The Employment Relations Act 1999 (Blacklists) Regulations 2010

Unfair dismissal

Unfair dismissal

12.—(1) Part 10 of the Employment Rights Act 1996(1) (unfair dismissal) is amended as follows.

(2) After section 104E insert—

“Blacklists

104F.—(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either—

(a)the employer contravenes regulation 3 of the 2010 Regulations in relation to that prohibited list, or

(b)the employer—

(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii)knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.

(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer—

(a)contravened regulation 3 of the 2010 Regulations, or

(b)relied on information supplied in contravention of that regulation,

the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not.

(3) In this section—

“the 2010 Regulations” means the Employment Relations Act 1999 (Blacklists) Regulations 2010, and

“prohibited list” has the meaning given in those Regulations (see regulation 3(2)).”.

(3) In section 105 (selection for redundancy)—

(a)in subsection (1)(c) for “(7L)” substitute “(7M)”;

(b)after subsection (7L) insert—

“(7M) This subsection applies if—

(a)the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1), and

(b)the condition in paragraph (a) or (b) of that subsection was met.”.

(4) In section 108(3) (qualifying period of employment: cases where no qualifying period required), after paragraph (gk) (which is not yet in force) insert—

“(gl)subsection (1) of section 104F (read with subsection (2) of that section) applies.”.

(5) In section 111 (complaint to employment tribunal)—

(a)in subsection (2) (general requirement to present complaint within three months beginning with effective date of termination), for “Subject to subsection (3)” substitute “Subject to the following provisions of this section”; and

(b)after subsection (4) insert—

“(5) Where the dismissal is alleged to be unfair by virtue of section 104F (blacklists),

(a)subsection (2)(b) does not apply, and

(b)an employment tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

(6) In section 120 (minimum basic award in certain cases), after subsection (1B) insert—

“(1C) Where an employee is regarded as unfairly dismissed by virtue of section 104F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of the basic award of compensation (before any reduction is made under section 122) shall not be less than £5,000.”.

(7) In section 122 (reduction of basic award), after subsection (4) insert—

“(5) Where a dismissal is regarded as unfair by virtue of section 104F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award in respect of the same dismissal under section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992 (minimum basic award in case of dismissal on grounds related to trade union membership or activities).”.

(8) In section 128 (interim relief pending determination of complaint), for subsection (1) substitute—

“(1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and—

(a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—

(i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or

(ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or

(b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met,

may apply to the tribunal for interim relief.”.

(9) In section 129 (procedure on hearing of application for interim relief), for subsection (1) substitute—

“(1) This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find—

(a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in—

(i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or

(ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or

(b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.”.