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Industrial Relations
Law Commentary: The
Employment Act 1980
An analysis of the proposals leading to the
Employment Act was featured in IRJ Volume 11
Number 2 (May/ June 1980). Several changes
were made to the Employment Bill in its passage
through Parliament. Karl Mackie outlines the
provisions of the Act in this commentary.
T HE Employment Act 1980 has finally
reached the statute book amid controversy
both within and outside the Government’s
ranks. A Green Paper on trade union immun-
ities and Codes of Practice on the closed shop
and picketing are to follow. Analysis of the Act
will continue in the Commentary as these
developments and case-law on the Act
emerge. Below is provided a brief section-by-
section summary of the Act’s provisions.
Funds for union ballots
Section 1 empowers the Secretary of State
to draw up a scheme whereby the Certification
Officer will reimburse independent trade
unions for some of the expenditure incurred in
holding certain ballots.- The scheme may also
cover the costs of arrangements made for
holding a ballot which is not in fact held. The
section lays down two main requirements for
any scheme devised. Firstly, that only secret
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*For a more detailed analysis of the Act with comment on
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ballots should be eligible, and secondly that the
ballots chosen for financial assistance in any
scheme should be selected from within a range
of types set out in Section 1 - testing members’
views on the calling or ending of industrial
action, carrying out elections provided for in a
union’s rules, election by members of work-
place representatives, amending union rules,
or obtaining decisions on amalgamation or
transfer. The Secretary of State is given power
to extend the list by order to other purposes.
Apart from these two basic requirements,
questions of the amounts of payments or
circumstances in which they are made will be a
matter for the regulations of the actual scheme
devised. The Government’s initial proposals for
a scheme suggest that only postal ballots will be
eligible at this stage. Ballots concerning
industrial action, changes to rules, or amal-
gamations will be covered together with
elections to national or full-time officer posts. In
the meantime, encouragement is to be given to
workplace ballots by Section 2.

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its implications for industrial practice and the policy issues it
raises for employers and trade unions, see Mackie, K ,
“The Employment Act 1980 - a n analyws”, Occasional
Ballots on
Papers in Industrial Relations, Universities of Leeds and employer’s premises
Nottingham, in association with the Institute of Personnel
Management Section 2 requires an employer to comply,
0Karl Mackie is a Lecturer in the Department of Adult as far as reasonably practicable, with a request
Education of Nottingham University and edits the Book made by an independent trade union to permit
Reviews section and the Law Commentary on the IRJ his premises to be used so that workers

6
employed by him may have a convenient
opportunity of voting in secret on a question
falling within the broad range of purposes set
out in Section 1 . Failure to comply will entitle
the union to seek a declaration from an
industrial tribunal and compensation for the
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employer’s default, including expenses
incurred in consequence of the refusal. An
employer will only be exempt where he does
not recognise the union or if he and any
associated employers employ no more than 20
workers.
Codes of practice
The Secretary of State is given power to
issue these by Section 3. The procedure laid
down requires him to consult with ACAS
before publishing a draft, then considering
representations made to him about such a
draft, and finally laying a draft before
Parliament for approval. Failure to observe a
provision of a Code will not of itself render a
person liable to proceedings but it will be
admissible in evidence and taken into account
if relevant in proceedings before a tribunal or
court or the Central Arbitration Committee.
The first two such Codes, on picketing and the
closed shop, are due to be published in
November 1980.
Exclusion or expulsion
from union membership
Section 4 provides a right not to be un-
reasonably refused, or expelled from, member-
ship of a specified trade union where a person
is, or is seeking to be, in employment where a
union membership agreement (UMA) applies.
A person who has been so excluded or
expelled may seek (within six months) a
declaration to this effect from an industrial
tribunal. Either party may appeal on a point of
law or fact to the Employment Appeal
Tribunal. “Reasonableness” will be decided by
the tribunal on the merits of the case and not
solely o n whether there has been compliance
with union rules. Where a membership appli-
cation is neither granted nor refused, this will
be deemed a refusal on the last day of a period
within which it might reasonably have been
expected to have been granted. Cases where a
person ceases to be a member on the
happening of an event specified in the rules
(e.g., arrears of subscriptions) will be treated as
expulsions.
If a tribunal does issue a declaration in favour
of the complainant, he can then seek compen-
sation (Section 5).This second complaint must
be lodged not earlier than four weeks nor later
than six months after the date of the
declaration. The application goes to an
industrial tribunal if, by that time, the union has
admitted/re-admitted the applicant. Otherwise
it goes to the Employment Appeal Tribunal.
The industrial tribunal’s test for compensation is
on the basis of loss suffered as a consequence
of the unlawful action, the EAT’S is on what is
‘just and equitable in all the circumstances’.
The maximum compensation which each can
award is in line with unfair dismissal levels, the
EAT having the 52 weeks’ pay additional
award element (i.e. f9850 and f 16,090
respectively, the limits being revised annually).
There can be reduction in compensation for
failure by the applicant to mitigate his loss or if
he caused or contributed in any way to the
refusal or expulsion.
Unfair dismissal
Reasonableness
Section 6 removes from employers the onus
of ‘satisfying’the tribunal that the dismissal was
reasonable in the circumstances. It is to be left
to the tribunal to determine this. The section
also explicitly directs tribunals to take into
account the size and administrative resources
of the employer’s undertaking as part of the
circumstances.
Closed shop
Section 7 widens the grounds for claiming
unfair dismissal when a person is dismissed for
non-membership of a trade union where a
UMA applies. Dismissal will now be auto-
matically unfair in the following circumstances:
i) Where he genuinely objects o n grounds of
conscience or other deeply-held personal
conviction to being a member of any trade
union whatsoever or of a particular trade
union.
ii) Where he has been among those employees
to which the UMA relates since before it
took effect and has not at any time been a
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member of a specified trade union while the
agreement has been in force.
iii) Where there is not an ‘approved’ union
membership agreement. A UMA taking
effect after the commencement date of this
section, 15 August 1980, will only be
treated as approved if all the employees
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concerned so far as reasonably practicable
had the opportunity of voting in a secret
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ballot and not less than 80% of those
entitled to vote voted in favour.
iv) Where the UMA has been ‘approved’ but
the employee has not been a member of a
specified trade union since the day of the
ballot.
Small employers
Section 8 extends the qualifying period of
service required before an employee can claim
unfair dismissal from a small employer. A new
employee will require not one but two years’
continuous service if, during that period, the
number of employees (including those of
associated employers) at no time exceeded
twenty. The change will not affect persons
employed before 1 October 1980 nor
employees dismissed for an ‘inadmissible’
reason or because of suspension on certain
health and safety grounds (s. 19 of the
Employment Protection (Consolidation) Act
1978).
Fixed-term contracts
Section 8 (2) reduces from two years to one
year the minimum length of a fixed-term
contract in which an employee may agree to
waive his right to complain of unfair dismissal
o n the expiry of the period. (A two year
contract is still required for a valid agreement to
waive claims to a redundancy payment.)
Compensation
Section 9 makes a number of changes to the
calculations of the basic award element in
unfair dismissal compensation. Firstly, the
minimum entitlement to two weeks’ pay on a
finding of unfair dismissal is abolished.
Secondly, the basic award is now to be
calculated on exactly the same basis as a
redundancy payment, ending a slight anomaly
between the two because of the different
wording used. Thirdly, the tribunal is now
given the power to reduce the basic award
where a cornplainant unreasonably refuses an
offer of reinstatement by the employer. Finally,
it can also reduce the award not only for
conduct contributing to the dismissal but also
for other conduct if it thinks it just and
equitable to d o so. However, this only applies
to conduct before the dismissal or, if notice was
given, before notice of dismissal.
Contdbutlon to compensation
Section 10 enables an employer to join as a
party in unfair dismissal proceedings a trade
union (or other person) which he claims
induced him to dismiss the complainant by
industrial action or threat of action because the
employee was not a member of a trade union.
(There is a similar right in Section 15 for
complaints to a tribunal of action short of
dismissal.) The trade union or other person
must be joined before the date of the hearing. If
the tribunal finds the employer’s claim well-
founded, it may order that person to pay a
contribution to the employer towards any
compensation awarded to the complainant.
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The amount of contribution will be that which
the tribunal considers just and equitable, and
may constitute a complete indemnity.
Section 10 also provides a new right for one
employer (A) facing an unfair dismissal claim to
seek to be indemnified by a second employer
(B). The right arises where A has contracted to
d o some work for B and a term of that contract
requires that only trade union members should
be employed on that work. If A is forced to
dismiss an employee because of that require-
ment (B having refused to consent to his
employment on the work despite the require-
ment), A can join B before the hearing of the
complaint. If the tribunal finds A’s claim well-
founded, it must order B to pay A the
amount of unfair dismissal compensation
awarded to As ex-employee. B, in turn, before
the hearing, may seek a contribution to the
amount he may have to pay A if he can show
he was induced to withhold consent to
employing A’s employee by industrial pressure
exercised on him by a trade union or other
person.
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Maternity rights
The Act does not change the rules regarding
claims to maternity pay but it does introduce
changes to maternity leave. There are new
notification requirements (S.111, changes to
the right of return (S.1 2 ) , and a new right to
time off with pay for ante-natal care (S.13).
Notices to employer
These must now be in writing and there must
now be at least 21 days’ notice not only of the
intention to be absent but also of the intention
to return (which formerly required only seven
days’ notice). Also the notice of absence must
now specify the expected week of confinement
 Industrial Relations Law Commentary: The Employment Act 1980
or, if the confinement has occurred, the date of
confinement. Finally, there is a new provision
for an intermediate written notice confirming
the intention to return, if the employer requires
it. The employer’s request for written confirm-
ation must be in writing and must be made not
earlier than 49 days after the beginning of the
expected week of confinement or date of con-
finement notified to him. The request must,
however, contain a written statement des-
cribing the legal effect of the section (i.e. loss of
right to return on failure to reply). The woman
must reply in writing giving confirmation within
14 days of receiving the request or, if that is not
reasonably practicable, as soon as reasonably
practicable.
Right to return
Section 12 alters the previous rules which
allowed a woman her old job back, the only
exception being where it was not practicable by
reason of redundancy. An employer will now
also be able to offer a suitable alternative where
it is not reasonably practicable for reasons other
than redundancy to permit her to return to the
work she did under her contract. The new job
must be suitable and appropriate for her to d o
in the circumstances as well as substantially
equivalent to her old job in the terms and
conditions involved. Where the woman
accepts or unreasonably refuses such an offer,
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she loses her right to claim unfair dismissal.
In addition, a small employer may be able to
claim not only that it is not reasonably
practicable to permit her to return, but also that
it is not reasonably practicable for him (or an
associated employer) to offer her a suitable
alternative. A small employer is defined as one
with no more than five employees (including
those of associated employers) immediately
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before the woman’s absence began.
It will be for the employer to prove any of the
above matters should the employee lodge a
complaint of unfair dismissal.
Time off for ante-natal care
Section 13 establishes a new type of time-off
right which can be claimed by all pregnant
employees. It is a right not to be ‘unreasonably’
refused paid time-off during working hours to
enable the employee to keep an appointment
to receive ante-natal care. With the exception
of the first such appointment, the employer can
refuse the time-off unless the employee shows
him, on his request, a medical certificate stating
she is pregnant and an appointment card
showing that the appointment has been made.
If the employer unreasonably refuses time-off
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or fails to pay her at the appropriate hourly rate
for the time-off, an industrial tribunal can order
him to pay her the amount she should have
been paid for the time-off.
Guarantee payments
Section 14 alters the method by which the
maximum number of days of statutory lay-off
pay is calculated. Instead of the present system
of fixed calendar quarters, the maximum
number of days will be calculated by reference
to ‘any period of three months’, i.e. a rolling
three-month period.
Action short of dismissal
Section 15 brings the rights regarding action
short of dismissal taken against an employee
into line with rights to claim unfair dismissal in a
UMA, i.e. the same categories of non-
members who are protected from unfair
dismissal in a UMA will also be protected from
action short of dismissal by the employer to
compel them to join a union. Also, employees
outside UMAs will now have the right not to
have action short of dismissal taken against
them to compel them to belong to a trade
union.
Section 15 also modifies the previous rules
on union activities inside the closed shop.
Where a new UMA fails to get the necessary
approval by ballot, employees will now have
the right not to be victimised for independent
trade union activities o n the employer’s
premises at an appropriate time whether or not
the trade union is specified in the agreement.
For other UMAs, the protection only applies to
activities on behalf of a specified union.
Finally, the employer is given a right (similar
to that described earlier for complaints of unfair
dismissal in a UMA) to join a trade union or
other person before the hearing where there is
a complaint of action short of dismissal to
compel an employee to be a union member.
Picketing
Section 16 provides a new definition of
lawful picketing for Section 15 of the Trade
Union and Labour Relations Act 1974. It
specifically provides that acts done in the
course of picketing falling outside such lawful
attendance will lose the legal immunity
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provided by section 13 of TULRA, i.e.
individual organisers will be liable to injunctions
and/or damages for inducing breach of
contract or other torts.
Lawful attendance will be restricted to the
following:
i) A person attending at or near his own place
of work (or former place of work if he is out
of work and his previous employment was
terminated in connection with a trade
dispute).
ii) A union official at or near the place of work
of a member of, the union whom he is
accompanying and whom he represents
(‘represents’ is defined in the section to
restrict union officials to their
‘constituencies’, e.g., a shop steward will
only be able to accompany members at his
own place of work, a branch official at the
places of work of members of the branch).
iii) Where a person works or normally works at
more than one place, or at a place where
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attendance is impracticable, his place of
work is to be any premises of his employer
from which he works or from which his work
is administered.
As before, the nature of lawful attendance is
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defined as attendance ‘in contemplation or
furtherance of a trade dispute . . . for the
purpose only of peacefully obtaining or
communicating information, or peacefully
persuading any person to work or abstain from
working’.
Secondary action
Section 17 narrows the immunity provided
by Section 13 of TULRA by attempting to
restrict what will be regarded as lawful industrial
action, basically to action taken within a cordon
of first suppliers and customers of an employer
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in dispute. * Secondary industrial action (i.e.
affectingemployees of an employer who is not
party to a trade dispute) will retain Section 13
* Section 17 is a particularly complex section. For a fuller
treatment than that above, see Mackie, op. cit.
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immunity only if it meets certain conditions.
Picketing by employees of the employer in
dispute (or their union officials) will retain
immunity even where it has secondary effects,
e . g . , turning away the drivers of other
employers. Any other secondary action must
be taken for the purpose of directly preventing
or disrupting supplies between the employer in
dispute and other parties with whom the
employer has a business relationship (i.e. a
current contract), and must be likely to achieve
that purpose. An associated employer and
other parties can, however, be involved if their
dealings are in substitution for goods or services
which, but for the dispute, would have been
supplied to or by the employer in dispute (the
tests of purpose and likelihood still apply,
however). An employer who is a member of an
employers’ association which is a party to a
trade dispute will only be regarded as a party to
that dispute if he is represented in that dispute
by the association.
Coercive recruitment
The protection of Section 13 of TULRA is
also lost by industrial action that comes within
the terms of Section 18 of the Employment Act.
Action taken to ‘compel’ workers to become
members of a trade union, or one or more
particular trade unions, will lose Section 13
immunity if none of those workers works for
the same employer or at the same place as t h e
employees involved in the industrial action.
Repealed enactments
Section 19 repeals the charter on the
freedom of the press in section 1A of the Trade
Union and Labour Relations Act; the statutory
recognition provisions (Ss. 11-16 of the
Employment Protection Act 1975); the
statutory procedure for extending terms and
conditions of employment, contained in
section 98 and Schedule 11 of the Employ-
ment Protection Act 1975; and the Road
Haulage Wages Act 1938.