Key points

  • To qualify for most statutory rights in employment, an employee must be in continuous employment and must have been continuously employed for a specified period. That period is expressed in months or years - a month meaning a calendar month; and a year, a year of 12 calendar months. The rules are laid down in Part XIV, Chapter I (sections 210 to 219) of the Employment Rights Act 1996 - reproduced as the Appendix to this handbook.

  • Following the decision of the House of Lords in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1994] ICR 317, and the subsequent introduction of the Employment Protection (Part-Time Employees) Regulations 1995, part-time employees are nowadays entitled to the same statutory employment rights as their full-time colleagues, and are subject to the same qualifying conditions for access to those rights. See also the section titled Part-time workers elsewhere in this handbook.

The continuity of a period of employment

  • Any employee who is in continuous employment will ultimately have been employed for a period sufficient to qualify for most (if not all) of the statutory rights outlined both in the Employment Rights Act 1996 and in related legislation (such as the Trade Union & Labour Relations (Consolidation) Act 1992). For example, an employee who has been continuously employed for one month up to the day preceding a workless day will qualify to be paid a guarantee payment in respect of that and (within prescribed limits) any subsequent workless days. A pregnant employee, who has been continuously employed for one year or more at the beginning of the 11th week before the expected week of childbirth, will qualify for up to 29 weeks additional maternity leave. An employee with one or more years' service at the effective date of termination of his (or her) employment has the right to pursue a complaint of unfair dismissal. An employee with two or more years' continuous service from the age of 18, has the right to be paid (or to claim) a redundancy payment; and so on.

  • In computing an employee's period of continuous employment, any question whether the employee's employment is of a kind counting towards a period of continuous employment or whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment, is determined week by week.

  • But, where it is necessary to compute the length of an employee's period of employment in order to determine whether he (or she) qualifies for a statutory right which is dependent on a period of continuous employment, different rules apply, as is explained later in this section under the headings: When does a period of continuous employment begin? and And when does it end?

Weeks that count

  • Every week during the whole or part of which an employee's relations with his (or her) employer are governed by a contract of employment counts in computing that employee's period of employment (ibid. section 212(1)). It follows that the continuity of an employee's period of employment with the one employer is not broken if the employee is re- employed by that same employer (whether in the same or a different job) during the week immediately following the week in which his previous employment ended - even if the employee has worked (albeit briefly) for another employer in the days preceding his re-employment (per Sweeney v J & S Henderson (Concessions) Ltd [1999] IRLR 306 (EAT)).

  • Under normal circumstances a week which does not count in the computation of a period of employment breaks the continuity of that period of employment. If, for example, the employee in the previous paragraph had not been re-engaged by his former employer for a further week, the continuity of his period of employment with that employer would have been broken. However, as is explained later in this section, there are circumstances in which an interval of more than one week between two consecutive periods of employment with the same employer will nonetheless be treated as part of an employee's total period of continuous employment with that employer.


    Note

    The continuity of a period of employment will be broken if an otherwise legal contract is performed illegally (eg, by a fraud on the Inland Revenue) (Napier v National Business Agency Limited [1951]2 All ER 264) unless the employee was unaware, for example, that his (or her) employer had been acting unlawfully (Newland v Simons & Willer (Hairdressers) Limited [1981] ICR 521).

Weeks that do not count but do not break continuity

  • Any week, during the whole or part of which an employee takes part in a strike, must be discounted when computing the employee's total period of continuous employment. However, the loss of that week does not destroy the continuity of that period of employment. See also Industrial disputes below.

  • Weeks during the whole or part of which an employee works (or worked) outside Great Britain ordinarily count as part of that employee's total period of continuous employment, except in the case of a week (or part week) in which the employee was not an employed earner for the purposes of the Social Security Contributions & Benefits Act 1992 in respect of whom a secondary Class 1 National insurance contribution was payable under that Act (whether or not the contribution was in fact paid). In the latter situation, the week or weeks in question do not break the continuity of a period of employment but do not count as part of the employee's total period of continuous employment.

When does a period of continuous employment begin?

  • To determine whether an employee has been continuously employed for a period sufficient to qualify for one or other of his (or her) statutory rights under the Employment Rights Act 1996, his period of continuous employment begins with the day on which he first started work with his employer and ends with the day by reference to which the length of his period of continuous employment falls to be ascertained (but see Industrial disputes below).

  • This rule applies to all statutory employment rights which are dependent on a period of continuous employment, except in relation to an employee's right to a statutory redundancy payment. In the latter instance, any employee who started work with his (or her) employer before his 18th birthday is deemed to have started work on that 18th birthday (ibid. section 211(2)).

And when does it end?

  • A period of continuous employment will end on the effective date of termination of the employee's contract of employment. For the meaning of effective date of termination

    However, continuity will be preserved if an unfairly dismissed employee is reinstated or re-engaged by his former employer (or by an associated or successor employer) at the direction of an employment tribunal.

    Section 210(5) of the 1996 Act cautions that 'a person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous'. This means that, when confronted with a tribunal situation, an employer must be prepared to produce evidence to support his (or her) assertion that the applicant employee (the complainant) had not been continuously employed for a period sufficient to qualify him (or her) to pursue a complaint of unfair dismissal before an employment tribunal or to lay claim to a particular statutory right (such as a redundancy payment or any other statutory right that he claims has been denied him).

  • To pursue a complaint before an employment tribunal concerning an alleged breach of one or other of his (or her) statutory rights, an employee must complete Form IT1 (Originating Application to an Employment Tribunal) and send it to his (or her) nearest regional (ROET) or other office (OET) of the employment tribunals explaining the nature of his (or her) complaint. Within a week or two, a copy of that form will be forwarded to the employer (as well as to ACAS) together with Form IT3, inviting him (or her) to respond to the employee's complaint. It is at this point that the employer must be prepared to refute the employee's contention that he had (or has) been continuously employed for a period sufficient to qualify him for the right he now claims has been denied him. If the employer neglects to do so (either at this stage or at the subsequent tribunal hearing), the tribunal will proceed on the assumption that the disputed period of employment was continuous.

Circumstances that do not break continuity

  • There are circumstances in which continuity of employment is not broken even though an employee's contract of employment has come to an end:

    • If an employee has been dismissed (or has resigned) on grounds of ill-health, his (or her) intervening period of absence will be treated as part of his total period of employment if, but only if, he is reinstated or re-engaged by the same employer within 26 weeks of the date on which his employment under his previous contract came to an end (the 'effective date of termination') (ibid. section 212(3)(a)).

    • If, on the other hand, an employee is dismissed on account of a temporary cessation of work, or in circumstances such that, by custom or arrangement, he (or she) is regarded as continuing in the employment of his employer (eg, seasonal workers), continuity of employment will be preserved if, at some later date, he is re- employed or reinstated by the same (or an associated) employer (ibid. section 212(3)(b) and (c)). Thus, if a factory is destroyed by fire and the workforce is necessarily dismissed pending rebuilding, the intervening period of interruption of employment will ordinarily count as a period of employment, notwithstanding that some or all of the workforce may have accepted work elsewhere while waiting to return to their original jobs (see Bentley Engineering Co Ltd v Crown & Miller [1976] ICR 225 when employment was interrupted in similar circumstances for 21 months and two years, respectively, without loss of continuity). See also the decision of the House of Lords in Ford v Warwickshire County Council [1983] ICR 273.

  • In contentious cases, it will be (as always) a matter for the tribunals and courts to determine whether a break in employment preserves the continuity of a period of employment. In Ingram v Foxon [1984] ICR 685, it was held that an agreement between an employer and a returning employee - that the interval between the latter's dismissal and subsequent re-employment would form part of the employee's total period of continuous employment - could be categorised as an 'arrangement or custom' sufficient to bind the employer to that agreement. That decision was disputed by the EAT in Morris v Walsh Western UK Limited [1997] IRLR 562 and rejected by the EAT in Collinson v British Broadcasting Corporation [1998] IRLR 238 (EAT). In short, the concept of 'continuity of employment' is a statutory concept, and not one that can be vitiated by a compromise agreement or any other form of agreement between an employer and an employee. See also Reinstatement or re-engagement below.

Special provisions for redundancy payments

  • The continuity of a period of employment is broken - but only for redundancy qualification and payment purposes - if an employee who has been paid a statutory redundancy payment is subsequently re- engaged by his (or her) former employer in circumstances which do not otherwise destroy continuity. This means that, although continuity is preserved for all other purposes - qualifying periods for unfair dismissal, additional maternity leave, notice, etc - the re-engaged employee will not again qualify for a redundancy payment until such time as he again satisfies the prescribed qualifying conditions for such a payment (in terms of length of service and age) (ibid. section 214).


    Note

    In Rowan v Machinery Installations (South Wales) Limited [1981] ICR 386, and again in Ross v Delrosa Caterers Limited [1981] ICR 393, it was held that section 214 of the 1996 Act applies to a statutory redundancy payment (as defined in section 162 of the 1996 Act). It does not apply to a severance or other form of 'redundancy payment' which an employer is not legally required to make.

  • The same rule applies when an employee, who has previously been paid a statutory redundancy payment, is reinstated or re-employed by his employer (or by a successor or associated employer):

    1. following the intervention of an ACAS conciliation officer (and the conclusion of a COT 3 agreement); or

    2. as the result of a relevant compromise agreement; or

    3. as the result of an 'arbitral agreement' delivered by an independent arbitrator under the ACAS Arbitration Scheme; or

    4. in compliance with a tribunal order for reinstatement or re-engagement (see below).

    However, continuity will be preserved for all purposes (including entitlement to a statutory redundancy payment) if the terms on which the employee is reinstated or re-engaged include a provision that the employee repay the amount of any statutory redundancy payment previously paid to him (or her) - so long as the employee complies with that provision (ibid. section 219 as modified by the Employment Protection (Continuity of Employment) Regulations 1996).

Industrial disputes

  • The continuity of a period of employment is not destroyed when an employee takes part in a strike (or is absent from work because of a lock-out). However, the number (or aggregate number) of days lost through strike action (or a lock-out) must be discounted when computing an employee's total period of continuous employment for the purpose of establishing his or her right (or otherwise) to one or other of the statutory employment rights listed in the 1996 Act. The date on which the employee's period of employment actually began must then be treated as postponed by the number of days in question (ibid. sections 211(3) and 216).

  • For example, unless dismissed for an inadmissible or unlawful reason, an employee will not qualify to present a complaint of unfair dismissal to an employment tribunal if he (or she) had not been continuously employed for one calendar year or more at the effective date of termination of his contract of employment. When calculating an employee's period of continuous employment for this purpose (perhaps in response to a Form IT3), the respondent employer will first need to establish the number of days (if any) during which the employee took part in a strike or was absent from work because of a 'lock-out' - counting the number of days (in each case) between the last working day between the day on which each strike or lock-out began and the day on which the employee returned to work. If these add up to, say, five days, the employer must then treat the date on which the employee first started work as postponed by that same number of days. If the employee in question started work on 3 May 1999, he will be treated for these purposes as having started work on 8 May 1999. If his employment ended on 5 May 2000, he will not have completed the necessary one calendar year's service and will have forfeited his right to challenge the fairness of his dismissal before an employment tribunal.

Reinstatement or re-engagement

  • If an employer (or a successor or associated employer) complies with a tribunal or court order to reinstate or re-engage an unfairly dismissed employee, the period of the employee's absence from work (ie, from the time his (or her) employment ended to the date on which he was reinstated or re-engaged) will count as part of his total period of continuous employment (ibid. section 219 and regulation 3 of the Employment Protection (Continuity of Employment) Regulations 1996 (qv)).

  • In a situation involving an unfair redundancy dismissal, the continuity of employment, otherwise broken for redundancy qualification and payments purposes, will be re-established for those and all other purposes if the terms on which the employee is to be reinstated or re- engaged include a provision that the employee repay the amount of any statutory redundancy payment paid to him (or her) by his employer at the time of his dismissal, so long as the employee complies with that provision (ibid. sections 214 and 219, and regulation 4 of the Employment Protection (Continuity of Employment) Regulations 1996 (qv)). See also Special provisions for redundancy payments earlier in this section.

Continuity and a change of employer

  • A change of employer does not break the continuity of a period of employment if the employer's business is acquired by, or transferred to, another owner or employer; or if the employer dies and his personal representatives or trustees continue to run the business; or if there is a change in the partners, personal representatives or trustees; or if the employee transfers from one employer to another when, at the time of the transfer, the two employers are associated employers (ibid. section 218).

  • Two employers will be treated as associated 'if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and associated employer shall be construed accordingly' (section 231, Employment Rights Act 1996). A successor employer in relation to an employee, means a person who, in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of part of the undertaking, for the purposes of which the employee was employed, has become owner of the undertaking or part (ibid. section 235(1)).

Transfer of undertakings

  • Under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended, an employee's contractual rights are safeguarded when the company (organisation or business) for which he (or she) works is sold or transferred as a going concern to another employer. This means that the new owner inherits the contracts of employment of the persons employed by the former owner immediately before the transfer or sale took place. He (or she) cannot pick or choose which employees to take over. They all go with the business - unless an employee makes it known, either to his existing employer or to the new owner, that he objects to becoming employed by the new owner. If this happens, there is no dismissal in law and the employee has no grounds for pursuing a complaint of unfair dismissal against either his former employer or the new owner of the business (ibid. regulations 5(4A) and (4B)).

  • If the original employer dismisses one or more of his (or her) employees simply because he has sold (or is in the process of selling or transferring) his business (or in order to strike a better deal with the prospective purchaser), that employee will be treated in law as having been unfairly dismissed - unless the employer can show that the dismissal was for 'an economic, technical or organisational [ETO] reason entailing changes in the workforce'. The same applies if the new owner or employer sets about dismissing one or other of the employees he has inherited, unless he too can justify the dismissals in ETO terms. However, an employee dismissed in these circumstances will not qualify to pursue a complaint of unfair dismissal unless he (or she) had been continuously employed for one year or more at the effective date of termination of his contract of employment (ibid. regulations 5 and 8).

  • It follows that the transfer or sale of an undertaking (company/partnership, business firm, or franchise) does not break the continuity of employment of the persons employed in that undertaking before the transfer or sale occurred. Indeed, section 4 of the 1996 Act imposes a duty on the new employer to issue a written statement to each of those employees giving his or her name (ie, the name of the employing organisation) and the date on which the employee's period of continuous employment began ('taking into account any employment with a previous employer which counts towards that period'). That written statement must be issued 'at the earliest opportunity and, in any event, not later than one month after the change' to which it refers.

Key points

  • The role of the Advisory, Conciliation & Arbitration Service (ACAS) is to provide an independent and impartial service to prevent and resolve disputes between employers and employees. Conciliation officers appointed by ACAS have a statutory duty to promote settlements of complaints arising out of a breach (or alleged breach) of an employee's rights under contemporary employment and industrial relations legislation which are or could be the subject of proceedings before the employment tribunals (per Part IV, Chapter IV of the Trade Union & Labour Relations (Consolidation) Act 1992 and sections 18 and 19 of the Employment Tribunals Act 1996).

  • If there is a dispute between an employer and an employee concerning an alleged infringement of one or other of the employee's statutory rights (including his or her right not to be unfairly dismissed), either party to that dispute may request a conciliation officer to make his (or her) services available to them. It is a conciliation officer 's duty to endeavour to promote a settlement - before the employee decides to take the matter further by presenting a complaint to an employment tribunal (section 18(2), Employment Tribunals Act 1996). If an employee has already complained to an employment tribunal, a copy of his (or her) 'originating application' (Form ITI) plus a copy of his employer's (or former employer's) response (Form IT3) to that application, will be sent automatically to the appropriate regional office of ACAS. A conciliation officer will then contact both parties offering to help settle the 'dispute' between them. However, he cannot proceed further unless both parties accept that offer of help. But see Future developments at the end of this section.

  • It is not the function of conciliation officers to comment on the merits or otherwise of an employee's complaint (or to attempt to persuade an employee to withdraw that complaint). Their role is to help the parties establish the facts and clarify their views, without allowing their own views to intrude. In short, a conciliation officer is neither an arbitrator nor an investigator. Nor is anything said to a conciliation officer in the course of discussions admissible as evidence in proceedings before an employment tribunal.

COT 3 agreements

  • If a conciliation officer succeeds in promoting an 'out-of-court' settlement, details of the settlement will be recorded on form COT 3 (signed by both parties). Once this is done, the employee cannot then change his (or her) mind and press ahead with the original complaint (see Moore v Dupont Furniture Products Limited [1980] IRLR 158 (CA)). Each party keeps a copy of form COT 3. A third copy is sent to the Central Office of the Employment Tribunals which will register the complaint as having been settled by conciliation. Another (relatively new) form of binding agreement reached without the intervention of a conciliation officer - is the so-called 'compromise agreement' (discussed in the previous section).

General

  • If an employer fails to honour the terms of a COT 3 settlement, the employee may apply to the county court for an order enforcing compliance.

  • If an out-of-court settlement is reached without the intervention of a conciliation officer (and there has been no 'compromise agreement'), the employee is free to change his (or her) mind and can insist on having his complaint heard by an employment tribunal - regardless of how the settlement was framed.

  • Nothing communicated to a conciliation officer during his (or her) attempts to promote a settlement is admissible in evidence before an employment tribunal - unless the party concerned gives his express consent.

Complaints of unfair dismissal

  • If an employee has presented a complaint of unfair dismissal to an employment tribunal, the conciliation officer's first duty is to explore the possibility of reinstatement or re-engagement. If this is impracticable or unacceptable (usually because the relationship between the parties has soured), he (or she) will invite the parties to consider the question of compensation. Although conciliation officers are free to explain the formulae used by employment tribunals to calculate awards of compensation for unfair dismissal, it is not their function to recommend an appropriate amount.


    Note

    A conciliation officer will intervene on a complaint of unfair dismissal if satisfied either that a dismissal (including an alleged 'constructive' dismissal) has actually occurred or that the employee has either been dismissed or has resigned but is still serving out his (or her) notice period.

Dismissal for asserting a statutory right

  • A conciliation officer may also intervene when an employee claims that he (or she) was dismissed for having challenged his employer 's infringement of one or other of his statutory employment rights or for having referred the alleged infringement to an employment tribunal (section 104, Employment Rights Act 1996).

    At the request of both parties (if a complaint has already been presented) or of either party (if there has not yet been a formal complaint), a conciliation officer is duty-bound to try to settle such a dispute before it proceeds to a full tribunal hearing. A conciliation officer will not take the initiative in such cases unless he (or she) believes that he has a reasonable prospect of success.


    Note

    The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 and the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 were made by the Lord Chancellor and the Lord Advocate, respectively, under the then section 131 of the Employment Protection (Consolidation) Act 1978 (now section 3 of the Employment Tribunals Act 1996). The orders, which came into force on 12 July 1994, enable the employment tribunals to hear all breach of employment contract disputes that arise (or remain unresolved) at the end of an employee's period of employment - except for claims relating to personal injury, intellectual property, tied accommodation, obligations of confidence, and covenant e, which latter remain outside the tribunals' jurisdiction.

Future developments

  • As is pointed out in the Explanatory Notes accompanying the Employment Act 2002, the duty of ACAS (through its conciliation officers) is to continue to seek a conciliated settlement between an employer and an employee for so long as the two parties to the dispute want to carry on. This can sometimes lead to an ACAS-brokered agreement being reached at the very last moment - before an employee's complaint comes before an employment tribunal - 'the result', say the Notes, of the parties being unwilling to focus on the importance of agreement until the reality of the tribunal hearing is upon them. But delayed settlements 'cost time and resource to the parties involved, to ACAS, and to the tribunal services. The objective, therefore, is to introduce a system that encourages earlier conciliated settlement where this is possible, without preventing last minute settlements if there is good reason for them'.

  • To that end, section 24 of the 2002 Act establishes a fixed period of conciliation for claims to an employment tribunal. Once section 24 is brought into force (possibly in the second half of 2003), section 7 of the Employment Tribunals Act 1996 will be amended by regulations to enable the postponment of the fixing of a time and place for a tribunal hearing in order for the proceedings to be settled through conciliation. Regulations will set out the length of the conciliation period and will provide for its extension only in cases where the conciliation officer considers that settlement within a short additional time frame is very likely. Once the conciliation period is over, it will be for a conciliation officer (and he or she alone) to judge whether to continue to conciliate the case or to pass it back to the Employment Tribunal Service so that a time and place can be fixed for a hearing.

Key points

  • The Commission for Racial Equality (CRE) which replaced the former Race Relations Board and the Community Relations Commission, was established by section 43 of the Race Relations Act 1976. The CRE has at least eight (but not more than 15) Commissioners, including a chairman and one or more deputy chairmen, all appointed on a full-time or part-time basis by the Secretary of State for Employment.

  • The duties of the CRE are to work towards the elimination of racial discrimination and to promote equality of opportunity and good relations between different racial groups. It monitors observance of the 1976 Act and is empowered to conduct investigations, serve non- discrimination notices, and to apply to the court for an injunction or order against persistent offenders. The CRE may also issue codes of practice containing practical guidance on methods for the elimination of discrimination in the field of employment.

Power of the CRE to obtain information

  • The CRE may order an employer to furnish written information about his employment policies and practices or serve notice on him to appear before the Commission at a specified time and place (bringing with him any and all documents relating to the matters specified in the notice). If an employer refuses or fails to cooperate, the CRE may apply to a county court (or, in Scotland, the sheriff court) for an order directing him to comply. If an employer wilfully alters, suppresses, conceals or destroys any document that he has been ordered to produce, or knowingly or recklessly makes any statement that is false in a material particular, he is guilty of an offence and liable on summary conviction to a fine of up to £5,000.

Non-Discrimination Notices

  • If, in the course of a formal investigation, the CRE are satisfied that an employer is committing (or has committed) an unlawful discriminatory act, they may serve on him a 'Non-Discrimination Notice' ordering him to comply with the law and cautioning him that, if there is any repetition during the next five years, the matter will be placed in the hands of the county (or sheriff) court.

  • The CRE will not normally serve a Non-Discrimination Notice on an employer without first warning him of the possibility (and the legal implications) and giving him 28 days within which to put his side of the story (orally or in writing). An employer has six weeks within which to appeal to an employment tribunal (or, where appropriate, to a designated county or a sheriff court) against any requirement of a Non- Discrimination Notice on the ground either that it is unreasonable (because it is based on an incorrect finding of fact) or for any other reason. In the event, the court will either confirm or quash the requirement or substitute a new requirement.

Help for persons suffering racial discrimination

  • An employee (or job applicant) who has already registered a complaint of unlawful racial discrimination with an employment tribunal (or who is contemplating doing so) may apply to the CRE for help and advice. The CRE will usually agree to help if the case is unduly complex or raises a question of principle, or if there are any other special considerations. Their help may include procuring (or attempting to procure) an out-of-court settlement (eg, by a direct approach to the employer in question); arranging for the giving of advice by a solicitor or counsel; or, in the final analysis, seeing to it that the employee is adequately represented at the tribunal hearing.

Key points

  • A collective agreement (as defined by section 178 of the Trade Union & Labour Relations (Consolidation) Act 1992) is an agreement or arrangement between one or more employers (or employers' associations) and one or more trade unions dealing with one or other of the following matters:

    • 'terms and conditions of employment, or the physical conditions in which any workers are required to work;

    • engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

    • allocation of work or the duties of employment between workers or groups of workers;

    • matters of discipline;

    • a worker's membership or non-membership of a trade union;

    • facilities for officials of trade unions; and

    • machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.'


      Note

      Any term in a collective agreement which purports to discriminate against women (or men) is void and unenforceable (per section 6, Sex Discrimination Act 1986, as amended by the Trade Union Reform & Employment Rights Act 1993).

Is a collective agreement legally binding?

'No strike' clauses

Dismissal procedures agreement

  • A 'dismissal procedures agreement' (as defined in section 235 of the Employment Rights Act 1996) is an agreement (in writing) between an employer and a trade union, the effect (or intended effect) of (or of one or more which is to substitute for the statutory right of an employee to complain of unfair dismissal to an employment tribunal. A dismissal procedures agreement may be a separate agreement or it may form part of a collective agreement. Either way, it will not be legally binding unless specifically 'designated' as such by order of the Secretary of State for Employment. Nor will the Secretary of State make an order designating such an agreement as having effect in substitution for the unfair dismissal provisions of the 1996 Act unless it satisfies all of following conditions prescribed by section 110 of that Act:

    1. Every trade union party to the agreement must be an independent trade union.

    2. The procedures laid down in the agreement for determining the fairness or otherwise of a dismissal (or intended dismissal) must be accessible without discrimination to all employees falling within any description to which the agreement relates.

    3. The remedies provided by the agreement in respect of unfair dismissal must, on the whole, be as beneficial as (but not necessarily identical to) those available to the employment tribunals under Chapter II of Part X of the 1996 Act.

    4. The agreement must include provision either for arbitration in every case or for:

      1. arbitration where (by reason of an equality of votes or for any other reason) a decision under the agreement cannot otherwise be reached; and

      2. a right to submit to arbitration any question of law arising out of such a decision.

    5. The provisions of the agreement must be such that it can be determined with reasonable certainty whether a particular employee is one to whom the agreement applies or not (ibid. section 110(3)).

    But, if the agreement states that it does not apply to particular descriptions of dismissals (eg, the right of an employee under section 99 of the 1996 Act not to be dismissed (or selected for redundancy) on grounds of pregnancy or childbirth (or for a connected reason), the agreement will not operate in relation to a dismissal of any such description (ibid. section 110(2), as substituted by section 12 of the Employment Rights (Dispute Resolution) Act 1998).

  • An award made under a designated dismissal procedures agreement may be enforced (in England and Wales) by leave of the county court, in the same manner as a county court judgment to the same effect is enforced. In Scotland, such an award may be recorded for execution in the Books of Council and Session, and will be enforceable accordingly (ibid. section 110(6), inserted by section 13(3) of the Employment Rights (Dispute Resolution) Act 1998).

  • Section 110(4) of the 1996 Act points out that one or other of the parties to a designated dismissal procedures agreement may apply to the Secretary of State for Employment for an order revoking an order made under section 110(3). The Secretary of State will revoke the order if all parties are agreed or if satisfied that the agreement no longer satisfies all of conditions 1 to 5 above.

Collective agreements and TUPE transfers

  • If there is a collective agreement in force when a business or undertaking is sold or otherwise disposed of, the organisation that purchases or acquires that business inherits that agreement (and all of the seller's obligations under that agreement) in the same way as it inherits the contracts of employment of the persons employed in that business and covered by the provisions of that agreement (regulation 6, Transfer of Undertakings (Protection of Employment) Regulations 1981).

  • Furthermore, if the person selling or transferring his (or her) business recognises an independent trade union as having bargaining rights in respect of some or all of his employees, the new owner must likewise recognise that same trade union in respect of those same employees - although there is nothing to prevent him varying or rescinding that agreement at a later date. However, this rule does not apply unless the business (or part of the business sold) maintains an identity distinct from the remainder of the purchaser 's business. If the new owner simply absorbs the business, or merges it with his existing business, the recognition agreement no longer applies (ibid. regulation 9). See also Continuous employment elsewhere in this handbook.

Collective agreements: detriment and dismissal

  • Section 17 of the Employment Relations Act 1996 empowers the Secretary of State to make regulations about cases where a worker is either dismissed or subjected to detriment by his (or her) employer for refusing to enter into a contract which includes terms which differ from the terms of a collective agreement which applies to that worker. At the time of writing, section 17 had not as yet been brought into force.

Working Time Regulations 1998

  • Regulation 23 of the Working Time Regulations 1998 (as amended) allows that a collective agreement may (in relation to particular workers or groups of workers) modify or exclude those provisions in the regulations which relate to daily and weekly rest periods and in- work rest breaks - but only for adult workers (that is to say, workers aged 18 and over) - so long as the agreement clearly allows those workers to take equivalent periods of compensatory rest (ibid. regulations 23 and 24).

  • Save for young workers under the age of 18, the night work limits imposed by the 1998 Regulations may also be excluded or modified (for all workers, including adolescents) by a collective agreement - so long as an adult worker's average weekly hours (including hours worked at night) do not exceed 48 during the agreed reference period, which latter may be extended (for objective or technical reasons associated with the organisation of work) from 17 to 52 weeks. However, any term in a collective (or workforce) agreement that presumes to override a worker's right not to work more than an average 48 hours a week is void and unenforceable.

  • Finally, a worker's entitlement to a minimum four weeks' paid annual holidays is also sacrosanct - although a collective agreement may determine when the holiday year begins and ends, the procedures to be followed by workers before taking their holidays, and the method to be used to calculate a worker's residual entitlement to holiday on the termination of his (or her) employment. It may also contain a provision allowing a worker who has resigned or been dismissed to compensate his (or her) employer for holidays taken in excess of his statutory entitlement - whether by a payment, by undertaking additional work, or otherwise (ibid. regulation 14(4)).

Other legislation

  • Information about the role and validity of collective (or workforce) agreements in the context of the rights of fixed-term employees under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, is to be found elsewhere in this handbook in the section titled Fixed-term employees.

Key points

  • An 'approved' code of practice is a document (approved, in most instances, by Parliament) that contains practical guidance on the law. In the context of employment law, a code of practice interprets the duties and responsibilities of employers and the rights of employees under this or that statute and/or its associated regulations and orders.

Legal status of a code of practice

  • A failure on the part of any person (employer, trade union official, or employee) to observe any provision of an approved Code of Practice does not of itself render him (or her) liable to proceedings before a court or tribunal. But in such proceedings, that failure is admissible in evidence and, if any provision of the code appears to the court or tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in deciding that question.

  • In other words, the codes of practice referred to in this section have much the same status as has the Highway Code in respect of breaches of road traffic legislation. A motorist will not be prosecuted for a breach of the Highway Code. But, if he is prosecuted for an alleged offence under the Road Traffic Acts, his failure to observe any relevant provisions of the Highway Code will be admissible in evidence in proceedings before the magistrates' court.

Who issues codes of practice?

  • In the employment arena, codes of practice may be issued by:

    • the Advisory, Conciliation & Arbitration Service (ACAS) - to promote the improvement of industrial relations (per sections 199 to 202, Trade Union & Labour Relations (Consolidation) Act 1992);

    • the Secretary of State for Trade & Industry - 'for the purpose (a) of promoting the improvement of industrial relations, or (b) of promoting what appear to him to be desirable practices in relation to the conduct by trade unions of ballots and elections' (ibid. sections 203 to 206);

    • the Disability Rights Commission - on how to avoid discrimination or with a view to promoting the equalisation of opportunities for disabled persons and persons who have a disability, or encouraging good practice regarding the treatment of such persons (per section 53A, Disability Rights Commission Act 1999);

    • the Equal Opportunities Commission (EOC) - (a) for the elimination of discrimination in the field of employment; and/or (b) the promotion of equality of opportunity in that field between men and women (per section 56A, Sex Discrimination Act 1975);

    • the Commission for Racial Equality - 'for either or both of the following purposes: (a) the elimination of discrimination in the field of employment; (b) the promotion of equality of opportunity in that field between persons of different racial groups' (per section 47, Race Relations Act 1976); and

    • the Health & Safety Commission (HSC) - 'for the purposes of providing practical guidance with respect to the provisions of sections 2 to 7 of the Health & Safety at Work etc Act 1974 or of health and safety regulations or of any of the existing statutory provisions' (ibid. section 16).

    A code of practice requires prior consultation with interested parties, the consent of the Secretary of State and approval (in all but one instance) by resolution of both Houses of Parliament.

  • Under the Asylum & Immigration Act 1996 (as amended by section 22 of the Immigration & Asylum Act 1999):

    • the Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, in order to avoid unlawful discrimination on grounds of race when establishing (as every employer is duty-bound to do) whether a job applicant 'subject to immigration control' has the legal right either to enter (or remain) in the UK or to take up employment while in the UK.

    In preparing a draft of the code, the Home Secretary must consult the Commission for Racial Equality (CRE) or (in Northern Ireland) the Equality Commission for Northern Ireland, and such organisations and bodies as he (or she) considers appropriate. The draft will then be laid before both Houses of Parliament, after which the Secretary of State may bring the code into operation by an order made by statutory instrument (ibid. sections 8 and 8A).

Advisory, Conciliation & Arbitration Service (ACAS)

  • When proposing to issue a code of practice (or a revised code), ACAS must first prepare and publish a draft of the code. It must then consider any representations made to it about the draft and may modify the draft accordingly. It must then transmit the draft to the Secretary of State for Employment who, if he approves of it, will lay it before both Houses of Parliament for approval by resolution.

  • To date, ACAS has issued three approved codes of practice. These are:

    COP 1: Disciplinary & Grievance Procedures (2000)

    COP 2: Discosure of information to trade unions for collective bargaining purposes (1998)

    COP 3: Time off for trade union duties & activities (1998)

    copies of which are available from: ACAS Reader Limited, PO Box 16, Earl Shilton, Leicester LE9 8ZZ (Telephone: 0870 242 9090).

Department of Trade & Industry

  • If the Secretary of State for Trade & Industry proposes to issue a code of practice (or a revised code), he must first consult with ACAS, then publish a draft of the code and, after considering any representations by interested bodies (that may prompt him to modify the draft), lay it before both Houses of Parliament for their approval by resolution. Once approved, the code comes into effect on 'such day as the Secretary of State may by order appoint'.

  • To date, three approved codes have been published. These are:

    Code of Practice: Picketing (1992);

    Code of Practice: Industrial action ballots and notice to employers (2000)

    Code of Practice: Access to workers during recognition and derecognition ballots (2000)

    These are available from: DTI Publications Order Line, Admail 528, London SW1W 8YT (Telephone: 0870 1502 500) (email: publications@dti.gsi.gov.uk).

    For further particulars, please turn to Picketing, strikes and other industrial action and Trade union recognition elsewhere in this handbook.

    Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC)

  • When proposing to issue a code of practice, the EOC, the CRE and the DRC must follow a procedure similar to that prescribed for ACAS. However, the Sex Discrimination, Race Relations and Disability Discrimination Acts specifically caution those bodies to first consult with organisations or associations representative of employers or of workers, and with 'such other organisations or bodies as appear to the Commission to be appropriate'. There are currently five codes of practice in force. These are:

    Code of Practice on sex discrimination, equal opportunties policies, procedures and practices in employment (1985)

    Code of Practice on equal pay (1997) (available, together with the code above, from: Marketing & Communications Department, Equal Opportunities Commission, Overseas House, Quay Street, Manchester M3 3HN)

    Code of Practice for the elimination of racial discrimination and the promotion of equal opportunity in employment (available from: Commission for Racial Equality, Elliot House, 10-12 Arlington Street, London SW1E 5EH (Telephone: 020 7828 7022))

    Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability (1996)

    Code of practice on the duties of trade organisations to their disabled members and applicants (1999)

Health & Safety Commission

  • As might have been expected, the Health & Safety Commission has produced a considerable number of codes of practice on health and safety issues. Of immediate relevance are:

    Code of Practice: Safety Representatives and Safety Committees (1978)

    Code of Practice: Time off for the training of safety representatives (1978)

    copies of which are available from HSE Books, PO Box 1999, Sudbury, Suffolk CO10 6FS (Tel: 01787 881165, Fax: 01787 313995, and email: www.hsebooks,gov.uk).

Key points

Meaning of 'closed shop'

  • In simple terms, a closed shop (or union membership agreement) is an understanding or agreement between an employer and one or more trade unions whereby the employer agrees not to employ (or to continue to employ) any person who is not a member of one or other of the trade unions party to that agreement.

Protection of job applicants and existing employees

  • Nowadays, the closed shop is a legal irrelevancy. It can no longer be used as an excuse for denying a person a job or for dismissing (or disciplining) a person who refuses to be or remain a member of a trade union (even if the union in question is recognised by the employer as having bargaining rights in respect of a particular class or group of employees). Furthermore, an employer cannot lawfully demand a payment from a non-union employee (or presume to make a deduction from that employee's wages or salary) as an alternative to the payment of trade union dues. In short, an individual has the absolute right to decide whether or not he or she wishes to join (or remain a member of) a trade union. Any employer who undermines that right (or bows to trade union pressure to dismiss or victimise an employee who refuses to 'fall into line'), will be liable to pay very heavy compensation indeed. For further particulars, please turn to the sections titled Dismissal and Dismissal on grounds of trade union membership elsewhere in this handbook.

  • It is also unlawful for an employer to refuse to interview or employ a job applicant who is not a member of a trade union (or of a particular trade union) or who has made it clear that he (or she) has no intention of joining a particular trade union or any trade union. A job applicant may complain to an employment tribunal if he (or she) suspects that he has been denied a job (or a job interview) for one or other of those reasons. The complaint must be presented within three months of the alleged unlawful act. If the complaint is upheld, the tribunal will order the employer to pay up to £53,500 by way of compensation (section 137 and 140, Trade Union & Labour Relations (Consolidation) Act 1992).

  • A person will be taken to have been refused employment because of his (or her) non-membership of a trade union (or because of his refusal to join a trade union) if an employer offers him a job on terms that no reasonable employer who wished to fill the post would offer.

Key points

  • A child is a person who is not over 'compulsory school age'. In England and Wales a child who turns 16 during a school year cannot lawfully leave school until the last Friday in June. A child who turns 16 after that last Friday in June, but before the beginning of the next school year, may likewise lawfully leave school on that last Friday in June. In Scotland, a child who turns 16 during the period from 1 March to 30 September, inclusive, may leave school on 31 May of that same year. Children whose 16th birthdays occur outside that period must remain at school until the first day of the Christmas holidays.

  • These provisions are currently to be found in section 8 of the Education Act 1996, supported by the Education (School Leaving Date) Order 1997, and (for Scotland) in section 31 of the Education (Scotland) Act 1980.

  • Given the many restrictions on the employment of school-age children, employers (or would-be employers) who have doubts about the true age of young-ish employees and job applicants would be wise to contact their local education authorities for further particulars. Alternatively, they should insist on the production of a birth certificate or (as is their right and on payment of a small fee) apply to the registrar or superintendent registrar of births, deaths and marriages for a certified copy of that birth certificate; as to which, see Birth certificates elsewhere in this handbook.

Legal restrictions on the employment of children

  • Statues and Regulations prohibiting or restricting the employment of children in prescribed circumstances include:

    1. Employment of Women, Young Persons & Children Act 1920 (as amended);

    2. Children & Young Persons Act 1933 (as amended);

    3. Children & Young Persons (Scotland) Act 1937 (as amended);

    4. Children & Young Persons Act 1963 (as amended);

    5. Children (Performances) Regulations 1968;

    6. Employment of Children Act 1973;

    7. Education (Work Experience) Act 1973 (as amended); and

    8. The Children (Protection at Work) Regulations 1998, implementing EC Council Directive 94/33/EC on the protection of young people at work.

    Prohibitions on the employment of young persons (which expression includes children) in certain hazardous occupations are discussed elsewhere in this handbook in the section titled Women & young persons, employment of.

Children & Young Persons Acts 1933 & 1937

  • The Children & Young Persons Acts 1933 & 1937 (as amended by the Children (Protection at Work) Regulations 1997 (qv) state that no child shall be employed:

    1. so long as he (or she) is under the age of fourteen years; or

    2. to do any work other than light work (see below); or

    3. before the close of school hours on any day on which he (or she) is required to attend school; or

    4. before seven o'clock in the morning or after seven o'clock in the evening on any day; or

    5. for more than two hours on any day on which he (or she) is required to attend school; or

    6. for more than two hours on any Sunday; or

    7. for more than eight hours or, if he (or she) is under the age of 15, for more than five hours on any day (other than a Sunday) on which he is not required to attend school; or

    8. for more than 35 hours or, if under the age of 15, for more than 25 hours in any week in which he (or she) is not required to attend school; or

    9. for more than four hours in any day without a rest break of one hour; or

    10. at any time in a year unless, at that time, he (or she) has had, or could still have, during school holidays, at least two consecutive weeks without employment.

    The expression 'light work' means work of a kind that is unlikely to affect the safety, health or development of a school age child or to interfere with the child's education or regular and punctual attendance at school.

  • Within seven days of employing a school age child, employers must apply to the local education authority (on a form supplied by the authority) for an Employment Certificate. The application form will seek a brief explanation of the type of employment in question and will ask for information about daily working hours, intervals for meals and rest, and so on. A copy of the Certificate approving the employment in question will be sent, as a matter of routine, to the child's Head Teacher. The consent of the child's parents or guardian will also be required (see also Information to parents below). Before applying for an Employment Certificate, employers should make it their business to obtain a copy of the local authority's byelaws on the employment of children (although these will often be provided automatically when the application form is sent or delivered to the employer).

  • Local authority byelaws may distinguish between children of different ages and sexes and between different localities, trades, occupations, and circumstances. They may prohibit absolutely the employment of children in specified occupations, and may (notwithstanding the general prohibition on the employment of children under the age of 14) contain provisions authorising the employment by the parents or guardians of children under 14 in light agricultural or horticultural work. Such byelaws may also authorise the employment of children aged 13 years in certain categories of light work and may allow children under 14 to work for up to an hour before the start of school on any day in which they are required to attend school.


    Note

    Under the Employment of Children Act 1973, the power of local authorities (or, in Scotland, education authorities) to make byelaws regulating the employment of children is replaced by a power of the Secretary of State for Employment to make cognate regulations. To date, the Secretary of State has not exercised that power.

Other prohibited occupations

  • Many local authorities prohibit the employment of children in the following occupations:

    • in the kitchen of any hotel, cook shop, fried fish shop, restaurant, snack bar or cafeteria;

    • as a marker or attendant in any billiards or pools saloon, licensed gaming house or registered club;

    • in, or in connection with, the sale of alcohol, except where alcohol is sold exclusively in sealed containers;

    • in collecting or sorting rags, scrap metal or refuse;

    • as a fairground attendant or assistant;

    • in any slaughterhouse;

    • in, or in connection with, any racecourse or race-track, or other place where any like sport is carried on;

    • in any heavy agricultural work;

    • in, or in connection with, the sale of paraffin, turpentine, white spirit, methylated spirit or petroleum spirit;

    • touting or selling from door to door; or

    • as a window cleaner.

    As was indicated earlier, copies of local authority byelaws (including applications for a permit to employ a child) are available on request from the relevant local authority for the district in which the would-be employer conducts his or her business.

Industrial undertakings

  • Section 1(1) of the Employment of Women, Young Persons & Children Act 1920 prohibits the employment of any child in an 'industrial undertaking', which includes particularly:

    • mines and quarries;

    • industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed;

    • construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, gaswork, waterwork or other work of construction, including the preparation for or laying the foundations of any such work or structure;

    • transport of passengers or goods by road, rail or inland waterway, including the handling of goods at docks, quays, wharves and warehouses, but excluding transport by hand.

    The 1920 Act cautions that the relevant local authority (in Scotland, the education authority) must be consulted if the employer is in any doubt about the lines or divisions between industry, commerce and agriculture.

Information to parents

  • Before employing a child, a would-be employer must not only obtain the consent of one or other of the child's parents or guardians, but must also provide that parent or guardian with relevant and comprehensible information about any health and safety risks associated with the job in question. That information must include particulars about the preventive and protective measures the employer proposes to adopt (or has already put in place) to eliminate or minimise those risks (regulation 10(2), Management of Health & Safety at Work Regulations 1999).

Work experience

  • Under the Education (Work Experience) Act 1973, the restrictions otherwise imposed on the employment of school age children (in relation to working hours and periods of employment) do not apply during their last academic year at school (the GCSE year) if the employment in question is part of a local authority-approved work experience programme. The 1973 Act does not, however, permit the employment of such children in work otherwise prohibited by statute or local authority byelaws.

Public performances

  • Under the Children (Performances) Regulations 1968, a school age child may take part in a public performance (stage work, television broadcasts, etc) in prescribed circumstances, subject to the issue of a licence by the relevant local authority or a Justice of the Peace. Would- be employers or agents in such circumstances should enquire of the local authority for the area in which the child attends school.

Offences and penalties

  • If a child is employed in contravention of any of the statutes or byelaws discussed above, the employer (or, as appropriate, the parent or guardian) will be guilty of an offence and liable, on summary conviction, to a fine of up to £200, rising to £500 if convicted on a second or subsequent occasion. The penalty for an offence under health and safety legislation restricting or prohibiting the employment of children in certain occupations is a fine of up to £2,000 or a fine of an unlimited amount if a conviction is obtained on indictment. If the offence constitutes a failure on the part of an employer to discharge a duty to which he is subject under sections 2 to 6 of the Health & Safety at Work, etc Act 1974, the fine on summary conviction could be as much as £20,000.

Key points

  • The Central Arbitration Committee (or CAC) is the senior standing arbitration tribunal in Great Britain. A successor to both the Industrial Court (set up in 1919) and the Industrial Arbitration Board (1971), the CAC's constitution and independent status are presently described in sections 259 to 265 of the Trade Union & Labour Relations (Consolidation) Act 1992.

  • The CAC comprises a Chairman and one or more deputy chairmen appointed by the Secretary of State (after consultation with ACAS and other persons) and several members experienced in industrial relations also appointed by the Secretary of State. Those other members (apart from the Chairman) must include some persons whose experience is as representatives of employers and some whose experience is as representatives of workers. Members will normally hold office for a maximum of five years. Cases brought before the CAC are normally heard by the Chairman (or one of the deputy chairmen) and two members (one from each side of industry) (ibid. sections 259 and 260, as amended by section 22 of the Employment Relations Act 1999).

Trade disputes

  • Any matter constituting a trade dispute may be referred to the CAC for arbitration, so long as both parties to the dispute agree. However, all requests for voluntary arbitration must first be channelled through ACAS (the Advisory, Conciliation & Arbitration Service). Voluntary arbitration hearings are held in private unless the parties wish otherwise. The CAC's decision is not normally announced at the hearing (which is usually completed in a day) but is relayed in writing to the parties at a later date. See Trade disputes and arbitration elsewhere in this handbook.


    Note

    Although the parties to a trade dispute are under no legal obligation to honour an award made by the CAC, such awards are invariably accepted.

  • Section 183 of the 1992 Act allows that a trade union may complain to the CAC either that an employer has failed to disclose to representatives of the union information that he is required by section 181 to disclose for the purposes of collective bargaining or that he has failed to confirm such information in writing in accordance with that section. The complaint must be in writing and in such form as the CAC may require. If an employer fails to comply with the CAC's decision in such cases, the CAC will make an award on the claim that has effect as part of the contracts of employment of the employees concerned. For further particulars, please turn to the section titled Disclosure of information.

Disclosure of information for the purposes of collective bargaining

  • A recognised independent trade union may complain to the CAC that an employer has failed to comply with his (or her) duty under section 181 of that Act to disclose information without which the union would be to a material extent impeded in carrying on collective bargaining with that employer (ibid. section 183). For further details, please turn to the section titled Disclosure of information elsewhere in this handbook.

Recognition agreements and collective bargaining

Derecognition

  • Schedule A1 to the 1992 Act also lays down procedures for derecognition and for the intervention of the CAC if the original bargaining unit ceases to exist or is no longer an appropriate bargaining unit.

European Works Councils

  • Under the Transnational Information & Consultation of Employees Regulations 2000, which came into force on 15 December 1999, the central management of a multi-national company may apply to the CAC for a declaration as to the validity of a request by 100 or more of the company's employees (or by representatives of those employees) for the initiation of negotiations for the establishment of a European Works Council (EWC) (or an information and consultation procedure). Disputes about other specified matters (mainly procedural) arising prior to the establishment of an EWC may also be referred to the CAC. A failure to comply with a CAC declaration is punishable as if it were a contempt of court. For further particulars, please turn to the section titled European Works Councils elsewhere in this handbook.

CAC proceedings

Trade disputes

  • Before a CAC hearing takes place, the parties concerned will be asked to exchange evidence in the form of written statements. In disclosure of information cases (that are not routed through ACAS), the Chairman (or one of the deputy chairmen) will normally arrange an informal, joint meeting of the parties to clarify the issues and to give the parties an opportunity to resolve their difficulties (either themselves or with the help of ACAS) before a full hearing is arranged.

Recognition disputes

  • For the purpose of discharging its functions under Schedule A1 of the Trade Union & Labour Relations (Consolidation) Act 1992 ('Collective Bargaining: Recognition'), the chairman of the CAC will establish a three-person panel consisting of the chairman himself or herself (or a deputy chairman), a member of the Committee whose experience is as a representative of employers, and a member of the Committee whose experience is as a representative of workers. The panel may, at the discretion of its chairman, sit in private. If there is no unanimous decision, the question before the panel will be decided according to the majority opinion. If the majority of the panel do not have the same opinion, it will be up to the panel's chairman to decide the question (acting with the full powers of an umpire or, in Scotland, an oversman) (ibid. section 263A).

Guidance notes

  • Guidance on the procedure at CAC hearings and on the preparation of written statements is given in a booklet titled Notes for Guidance, available from the following address:


    The Secretary

    Central Arbitration Committee

    Brandon House

    180 Borough High Street

    London

    SE1 1LW
    Telephone: 020 7210 3737/3738

    The booklet referred to above will undoubtedly be revised in light of the expansion of the CAC's functions under the Employment Relations Act 1999.

    Further information about the CAC's activities is to be found in the Committee's Annual Reports, copies of which will also be supplied on request.

Canteens and Rest Rooms for Employees

Key points

  • Whether or not employers are legally-bound to provide their workers with dedicated canteens or rests room will depend in large part on the type of activity or process in which an employer is engaged. Regulation 25(5) of the Workplace (Health, Safety & Welfare) Regulations 1992 - that apply to every workplace - states that 'suitable and sufficient facilities shall be provided for persons at work to eat meals where meals are regularly eaten in the workplace'.

  • By way of explanation, the accompanying Approved Code of Practice points out that 'seats in work areas can be counted as eating facilities provided they are in a sufficiently clean place and there is a suitable surface on which to place food. Eating facilities', it continues, 'should include a facility for preparing or obtaining a hot drink, such as an electric kettle, a vending machine or a canteen'. Furthermore, 'workers who work during hours or at places where hot food cannot be obtained in, or reasonably near to, the workplace should be provided with the means for heating their own food'.


    Note

    Copies of the code of practice referred to above (titled: Workplace Health, Safety and Welfare: Approved Code of Practice and Guidance Notes (L24) (ISBN 0 11 886333 9) can be purchased from HSE Books (Telephone: 01787 881165; Fax: 01787 313995).

  • Although there are circumstances in which employers must provide a separate canteen or mess room where their workers can take their meals (see Factory workers below), there is no legislation that requires them to provide a full catering service.


    Note

    The expression workplace means 'any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes any place within the premises to which such person has access while at work and any room, lobby, corridor, staircase, road or other place used as a means of access to and egress from the workplace or where facilities are provided for use in conjunction with the workplace other than a public road' (ibid. regulation 2(1)).

All workers

  • All workers who take their meals on their employers' premises are entitled to do so in relative comfort and in hygienic surroundings, seated on chairs or benches, with a sufficient number of tables or desk tops on which to place their food. Where a separate canteen, mess room or eating area is provided, it too must be furnished with a sufficient number of tables and chairs (with backrests) and must comply with current food safety and hygiene regulations. Furthermore, the employer must nominate a person (or persons) whose job it is to keep the room or area clean and tidy.

Office workers

  • Regulation 25 does not give office workers the right to a separate eating area or canteen. Most office workers have a desk and chair and very little face-to-face contact with the public. Under the 1992 Regulations, a chair counts as a 'suitable eating facility' provided it is in a sufficiently clean place (such as an office) and there is a suitable surface (such as a desk top) on which an employee can place his or her food. Even so, the employer must provide a facility (such as an electric kettle or vending machine) for preparing or obtaining a hot drink. And, if his (or her) employees work at times or in places where hot food cannot be readily obtained, he must also provide a small cooker, hotplate or microwave oven in (or on) which his employees can heat their own food.

Shop assistants

  • Shop assistants spend most of their time on their feet. Whether or not they have their main meals on the premises, their employer must set aside a rest room or screened-off area where they can relax or 'put their feet up' during their morning and afternoon tea breaks or when business is slow. The rest room (or area) must be furnished with a sufficient number of chairs (with backrests) and tables, and be equipped with an electric kettle or a hot drinks vending machine. If there is no nearby café, snack bar or pub where they can readily buy hot food, their employer must also provide a hot plate (or a small cooker) on or in which they can heat their own food.

Factory workers

  • Workers in factories, workshops, warehouses and the like are entitled to separate eating facilities (away from their work areas) if their food is likely to be contaminated by dust, water, fumes or hazardous substances, or if they work in premises or are engaged in processes where eating, drinking (or smoking) is prohibited by regulations made under (or saved by) the Health & Safety at Work etc Act 1974. Their employer must provide an electric kettle or hot drinks vending machine and, if any employees work at night or in a place where it is difficult or inconvenient to purchase a hot meal, a hot plate, cooker or microwave oven in (or on) which they can heat their own food.

  • Eating, drinking, smoking, etc are currently prohibited in workplaces regulated by:

    • the Work in Compressed Air Regulations 1996; - the Control of Asbestos at Work Regulations 2002; - the Workplace (Health, Safety & Welfare) Regulations 1992; - the Control of Lead at Work Regulations 2002;

    • the Control of Substances Hazardous to Health Regulations 2002; and

    • the Ionising Radiations Regulations 1999.

Pregnant employees and nursing mothers

  • Nowadays, every workplace must be equipped with suitable rest facilities for use by employees who are pregnant or breastfeeding including a place where they can lie down when the need arises. The facilities should be situated close to (or as near as reasonably possible to) female toilets and washrooms (regulation 25(4), Workplace (Health, Safety & Welfare) Regulations 1992. Common sense will dictate what is suitable (or practicable) for one workplace and what is unsuitable in relation to another. In a large factory, office block, hotel or department store, an employer would be expected to set aside a small well-ventilated room furnished with one or more beds or reclining chairs and equipped with a toilet and washbasin. In a small establishment (where space is at a premium), a curtained-off area with a comfortable reclining chair (and some guarantee of privacy) would probably suffice.


    Note

    A free HSE leaflet titled Occupational health aspects of pregnancy (MA6, 1989) is available on request from the Health & Safety Executive's 'Freeleaflet'' line (Tel: 01787 881165 or Fax: 01787 313995).

Passive smoking

  • Regulation 25(3) of the 1992 Regulations (see above) also imposes a duty on employers to take such steps as are necessary to ensure that their employees can retire to a room or area where they can take a rest break, drink or eat their sandwiches (or whatever) in relative comfort - without experiencing discomfort from tobacco smoke. If there are no separate facilities for smokers and nonsmokers, the rest room must be designated a 'No Smoking' area. Although employers may be prepared to set aside a room or special area for the use of smokers, they are not legally-bound to do so. Indeed, in a small office or shop, where there is no separate rest room, and in which staff are expected or accustomed to taking their meals and rest breaks at their desks (or in a curtained-off area at 'the back of the shop'), the employer will have little choice but to introduce a 'No Smoking' rule throughout his premises.


    Note

    The issues associated with passive smoking in the workplace are reviewed in a free HSE leaflet titled Passive smoking at work (INDG 63), available from HSE Books, PO Box 1999, Sudbury, Suffolk, CO10 6FS; Tel: 01787 881165; or Fax: 01787 313995. In a consultative document titled Proposals for an Approved Code of Practice on passive smoking at work (published on 29 October 1999), the Health & Safety Commission propose, inter alia, that the risk assessment compulsorily carried out by all employers in accordance with the Management of Health & Safety at Work Regulations 1999 should include an assessment of the risks from passive smoking at work to the health of people who already suffer from asthma or chronic bronchitis. From this assessment, employers should determine what their options are for controlling exposure to environmental smoke, such as: banning smoking in the workplace (either completely or partially); physically segregating non-smokers from tobacco smoke; providing adequate ventilation; or adopting a system of work that reduces the time an employee is exposed to environmental tobacco smoke.

Offences and penalties

  • Non-compliance with health and safety legislation is a criminal offence which could lead to prosecution and a fine of up to £20,000. In some circumstances, the offending employer is liable to a fine of an unlimited amount and/or imprisonment for a period of up to two years.