“Chapter 1A
Procedure for handling dismissal and re-engagement

Duties of employer to consult representatives and disclose information

187A Duty of employer to consult representatives

(1)

This section applies to an employer where, in an undertaking or
establishment with 50 or more employees, in the light of recent or
envisaged events and the economic situation affecting the employer,
there is a real threat to continued employment within the undertaking,
and one or both of the following matters apply—

(a)

decisions may have to be taken to terminate the contracts of
15 or more employees for reasons other than conduct or
capability, or

(b)

anticipatory measures are envisaged which are likely to lead
to substantial changes in work organisation or in contractual
relations affecting 15 or more employees.

(2)

The employer shall consult with a view to reaching an agreement to
avoid decisions being taken to terminate contracts of employment, or
to introduce changes in work organisation or in contractual relations.

(3)

The consultations under subsection (2) shall take place with all the
persons who are appropriate representatives of any of the employees
who are or may be affected by those matters that apply.

(4)

The consultation shall begin as soon as is reasonably practicable and
in any event in good time for any agreement to be reached so as to
avoid decisions being taken to terminate contracts of employment or
introduce changes in work organisation or in contractual relations.

(5)

In this section, “appropriate representatives” has the same meaning
as in section 188(1B) (and the requirements for the election of employee
representatives in section 188A apply).

(6)

The employer shall allow the appropriate representatives access to the
affected employees and shall afford to those representatives such
accommodation and other facilities as may be appropriate.

(7)

If in any case there are special circumstances which render it not
reasonably practicable for the employer to comply with a requirement
of this section, the employer shall take all such steps towards
compliance with that requirement as are reasonably practicable in
those circumstances.

(8)

Where the threat to continued employment emanates from a person
controlling the employer (directly or indirectly), or a decision leading
to the termination of the contract of an employee for reasons other
than conduct or capability or a decision leading to substantial changes
in work organisation or in contractual relations is that of a person
controlling the employer (directly or indirectly), a failure on the part
of that person to provide information to the employer shall not
constitute special circumstances rendering it not reasonably practicable
for the employer to comply with such a requirement.

187B Duty of employers to disclose information

(1)

An employer to which section 187A applies shall, for the purposes of
the consultation provided for in section 187A, disclose to the
appropriate representatives, on request, the information required by
this section.

(2)

The information to be disclosed is all information relating to the
employer's undertaking (including information relating to use of agency
workers in that undertaking) which is in the employer’s possession,
or that of an associated employer, and is information—

(a)

without which the appropriate representatives would be to a
material extent impeded in carrying on consultation with the
employer, and

(b)

which it would be in accordance with good industrial relations
practice that the employer should disclose to them for the
purposes of the consultation.

(3)

A request by appropriate representatives for information under this
section shall, if the employer so requests, be in writing or be confirmed
in writing.

(4)

In determining what would be in accordance with good industrial
relations practice, regard shall be had to the relevant provisions of
any Code of Practice issued by ACAS, but not so as to exclude any
other evidence of what that practice is.

(5)

Information which an employer is required by virtue of this section
to disclose to appropriate representatives shall, if they so request, be
disclosed or confirmed in writing.

(6)

The employer is not required to disclose any information or document
to a person for the purposes of this section where the nature of the
information or document is such that, according to objective criteria,
the disclosure of the information or document would seriously harm
the functioning of, or would be prejudicial to, the undertaking.

(7)

If there is a dispute between the employer and an employee or an
appropriate representative as to whether the nature of the information
or document which the employer has failed to provide is such as is
described in subsection (6), the employer, employee or appropriate
representative may apply to the Central Arbitration Committee for a
declaration as to whether the information or document is of such a
nature.

(8)

If the Committee makes a declaration that the disclosure of the
information or document in question would not, according to objective
criteria, be seriously harmful or prejudicial as mentioned in subsection
(5) the Committee shall order the employer to disclose the information
or document.

(9)

An order under subsection (8) shall specify—

(a)

the information or document to be disclosed;

(b)

the person or persons to whom the information or document
is to be disclosed;

(c)

any terms on which the information or document is to be
disclosed; and

(d)

the date before which the information or document is to be
disclosed.

Complaint of failure to consult or disclose information

187C Complaint to Central Arbitration Committee

(1)

An appropriate representative may present a complaint to the Central
Arbitration Committee that an employer has failed to comply with a
requirement of section 187A or section 187B. The complaint must be
in writing and in such form as the Committee may require.

(2)

If on receipt of a complaint the Committee is of the opinion that it is
reasonably likely to be settled by conciliation, it shall refer the
complaint to ACAS and shall notify the appropriate representative
and employer accordingly, whereupon ACAS shall seek to promote
a settlement of the matter. If a complaint so referred is not settled or
withdrawn and ACAS is of the opinion that further attempts at
conciliation are unlikely to result in a settlement, it shall inform the
Committee of its opinion.

(3)

If the complaint is not referred to ACAS or, if it is so referred, on
ACAS informing the Committee of its opinion that further attempts
at conciliation are unlikely to result in a settlement, the Committee
shall proceed to hear and determine the complaint and shall make a
declaration stating whether it finds the complaint well-founded, wholly
or in part, and stating the reasons for its findings.

(4)

On the hearing of a complaint any person who the Committee
considers has a proper interest in the complaint may be heard by the
Committee, but a failure to accord a hearing to a person other than
the appropriate representative and employer directly concerned does
not affect the validity of any decision of the Committee in those
proceedings.

(5)

If the Committee finds the complaint wholly or partly well-founded,
the declaration shall specify—

(a)

each failure in respect of which the Committee finds that the
complaint is well-founded,

(b)

the steps that should be taken by the employer to rectify each
such failure, and

(c)

a period or periods (not being less than one week from the
date of the declaration) within which the employer ought to
take those steps.

(6)

On a hearing of a complaint under this section a certificate signed by
or on behalf of a Minister of the Crown and certifying that particular
information could not be provided except by disclosing information
the disclosure of which would have been against the interests of
national security shall be conclusive evidence of that fact. A document
which purports to be such a certificate shall be taken to be such a
certificate unless the contrary is proved.

187D Application for injunction pending rectification of failure

(1)

This section applies if a declaration of the Central Arbitration
Committee under section 187C finds a complaint wholly or partly
well-founded.

(2)

An appropriate representative may apply to the Court for an injunction
to subsist until the employer can satisfy the Committee that the steps
under section 187C(5)(b) have been completed within the specified
period or periods under section 187C(5)(c)—

(a)

to compel the employer to take those steps within the period
or periods, or

(b)

to render void any dismissal or changes in work organisation
or in contractual relations.

Complaint of offer of re-engagement on different terms following dismissal or change
in conditions or failure to comply with sections 187A or 187B

187E Complaint to employment tribunal

(1)

This section applies where an employer—

(a)

offers or proposes to offer re-engagement on different terms
to an employee—

(i)

it has dismissed or proposes to dismiss for reasons other
than conduct or capability, or

(ii)

in relation to whom it has made or proposes to make
substantial changes in work organisation or in
contractual relations; or

(b)

has failed to comply with any of the obligations set out in
sections 187A or 187B.

(2)

Any affected employee or their appropriate representative may make
a complaint to the employment tribunal.

(3)

If the tribunal finds the complaint well-founded it shall make a
declaration to that effect.

187F Award of compensation

(1)

An employee, or the appropriate representative of an employee, whose
complaint under section 187E has been declared to be well-founded
may make an application to an employment tribunal for an award of
compensation to be paid by the employer.

(2)

The amount of compensation awarded shall, subject to the following
provisions, be such as the employment tribunal considers just and
equitable in all the circumstances having regard any loss sustained by
the complainant which is attributable to the dismissal or substantial
changes in work organisation or in contractual relations to which the
complaint related.

Duty of employer to notify Secretary of State

187G Duty of employer to notify Secretary of State in certain circumstances

(1)

This section applies to an employer to which section 187A applies in
relation to 50 or more employees at one establishment or undertaking.

(2)

The employer shall notify the Secretary of State, in writing, of the
matters under section 187A(1) that apply and any related proposals
not later than the end of whichever is the longer of—

(a)

45 days, and

(b)

the notice period necessary to terminate lawfully the
employment of all those employees who may be affected by
any such matter before any decision to put into effect that
matter is reached.

(3)

A notice under this section shall—

(a)

be given to the Secretary of State by delivery or by sending it
by post, at such address as the Secretary of State may direct
in relation to the establishment where employees who may be
affected are employed,

(b)

where there are representatives to be consulted under section
187A(2), identify them and state the date when consultation
with them under that section began or will begin, and

(c)

be in such form and contain such particulars, in addition to
those required by paragraph (b), as the Secretary of State may
direct.

(4)

After receiving a notice under this section from an employer the
Secretary of State may by written notice require the employer to give
them such further information as may be specified in the notice.

(5)

Where there are representatives to be consulted under section 187A(2)
the employer shall give to each of them a copy of any notice given
under subsection (3). The copy shall be delivered to them or sent by
post to an address notified by them to the employer, or (in the case
of representatives of a trade union) sent by post to the union at the
address of its head or main office.

(6)

If in any case there are special circumstances rendering it not
reasonably practicable for the employer to comply with any of the
requirements of subsections (1) to (5), the employer shall take all such
steps towards compliance with that requirement as are reasonably
practicable in the circumstances. Where the decision regarding the
matters is that of a person controlling the employer (directly or
indirectly), a failure on the part of that person to provide information
to the employer shall not constitute special circumstances rendering
it not reasonably practicable for the employer to comply with any of
those requirements.

187H Failure to notify

(1)

An employer who fails to give notice to the Secretary of State in
accordance with section 187G commits an offence and is liable on
summary conviction to a fine not exceeding level 5 on the standard
scale.

(2)

Proceedings in England or Wales for such an offence shall be instituted
only by or with the consent of the Secretary of State or by an officer
authorised for that purpose by special or general directions of the
Secretary of State. An officer so authorised may prosecute or conduct
proceedings for such an offence before a magistrates' court.

(3)

Where an offence under this section committed by a body corporate
is proved to have been committed with the consent or connivance of,
or to be attributable to neglect on the part of, any director, manager,
secretary or other similar officer of the body corporate, or any person
purporting to act in any such capacity, that person as well as the body
corporate is guilty of the offence and liable to be proceeded against
and punished accordingly.

(4)

Where the affairs of a body corporate are managed by its members,
subsection (3) applies in relation to the acts and defaults of a member
in connection with their functions of management as if they were a
director of the body corporate.”

“Part 2B
Protection of contracts of employment

27C Restrictions on variation of employment contracts

(1)

Any variation to an employment contract is void if it—

(a)

was obtained under the threat of dismissal, and

(b)

is less favourable to the employee than the pre-existing
provision

unless the employer has complied with all its obligations under, and
arising from, sections 187A to 187G of the Trade Union and Labour
Relations (Consolidation) Act 1992 in relation to any person employed
under the contract.

(2)

In subsection (1)(b), the definition of “less favourable” shall be
determined by the perception of a reasonable employee in the position
of the affected employee.

27D Unilateral variation of employment contracts

(1)

Any provision in an agreement (whether an employment contract or
not) is void in so far as it purports to permit the employer to vary
unilaterally one or more terms within an employment contract where
the variation is less favourable to the employee than the pre-existing
provision.

(2)

In subsection (1), the definition of “less favourable” shall be determined
by the perception of a reasonable employee in the position of the
affected employee.”