Trade Union and Labour Relations (Consolidation) Act 1992

Action short of dismissal

146Action short of dismissal on grounds related to union membership or activities

(1)An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of—

(a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b)preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or

(c)compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2)In subsection (1)(b) “an appropriate time” means—

(a)a time outside the employee’s working hours, or

(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union;

and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3)An employee also has the right not to have action short of dismissal taken against him for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(4)For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as action short of dismissal taken against him for the purpose of enforcing a requirement of a kind mentioned in that subsection.

(5)An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of this section.

147Time limit for proceedings

An industrial tribunal shall not consider a complaint under section 146 unless it is presented—

(a)before the end of the period of three months beginning with the date of the action to which the complaint relates or, where that action is part of a series of similar actions, the last of those actions, or

(b)where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.

148Consideration of complaint

(1)On a complaint under section 146 it shall be for the employer to show the purpose for which action was taken against the complainant.

(2)In determining any question whether action was taken by the employer or the purpose for which it was taken, no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

149Remedies

(1)Where the industrial tribunal finds that a complaint under section 146 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant in respect of the action complained of.

(2)The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the action which infringed his right.

(3)The loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the action complained of, and

(b)loss of any benefit which he might reasonably be expected to have had but for that action.

(4)In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.

(5)In determining the amount of compensation to be awarded no account shall be taken of any pressure which was exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(6)Where the tribunal finds that the action complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

150Awards against third parties

(1)If in proceedings on a complaint under section 146—

(a)the complaint is made on the ground that action has been taken against the complainant by his employer for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and

(b)either the complainant or the employer claims in proceedings before the tribunal that the employer was induced to take the action complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so,

the complainant or the employer may request the tribunal to direct that the person who he claims exercised the pressure be joined or sisted as a party to the proceedings.

(2)The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration that the complaint is well-founded.

(3)Where a person has been so joined or sisted as a party to proceedings and the tribunal—

(a)makes an award of compensation, and

(b)finds that the claim mentioned in subsection (1)(b) is well-founded,

it may order that the compensation shall be paid by the person joined instead of by the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable in the circumstances.

151Interpretation and other supplementary provisions

(1)References in sections 146 to 150 to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union and to being, becoming or ceasing to remain a member of one of a number of particular branches or sections of that union; and references to taking part in the activities of a trade union shall be similarly construed.

(2)The remedy of an employee for infringement of the right conferred on him by section 146 is by way of a complaint to an industrial tribunal in accordance with this Part, and not otherwise.