Terms And Conditions Of Employment Introductory provisions Citation, commencement and extent 1 These Regulations— a may be cited as the Employment Relations Act 1999 (Blacklists) Regulations 2010, b come into force on the day after the day on which they are made, and c extend to Great Britain. Interpretation 2 1 In these Regulations— “employment agency” means a person who, for profit or not, provides services for the purposes of finding employment for workers or supplying employers with workers, and does not include a trade union by reason only of the services a trade union provides only for and in relation to its members; “office”, in relation to a trade union, means any position— by virtue of which the holder is an official of the trade union, or to which Chapter 4 of Part 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (duty to hold elections) applies, and “official” has the meaning given by section 119 of that Act; “prohibited list” has the meaning given by regulation 3(2); “services”, in relation to an employment agency, means services for the purposes of finding employment for workers or supplying employers with workers; “use”, in relation to a prohibited list, includes use of information contained in the list. 2 References in these regulations to information supplied by a person who contravenes regulation 3 include information supplied by a person who would contravene that regulation if that person’s actions took place in Great Britain. General prohibition General prohibition 3 1 Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list. 2 A “prohibited list” is a list which— a contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and b is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers. 3 “Discrimination” means treating a person less favourably than another on grounds of trade union membership or trade union activities. 4 In these Regulations references to membership of a trade union include references to— a membership of a particular branch or section of a trade union, and b membership of one of a number of particular branches or sections of a trade union; and references to taking part in the activities of a trade union have a corresponding meaning. Exceptions to general prohibition 4 1 A person does not contravene regulation 3 in the following cases. 2 The first case is where a person supplies a prohibited list, but— a does not know they are supplying a prohibited list, and b could not reasonably be expected to know they are supplying a prohibited list. 3 The second case is where a person compiles, uses or supplies a prohibited list, but— a in doing so, that person’s sole or principal purpose is to make known a contravention of regulation 3 or the possibility of such a contravention, b no information in relation to a person whose details are included in the prohibited list is published without the consent of that person, and c in all the circumstances compiling, using or supplying the prohibited list is justified in the public interest. 4 The third case is where a person compiles, uses, sells or supplies a prohibited list, but in doing so that person’s sole or principal purpose is to apply a requirement either— a that a person may not be considered for appointment to an office or for employment unless that person has experience or knowledge of trade union matters, and in all the circumstances it is reasonable to apply such a requirement, or b that a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union. 5 The fourth case is where a person compiles, uses, sells or supplies a prohibited list, but the compilation, use, sale or supply of the prohibited list is required or authorised— a under an enactment, b by any rule of law, or c by an order of the court. 6 The fifth case is where a person uses or supplies a prohibited list— a for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), or b for the purpose of giving or obtaining legal advice, where the use or supply is necessary in order to determine whether these regulations have been, are being or will be complied with. Refusal of employment or employment agency services Refusal of employment 5 1 A person (P) has a right of complaint to an employment tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either— a R contravenes regulation 3 in relation to that list, or b R— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. 2 R shall be taken to refuse to employ P if P seeks employment of any description with R and R— a refuses or deliberately omits to entertain and process P’s application or enquiry; b causes P to withdraw or cease to pursue P’s application or enquiry; c refuses or deliberately omits to offer P employment of that description; d makes P an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or e makes P an offer of such employment but withdraws it or causes P not to accept it. 3 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not. Refusal of employment agency services 6 1 A person (P) has a right of complaint to an employment tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either— a E contravenes regulation 3 in relation to that list, or b E— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that information relied on is supplied in contravention of that regulation. 2 E shall be taken to refuse P a service if P seeks to make use of the service and E— a refuses or deliberately omits to make the service available to P; b causes P not to make use of the service or to cease to make use of it; or c does not provide P the same service, on the same terms, as is provided to others. 3 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that E contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless E shows that it did not. Time limit for proceedings under regulation 5 or 6 7 1 Subject to paragraph (2), an employment tribunal shall not consider a complaint under regulation 5 or 6 unless it is presented to the tribunal before the end of the period of three months beginning with the date of the conduct to which the complaint relates. 2 An employment tribunal may consider a complaint under regulation 5 or 6 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 3 The date of the conduct to which a complaint under regulation 5 relates shall be taken to be— a in the case of an actual refusal, the date of the refusal; b in the case of a deliberate omission— i to entertain and process P’s application or enquiry, or ii to offer employment, the end of the period within which it was reasonable to expect R to act; c in the case of conduct causing P to withdraw or cease to pursue P’s application or enquiry, the date of that conduct; d in a case where R made but withdrew an offer, the date R withdrew the offer; e in any other case where R made an offer which was not accepted, the date on which R made the offer. 4 The date of the conduct to which a complaint under regulation 6 relates shall be taken to be— a in the case of an actual refusal, the date of the refusal; b in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect E to act; c in the case of conduct causing P not make use of a service or to cease to make use of it, the date of that conduct; d in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact was provided. Remedies in proceedings under regulation 5 or 6 8 1 Where an employment tribunal finds that a complaint under regulation 5 or 6 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable— a an order requiring the respondent to pay compensation; b a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates. 2 Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings. 3 Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraph (4), (5) or (6) shall not be less than £5,000. 4 If the respondent fails without reasonable justification to comply with a recommendation under paragraph (1)(b), the tribunal may increase its award of compensation or, if it has not made such an award, make one. 5 Where the tribunal considers that any conduct of the complainant before the refusal to which the complaint under regulation 5 or 6 relates was such that it would be just and equitable to reduce the award of compensation, the tribunal shall reduce that amount accordingly. 6 The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under section 140 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of the same refusal. 7 The total amount of compensation shall not exceed £65,300. Detriment Detriment 9 1 A person (P) has a right of complaint to an employment tribunal against P’s employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either— a D contravenes regulation 3 in relation to that list, or b D— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that information relied on is supplied in contravention of that regulation. 2 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that D contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless D shows that it did not. 3 This regulation does not apply where the detriment in question amounts to the dismissal of an employee within the meaning in Part 10 of the Employment Rights Act 1996. Time limit for proceedings under regulation 9 10 1 Subject to paragraph (2), an employment tribunal shall not consider a complaint under regulation 9 unless it is presented before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them. 2 An employment tribunal may consider a complaint under regulation 9 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 3 For the purposes of paragraph (1)— a where an act extends over a period, the reference to the date of the act is a reference to the last day of the period; b a failure to act shall be treated as done when it was decided on. 4 For the purposes of paragraph (3), in the absence of evidence establishing the contrary D shall be taken to decide on a failure to act— a when D does an act which is inconsistent with doing the failed act, or b if D has done no such inconsistent act, when the period expires within which D might reasonably have been expected to do the failed act if it was done. Remedies in proceedings under regulation 9 11 1 Where the employment tribunal finds that a complaint under regulation 9 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by D to P in respect of the act or failure complained of. 2 Subject to the following paragraphs, the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the act or failure complained of and to any loss sustained by P which is attributable to D’s act or failure. 3 The loss shall be taken to include— a any expenses P reasonably incurred in consequence of the act or failure complained of; and b loss of any benefit which P might reasonably be expected to have had but for that act or failure. 4 In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland. 5 Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraphs (6), (7) and (8) of this regulation and section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 shall not be less than £5,000. 6 Where the conduct of P before the act or failure complained of was such that it would be just and equitable to reduce the amount of compensation, the tribunal shall reduce that amount accordingly. 7 Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of P, it shall reduce or further reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. 8 The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under section 149 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of the same act or failure. 9 In determining the amount of compensation to be awarded no account shall be taken of any pressure exercised on D by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised. 10 Where P is a worker and the detriment to which P is subjected is the termination of P’s contract, and that contract is not a contract of employment, the compensation awarded to P under this regulation shall not exceed £65,300. Unfair dismissal Unfair dismissal 12 1 Part 10 of the Employment Rights Act 1996 (unfair dismissal) is amended as follows. 2 After section 104E insert— Blacklists 104F 1 An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either— a the employer contravenes regulation 3 of the 2010 Regulations in relation to that prohibited list, or b the employer— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. 2 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer— a contravened regulation 3 of the 2010 Regulations, or b relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not. 3 In this section— “the 2010 Regulations” means the Employment Relations Act 1999 (Blacklists) Regulations 2010, and “prohibited list” has the meaning given in those Regulations (see regulation 3(2)). . 3 In section 105 (selection for redundancy)— a in subsection (1)(c) for “(7L)” substitute “(7M)”; b after subsection (7L) insert— 7M This subsection applies if— a the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1), and b the condition in paragraph (a) or (b) of that subsection was met. . 4 In section 108(3) (qualifying period of employment: cases where no qualifying period required), after paragraph (gk) (which is not yet in force) insert— gl subsection (1) of section 104F (read with subsection (2) of that section) applies. . 5 In section 111 (complaint to employment tribunal)— a in subsection (2) (general requirement to present complaint within three months beginning with effective date of termination), for “Subject to subsection (3)” substitute “Subject to the following provisions of this section”; and b after subsection (4) insert— 5 Where the dismissal is alleged to be unfair by virtue of section 104F (blacklists), a subsection (2)(b) does not apply, and b an employment tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 6 In section 120 (minimum basic award in certain cases), after subsection (1B) insert— 1C Where an employee is regarded as unfairly dismissed by virtue of section 104F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of the basic award of compensation (before any reduction is made under section 122) shall not be less than £5,000. . 7 In section 122 (reduction of basic award), after subsection (4) insert— 5 Where a dismissal is regarded as unfair by virtue of section 104F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award in respect of the same dismissal under section 156 of the Trade Union and Labour Relations (Consolidation) Act 1992 (minimum basic award in case of dismissal on grounds related to trade union membership or activities). . 8 In section 128 (interim relief pending determination of complaint), for subsection (1) substitute— 1 An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— a that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— i section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or ii paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or b that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief. . 9 In section 129 (procedure on hearing of application for interim relief), for subsection (1) substitute— 1 This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— a that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— i section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or ii paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or b that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met. . Action for breach of statutory duty Action for breach of statutory duty 13 1 A contravention of regulation 3 is actionable as a breach of statutory duty. 2 If there are facts from which the court could conclude, in the absence of any other explanation, that the defendant has contravened, or is likely to contravene, regulation 3, the court must find that such a contravention occurred, or is likely to occur, unless the defendant shows that it did not, or is not likely to, occur. 3 In proceedings brought by virtue of this regulation, the court may (without prejudice to any of its other powers)— a make such order as it considers appropriate for the purpose of restraining or preventing the defendant from contravening regulation 3; and b award damages, which may include compensation for injured feelings. 4 A person may complain to an employment tribunal under regulation 5, 6 or 9, or under Part 10 of the Employment Rights Act 1996 (unfair dismissal) as it applies by virtue of these Regulations and bring an action for breach of statutory duty in respect of the same conduct for the purpose of restraining or preventing the defendant from contravening regulation 3. 5 Except as mentioned in paragraph (4), a person may not bring an action for breach of statutory duty and complain to an employment tribunal under regulation 5, 6 or 9, or under Part 10 of the Employment Rights Act 1996 (unfair dismissal) as it applies by virtue of these Regulations, in respect of the same conduct. Supplementary provisions Complaint against employer and employment agency 14 1 Where P has a right of complaint under regulation 5 or 6 against R and E arising out of the same facts, P may present a complaint against either R or E or against R and E jointly. 2 If P presents a complaint against only one party, that party or P may request the tribunal to join or sist the other as a party to the proceedings. 3 The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded. 4 Where P brings a complaint against R and E jointly, or where P brings a complaint against one of them and the other is joined or sisted as a party to the proceedings, and the tribunal— a finds that the complaint is well-founded as against R and E, and b awards compensation, the tribunal may order that the compensation shall be paid by R, by E, or partly by R and partly by E, as the tribunal may consider just and equitable in all the circumstances. Awards against third parties in tribunal proceedings 15 1 If in proceedings on a complaint under regulation 5, 6 or 9, or under Part 10 of the Employment Rights Act 1996 as it applies by virtue of these regulations, either the respondent or complainant claims that another person contravened regulation 3 in respect of the prohibited list to which the complaint relates, the complainant or respondent may request the tribunal to direct that other person be joined or sisted as a party to the proceedings. 2 The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made if it is made after the tribunal has made a decision as to whether the complaint is well-founded. 3 Where a person has been so joined or sisted as a party to the proceedings and the tribunal- a finds that the complaint is well-founded, b awards compensation, and c finds the claim in paragraph (1) is well-founded, the tribunal shall make a declaration to that effect and may award such of the remedies mentioned in paragraph (4) as it considers just and equitable. 4 The remedies the tribunal may award are— a an order that compensation shall be paid by the person joined (or sisted) instead of by the respondent, or partly by that person and partly by the respondent; b a recommendation that within a specified period the person joined (or sisted) takes action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates. 5 If the person joined (or sisted) fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one. 6 Where by virtue of regulation 14 (complaint against employer and employment agency) there is more than one respondent, the above provisions apply to either or both of them. Restrictions on contracting out 16 Section 288 of the Trade Union and Labour Relations (Consolidation) Act 1992 (restrictions on contracting out) applies in relation to regulations 5, 6 and 9 as if they were contained in that Act. Consequential amendments 17 1 The Employment Tribunals Act 1996 is amended as follows. 2 In section 10(1) (dismissal of complaint where action taken for purpose of safeguarding national security)— a omit the word “or” at the end of paragraph (a); and b after paragraph (b) insert— , or c regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (detriment connected with prohibited list). . 3 In section 16(1) (recoupment of benefits: payments in relation to which power exercisable)— a omit the word “or” at the end of paragraph (c); and b after paragraph (d) insert— or e payments by employers to employees under regulation 5, 6 or 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010, . 4 In section 18(1) (conciliation: proceedings and claims to which section applies)— a omit the word “or” at the end of paragraph (u); b after the paragraph inserted by regulation 33 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 insert— , or w under regulation 5, 6 or 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010. . 5 In section 21(1) (jurisdiction of Appeal Tribunal)— a omit the word “or” at the end of paragraph (v); and b after paragraph (w), insert- , or x the Employment Relations Act 1999 (Blacklists) Regulations 2010. . 6 In the list in Schedule A2 to the Trade Union and Labour Relations (Consolidation) Act 1992 (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of failure to comply with code of practice), after the entry relating to regulation 17 of the Cross-Border Railway Services (Working Time) Regulations 2008 insert— Regulation 9 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 ( SI 2010/493 ) (detriment connected with prohibited list). . Lord Young of Norwood Green Minister for Postal Affairs and Employment Relations Department for Business, Innovation and Skills 1st March 2010