Sex Discrimination (Northern Ireland) Order 1976

PART IX N.I. SUPPLEMENTAL

Validity and revision of contracts N.I.

77.—(1) A term of a contract is void where—

(a) its inclusion renders the making of the contract unlawful by virtue of this Order, or

(b) it is included in furtherance of an act rendered unlawful by this Order, or

(c) it provides for the doing of an act which would be rendered unlawful by this Order.

(2) Paragraph (1) does not apply to a term the inclusion of which constitutes, or is in furtherance of, or provides for, unlawful discrimination against a party to the contract, but the term shall be unenforceable against that party.

(3) A term of a contract which purports to exclude or limit any provision of this Order or the Equal Pay Act is unenforceable by any person in whose favour the term would operate apart from this paragraph.

(4) Paragraph (3) does not apply—

(a) to a contract settling a complaint to which Article 63(1) of this Order or section 2 of the Equal Pay Act applies where the contract is made with[F1 the assistance of the Labour Relations Agency];

[F2 (aa) to a contract settling a complaint to which Article 63(1) of this Order or section 2 of the Equal Pay Act applies if the conditions regulating compromise contracts under this Order are satisfied in relation to the contract;]

(b) to a contract settling a claim to which Article 66 applies.

[F2 (4A) The conditions regulating compromise contracts under this Order are that—

(a) the contract must be in writing;

(b) the contract must relate to the particular complaint;

(c) the complainant must have received[F3 advice from a relevant independent adviser] as to the terms and effect of the proposed contract and in particular its effect on his ability to pursue his complaint before an industrial tribunal;

(d) there must be in force, when the adviser gives the advice, a[F3 contract of insurance, or an indemnity provided for members of a profession or professional body,] covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

(e) the contract must identify the adviser; and

(f) the contract must state that the conditions regulating compromise contracts under this Order are satisfied.

[F3 (4B) A person is a relevant independent adviser for the purposes of paragraph (4A)(c)—

(a) if he is a qualified lawyer,

(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

(d )F4 if he is a person of a description specified in an order made by the Department of Economic Development.

(4BA) But a person is not a relevant independent adviser for the purposes of paragraph (4A)(c) in relation to the complainant—

(a) if he is, is employed by or is acting in the matter for the other party or for a person who is connected with the other party,

(b) in the case of a person within paragraph (4B)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,

(c) in the case of a person within paragraph (4B)(c), if the complainant makes a payment for the advice received from him, or

(d) in the case of a person of a description specified in an order under paragraph (4B)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

(4BB) In paragraph (4B)(a) “qualified lawyer” means a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

(4BC) In paragraph (4B)(b) “independent trade union” has the same meaning as in the Industrial Relations (Northern Ireland) Order 1992.

(4C) For the purposes of paragraph (4BA) any two persons are to be treated as connected—

(a) if one is a company of which the other (directly or indirectly) has control, or

(b) if both are companies of which a third person (directly or indirectly) has control.]]

[F3 (4D) An agreement under which the parties agree to submit a dispute to arbitration—

(a) shall be regarded for the purposes of paragraph (4)(a) and (aa) as being a contract settling a complaint if—

(i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992; and

(ii) the agreement is to submit it to arbitration in accordance with the scheme, but

(b) shall be regarded for those purposes as neither being nor including such a contract in any other case.]

(5) On the application of any person interested in a contract to which paragraph (2) applies, a county court may make such order as it thinks just for removing or modifying any term made unenforceable by that paragraph; but such an order shall not be made unless all persons affected have been given notice of the application (except where under rules of court notice may be dispensed with) and have been afforded an opportunity to make representations to the court.

(6) An order under paragraph (5) may include provision as respects any period before the making of the order.

F1 1996 NI 18

F2 1993 NI 11

F3 1998 NI 8

F4 function transf. by SR 1999/481

[F5 Collective agreements and rules of undertakings N.I.

77A.— (1) Without prejudice to the generality of Article 77, that Article shall apply, as it applies in relation to a term of a contract, to the following, namely—

(a) any term of a collective agreement, including an agreement which was not intended, or is presumed not to have been intended, to be a legally enforceable contract;

(b) any rule made by an employer for application to all or any of the persons who are employed by him or who apply to be, or are, considered by him for employment;

(c) any rule made by an organisation, authority or body to which paragraph (2) applies for application to all or any of its members or prospective members or to all or any of the persons on whom it has conferred authorisations or qualifications or who are seeking the authorisations or qualifications which it has power to confer;

and Article 77 shall so apply whether the agreement was entered into, or the rule made, before or after the commencement of Article 11 of the Sex Discrimination (Northern Ireland) Order 1988.

(2) This paragraph applies to—

(a) any organisation of workers;

(b) any organisation of employers;

(c) any organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists;

(d) any authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade.

(3) For the purposes of Article 77 a term or rule shall be deemed to provide for the doing of an act which would be rendered unlawful by this Order if—

(a) it provides for the inclusion in any contract of employment of any term which by virtue of an equality clause would fall either to be modified or to be supplemented by an additional term; and

(b) that clause would not be prevented from operating in relation to that contract by section 1(3) of the Equal Pay Act (Northern Ireland) 1970 (material factors justifying discrimination).

(4) Nothing in Article 77 shall affect the operation of any term or rule in so far as it provides for the doing of a particular act in circumstances where the doing of that act would not be, or be deemed by virtue of paragraph (3) to be, rendered unlawful by this Order.

[F6 (4A) A person to whom this paragraph applies may present a complaint to an industrial tribunal that a term or rule is void by virtue of paragraph (1) of Article 77 if he has reason to believe—

(a) that the term or rule may at some future time have effect in relation to him; and

(b) where he alleges that it is void by virtue of sub-paragraph (c) of that paragraph, that—

(i) an act for the doing of which it provides may at some such time be done in relation to him; and

(ii) the act would be, or be deemed by virtue of paragraph (3) to be, rendered unlawful by this Order if done in relation to him in present circumstances.

(4B) In the case of a complaint about—

(a) a term of a collective agreement made by or on behalf of—

(i) an employer;

(ii) an organisation of employers of which an employer is a member; or

(iii) an association of such organisations of one of which an employer is a member; or

(b) a rule made by an employer,

paragraph (4A) applies to any person who is, or is genuinely and actively seeking to become, one of his employees.

(4C) In the case of a complaint about a rule made by an organisation, authority or body to which paragraph (2) applies, paragraph (4A) applies to any person—

(a) who is, or is genuinely and actively seeking to become, a member of the organisation, authority or body;

(b) on whom the organisation, authority or body has conferred an authorisation or qualification; or

(c) who is genuinely and actively seeking an authorisation or qualification which the organisation, authority or body has power to confer.

(4D) When an industrial tribunal finds that a complaint presented to it under paragraph (4A) is well-founded the tribunal shall make an order declaring that the term or rule is void.]

(5) The avoidance by virtue of Article 77 of any term or rule which provides for any person to be discriminated against shall be without prejudice to the following rights except in so far as they enable any person to require another person to be treated less favourably than himself, namely—

(a) such of the rights of the person to be discriminated against; and

(b) such of the rights of any person who will be treated more favourably in direct or indirect consequence of the discrimination,

as are conferred by or in respect of a contract made or modified wholly or partly in pursuance of, or by reference to, that term or rule.

(6) In this Article “collective agreement” means any agreement relating to one or more of the matters mentioned in Article 3(1) of the Industrial Relations (Northern Ireland) Order 1976 (meaning of trade dispute), being an agreement made by or on behalf of one or more employers or one or more organisations of employers or associations of such organisations with one or more organisations of workers or associations of such organisations.

(7) This Article shall have effect as if the terms of any service to which Parts III and V apply by virtue of paragraph (2) of Article 82 (Crown application) were terms of a contract of employment and in relation to the terms of any such service, as if service for the purposes of any person mentioned in that paragraph were employment by that person.]

F5 1988 NI 13

F6 1993 NI 11

Educational charities N.I.

78 .F7 —(1) This Article applies to any trust deed or other instrument—

(a) which concerns property applicable for or in connection with the provision of education in any establishment in paragraphs 1 to 5 of the table in Article 24, and

(b) which in any way restricts the benefits available under the instrument to persons of one sex.

(2) If on the application of the trustees, or of the responsible body (as defined in Article 24), the Department of Finance is satisfied that the removal or modification of the restriction would conduce to the advancement of education without sex discrimination that Department may by order make such modifications of the instrument as appear to it expedient for removing or modifying the restriction, and for any supplemental or incidental purposes.

(3) If the trust was created by gift or bequest, no order shall be made until 25 years after the date on which the gift or bequest took effect, unless the donor or his personal representatives, or the personal representatives of the testator, have consented in writing to the making of the application for the order.

(4) The Department of Finance shall require the applicant to publish notice—

(a) containing particulars of the proposed order, and

(b) stating that representations may be made to that Department within a period specified in the notice.

(5) The period specified in the notice shall not be less than one month from the date of the notice.

(6) The applicants shall publish the notice in such manner as may be specified by the Department of Finance, and the cost of any publication of the notice may be defrayed out of the property of the trust.

(7) Before making the order the Department of Finance shall take into account any representations duly made in accordance with the notice.

F7 functions transf. SR 1999/481

Power to amend certain provisions of Order N.I.

79.—(1) The [F8 Office of the First Minister and deputy First Minister] may by an order the draft of which has been approved by the Assembly—

(a) amend any of the following provisions, namely, Articles 8(3), 10, 21, 22(1), (2) and (3), 32(2), 33, 35, 36 and 44 to 49 (including any such provision as amended by a previous order under this paragraph);

(b) amend or repeal any of the following provisions, namely, Articles 14(4), 15(4), 34 and 50 (including any such provision as amended by a previous order under this paragraph);

(c) amend Part III, IV or V so as to render lawful an act which, apart from the amendment, would be unlawful by reason of Article 8(1) or (2), 30(1), 31 or 32;

Sub‐para. (d) rep. by 1988 NI 13

(2) [F8 The Office of the First Minister and deputy First Minister shall not lay] before the Assembly the draft of an order under paragraph (1) unless the Commission has been consulted about the contents of the draft.

(3) An order under paragraph (1)( c) may make such amendments to the list of provisions given in paragraph (1)( a) as in the opinion of the[F8 Office of the First Minister and deputy First Minister] are expedient having regard to the contents of the order.

F8 SI 1999/663

Orders and regulations N.I.

80.—(1) An order made by a Northern Ireland department under the preceding provisions of this Order (except Article 13(5)F9 . . . , 28,F10 . . . [F11 , 59(2) or 79(1)]), and regulations made under this Order[F12 (except Article 82(9C))], shall be subject to negative resolution.

(2) Paragraph (1) does not apply to an order under Article 78 unless the order modifies an enactment.

(3) An order under this Order may contain transitional provisions and savings.

F9 1990 NI 2

F10 1988 NI 13

F11 SI 1999/663

F12 1996 c. 46

Transitional provisions; amendments and repeals N.I.

81.—(1) The provisions of Schedule 5 shall have effect for making transitional provision for the purposes of this Order.

• Para.(2), with Schedule 6, effects amendments; para.(3), with Schedule 7, effects repeals

• Para.(4)—Commencement

Application to Crown N.I.

82.—(1) This Order applies—

(a) to an act done by or for purposes of a Minister of the Crown or government department, or

(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as it applies to an act done by a private person.

(2) Parts III and V apply to—

(a) service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office, or

(b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body,[F13 or]

[F13 (c) service in the armed forces,]

• as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.

• Para. (3) rep. by 2005 NI 13

(4) Paragraphs (1) and (2) have effect subject to[F14 Article 84 and 85].

[F15 (5) Nothing in this Order shall render unlawful an act done for the purpose of ensuring the combat effectiveness of the[F13 armed forces].]

• Para. (6) rep. by SR 2005/426

• Para. (7) rep. by SR 1995/318

(8) Paragraph (2) of Article 13 shall have effect in relation to any ship, aircraft or hovercraft belonging to or possessed by Her Majesty in right of the Government of Northern Ireland as it has effect in relation to a ship, aircraft or hovercraft mentioned in sub-paragraph ( a) or ( b) of that paragraph, and Article 13(5) shall apply accordingly.

(9) The provisions of Parts II to IV of the Crown Proceedings Act 1947 [1947 c.44] shall apply to proceedings against the Crown under this Order as they apply to proceedings in Northern Ireland which by virtue of section 23 of that Act are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown, except that in their application to proceedings under this Order section 20 of that Act (removal of proceedings from county court to High Court) shall not apply.

[F13 (9A) This paragraph applies to any complaint by a person ("the complainant") that another person—

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Article 8; or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

if at the time when the act complained of was done the complainant was serving in the armed forces and the discrimination in question relates to his service in those forces.

(9B) No complaint to which paragraph (9A) applies shall be presented to an industrial tribunal under Article 63 unless—

(a) the complainant has made [F16 a service complaint in respect of the act complained of] ; and

(b) the Defence Council have made a determination with respect to the [F17 service complaint] .

(9C) Regulations made by the Secretary of State may make provision enabling a complaint to which paragraph (9A) applies to be presented to an industrial tribunal under Article 63 in such circumstances as may be specified by the regulations, notwithstanding that paragraph (9B) would otherwise preclude the presentation of the complaint to an industrial tribunal.

(9D) Where a complaint is presented to an industrial tribunal under Article 63 by virtue of regulations under paragraph (9C), [F18 the service complaint procedures] may continue after the complaint is so presented.

(9E) Regulations under paragraph (9C) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.]

[F13 (10) In this Article—

• "armed forces" means any of the naval, military or air forces of the Crown;

• "service for purposes of a Minister of the Crown or government department" does not include service in any office for the time being mentioned in Schedule 2 (Ministerial offices) to the House of Commons Disqualification Act 1975;

• [F19 “service complaint” means a complaint under section 334 of the Armed Forces Act 2006;

• “the service complaint procedures” means the procedures prescribed by regulations under that section;]

• "statutory body" means a body set up by or in pursuance of a statutory provision and "statutory office" means an office so set up.]

F13 1996 c. 46

F14 2000 c. 32

F15 SR 1995/318

F16 Words in art. 82(9B)(a) substituted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383(2), Sch. 16 para. 82(2)(a); S.I. 2007/2913, art. 3

F17 Words in art. 82(9B)(b) substituted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383(2), Sch. 16 para. 82(2)(b); S.I. 2007/2913, art. 3

F18 Words in art. 82(9D) substituted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383(2), Sch. 16 para. 82(3); S.I. 2007/2913, art. 3

F19 Art. 82(10): definitions of "service complaint" and "the service complaint procedures" substituted (1.1.2008) for "the service redress procedures" by Armed Forces Act 2006 (c. 52), ss. 378(1), 383(2), Sch. 16 para. 82(4); S.I. 2007/2913, art. 3

Modifications etc. (not altering text)

C1 Art. 82(9B) modified (24.4.2009) by Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), arts. 1(2)(b), 196(1)(e)

C2 Art. 82(9D) modified (24.4.2009) by Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), arts. 1(2)(b), 196(2)(e)

Art. 83 rep. by SR 2005/426

[F20 The Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve N.I.

84.— (1) For the purposes of Part II, the holding of the office of constable as a police officer shall be treated as employment—

(a) by the Chief Constable as respects any act done by him in relation to that office or a holder of it;

(b) by the Policing Board as respects any act done by it in relation to that office or the holder of it.

(2) Regulations under section 25 or 26 of the Police (Northern Ireland) Act 1998 or section 41 of the Police (Northern Ireland) Act 2000 shall not treat men and women differently except—

(a) as to requirements relating to uniform or equipment or allowances in lieu of uniform or equipment;

(b) so far as special treatment is accorded to women in connection with pregnancy or childbirth; or

(c) in relation to pensions.

(3) Nothing in Part II renders unlawful any discrimination between male and female constables as to matters such as are mentioned in paragraph (2)(a).

(4) For the purposes of Article 42—

(a) the holding of the office of constable as a police officer shall be treated as employment by the Chief Constable (and as not being employment by any other person); and

(b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(5) There shall be paid out of funds put at the disposal of the Chief Constable under section 10(5) of the Police (Northern Ireland) Act 2000—

(a) any compensation, damages or costs awarded against the Chief Constable in any proceedings brought against him under this Order, and any costs incurred by him in any such proceedings so far as not recovered by him the proceedings; and

(b) any sum required by the Chief Constable for the settlement of any claim made against him under this Order if the settlement is approved by the Policing Board.

(6) The Chief Constable may, in such cases and to such extent as appear to him to be appropriate, pay—

(a) any compensation, damages or costs awarded in proceedings under this Order against a police officer;

(b) any costs incurred and not recovered by a police officer in such proceedings; and

(c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings if the settlement is approved by the Policing Board.

(7) The Chief Constable may make arrangements for the legal representation of a police officer in any proceedings mentioned in paragraph (6).

(8) Paragraphs (1) and (4) to (7)—

(a) apply in relation to a person serving with the Police Service of Northern Ireland by virtue of section 98 of the Police Act 1996 or[F21 section 23 or 24 of the Serious Organised Crime and Police Act 2005] as they apply in relation to a police officer;

(b) apply in relation to a police officer who by virtue of paragraph 7(2)(a) or 8(4)(a) of Schedule 3 to the Police (Northern Ireland) Act 1998 is under the direction and control of the Police Ombudsman for Northern Ireland as if—

(i) in paragraph (1) the reference to the Chief Constable included a reference to the Ombudsman;

(ii) in paragraphs (4), (6) and (7) the references to the Chief Constable were references to the Ombudsman.

F20 2000 c. 32

F21 Words in art. 84(8)(a) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178(8), Sch. 4 para. 37; S.I. 2006/378, art. 4(1), Sch. para. 10

Other police bodies N.I.

85.— (1) For the purposes of Part II, the holding of the office of constable otherwise than as a police officer shall be treated as employment—

(a) by the chief officer of police as respects any act done by him in relation to that office or a holder of it;

(b) by the police authority as respects any act done by it in relation to that office or the holder of it.

(2) For the purposes of Article 42—

(a) the holding of the office of constable otherwise than as a police officer shall be treated as employment by the chief officer of police (and as not being employment by any other person); and

(b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(3) There shall be paid out of the police fund—

(a) any compensation, damages or costs awarded against a chief officer of police in any proceedings brought against him under this Order, and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b) any sum required by a chief officer of police for the settlement of any claim made against him under this Order if the settlement is approved by the police authority.

(4) A police authority may, in such cases and to such extent as appear to it to be appropriate, pay out of the police fund—

(a) any compensation, damages or costs awarded in proceedings under this Order against a person under the direction and control of the chief officer of police;

(b) any costs incurred and not recovered by such a person in such proceedings; and

(c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.

(5) A police authority may make arrangements for the legal representation of any person under the direction and control of the chief officer of police in any proceedings mentioned in paragraph (4).

[F22 (6) In this Article in relation to any body of constables—

(a) “chief officer of police” means the person who has the direction and control of the body;

(b) “police authority” means the authority by which the members of the body are paid; and

(c) “police fund” means money provided by that authority.]

(7) Nothing in paragraphs (3) to (6) applies in relation to the police.]

F20 2000 c. 32

F22 Art. 85(6) substituted (1.4.2006) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 59, 178(8), Sch. 4 para. 38; S.I. 2006/378, art. 4(1), Sch. para. 10