The Employment Rights (Northern Ireland) Order 1996

PART XVN.I.MISCELLANEOUS

CHAPTER IN.I.PARTICULAR TYPES OF EMPLOYMENT

Crown employment etc.N.I.

Crown employmentN.I.

236.—(1) Subject to Articles 237 and 238, the provisions of this Order to which this Article applies have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees or workers.

(2) This Article applies to—

(a)Parts I to[F1 IXA,],

(b)in Part X, Articles 124 and 125,

(c)Part XI, and

(d)this Part and Part XVI.

(3) In this Order “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision.

(4) For the purposes of the application of provisions of this Order in relation to Crown employment in accordance with paragraph (1)—

(a)references to an employee or a worker shall be construed as references to a person in Crown employment,

(b)references to a contract of employment, or a worker's contract, shall be construed as references to the terms of employment of a person in Crown employment,

(c)references to dismissal, or to the termination of a worker's contract, shall be construed as references to the termination of Crown employment,

(d)references to redundancy shall be construed as references to the existence of such circumstances as are treated, in accordance with any arrangements falling within Article 212(3) or (4) for the time being in force, as equivalent to redundancy in relation to Crown employment,F2. . .

[F3(dd)the reference in Article 130B(2)(a) to the employer's undertaking shall be construed as a reference to the national interest, and]

(e)[F3any other reference] to an undertaking shall be construed—

(i)in relation to a Minister of the Crown, as references to his functions or (as the context may require) to the department of which he is in charge, and

(ii)in relation to a government department, officer or body, as references to the functions of the department, officer or body or (as the context may require) to the department, officer or body.

(5) Where the terms of employment of a person in Crown employment restrict his right to take part in—

(a)certain political activities, or

(b)activities which may conflict with his official functions,

nothing in Article 78 requires him to be allowed time off work for public duties connected with any such activities.

(6) Part II applies in relation to Crown employment otherwise than under a contract only where the terms of employment correspond to those of a contract of employment.

(7) Article 27, and the other provisions of Part II applying in relation to that Article, bind the Crown so far as they relate to the activities of an employment agency in relation to employment to which those provisions apply.

(8) Articles 194 and 195 are without prejudice to any exemption or immunity of the Crown.

Armed forcesN.I.

237.—(1) Article 236—

(a)applies to service as a member of the naval, military or air forces of the Crown but subject to the following provisions of this Article, and

(b)applies to employment by an association established for the purposes of Part VI of the [1980 c. 9.] Reserve Forces Act 1980.

(2) The provisions of this Order which have effect by virtue of Article 236 in relation to service as a member of the naval, military or air forces of the Crown are—

(a)Parts I and III,

[F4(aa)in Part VI, [F5Articles [F667M] 68A, 70C and 70D] and Articles 71 and 72 so far as relating to [F7those Articles],]

Sub‐para. (ab) rep. by 2002 c. 21

(b)in Part VII, Articles[F8 83 to 85B],

(c)Parts VIII and IX,

(d)in Part X, Articles 124 and 125,

(e)Part XI, apart from Articles[F9 130B(2)] 132 to 134[F10,135C] and 136, and

(f)this Part and Part XVI.

(3) The Department may by order—

(a)amend paragraph (2) by making additions to, or omissions from, the provisions for the time being specified in that paragraph, and

(b)make any provision for the time being so specified apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the order,

but no provision contained in Part IV may be added to the provisions for the time being specified in paragraph (2).

(4) Modifications made by an order under paragraph (3) may include provision precluding the making of a complaint or reference to any industrial tribunal unless the person aggrieved has availed himself of the [F11service complaint procedures] applicable to him.

(5) Where modifications made by an order under paragraph (3) include provision such as is mentioned in paragraph (4), the order shall also include provision designed to secure that the [F12service complaint procedures] result in a determination, or what is to be treated under the order as a determination, in sufficient time to enable a complaint or reference to be made to an industrial tribunal.

(6) In paragraphs (4) and (5)[F13 “the service complaint procedures” means the procedures prescribed by regulations under section 334 of the Armed Forces Act 2006.]

(7) No provision shall be made by virtue of paragraph (4) which has the effect of substituting a period longer than six months for any period specified as the normal period for a complaint or reference.

(8) In paragraph (7) “the normal period for a complaint or reference”, in relation to any matter within the jurisdiction of an industrial tribunal, means the period specified in the relevant statutory provision as the period within which the complaint or reference must be made (disregarding any provision permitting an extension of that period at the discretion of the tribunal).

F4SR 1998/386

F5Words in art. 237(2)(aa) substituted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), ss. 27, 61, Sch. 1 para. 2(5)(a); S.I. 2002/1727, art. 2

F7Words in art. 237(2)(aa) substituted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), ss. 27, 61, Sch. 1 para. 2(5)(b); S.I. 2002/1727, art. 2

F13Art. 237(6): definition of "the service complaint procedures" substituted (31.10.2009) for the definition of "the service redress procedures" by Armed Forces Act 2006 (Consequential Amendments) Order 2009 (S.I. 2009/2054), art. 2, Sch. 1 para. 15(b) (with Sch. 2 para. 9)

[F14National securityN.I.

238.  Part VA and Article 70B do not apply in relation to employment for the purposes of—

(a)the Security Service; or

(b)the Secret Intelligence Service.]

Excluded classes of employmentN.I.

[F15Employment outside Northern IrelandN.I.

239.—(1) The provisions to which this paragraph applies do not apply to employment where under his contract of employment an employee ordinarily works outside Northern Ireland.

(2) Paragraph (1) applies to—

(a)Part II;

(b)[F16Chapters II and III] of Part VI;

(c)Articles 92 to 95;

(d)Articles [F17221 to 222] .

[F16(3) Chapters II and III of Part VI do not apply to employment where under his contract personally to do work or perform services a worker who is not an employee works outside Northern Ireland.]]

[F18(4) For the purposes of paragraph (1) as it relates to Articles 221 to 222, employment on board a ship registered in the United Kingdom is to be treated as employment where under his contract a person ordinarily works in Northern Ireland.]

Art. 240 rep. by SR 2002/298

Short-term employmentN.I.

241.—(1) Articles 33 to 39 do not apply to an employee if his employment continues for less than one month.

(2) The provisions of Part XIII do not apply to employment—

(a)under a contract for a fixed term of three months or less, or

(b)under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

where the employee has not been continuously employed for a period of more than three months.

MarinersN.I.

242.—(1) Articles 33 to 39, Part IV and Articles 118 to 123 do not apply to a person employed as a seaman in a ship registered in the United Kingdom under a crew agreement the provisions and form of which are of a kind approved by the Secretary of State.

(2) Part II, Articles 40 to 42, Part V, Part VI (other than Article 69), Part VII (other than Articles 86 to 88), Parts VIII[F19, IX and IXA], Articles 124 and 125 andF20. . . [F21Parts 11 and 12] do not apply to employment as master, or as a member of the crew, of a fishing vessel where the employee[F22 (or, in the case of Articles 73 to 77F), the worker)] is remunerated only by a share in the profits or gross earnings of the vessel.

Para. (3) rep. by 1999 NI 9

(4) Articles 40 to 42 and 78 to 82 F23... do not apply to employment as a merchant seaman.

(5) In paragraph (4) “employment as a merchant seaman”

(a)does not include employment in the fishing industry or employment on board a ship otherwise than by the owner, manager or charterer of that ship except employment as a radio officer, but

(b)subject to that, includes—

(i)employment as a master or a member of the crew of any ship,

(ii)employment as a trainee undergoing training for the sea service, and

(iii)employment in or about a ship in port by the owner, manager or charterer of the ship to do work of the kind ordinarily done by a merchant seaman on a ship while it is in port.

Para. (6) rep. by SR 2002/298

[F20(7) The provisions mentioned in paragraph (8) apply to employment on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 if and only if—

(a)the ship's entry in the register specifies a port in Northern Ireland as the port to which the vessel is to be treated as belonging;

(b)under his contract of employment the person employed does not work wholly outside Northern Ireland; and

(c)the person employed is ordinarily resident in Northern Ireland.

(8) The provisions are—

(a)Articles 40 to 42;

(b)Parts IV and V and Chapter I of Part VI;

(c)Part VII, apart from Articles 86 to 88;

(d)Parts VIII[F19, IX and IXA];

(e)Articles 124 and 125; and

(f)Part XI.]

Police officersN.I.

243.—(1) Articles 40 to 42, Part V,F24. . . [F25 Article 67M][F26 Article 68A,][F27 Article 70,[F28 Article 70C,] Chapter II of Part VI] Part VII (other than Articles 86 to 88), Parts VIII and IX, Articles 124 and 125, Part XI,[F27 (except Articles 132[F29, 134A] and 169A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 132[F29 or 134A] )]F28. . . and Part XIII do not apply to employment under a contract of employment in police service or to persons engaged in such employment.

(2) Part II does not apply in relation to police service.

(3) In this Article “police service” means—

[F30(a)service as a police officer;]

(b)subject to—

(i)section 126 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), and

(ii)Article 19 of the [1994 NI 1.] Airports (Northern Ireland) Order 1994 (airport constables not to be regarded as in police service),

service in any other capacity by virtue of which a person has the powers or privileges of a constable.

F26SR 1998/386

CHAPTER IIN.I.OTHER MISCELLANEOUS MATTERS

Restrictions on disclosure of informationN.I.

National security etc.N.I.

244.—(1) Where in the opinion of the Secretary of State the disclosure of any information would be contrary to the interests of national security or would endanger public safety or public order—

(a)nothing in any of the provisions to which this Article applies requires any person to disclose the information, and

(b)no person shall disclose the information in any proceedings in any court or tribunal relating to any of those provisions.

(2) This Article applies to—

(a)Part III, so far as it relates to employment particulars,

(b)in Part VI,[F31 Articles[F32 67M] 68, 68A[F33, 70 and 70C]] and Articles 71 and 72 so far as relating to those Articles,

(c)in Part VII, Articles[F33 83 to 85B] and 89 to 91,

(d)in Part VIII, Articles 98 to 100, and Articles 101 and 102 so far as relating to those Articles,

(e)Part IX,

(f)in Part X, Articles 124 and 125 where they apply by virtue of Article 124(4),

(g)Part XI so far as relating to a dismissal which is treated as unfair—

[F33(i)by Article[F32 130B] 131, 132, 132A(d) or 134, or by Article 135 in its application in relation to time of under Article 85A,]

(ii)by paragraph (1) of Article 137 by reason of the application of paragraph[F32 (2A)], (3) or (5) of that Article,[F31 or by reason of the application of paragraph (3A) of that Article in so far as it applies where the reason (or, if more than one, the principal reason) for which an employee was selected for dismissal was that specified in Article 132A(d)] and

(h)Part I, this Part and Part XVI (so far as relating to any of the provisions in sub-paragraphs (a) to (g)).

F31SR 1998/386

Contracting out etc. and remediesN.I.

Restrictions on contracting outN.I.

245.—(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of this Order, or

(b)to preclude a person from bringing any proceedings under this Order before an industrial tribunal.

(2) Paragraph (1)—

(a)does not apply to any provision in a collective agreement excluding rights under Article 60 if an order under Article 67 is for the time being in force in respect of it,

(b)does not apply to any provision in a dismissal procedures agreement excluding the right under Article 126 if that provision is not to have effect unless an order under Article 142 is for the time being in force in respect of it,

(c)does not apply to any provision in an agreement if an order under Article 192 is for the time being in force in respect of it,

Sub‐para. (d) rep. by SR 2002/298

(e)does not apply to any agreement to refrain from instituting or continuing proceedings where the Agency has taken action under Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996, and

(f)does not apply to any agreement to refrain from instituting or continuingF34. . . any proceedings within[F35 the following provisions of Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996 (cases where conciliation available)—

(i)sub-paragraph (c) (proceedings under this Order);

(ii)sub-paragraph (i) (proceedings arising out of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002;

(iii)sub-paragraph (j) (proceedings under those Regulations);]

if the conditions regulating compromise agreements under this Order are satisfied in relation to the agreement, and

(g)does not apply to any provision of a collective agreement excluding rights under Part XIII if an order under Article 226 is in force in respect of it.

(3) For the purposes of paragraph (2)(f) the conditions regulating compromise agreements under this Order are that—

(a)the agreement must be in writing,

(b)the agreement must relate to the particular[F34 proceedings],

(c)the employee or worker must have received[F34 advice from a relevent independent advisor] as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an industrial tribunal.

(d)there must be in force, when the adviser gives the advice, a[F34 contract of insurance, or an indemnity provided for members of a profession or professional body,] covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e)the agreement must identify the adviser, and

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

[F34(3A) A person is a relevant independent adviser for the purposes of paragraph (3)(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)if he is a person of a description specified in an order made by the Department.

(3B) But a person is not a relevant independent adviser for the purposes of paragraph (3)(c) in relation to the employee or worker—

(a)if he is, is employed by or is acting in the matter for the employer or an associated employer,

(b)in the case of a person within paragraph (3A)(b) or (c), if the trade union or advice centre is the employer or an associated employer,

(c)in the case of a person within paragraph (3A)(c), if the employee or worker 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 (3A)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

(4) In paragraph (3A)(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.]

[F34(5) An agreement under which the parties agree to submit a dispute to arbitration—

(a)shall be regarded for the purposes of paragraph (2)(e) and (f) as being an agreement to refrain from instituting or continuing proceedings 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 as neither being nor including such an agreement in any other case.]

F35SR 2002/298

Modifications etc. (not altering text)

Law governing employmentN.I.

246.—(1) For the purposes of this Order it is immaterial whether the law which (apart from this Order) governs any person's employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

Para. (2) rep. by 1999 NI 9

Remedy for infringement of certain rightsN.I.

247.—(1) The remedy of an employee for infringement of any of the rights conferred by Article 40, Parts V to IX, Article 124, Part XI, Part XIII and Part XIV is, where provision is made for a complaint or the reference of a question to an industrial tribunal, by way of such a complaint or reference and not otherwise.

[F36(1ZA) In relation to the right conferred by Article 68A, the reference in paragraph (1) to an employee has effect as a reference to a worker.]

[F37(1A) In relation to the right conferred by Article 70B, the reference in paragraph (1) to an employee has effect as a reference to a worker.]

(2) The remedy of a worker in respect of any contravention of Article 45, 47, 50(1) or 53(1) is by way of a complaint under Article 55 and not otherwise.

[F38(2A) The remedy of a person for infringement of the right conferred on him by Article 73 is by way of a complaint under Article 74 and not otherwise.]

[F38(2B) The remedy of a person for infringement of the right conferred on him by Article 77A or Article 77B is by way of a complaint under that Article and not otherwise.]

(3) The remedy of a person for conduct which is unlawful by virtue of Part II is by way of a complaint to an industrial tribunal in accordance with that Part, and not otherwise.

No other legal liability arises by reason that conduct is unlawful by virtue of that Part.

F36SR 1998/386

Modifications etc. (not altering text)

General provisions about death of employer or employeeN.I.

Institution or continuance of tribunal proceedingsN.I.

248.—(1) Where an employer has died, any tribunal proceedings arising under any of the provisions of this Order to which this Article applies may be defended by a personal representative of the deceased employer.

(2) This Article and Article 249 apply to—

(a)Part III, so far as it relates to itemised pay statements,

(b)Part V,

(c)Part VI,

(d)Part VII, apart from Articles 86 to 88,

(e)Parts VIII and IX,

(f)in Part X, Articles 124 and 125, and

(g)Parts XI to XIV.

(3) Where an employee[F39 or worker] has died, any tribunal proceedings arising under any of the provisions of this Order to which this Article applies may be instituted or continued by a personal representative of the deceased employee[F39 or worker].

(4) If there is no personal representative of a deceased employee[F39 or worker], any tribunal proceedings arising under any of the provisions of this Order to which this Article applies may be instituted or continued on behalf of the estate of the deceased employee[F39 or worker] by any appropriate person appointed by the industrial tribunal.

(5) In paragraph (4) “appropriate person” means a person who is—

(a)authorised by the employee[F39 or worker] before his death to act in connection with the proceedings, or

(b)the[F40 surviving spouse, surviving civil partner], child, parent or brother or sister of the deceased employee[F39 or worker];

and in Part XII and the following provisions of this Article and Article 249 references to a personal representative include a person appointed under paragraph (4).

(6) In a case where proceedings are instituted or continued by virtue of paragraph (4), any award made by the industrial tribunal shall be—

(a)made in such terms, and

(b)enforceable in such manner,

as the Department may by regulations provide.

(7) Any reference in the provisions of this Order to which this Article applies to the doing of anything by or in relation to an employer or employee[F39 or worker] includes a reference to the doing of the thing by or in relation to a personal representative of the deceased employer or employee[F39 or worker].

(8) Any reference in the provisions of this Order to which this Article applies to a thing required or authorised to be done by or in relation to an employer or employee[F39 or worker] includes a reference to a thing required or authorised to be done by or in relation to a personal representative of the deceased employer or employee[F39 or worker].

(9) Paragraphs (7) and (8) do not prevent a reference to a successor of an employer including a personal representative of a deceased employer.

Rights and liabilities accruing after deathN.I.

249.—(1) Any right arising under any of the provisions of this Order to which this Article applies which accrues after the death of an employee[F41 or worker] devolves as if it had accrued before his death.

(2) Where an industrial tribunal determines under any provision of Part XII that an employer is liable to pay to a personal representative of a deceased employee—

(a)the whole of a redundancy payment to which he would have been entitled but for some provision of Part XII or Article 248, or

(b)such part of such a redundancy payment as the tribunal thinks fit,

the reference in paragraph (1) to a right includes any right to receive it.

(3) Where—

(a)by virtue of any of the provisions to which this Article applies a personal representative is liable to pay any amount, and

(b)the liability has not accrued before the death of the employer,

it shall be treated as a liability of the deceased employer which had accrued immediately before his death.

[F42Time limits in relation to certain mediated cross-border disputesN.I.

249A.—(1) Paragraph (2) applies where—

(a)there is mediation in relation to a relevant cross border dispute giving rise to a reference or complaint to an industrial tribunal under this Order; and

(b)the fixed period of time specified by this Order for the making of that reference or complaint (“the limitation period”) would, apart from this Article, expire—

(i)in the period of 8 weeks after the date on which the mediation ends;

(ii)on the date on which the mediation ends; or

(iii)after the date on which all of the parties to the dispute agree to participate in the mediation but before the date on which the mediation ends.

(2) Where this paragraph applies, the limitation period is extended so that it expires on the date falling 8 weeks after the date on which the mediation ends.

(3) For the purposes of paragraph (1) and (2), a mediation in relation to a relevant cross-border dispute ends on the date of the first of these to occur—

(a)all of the parties reach an agreement in resolution of the dispute;

(b)all of the parties agree to end the mediation;

(c)a party notifies all of the other parties of that party's withdrawal,

(d)a period of 14 days expires after a request made by one party to another party for confirmation of whether the other party has withdrawn and the other party does not respond in that period, or

(e)a period of 14 days expires after the date on which the mediator's tenure ends (by reason of death, resignation or otherwise) and a replacement mediator has not been appointed in that period.

(4) In this Article—

“the Directive” means Directive 2008/52/EC of the European Parliament and of the Council of 21st May 2008 on certain aspects of mediation in civil and commercial matters;

“mediation” and “mediator” have the meanings given by Article 3 of the Directive; and

“relevant cross-border dispute” means a cross-border dispute within the meaning given by Article 2 of the Directive.]

Modifications of OrderN.I.

Powers to amend OrderN.I.

250.—(1) The Department may by order—

(a)provide that any provision of this Order which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order,

(b)provide that any provision of this Order shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed, or

(c)vary, or exclude the operation of, any of the provisions to which this sub-paragraph applies.

(2) Paragraph (1)(c) applies to Articles 61(2), 97(2), 118(5), 124(3), 140(1), F43. . . , 194, 195(1), 239F44. . . , Article 241(2) and 242(1), (2), (4) and (5).

Paras. (3), (4) rep. by 1999 NI 9

(5) The provisions of this Article are without prejudice to any other power of the Department to amend, vary or repeal any provision of this Order or to extend or restrict its operation in relation to any person or employment.