The Fair Employment and Treatment (Northern Ireland) Order 1998

SCHEDULES

Article 9(4).

SCHEDULE 1 N.I. CODES OF PRACTICE

PART I N.I. ISSUE OF CODE OF PRACTICE UNDER ARTICLE 9(3)

1.—(1) Where the Commission proposes to issue a code of practice under Article 9(3), it shall prepare and publish a draft of that code, shall consider any representations made to it about the draft and may modify the draft accordingly. N.I.

(2) In the course of preparing any draft code of practice for publication under sub-paragraph (1) the Commission shall consult with such persons as it thinks fit.

(3) If the Commission determines to proceed with the draft, it shall send the draft to the Department which shall—

(a) if it approves of the draft, lay it before the Assembly; and

(b) if it does not approve of the draft, publish details of its reasons for withholding approval.

(4) If, within the statutory period beginning with the day on which the draft of the code of practice is laid before the Assembly, the Assembly so resolves, no further proceedings shall be taken on the draft, but without prejudice to the laying before the Assembly of a new draft.

(5) If no such resolution ispassed asisreferred to in sub-paragraph (4),the Commissionshall issue the code of practice in the form of the draft and the code shall come into effect on such day as the Department may by order appoint.

PART II N.I. CODES OF PRACTICE – GENERAL

Revision of a code of practice N.I.

2.—(1) The Commission may from time to time revise the whole or any part of a code of practice under Article 9. N.I.

(2) If the Commission proposes to revise a code of practice, it shall publish a draft of the revised code or of the amendments to the existing code.

(3) The Commission shall consider any representations made to it about the draft and may modify the draft accordingly.

(4) In the course of preparing any draft for publication under sub-paragraph (2) the Commission shall consult with such persons as the Commission thinks fit.

(5) Where the Commission determines to proceed with the revision of a code of practice after publishing the draft under sub-paragraph (2), the Commission shall send a draft of the revised code to the Department which shall—

(a) if it approves of the draft, lay it before the Assembly; and

(b) if it does not approve of the draft, publish details of its reasons for withholding approval.

(6) If, within the statutory period beginning with the day on which the draft of the revised code is laid before the Assembly, the Assembly so resolves, no further proceedings shall be taken on the draft, but without prejudice to the laying before the Assembly of a new draft.

(7) If no such resolution ispassed asisreferred to in sub-paragraph (6),the Commission shall issue the revised code of practice in the form of the draft and the code shall come into effect on such day as the Department may by order appoint.

Publication N.I.

3.  The Commission shall— N.I.

(a) publish a code of practice under Article 9 as for the time being in force; and

(b) take such other steps as it considers necessary to publicise any such code.

Effect of code of practice N.I.

4.  The Commission and the Department shall each take such steps as they consider necessary to encourage the adoption of the policies and practices recommended in a code of practice under Article 9. N.I.

5.  A failure on the part of any person to observe any provision of a code of practice under Article 9 shall not of itself render him liable to any proceedings, but in any proceedings under this Order before the Tribunal or a court— N.I.

(a) any code of practice shall be admissible in evidence; and

(b) if any provision of a code appears to the Tribunal or the court to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.

Article 11(3).

SCHEDULE 2 N.I. CONDUCT OF INVESTIGATIONS BY THE COMMISSION

Preliminary N.I.

1.  In this Schedule “the investigation” means an investigation under Article 11 or 71. N.I.

Notices N.I.

2.  Before holding the investigation, the Commission shall— N.I.

(a) serve on every person whose practices it intends to investigate notice of the Commission's intention to hold the investigation; and

(b) furnish to each such person, in writing, particulars of the scope and purpose of the investigation.

Procedure N.I.

3.  The Commission shall afford to every person such as is mentioned in paragraph 2(a) an opportunity to comment on the matters which are the subject of the investigation and to furnish oral or other evidence respecting them. N.I.

4.  The investigation shall be conducted in private. N.I.

5.  Subject to paragraphs 3 and 4, the procedure for conducting the investigation shall be such as the Commission considers appropriate in the circumstances of the case. N.I.

Information and evidence N.I.

6.  For the purposes of the investigation, the Commission may obtain information from such persons and (subject to paragraph 4) in such manner and may make such inquiries and call for such reports (including reports by officers of the Commissiononinquiries or interviews conducted by themon the Commission's behalf) as the Commission thinks fit. N.I.

7.—(1) For the purposes of the investigation the Commission may require any person who in its opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document. N.I.

(2) For those purposes the Commission shall have the same powers as the High Court in respect of—

(a) the attendance and examination of witnesses, including the administration of oaths and the examination of witnesses abroad; and

(b) the production of documents.

(3) A person shall not be compelled for the purposes of the investigation—

(a) to give any information or produce any document which he could not be compelled to give in evidence or produce in civil proceedings before the High Court; or

(b) to give any information or produce any document which discloses, or from which there can be deduced, his religious belief, if he informs the Commission that he objects to doing so; or

(c) to attend at any place unless the necessary expenses of his journey to and from that place are paid or tendered to him.

8.  For the purposes of the investigation the Commission may also require an employer or vocational organisation to take such reasonable action as the Commission specifies for communicating to his or its employees or members (as the case requires), or to employees or members of any class, any written material provided for the purposes by the Commission. N.I.

Obstruction and contempt N.I.

9.—(1) If any person, without lawful authority or reasonable excuse, obstructs the Commission or any member or officer of the Commission in the performance of its or his functions in connection with the investigation, or is guilty of any act in relation to the investigation which, if the investigation were a proceeding in the High Court, would constitute contempt of court, the Commission may certify the offence to the High Court. N.I.

(2) Where an offence is certified under this paragraph, the High Court may inquire into the matter and after hearing—

(a) any witnesses who may be produced against or on behalf of the person charged with the offence; and

(b) any statement that may be offered in defence,

may deal with the person charged with the offence in any manner in which the court could deal with himif he had committed the like offence in relation to the court.

Expenses N.I.

10.  Without prejudice to paragraph 7(3)(c), the Commission may, if it thinks fit, pay to any person who attends, or furnishes information for the purposes of, the investigation, sums in respect of expenses properly incurred by him and allowances by way of compensation for the loss of his time in accordance with such scales and subject to such conditions as the Department with the approval of the Department of Finance and Personnel may determine. N.I.

Article 25A(2)

[F1 SCHEDULE 2A N.I. OCCUPATIONAL PENSION SCHEMES

F1 SR 2003/520

Interpretation N.I.

1.— (1) In this Schedule— N.I.

• “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers”, in relation to an occupational pension scheme, have the meanings given by Article 121(1) of the Pensions (Northern Ireland) Order 1995 F2 . . . ;

• “member” means any active member, deferred member or pensioner member;

• “non-discrimination rule” means the rule in paragraph 2;

• “occupational pension scheme” has the same meaning as in the Pension Schemes (Northern Ireland) Act 1993 F3 . . . ;

• “prospective member”, in relation to an occupational pension scheme, means any person who, under the terms of his employment or the rules of the scheme or both—

  (a)

  is able, at his own option, to become a member of the scheme;

  (b)

  shall become so able if he continues in the same employment for a sufficient period of time;

  (c)

  shall be admitted to it automatically unless he makes an election not to become a member; or

  (d)

  may be admitted to it subject to the consent of his employer.

(2) In paragraph 6, "employer", in relation to an occupational pension scheme, has the meaning given by Article 121(1) of the Pensions (Northern Ireland) Order 1995 F4 . . . .

(3) Any term used in Article 25A and in this Schedule shall have the same meaning in that Article as it has in this Schedule.

F2 Sch. 2A para. 1(1): words repealed (1.10.2006) in the definition of "active member", "deferred member", "managers", "pensioner member" and "trustees or managers" by Employment Equality (Age) Regulations (Northern Ireland) 2006 (S.R. 2006/261), reg. 53, Sch. 7 para. 5(4)(a)(i), Sch. 8(1) (with reg. 50)

F3 Sch. 2A para. 1(1): words repealed (1.10.2006) in the definition of "occupational pension scheme" by Employment Equality (Age) Regulations (Northern Ireland) 2006 (S.R. 2006/261), reg. 53, Sch. 7 para. 5(4)(a)(ii), Sch. 8(1) (with reg. 50)

F4 Words in Sch. 2A para. 1(2) repealed (1.10.2006) by Employment Equality (Age) Regulations (Northern Ireland) 2006 (S.R. 2006/261), reg. 53, Sch. 7 para. 5(4)(b), Sch. 8(1) (with reg. 50)

Non-discrimination rule N.I.

2.   Every occupational pension scheme shall be treated as including a provision ("the non-discrimination rule") containing a requirement that the trustees or managers of the scheme refrain from doing any act which is unlawful by virtue of Article 25A. N.I.

3.   The other provisions of the scheme are to have effect subject to the non-discrimination rule. N.I.

4.   The trustees or managers of an occupational pension scheme may— N.I.

(a) if they do not (apart from this paragraph) have power to make such alterations to the scheme as may be required to secure conformity with the non-discrimination rule; or

(b) if they have such power but the procedure for doing so:—

(i) is liable to be unduly complex or protracted; or

(ii) involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty;

by resolution make such alterations to the scheme.

5.   Alterations made by a resolution such as is referred to in paragraph 4 may have effect in relation to a period before the alterations are made (but may not have effect in relation to any time before 10th December 2003). N.I.

Procedure in the Tribunal N.I.

6.   Where under Article 38 a member or prospective member of an occupational pension scheme presents to the Tribunal a complaint that the trustees or managers of the scheme— N.I.

(a) have committed against him an act which is unlawful by virtue of Article 25A or 33A; or

(b) are by virtue of Article 35 or 36 to be treated as having committed against him such an act;

the employer in relation to the scheme shall, for the purposes of the rules governing procedure, be treated as a party and be entitled to appear and be heard in accordance with those rules.

Remedies in the Tribunal N.I.

7.— (1) This paragraph applies where— N.I.

(a) under Article 38 a member or prospective member of an occupational pension scheme ( “the complainant”) presents to the Tribunal a complaint against the trustees or managers of the scheme or an employer;

(b) the complainant is not a pensioner member of the scheme;

(c) the complaint relates to the terms on which persons become members of the scheme, or the terms on which members of the scheme are treated; and

(d) the Tribunal finds the complaint to be well-founded.

(2) Where this paragraph applies, the Tribunal may, without prejudice to the generality of its power under Article 39(1)(a), make an order declaring that the complainant has a right—

(a) where the complaint relates to the terms on which persons become members of the scheme, to be admitted to the scheme;

(b) where the complaint relates to the terms on which members of the scheme are treated, to membership of the scheme without discrimination.

(3) An order under sub-paragraph (2)—

(a) may be made in respect of such period as is specified in the order (but may not be made in respect of any time before 10th December 2003);

(b) may make such provision as the Tribunal considers appropriate as to the terms on which, or the capacity in which, the complainant is to enjoy such admission or membership.

(4) Where this paragraph applies, the Tribunal may not make an order for compensation under Article 39(1)(b), whether in relation to arrears of benefits or otherwise, except—

(a) for injury to feelings;

(b) by virtue of Article 39(5).]

N.I.

Schedule 3—Amendments

Article 105(2).

SCHEDULE 4 N.I. TRANSITIONAL PROVISIONS AND SAVINGS

Article 26 and Part IV N.I.

1.—(1) Article 26 of this Order shall not apply in relation to any act done before that Article comes into operation. N.I.

(2) Part IV of this Order shall not apply in relation to any act done before that Part comes into operation.

National security certificates N.I.

2.  In relation to any act done before the coming into operation of Article 79— N.I.

(a) Article 79 shall have effect as if paragraph (b) of that Article were omitted; and

(b) Article 80 shall have effect as if paragraphs (1)(b)(ii) and (3)(b) of that Article were omitted.

3.  In relation to any act done before the coming into operation of Article 96— N.I.

(a) Article 53 of the [1976 NI 15.] Sex Discrimination (Northern Ireland) Order 1976 (as substituted by Article 96) shall have effect as if paragraph (b) were omitted; and

(b) Article 53ZA of the Sex Discrimination (Northern Ireland) Order 1976 (as substituted by Article 96) shall have effect as if paragraphs (1)(b)(ii) and (3)(b) were omitted.

4.  In relation to any act done before the coming into operation of Article 98— N.I.

(a) Article 41 of the [1997 NI 6.] Race Relations (Northern Ireland) Order 1997 (as substituted by Article 98) shall have effect as if paragraph (b) were omitted; and

(b) Article 41A of the Race Relations (Northern Ireland) Order 1997 (as substituted by Article 98) shall have effect as if paragraphs (1)(b)(ii) and (3)(b) were omitted.

Devolution order under section 3 of the Northern Ireland Act 1998 N.I.

5.  If provisions of this Order come into operation before the day appointed by an Order in Council under section 3 of the [1998 c. 47] Northern Ireland Act 1998 for the commencement of Parts II and III of that Act, then until the day so appointed— N.I.

(a) references in those provisions to an Act of the Assembly shall be read as references to a Measure of the Assembly established under section 1 of the [1973 c. 17.] Northern Ireland Assembly Act 1973; and

(b) references in those provisions to a Northern Ireland Minister shall be read as references to the head of a Northern Ireland department.

The Commission N.I.

6.—(1) If provisions of this Order come into operation before the day appointed under section 101(3) of the Northern Ireland Act 1998 for the coming into operation of section 73(1) of that Act, then until the day so appointed— N.I.

(a) references in those provisions to the Commission shall be read as references to the Fair Employment Commission for Northern Ireland; and

(b) section 1 of, and Schedule 1 to, the [1976 c. 25.] Fair Employment (Northern Ireland) Act 1976 (as amended by the [1989 c. 32.] Fair Employment (Northern Ireland) Act 1989) shall, notwithstanding the repeal of those Acts by this Order, continue to have effect in relation to that Commission.

The Police (Northern Ireland) Act 1998 (1998 c. 32) N.I.

7.  If Article 94 comes into operation before the day appointed under section 75(1) of the [1998 c. 32.] Police (Northern Ireland) Act 1998 for the coming into operation of section 10(5) of that Act, then until the day so appointed, Article 94 shall have effect— N.I.

(a) as if paragraph (5) were omitted; and

(b) as if the reference to the [1970 c. 9 (N.I.).] Police (Northern Ireland) Act 1998 were a reference to the Police Act (Northern Ireland) 1970.

[F5 Section 50(2) of the Fair Employment (Northern Ireland) Act 1989 N.I.

F5 retrosp. insertion by 2002 NI 2

8.   The repeals effected by this Order do not affect the operation of— N.I.

(a) subsection (2) of section 50 of the Fair Employment (Northern Ireland) Act 1989; or

(b) any provision of the Fair Employment (Northern Ireland) Act 1976 mentioned in that subsection,

in relation to a complaint or act mentioned in that subsection.]

N.I.

Schedule 5—Repeals