information or documents relevant to the complaint;
(c) so far as reasonably practicable, must give any person who it considers has a proper interest in the complaint an opportunity to be heard.
(5) The Central Arbitration Committee may draw an adverse inference from a person’s failure to comply with any reasonable request to provide information or documents relevant to a complaint under section 70ZH or 70ZI.
(1) Nothing in this Chapter requires or authorises any of the following (each, a “prohibited activity”)—
(a) physical entry by any person into a dwelling;
(b) a disclosure of personal data without the consent of the data subject;
(c) a disclosure of information that would contravene the data protection legislation (but, in determining whether a disclosure would do so, the provisions of this Chapter are to be taken into account).
(2) Accordingly—
(a) a term of an access agreement entered into under section 70ZD that requires or authorises a prohibited activity is of no effect for the purposes of this Chapter;
(b) the Central Arbitration Committee may not specify as a term of an access agreement under section 70ZE any term that would require or authorise a prohibited activity;
(c) the Central Arbitration Committee may not exercise any function under sections 70ZH to 70ZK so as to require or authorise a prohibited activity.
(3) In this section—
(a) “consent” has the same meaning as in the UK GDPR (see Article 4(11) of the UK GDPR);
(b) “personal data”, “data subject”, “the data protection legislation” and “the UK GDPR” have the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(1) An appeal lies to the Employment Appeal Tribunal on any question of law arising from any determination, declaration or order of, or arising in any proceedings before, the Central Arbitration Committee under this Chapter.
(2) Where the Central Arbitration Committee makes an order under section 70ZI(5)(b) for a person to pay an amount to the Central Arbitration Committee, the person may appeal against the order.
(3) On an appeal under subsection (2), the Employment Appeal Tribunal may—
(a) quash the order;
(b) make an order requiring the person to pay a reduced amount to the Central Arbitration Committee;
(c) dismiss the appeal.
(4) The Central Arbitration Committee must pay into the Consolidated Fund any amounts received under subsection (3)(b).