PART VIPROTECTION FROM SUFFERING DETRIMENT ETC. IN EMPLOYMENT
CHAPTER IRIGHTS NOT TO SUFFER DETRIMENT
F1Jury service67M
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee—
a
has been summoned under the Juries (Northern Ireland) Order F21996 (NI 6) or the Coroners (Northern Ireland) Act 1959 (c.15) to attend for service as a juror, or
b
has been absent from work because he attended at any place in pursuance of being so summoned.
2
This Article does not apply where the detriment in question amounts to dismissal within the meaning of Part XI.
3
For the purposes of this Article, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration.
4
In paragraph (3) “a relevant period” means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in paragraph (1)(a).
Health and safety cases68
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—
a
having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,
b
being a representative of workers on matters of health and safety at work or member of a safety committee—
i
in accordance with arrangements established under or by virtue of any statutory provision, or
ii
by reason of being acknowledged as such by the employer,
the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,
F3ba
the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations (Northern Ireland) 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),
c
being an employee at a place where—
i
there was no such representative or safety committee, or
ii
there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,
d
in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or
e
in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
2
For the purposes of paragraph (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.
3
An employee is not to be regarded as having been subjected to any detriment on the ground specified in paragraph (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.
F5Working time cases68A
1
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker-
a
refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations (Northern Ireland) 1998,
b
refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,
c
failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations,
d
being—
i
a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or
ii
a candidate in an election in which any person elected will, on being elected, be such a representative,
performed (or proposed to perform) any functions or activities as such a representative or candidate,
e
brought proceedings against the employer to enforce a right conferred on him by those Regulations, or
f
alleged that the employer had infringed such a right.
2
It is immaterial for the purposes of paragraph (1)(e) or (f)—
a
whether or not the worker has the right, or
b
whether or not the right has been infringed,
but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.
3
It is sufficient for paragraph (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.
4
This Article does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part XIF6. . . .
F75
A reference in this Article to the Working Time Regulations (Northern Ireland) 1998 includes a reference to
a
the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.
c
the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008F42; and
F43d
the Merchant Shipping (Hours of Work) Regulations 2002.
Trustees of occupational pension schemes69
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.
2
F112A
This Article applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).
3
In this Article “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the [1993 c. 49.] Pension Schemes (Northern Ireland) Act 1993) established under a trust.
Employee representatives70
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being—
a
b
a candidate in an election in which any person elected will, on being elected, be such an employee representative,
he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.
F141A
An employee has the right not to be subjected to any detriment by any act, or by any deliberate failure to act, by his employer done on the ground of his participation in an election of employee representatives for the purposes of Part XIII of this Order or F15regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006F16or regulations 9, 13 and 15 of the Service Provision Change (Protection of Employment) Regulations 2006 .
F18Employees exercising right to time off work for study or training70A
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer or the principal (within the meaning of Article 91A(3)) done on the ground that, being a person entitled to—
a
time off under Article 91A(1) or (3), and
b
remuneration under Article 91B(1) in respect of that time taken off,
the employee exercised (or proposed to exercise) that right or received (or sought to receive) such remuneration.
F20Protected disclosures70B
1
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
2
F21. . . this Article does not apply where—
a
the worker is an employee, and
b
the detriment in question amounts to dismissal (within the meaning ofF21 Part XI).
3
For the purposes of this Article, and of Articles 71 and 72 so far as relating to this Article, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by Article 67K.
F22Leave for family and domestic reasons70C
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.
2
A prescribed reason is one which is prescribed by regulations made by the Department and which relates to—
a
pregnancy, childbirth or maternity,
F44aa
time off under Article 85ZE,
F45ab
time off under Article 85ZJ or 85ZL,
b
ordinary, compulsory or additional maternity leave,
F23ba
ordinary or additional adoption leave,
F46bb
shared parental leave,
c
parental leave,
F24ca
ordinary or additional paternity leave, or
d
time off under Article 85A.
3
A reason prescribed under this Article in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement.
F474
An agency worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the temporary work agency or the hirer done on the ground that—
a
being a person entitled to the following time off or remuneration, the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration—
i
time off under Article 85ZA, and
ii
remuneration under Article 85ZB in respect of that time off,
b
being a person entitled to time off under Article 85ZG, the agency worker exercised (or proposed to exercise) that right,
c
being a person entitled to the following time off or remuneration, the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration—
i
time off under Article 85ZN, and
ii
remuneration under Article 85ZO in respect of that time off, or
d
being a person entitled to time off under Article 85ZP, the agency worker exercised (or proposed to exercise) that right.
5
Paragraph (4) does not apply where the agency worker is an employee.
6
In this Article, the following have the same meaning as in the Agency Workers Regulations (Northern Ireland) 2011 (see regulations 2(2), 3 and 4 of the regulations)—
“agency worker”,
“hirer”,
“temporary work agency”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F25
F26 Flexible workingF2770E
1
An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee—
a
made (or proposed to make) an application under Article 112F,
b
exercised (or proposed to exercise) a right conferred on him under Article 112G,
c
brought proceedings against the employer under Article 112H, or
d
alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.
2
This Article does not apply where the detriment in question amounts to dismissal within the meaning of Part XI.
Complaints to industrial tribunalsC171
1
F331ZA
A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 68A.
F341A
A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.
F491AA
An agency worker may present a complaint to an industrial tribunal that the agency worker has been subjected to a detriment in contravention of Article 70C(4) by the temporary work agency or the hirer.
F351B
A person may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70D.
F512A
On a complaint under paragraph (1AA) it is for the temporary work agency or (as the case may be) the hirer to show the ground on which any act, or deliberate failure to act, was done.
C2C3C4C93
An industrial tribunal shall not consider a complaint under this Article unless it is presented—
a
before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or
b
within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
C2C3C4C94
For the purposes of paragraph (3)—
a
where an act extends over a period, the “date of the act” means the last day of that period, and
b
a deliberate failure to act shall be treated as done when it was decided on;
and, in the absence of evidence establishing the contrary, an employer F52, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.
C3F295
In this Article and Article 72 any reference to the employer includes, where a person complains that he has been subjected to a dertiment in contravention of Article 70A, the principal (within the meaning of Article 91A(3)).
F536
In—
a
this Article, “agency worker”, and
b
this Article and Article 72, “hirer” and “temporary work agency”,
have the same meaning as in the Agency Workers Regulations (Northern Ireland) 2011.
RemediesC5C1072
C6C7C81
Where an industrial tribunal finds a complaint under F54Article 71(1), (1ZA), (1A) or (1B) well-founded, the tribunal—
a
shall make a declaration to that effect, and
b
may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.
F551A
Where an industrial tribunal finds a complaint under Article 71(1AA) well-founded, the tribunal—
a
shall make a declaration to that effect, and
b
may make an award of compensation to be paid by the temporary work agency or (as the case may be) the hirer to the complainant in respect of the act or failure to act to which the complaint relates.
C6C7C82
F36Subject toF37 paragraphs (5A) and (6), the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—
a
the infringement to which the complaint relates, and
b
any loss which is attributable to the act, or failure to act, which infringed the complainant's right.
C6C7C83
The loss shall be taken to include—
a
any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and
b
loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.
C6C7C84
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 Northern Ireland.
C6C7C85
Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
F375A
Where—
a
the complaint is made under Article 71(1ZA),
b
the detriment to which the worker is subjected is the termination of his worker's contract, and
c
that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part XI if the worker had been an employee and had been dismissed for the reason specified in Article 132A.
F366
Where—
a
the complaint is made under Article 71(1A),
b
the detriment to which the worker is subject is the termination of his worker's contract, and
c
that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part XI if the worker had been an employee and had been dismissed for the reason specified in Article 134A.
F387
Where—
a
the complaint is made under Article 71(1B) by a person who is not an employee, and
b
the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002,
any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 11 if the complainant had been an employee and had been dismissed for the reason specified in Article 135B.
F39Application to police of Article 68 and related provisions72A
1
For the purposes of Article 68, and of Articles 71 and 72 so far as relating to that Article, the holding, otherwise than under a contract of employment, of the office of constable -shall be treated as employment by the relevant officer under a contract of employment.
F402
In this Article “the relevant officer”, in relation to a person holding the office of constable, means the person who under Article 47A of the Health and Safety at Work (Northern Ireland) Order 1978 is to be treated as his employer for the purposes of Part II of that Order.