OpenLegislation

Section 146 Detriment on grounds related to union membership or activities.F18C1C2C3

England, Wales and Scotland

(1)

F1A worker has the right not to F2be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for F3the sole or main 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, F4. . .

F5(ba)

preventing or deterring him from making use of trade union services 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 F6(1)“an appropriate time” means—

(a)

a time outside the F7worker'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 F8or (as the case may be) make use of trade union services;

and for this purpose “working hours”, in relation to F9a worker, means any time when, in accordance with his contract of employment F10(or other contract personally to do work or perform services), he is required to be at work.

F11(2A)

In this section—

(a)

“trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and

(b)

references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

(2B)

If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba).

(2C)

A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B.

(2D)

For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).

(3)

A worker also has the right not to F12be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of enforcing a requirement (whether or not imposed by F13a 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 a worker 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 F14a detriment to which he has been subjected as an individual by an act of his employer taking place for the sole or main purpose of enforcing a requirement of a kind mentioned in that subsection.

(5)

F15A worker or former worker may present a complaint to an industrial tribunal on the ground that F16he has been subjected to a detrimentby his employer in contravention of this section.

F17(5A)

This section does not apply where—

(a)

the worker is an employee; and

(b)

the detriment in question amounts to dismissal.

Annotations

Textual amendments

F1

Words in s. 146(1)(3) substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(2), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F2

Words in s. 146(1) substituted (25.20.1999) by 1999 c. 26, s.1, Sch. 2 paras. 1, 2(1)(2); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F3

Words in s. 146(1)(3)(4) substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 8; S.I. 2004/2566, art. 3(b) (with arts. 4-8)

F4

Word in s. 146(1)(b) repealed (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 31(2), 57(2), 59(2)-(4), Sch. 2; S.I. 2004/2566, art. 3(a)(c) (with arts. 4-8)

F5

S. 146(1)(ba) inserted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 31(2), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F6

Words in s. 146(2) substituted (1.10.2004) by Employment Relations Act 2004, c. 24, {ss. 31(3)(a)}, 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F7

Word in s. 146(2) substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(3)(a), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F8

Words in s. 146(2)(b) inserted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 31(3)(b), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F9

Words in s. 146(2)(4) substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(2), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F10

Words in s. 146(2) inserted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(3)(b), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F11

S. 146(2A)-(2D) inserted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 31(4), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F12

Words in s. 146(3) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(1)(3); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F13

Words in s. 146(3) substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(4), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F14

Words in s. 146(4) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(1)(4); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F15

Words in s. 146(5) substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(5), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F16

Words in s. 146(5) substituted (25.10.1999) by 1999 c. 26, s. 2, Sch. 2 paras. 1, 2(1)(5); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 1)

F17

S. 146(5A) substituted for s. 146(6) (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(6), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

F18

Words in s. 146 sidenote substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(7), 59(2)-(4); S.I. 2004/2566, art. 3(a) (with arts. 4-8)

Modifications

C1

S. 146 modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch.

S. 146 modified (1.9.1999) by 1999/2256, art. 3, Sch.

C2

S. 146 modified (E.) (1.9.2003) by The Education (Modification of Enactments Relating to Employment) (England) Order 2003 (S.I. 2003/1964), art. 3, Sch.

C3

S. 146 modified (W.) (12.5.2006) by The Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 (S.I. 2006/1073), art. 3, Sch.

Notes on Detriment

Textual amendments

F1

Words in cross-heading substituted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 30(7), 59(2)-(4); S.I. 2004/2566), art. 3 (with arts. 4-8)