Fair Employment (Northern Ireland) Act 1989 F1(repealed 1.3.1999)

1989 c. 32

Annotations:

Amendments (Textual)

Act repealed (1.3.1999) by S.I. 1998/3162 (N.I. 21), art. 105(4), Sch. 5 (subject to savings in art. 105(2), Sch. 4 para. 6); S.R. 1999/81, art. 3(1)

Part I The Fair Employment Commission, the Fair Employment Tribunal and the functions of the Commission and the Tribunal

The Fair Employment Commission for Northern Ireland

1 The Fair Employment Commission.

1

The body corporate established by section 1 of the M1Fair Employment (Northern Ireland) Act 1976 with the name of the Fair Employment Agency for Northern Ireland shall be known instead as “the Fair Employment Commission for Northern Ireland”; and in this Act the Fair Employment Commission for Northern Ireland is referred to as “the Commission”.

2

In section 1(1) of the Fair Employment (Northern Ireland) Act 1976 (general duties of Commission) after paragraph (a) there is inserted—

aa
promoting affirmative action;

3

References in the Fair Employment (Northern Ireland) Acts to the Commission include, in relation to any time before the commencement of subsection (1) above, references to the Fair Employment Agency for Northern Ireland.

The Fair Employment Tribunal for Northern Ireland

2 Constitution of the Tribunal.

1

The Department shall by regulations provide for the establishment of a tribunal, to be known as the Fair Employment Tribunal for Northern Ireland (in this Act referred to as “the Tribunal”), to exercise the jurisdiction conferred on it by the Fair Employment (Northern Ireland) Acts.

2

Regulations under subsection (1) above may provide for the jurisdiction of the Tribunal to be exercised by a single tribunal or by two or more tribunals.

3

The Fair Employment Appeals Board established by section 4 of the M2Fair Employment (Northern Ireland) Act 1976 is hereby abolished.

4

Any appeal that has been made to the Fair Employment Appeals Board under Part II of the Fair Employment (Northern Ireland) Act 1976 and has not been determined before the commencement of this section shall be determined by the Tribunal; and the provisions of that Part relating to appeals have effect in relation to such an appeal as if references to the Board were references to the Tribunal.

3 The President and Vice-President.

1

There shall be—

a

a President of the F2Employment Tribunals and the Fair Employment Tribunal (in this Part of this Act referred to as “the President”),

b

a Vice-President of the F2Employment Tribunals and the Fair Employment Tribunal (in this Part of this Act referred to as “the Vice-President”), and

c

a panel of chairmen of the Fair Employment Tribunal,

who shall each be appointed by the Lord Chancellor and shall exercise the functions respectively conferred on them by or under the Fair Employment (Northern Ireland) Acts or any other enactment.

2

A person is not qualified for appointment under subsection (1) above unless he is a barrister or solicitor of not less than seven years’ standing.

3

The President and Vice-President may each resign his office at any time by notice in writing to the Lord Chancellor and shall each vacate his office F3on the day on which he attains the age of 70, but subject to subsection (4) below and subsections (4) to (6) of section 26 of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).

4

If, in the opinion of the Lord Chancellor, the President or Vice-President is unfit to continue in office or is incapable of performing his duties, the Lord Chancellor may revoke his appointment.

5

A person appointed under subsection (1)(c) above to a panel of chairmen shall hold and vacate office as provided by or under regulations under section 2(1) of this Act.

6

The functions of the President or Vice-President may, if he is for any reason unable to act or during a vacancy in his office, be discharged by a person nominated for that purpose by the Lord Chancellor.

7

Regulations under section 2(1) of this Act may provide for specified functions of the President and Vice-President (including functions under sections 6 and 17 of this Act) to be exercised in specified circumstances by a person appointed, under subsection (1)(c) above, to a panel of chairmen.

8

Until the first appointment under subsection (1)(a) above takes effect, the President of the F2Employment Tribunals shall be the President.

F49

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Remuneration and allowances.

The Department may pay—

a

to members of the Tribunal, other than the President and Vice-President, such remuneration, fees and allowances, and

b

to any other persons, such allowances for the purposes of, or in connection with, their attendance at the Tribunal,

as the Department may, with the consent of the Department of Finance and Personnel, determine.

5 Tribunal procedure.

1

The Department may by regulations make such provision as appears to it to be necessary or expedient with respect to proceedings before the Tribunal.

2

The regulations may in particular include provision—

a

for determining by which tribunal any appeal, question or complaint is to be determined where the jurisdiction of the Tribunal is being exercised by more than one tribunal,

b

for parties to proceedings to be represented by such persons as may be determined by or under the regulations,

c

for requiring persons to attend to give evidence and produce documents,

d

as to the admissibility of evidence,

e

for authorising the administration of oaths to witnesses,

f

for granting to any person such discovery or inspection of documents or right to further particulars as might be granted by a county court,

g

for enabling an officer of the Tribunal to determine matters arising prior to a hearing,

h

prescribing forms to be completed by the parties to a complaint under Part III of the M3Fair Employment (Northern Ireland) Act 1976 before any hearing before the Tribunal,

j

for enabling the Tribunal to review its decisions, and revoke or vary its orders or awards, in such circumstances as may be determined in accordance with the regulations,

k

for the award of costs or expenses,

l

for taxing or otherwise settling any such costs or expenses (and, in particular, for enabling such costs to be taxed in the county court), and

m

for the registration and proof of determinations of the Tribunal.

3

The Tribunal shall give reasons for its decisions.

4

In relation to proceedings on a complaint under Part III of the M4Fair Employment Northern Ireland) Act 1976, the regulations shall include provision for postponing the hearing of a complaint for such period as may be determined in accordance with the regulations for the purpose of giving an opportunity for the complaint to be settled by way of conciliation and withdrawn.

5

Without prejudice to subsection (1) above, the regulations may enable the Tribunal to sit in private for the purposes of—

a

hearing evidence which in the opinion of the Tribunal relates to matters of such a nature that it would be against the interests of national security, public safety or public order to allow the evidence to be given in public,

b

hearing evidence from any person which in the opinion of the Tribunal is likely to consist of —

i

information which he could not disclose without contravening a prohibition imposed by or under any enactment,

ii

information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person,

iii

information the disclosure of which would cause substantial injury to any undertaking of his or in which he works, or

iv

information the disclosure of which would create a substantial risk that he or another individual would be subject to physical attack or sectarian harassment.

6

The regulations may include provision authorising or requiring the Tribunal, in circumstances specified in the regulations, to send notice or a copy of any document so specified relating to any proceedings before the Tribunal, or of any decision, order or award of the Tribunal, to any person or body so specified.

7

F5Part I of the Arbitration Act 1996 does not apply to any proceedings before the Tribunal.

8

Any person who without reasonable excuse fails to comply with—

a

any requirement imposed by the regulations by virtue of subsection (2)(c) above, or

b

any requirement with respect to the discovery or inspection of documents imposed by the regulations by virtue of subsection (2)(f) above,

is guilty of an offence.

9

A person guilty of an offence under subsection (8) above—

a

is liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

b

if without reasonable excuse the failure continues after conviction, is liable on a second or subsequent summary conviction to a fine not exceeding one-tenth of level 5 on the standard scale for each day on which the failure continues.

10

Where the Tribunal sits in private in accordance with any provision included in the regulations by virtue of subsection (5) above, the Tribunal may make an order prohibiting the disclosure of specified information, except so far as the disclosure is necessary—

a

for the purposes of the proceedings,

b

for communicating to any person the decision of the Tribunal in the proceedings and for communicating the reasons for the decision to any person to whom the Tribunal is required by the regulations to communicate them, or

c

for the purposes of any criminal proceedings or to comply with the order of a court.

11

If a person discloses any information in contravention of an order of the Tribunal under subsection (10) above, he is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

6 Complaints involving matters within the jurisdiction of F6employment tribunal.

1

This section applies where a complaint has been made to the Tribunal under Part III of the M5Fair Employment (Northern Ireland) Act 1976 and it appears to the President or Vice-President that the complaint is one in respect of which—

a

a complaint could be made to an F7employment tribunal on the ground that—

i

the complainant has been unfairly dismissed within the meaning of F8Part XI of the Employment Rights (Northern Ireland) Order 1996., or

ii

a person has committed an act of discrimination against the complainant which is unlawful by virtue of Part III of the Sex Discrimination (Northern Ireland) Order 1976, or

F9iii

a person has committed an act of discrimination against the complainant which is unlawful by virtue of Part II of the Race Relations (Northern Ireland) Order 1997; or

b

a complaint has been made to an F7employment tribunal on that ground, but the proceedings under the F10Employment Rights (Northern Ireland) Order 1996 or the M6Sex Discrimination (Northern Ireland) Order 1976 F11or the Race Relations (Northern Ireland) Order 1997have not been disposed of.

2

Where this section applies and the President or Vice-President considers that any matters which would otherwise fall to be determined by an F7employment tribunal could appropriately be heard and determined by the Tribunal, he may direct that those matters shall be so heard and determined.

F123

Where a direction is made under subsection (2) that any matters shall be heard and determined by the Tribunal, then—

a

for the purpose of complying with that direction, the Tribunal shall, in relation to those matters, have the jurisdiction, and may exercise all the powers, of an F7employment tribunal;

F13none of the following, namely—

i

Article 63(3) of the Sex Discrimination (Northern Ireland) Order 1976;

ii

Article 11(5) of the Industrial Tribunals (Northern Ireland) Order 1996;

iii

Article 52(3) of the Race Relations (Northern Ireland) Order 1997,

shall apply in relation to the hearing and determination of those matters by the Tribunal.

c

F14Articles 16 and 17 of the Industrial Tribunals (Northern Ireland) Order 1996 (recovery of, and interest on, sums awarded by F15employment tribunals) shall apply in relation to any sum payable in pursuance of a decision of the Tribunal in relation to any such matters as it applies in relation to a sum payable in pursuance of a decision of an industrial tribunal; and

d

F16Article 22 of the Industrial Tribunals (Northern Ireland) Order 1996 (appeals against decisions of F15employment tribunals) shall apply in relation to a decision of the Tribunal in relation to any such matters as it applies in relation to a decision of an employment tribunal.

Code of practice

7 Code of practice for the promotion of equality of opportunity.

1

The Commission shall maintain a code of practice for the promotion of equality of opportunity and publish the code as for the time being in force.

2

The Commission shall take such steps as it considers necessary to publicise the code.

3

The Commission and the Department shall each take such steps as they consider necessary to encourage employers and vocational organisations in Northern Ireland to adopt the policies and practices recommended in the code.

4

Where the Commission, in carrying out its functions under this Act, is considering whether or not action is required for promoting equality of opportunity, it shall have such regard to the recommendations contained in the code as it considers proper in all the circumstances.

5

A failure on the part of any person to observe any provision of the code shall not of itself render him liable to any proceedings; but if, in any proceedings under the Fair Employment (Northern Ireland) Acts before the Tribunal, any provision of the code appears to the Tribunal to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

8 Contents of the code.

1

The guide to good manpower policy and practice having effect under section 5 of the M7Fair Employment (Northern Ireland) Act 1976 at the commencement of section 7 of this Act shall be the first code of practice under that section.

2

Subject to section 9 of this Act, the Commission may from time to time revise the whole or any part of the code.

3

The Commission shall exercise its powers under this section so that the code contains such practical guidance as the Commission thinks fit for the promotion of equality of opportunity, including the elimination of discrimination.

4

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

5

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

6

In the course of preparing any draft for publication under subsection (4) above the Commission shall consult—

a

with the Standing Advisory Commission on Human Rights,

b

with such organisations appearing to it to be representative of employers, of organisations of workers and of persons engaged in occupations in Northern Ireland as it thinks fit, and

c

with such other persons as it thinks fit.

9 Approval of code.

v

the persons who have applied to have, or have had, conferred on them any qualification such as is mentioned in subsection (1)(f) above, and

b

into practices—

i

affecting the recruitment, admission to membership or access to benefits or services of persons belonging to any class referred to in paragraph (a) above or the terms of employment or membership or provision of benefits or services applicable to such persons,

ii

involving any detriment to such persons, or

iii

affecting the conferring or holding of any qualification such as is mentioned in subsection (1)(f) above,

including practices discontinued before the time of the investigation so far as relevant for explaining the composition of the class of persons in question at that time.

3

Schedule 1 to this Act has effect with respect to the conduct of investigations under this section.

Undertakings or directions for promoting equality of opportunity

12 Undertaking following investigation under section 11.

1

The following provisions of this section apply where, following an investigation under section 11 of this Act, the Commission is of the opinion any of the persons mentioned in subsection (1) of that section ought to take action for promoting equality of opportunity.

2

The Commission shall use its best endeavours—

a

to ensure that the person concerned takes such action for promoting equality of opportunity as is, in all the circumstances, reasonable and appropriate, and

b

where appropriate, to secure a satisfactory written undertaking by him that such action will be taken.

3

Where the Commission asks the person concerned for an undertaking, on such terms as appear satisfactory to the Commission, to take such action as is mentioned in subsection (2)(a) above, then—

a

if the undertaking is not given, the Commission shall serve on the person concerned a notice containing directions such as are mentioned in section 14(1) of this Act, and

b

if the undertaking, although given, is not complied with, the Commission shall either—

i

serve on him such a notice containing such directions (which shall supersede the undertaking), or

ii

make an application to the Tribunal under section 16 of this Act for enforcement of the undertaking.

4

Subsection (3) above does not apply in any case where the Commission decides that no further action by it is appropriate.

5

The reference in subsection (1) above to an investigation under section 11 of this Act includes a reference to an investigation made by the Fair Employment Agency for Northern Ireland under section 12 of the M11Fair Employment (Northern Ireland) Act 1976 before the commencement of this section.

13 Voluntary undertakings.

1

Any of the persons mentioned in section 11(1) of this Act may give a written undertaking to the Commission if the Commission informs him—

a

that, in exercising its functions under this Act, the Commission has formed the opinion that he ought to take action for promoting equality of opportunity, or

b

that it appears to the Commission from any decision of the Tribunal in proceedings under Part III of the Fair Employment (Northern Ireland) Act 1976, or from any evidence given in such proceedings, that he ought to take such action.

2

An undertaking under this section shall be in such terms as appear satisfactory to the Commission for the purpose of ensuring that the person giving it takes such action for promoting equality of opportunity as is, in all the circumstances, reasonable and appropriate.

3

If an undertaking given by a person under this section is not complied with, the Commission shall either—

a

serve on him a notice containing directions (which shall supersede the undertaking) such as are mentioned in section 14(1) of this Act, or

b

make an application to the Tribunal under section 16 of this Act for enforcement of the undertaking.

4

Subsection (3) above does not apply in a case where the Commission decides that no further action by it is appropriate.

5

Subsection (3) above does not apply in relation to an undertaking given by any of the authorities specified in subsection (1) of section 54 of the Fair Employment (Northern Ireland) Act 1976, but where an undertaking given under this section by such an authority is not complied with the Commission shall send a report of the circumstances of the failure to comply with it to the person to whom a report under subsection (2) of that section following an investigation relating to the authority would be sent.

14 Directions under sections 12 and 13.

1

The directions contained in a notice under section 12(3)(a) or (b)(i) or section 13(3)(a) of this Act shall be those which the Commission considers to be, in all the circumstances, reasonable and appropriate for promoting equality of opportunity, and the directions may in particular include—

a

directions for the abandonment, or for the modification in accordance with any instructions given in the directions, of any practice or for the substitution or adoption of new practices specified by the Commission, and

b

such directions as the Commission considers necessary to ensure that other directions are duly carried out,

but the terms of the directions contained in a notice under section 12(3)(b)(i) or 13(3)(a) shall be such as, in the opinion of the Commission, are not substantially more onerous than the terms of the undertaking which they supersede.

2

A notice under section 12(3)(a) or (b)(i) or section 13(3)(a) of this Act shall inform the person on whom it is served of the right of appeal against the directions which is conferred by section 15 of this Act.

3

The Commission, on the written application of the person on whom a notice under section 12(3)(a) or (b)(i) or section 13(3)(a) of this Act is served, may—

a

revoke all of the directions, or

b

modify the directions in accordance with the application—

i

by revoking any of them, or

ii

by substituting new directions for all or any of them,

Directions substituted under subsection (3)(c) above are binding on the appellant and are enforceable only in accordance with section 16 of this Act.

16 Order of Tribunal to enforce undertaking or directions.

1

Where—

a

an undertaking to take action for promoting equality of opportunity—

i

which has been given to the Commission under section 12(2) or 13 of this Act and has not been superseded by directions given by the Commission, or

ii

which has been given to the Commission under section 14(3) of this Act,

has not been complied with within such period as the Commission considers reasonable,

b

directions given by the Commission or substituted by the Tribunal under section 15 of this Act for directions given by the Commission have not been complied with within such period as the Commission considers reasonable, or

c

in relation to the first order under that subsection, the commencement of this section, and

b

in relation to each subsequent order, the last occasion when the sum specified in subsection (3)(b) above was altered.

8

The Department shall pay into the Consolidated Fund of Northern Ireland any sums received in respect of penalties under this section.

18 Appeal to Court of Appeal from certain decisions of Tribunal.

b

a person who is seeking to become engaged in, or is engaged in, any occupation,

he has in any circumstances the same opportunity of a kind mentioned in subsection (4) below as that other person has or would have in those circumstances, due allowance being made for any material difference in their suitability.

3

For the purposes of subsection (2) above, a person is not to be treated as not having the same opportunity as another person has or would have by reason only of anything lawfully done in pursuance of affirmative action.

4

The kinds of opportunity referred to in subsection (2) above are—

a

in relation to an employment, the opportunity to be considered, and to be submitted for consideration, for the employment, and to have and hold it on any terms, with access to all benefits connected with it and without being subjected to any detriment, and

b

in relation to an employment or an occupation—

i

the opportunity to become, and remain, on any terms a member of any vocational organisation which exists for purposes of the employment or the occupation (or for purposes of employments or occupations of any class which includes the employment or occupation), with access to all the benefits of membership and without being subjected to any detriment, and

ii

where services in connection with training for the employment are provided by a person other than the employer, or where services in connection with training for the occupation are provided by any person, the opportunity to have those services on any terms, with access to all benefits connected with them, and

iii

the opportunity to have conferred on him, and to hold, on any terms any qualification which is needed for, or facilitates, his engagement in the employment or the occupation.

21 Interpretation of Part I.

1

In this Part of this Act—

“affirmative action” has the meaning given by section 58 of this Act,
“the Commission” means the Fair Employment Commission for Northern Ireland,
“equality of opportunity” has the meaning given by section 20 of this Act,
“the President” means the President of the F22Employment Tribunals and the Fair Employment Tribunal,
“the Tribunal” means the Fair Employment Tribunal for Northern Ireland,
“the Vice-President” means the Vice-President of the F22Employment Tribunals and the Fair Employment Tribunal;

and other expressions used in this Part and in the M16Fair Employment (Northern Ireland) Act 1976 have the same meaning as in that Act.

2

Any reference in this Part of this Act to the promotion of equality of opportunity includes a reference to the promotion of affirmative action and, accordingly, any reference to action for promoting equality of opportunity includes a reference to affirmative action.

Part II New duties of employers in respect of their workforces

The register

22 The register of concerns in which people are employed.

1

The Commission shall keep, in such form as the Commission may determine, a register of trades, businesses and other activities (whether carried on for profit or not) in which people are employed.

2

References in this Part of this Act to a concern are to any such trade, business or other activity and include any activity in the service of the Crown, but only to the extent provided by section 26 of this Act.

3

The Commission shall, on an application under section 23 of this Act, enter in the register the description of the concern given in the application, the name and address of the employer so given and the date of entry in the register and serve on the applicant notice of the contents and date of the entry.

4

The Commission shall provide facilities for making the information contained in the entries in the register available for inspection (in visible and legible form) by members of the public during normal office hours free of charge and any person shall be entitled to obtain from the Commission a copy of the information contained in all or any of the entries in the register upon payment of such reasonable fee as the Commission may fix.

any person connected with the employer,

and references to the employer’s concern shall be interpreted accordingly.

9

This section does not apply to any person who is a public authority for the purposes of sections 27 to 37 of this Act or to any person falling within section 25(3)(a) or (b) of this Act.

24 Rectification of the register.

1

Where a person becomes an employer in relation to a concern that is already a registered concern, he shall, within the period of one month beginning with his becoming such an employer, apply to the Commission for his name and address to be entered in the register and the Commission shall include in the entry in the register the name and address given in the application.

2

If an employer who is required so to apply fails to do so within that period, he is guilty of an offence.

3

A person guilty of an offence under subsection (2) above—

a

is liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

a person appearing to the Department to exercise functions of a public nature.

26 Certain public authorities to be treated as employers.

1

For the purposes of sections 27 to 37 of this Act, any reference to an employer includes any person who is a public authority for the purposes of those sections.

2

For the purposes of those sections, in relation to any such authority—

a

“employee” includes any person in the service of the Crown for the purposes of the functions of the authority, but an order under section 25 of this Act may specify the persons who are to be treated for the purposes of those sections as the employees of that authority, and

b

“concern” means the activities of those who are the employees of the authority for the purposes of those sections.

3

Those sections shall apply in relation to a person who becomes an employer for the purposes of those sections by virtue of an order under section 25 of this Act as if his concern were a registered concern and the description of his concern had been entered in the register on the commencement of the order (without prejudice to the effect of any previous order).

4

The Department shall not exercise the power conferred by section 25 of this Act so that a person becomes an employer for the purposes of those sections unless it appears to the Department that any of the people—

a

who are employed by that person or are in the service of the Crown for the purposes of the functions of that person, or

b

who are to be treated by virtue of the order as so employed or as in such service,

are employed or serve in Northern Ireland.

Monitoring the workforce

27 Monitoring returns.

1

For the purpose of enabling the composition of those employed in a registered concern in Northern Ireland to be ascertained, the employer shall prepare for each year and serve on the Commission a return (in this Part of this Act referred to as a “monitoring return”) in a form provided by or on behalf of the Department.

2

A monitoring return shall contain such information about the employees of the employer as may be prescribed.

3

For the purpose of enabling the composition of those applying to fill vacancies for employment in Northern Ireland in any concern of a person who is a public authority for the purposes of this section to be ascertained, the employer shall include in a monitoring return such information as may be prescribed.

4

an employer who without reasonable excuse serves on the Commission a monitoring return which is not prepared in accordance with the regulations or does not contain the prescribed information is guilty of an offence and liable on summary conviction to a fine not exceeding £10,000, and

ii

if a person knowingly gives any false information to another who, with a view to including any information in a monitoring return to be served on the Commission, is seeking information or knowingly includes any false information in such a monitoring return, he is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale,

F24ff

provide that, subject to such exceptions as may be prescribed, a person who discloses—

i

any information of a prescribed description which is obtained or used in pursuance of the regulations for the purposes of preparing any monitoring return, or

ii

the determination by an employer of the community to which a person employed or applying for employment in a concern is to be treated as belonging for the purposes of monitoring,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale,

g

require the Commission to maintain a list classifying each school in Northern Ireland, or each school in Northern Ireland in any class specified by the Department, for the purposes of monitoring and to publish the list from time to time, and

h

make different provision for different cases.

3

The regulations may authorise or require the employer to determine which community (if any) a person employed or applying for employment in the concern is to be treated as belonging to for the purposes of monitoring by applying the principal method, or one of the principal methods, prescribed or, where that method does not enable him to make that determination or, as the case may be, none of those methods enables him to make that determination, by applying the residuary method, or one of the residuary methods, prescribed; so that, for example—

a

where an applicant—

i

has stated that he attended a particular primary school, being a school classified in any list maintained by virtue of subsection (2)(g) above as a school attended mainly by members of a particular community, or

ii

has stated that he belongs to a particular community,

the employer may be required to determine that he is to be treated as belonging to the community concerned, and

b

where, in any case not within paragraph (a) above, the employer has information about the applicant, being information which the employer is authorised by the regulations to take into account as tending to show that the person to whom it relates has a connection with a particular community, the employer may be required to determine the community to which the applicant is to be treated as belonging by reference to that information.

4

The regulations may require compliance with any direction of the Commission to a particular employer to apply the prescribed methods for determining the community to which a person is to be treated as belonging for the purposes of monitoring in a manner different from that otherwise authorised or required by the regulations.

5

Subsections (2) to (4) above do not prejudice the generality of subsection (1) above.

29 Monitoring applicants.

a

the date of the disclosure, or

b

if he has previously been required to give any information under this subsection, the date on which he was last required to do so.

8

A requirement under this section to give any information in respect of a registered concern—

a

shall be made by notice served on the employer, and

b

shall specify the time by which the information is to be given,

and the reference in subsections (1), (6) and (7) above to the date of the requirement is to the date on which the notice was served.

9

A notice under this section served on the person whose name and address is for the time being included in the entry for any concern in the register is to be treated as served on the employer.

10

A person required to give any information under this section who fails to comply with the requirement by the specified time is guilty of an offence.

11

A person guilty of an offence under subsection (10) above—

a

is liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

b

12

It is a defence for a person charged with an offence under subsection (10) above to show that he had a reasonable excuse (which may include unreasonable expense or inconvenience) for failing to comply with the requirement by the specified time and, in a case where it was reasonably practicable for him to comply with it after that time, to show that either—

a

he complied with it as soon as was reasonably practicable, or

b

it was not reasonably practicable for him to comply with it before the proceedings were commenced,

and for the purposes of this subsection the making of a complaint is to be treated as the commencement of the proceedings.

13

A person required to give any information under this section who knowingly gives false or misleading information is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

33 Undertakings in connection with monitoring and reviews.

1

The following provisions of this section apply where the Commission is of the opinion, in the light of information received in respect of any registered concern in pursuance of a requirement under section 32 of this Act—

a

b

modify the directions in accordance with the application—

i

by revoking any of them, or

ii

by substituting new directions for all or any of them,

and, in substitution for any directions which are revoked under paragraph (a) above, may accept from the employer an undertaking such as is mentioned in section 33(2) of this Act.

6

The Commission shall serve notice of the revocation or modification on the employer.

7

The directions—

a

are binding on the employer (except to the extent that they are quashed, or other directions are substituted for them, by the Tribunal under section 15 of this Act), and

b

are enforceable only in accordance with section 16 of this Act.

35 Application of sections 15 to 18.

Sections 15 to 18 of this Act shall have effect for the purposes of sections 33 and 34 of this Act as they have effect for the purposes of sections 12 and 14 of this Act but as if—

a

references to section 12(2) or (3) were references to section 33(2) or, as the case may be, (3),

b

references to section 14(3) were references to section 34(5), and

c

for paragraphs (b) and (c) of section 15(2) there were substituted—

b
that in all the circumstances the directions are not appropriate for the purpose in question, or
c
that the appellant is already taking appropriate steps for the purpose in question and the directions are, therefore, unnecessary.

Goals and timetables

36 Notices about goals and timetables.

1

The Commission may serve a notice under subsection (2) below on the person who is the employer in relation to a registered concern where—

a

he gives an undertaking under Part I of this Act to take any action,

b

he has been directed under that Part to take any action, or

c

the Tribunal makes an order under section 16(3)(a) of this Act in relation to an undertaking given by, or directions given to, him to take any action,

being action appearing to the Commission to be affirmative action, and the Commission is of the opinion that, assuming the action is taken, it is practicable to determine, by reference to one or more periods, the progress towards fair participation in employment in the concern that can reasonably be expected to be made by members of a particular community.

2

The notice (“a notice about goals and timetables”) shall specify the period or periods concerned and, in respect of any specified period, the progress that, in the opinion of the Commission, can reasonably be expected to be made towards fair participation by members of the community concerned—

a

in employment, or any class of employment, in the concern in Northern Ireland, or

b

among applicants to fill vacancies for such employment or any class of such employment.

3

Where, by virtue of any undertaking given by, or directions given to, the person who is the employer in relation to a registered concern, such a notice is served on him, the notice shall cease to have effect—

a

if the Tribunal makes an order for the purpose of giving effect to the undertaking or directions or, in the case of directions, the Tribunal or the Commission substitutes for them or any of them other directions, or

b

in the case of directions, if they, or such of them as the notice relates to, are quashed or otherwise cease to have effect, or

c

in the case of an undertaking, if it, or such part of it as the notice relates to, ceases to have effect,

but without prejudice, in a case within paragraph (a) above, to any power to give a new notice.

4

Where a notice about goals and timetables has effect, the Commission may from time to time require the employer to givethe Commission such information as the Commission may specify for the purpose of determining the extent to which the progress specified inthe notice in respect of any period has been made on the date of the requirement.

5

The Commission may not require an employer to give any information under this section before the expiry of the period of six months beginning with—

a

the date of the notice about goals and timetables, or

b

and for the purposes of this subsection the making of a complaint is to be treated as the commencement of the proceedings.

10

A person required to give any information under this section who knowingly gives any false or misleading information is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

37 Power to secure further undertakings or issue further directions.

1

Subsection (2) below applies where, by reason of any undertaking or directions under section 12 of this Act, any directions substituted for such directions by the Tribunal or any order made by the Tribunal for the purpose of giving effect to any such undertaking or directions, a notice has been served on any person under section 36(2) of this Act.

2

If, while the notice has effect, the Commission forms the opinion—

a

that the progress specified in the notice in respect of any period has not been made, and

b

that the person concerned ought to take action for promoting equality of opportunity in addition to the action required to be taken under the existing undertaking or directions,

in the case of a notice served by virtue of subsection (1)(c) above, that he has served on it a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of section 27 of this Act and regulations under section 28 of this Act, or

b

in the case of a notice served by virtue of subsection (1)(d) above, that he is complying, or has fully complied, with the order concerned,

serve notice on him cancelling the notice under subsection (2) above.

6

An application under this subsection may be made by the person on whom the notice under subsection (2) above was served but may not be made before the expiry of the period of six months beginning with—

a

the date of the notice under subsection (2) above, or

b

if he has previously applied under this subsection, the latest date on which he so applied.

7

Where the Commission refuses to grant an application under subsection (6) above, it shall serve notice of that fact on the applicant and the applicant may, within 21 days from the date of the notice, appeal to the Tribunal against the refusal.

8

If, on the appeal, the Tribunal is satisfied—

a

in the case of a notice served by virtue of subsection (1)(c) above, that the appellant has served on the Commission a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of section 27 of this Act and regulations under section 28 of this Act, or

b

in the case of a notice served by virtue of subsection (1)(d) above, that the appellant is complying, or has fully complied, with the order concerned,

the Commission shall serve on him a notice cancelling the notice under subsection (2) above.

9

No action shall lie in respect of any loss or damage that may be suffered in consequence of a notice or purported notice under this section or section 39 of this Act or any failure to give such a notice.

39 Notice stating that connected and other persons are not qualified.

1

Where notice has been served on any employer under section 38(2) of this Act and has not been cancelled, the Commission may serve notice on any of the following persons—

a

any body corporate controlled by him and, if he is a body corporate, any associated body corporate, and

b

any person connected with him,

stating that the person on whom the notice is served is not qualified for the purposes of sections 41 to 43 of this Act.

2

No notice shall be served on any person under subsection (1) above if it appears to the Commission—

a

that it is unlikely that he will execute any work or supply any goods or services for the purposes of any contract—

i

made by a public authority accepting any offer made in response to an invitation by the public authority to submit offers, or

ii

falling within a class or description for the time being specified for the purposes of section 41(3) of this Act to which a public authority is a party, or

b

that, if he executes any work or supplies any goods or services for the purposes of any such contract, it is unlikely that the employer on whom the notice was served under section 38(2) of this Act will benefit, directly or indirectly.

3

Where notice has been served on any person under subsection (1) above, the Commission shall serve notice on him cancelling the notice—

a

if the notice served on the employer under section 38(2) of this Act is cancelled, or

b

if it appears to the Commission, whether on an application under subsection (4) below or otherwise, that (apart from section 41(1) of this Act) subsection (2)(a) or (b) above is satisfied in his case.

4

An application under this subsection may be made by the person on whom the notice under subsection (1) above was served, but if he has previously made an application under this subsection may not be made before the expiry of the period of six months beginning with the latest date on which he so applied.

5

Where the Commission refuses to grant an application under subsection (4) above, it shall serve notice of that fact on the applicant and the applicant may, within 21 days from the date of the notice, appeal to the Tribunal against the refusal.

6

If, on the appeal, it appears to the Tribunal that (apart from section 41(1) of this Act) subsection (2)(a) or (b) above is satisfied in the appellant’s case, the Commission shall serve notice on him cancelling the notice under subsection (1) above.

40 Appeals against decisions of Tribunal under sections 38 and 39.

1

A person who is dissatisfied in point of law with a decision of the Tribunal on an appeal brought by him under section 38 or 39 of this Act may, according as rules of court may provide, either appeal from it to the Court of Appeal or require the Tribunal to state and sign a case for the opinion of the Court of Appeal.

2

Rules of court may provide for authorising or requiring the Tribunal to state, in the form of a special case for the decision of the Court of Appeal, any question of law arising in the proceedings.

41 Restriction on execution of works, etc. by unqualified persons.

1

A public authority shall not enter into any contract to which subsection (2) or (3) below applies.

2

This subsection applies to a contract made by the public authority accepting an offer to execute any work or supply any goods or services where the offer is made—

for the purpose of securing works, goods or services which could not otherwise be secured without disproportionate expense, or

ii

in the public interest.

8

This section applies to any contract, whether or not it is governed by the law of Northern Ireland.

42 Enforcement at instance of Commission and actions for breach of duty.

1

If it appears to the Commission—

a

that any public authority has taken any action in contravention of section 41 of this Act or has, in neglecting to take any action, failed to comply with that section and that, unless an injunction is granted, the authority is likely again to contravene or fail to comply with that section, or

b

that any public authority proposes to take any action in contravention of that section,

the Commission may apply to the High Court for an injunction restraining him from contravening that section and, where paragraph (a) above applies, requiring him to comply with that section.

2

Any contravention of or failure to comply with that section is actionable by any person who, in consequence, suffers loss or damage, but the amount recoverable in any such action shall not exceed any expenditure reasonably incurred by him before the date of the contravention or failure in question.

43 Denial of financial assistance to unqualified persons.

1

A Northern Ireland department may refuse to give to any unqualified person any financial assistance to which this section applies or, where it has given or agreed to give such assistance to any unqualified person, refuse or cease to make any payments to him in pursuance of the assistance.

2

This section applies to any financial assistance by way of grant or otherwise which may be given at the discretion of a Northern Ireland department, if the moneys required for giving the assistance are payable out of the Consolidated Fund of Northern Ireland or may be appropriated by Measure of the Northern Ireland Assembly.

General

44 Offences by bodies corporate and partnerships.

and for the purposes of this subsection the making of a complaint is to be treated as the commencement of the proceedings.

6

7

A notice under this section may not require any person to give any information which he could not be compelled to give in evidence in civil proceedings before the High Court.

46 Procedure in case of default by Crown bodies.

1

This section applies where—

a

the Commission asks a public authority acting on behalf of the Crown for an undertaking under section 33 of this Act and the undertaking is not given,

b

an undertaking is given under that section by such a public authority, but is not complied with, or

c

such a public authority is, or is in the opinion of the Commission, in breach of any duty under section 27, 31, 32, 36, 41 or 45 of this Act or under regulations under section 28 or 29 of this Act,

and, accordingly, sections 33(3), 34 and 42 do not apply in relation to such a public authority.

2

The Commission shall send a report of the circumstances of the failure to comply with the Commission’s request or with the undertaking or other breach of duty—

a

where a Minister of the Crown is the public authority or is generally responsible for matters falling within the scope of the functions of the public authority, to the Minister, and

b

in any other case, to the head of the Northern Ireland department generally responsible for matters falling within the scope of the functions of the public authority or, if no such head stands appointed, to the Secretary of State.

3

Where a report is sent to a Minister of the Crown he shall lay it before Parliament, and where a report is sent to the head of a Northern Ireland department he shall lay it before the Northern Ireland Assembly.

4

Section 41(3) of the M18Interpretation Act (Northern Ireland) 1954 (laying of statutory documents) shall have effect as if a report required to be laid before the Assembly were a statutory document (within the meaning of that Act) required under a Measure of the Assembly to be so laid.

47 Interpretation of Part II.

1

In this Part of this Act—

“employee” means—

a

an individual employed under a contract of service or of apprenticeship, other than a contract which normally involves employment for less than sixteen hours weekly, or

b

an individual employed under a contract personally to execute any work or labour,

and includes a person in the service of the Crown, but only to the extent provided by section 26 of this Act; and “employment” and “employed” shall be interpreted accordingly,

“employer”, in relation to a concern, means the person entitled to the benefit of the contracts of those employed in the concern and includes a public authority, but only to the extent provided by section 26 of this Act,
“register” means the register kept under section 22 of this Act,
“registered concern” means a concern a description of which is for the time being included in the register; but where, by reason of a disposal of a part of a registered concern, there has been a change of employer in relation to that part, that part is not to be treated as a registered concern unless registered since the disposal, and
“week” means a week ending on a Saturday.

2

The Department may by order amend the definition of “employee” in subsection (1) above by substituting for the number of hours for the time being specified in paragraph (a) such other number as is specified in the order.

3

For the purposes of this Part of this Act—

a

where people are employed by a body corporate, references to the name of the employer are to the name of the body and of its secretary and references to the address of the employer are to the address of the body’s registered or principal office, or its principal office in Northern Ireland,

b

where people are employed by the members of a partnership, references to the employer are to the firm and references to the employer’s address are to the principal office of the partnership, or its principal office in Northern Ireland, but each member of the partnership may exercise any function, under or by virtue of this Part of this Act, of the employer,

c

where people are employed by any other body, references to the employer are to the secretary or other executive officer charged with the conduct of the general affairs of the body.

4

For the purposes of this Part of this Act—

a

bodies corporate are associated if they are members of the same group, and for this purpose any two bodies corporate are to be treated as members of the same group if one of them is a body corporate of which the other is a subsidiary (within the meaning of Article 4 of the M19Companies (Northern Ireland) Order 1986) or if both of them are subsidiaries (within the meaning of that Article) of one and the same body corporate,

b

a body corporate (call it “A”) is controlled by a person (call him “B”) if B has the power to secure, by means of the holding of shares or the possession of voting power in or in relation to A or any other body corporate, or by virtue of any powers conferred by the articles of association or other document regulating A or any other body corporate, that the affairs of A are conducted in accordance with the wishes of B,

c

a person is connected with an individual if that person is the individual’s wife or husband, or is a relative, or the wife or husband of a relative, of the individual or of the individual’s wife or husband, and for this purpose “relative” means brother, sister, ancestor or lineal descendant, and

d

a person is connected with a body corporate if he is a director or officer of that body.

5

In this Part of this Act the following expressions have the same meaning as in the M20Fair Employment (Northern Ireland) Act 1976—

“contract”,
“the Department”,
“employment in Northern Ireland”,
“Northern Ireland”,
“notice”, and
“practices”.

6

F30Article 5 of the Employment Rights (Northern Ireland) Order 1996 (normal working hours) shall have effect to determine the normal working hours for the purposes of the definition of employee in subsection (1) above.

7

References in this Part of this Act to the Crown are to the Crown in right of the Government of the United Kingdom and in right of the Government of Northern Ireland.

8

References in this Part of this Act to a person in the service of the Crown do not include the holder of any office in Schedule 2 to the M21House of Commons Disqualification Act 1975 (Ministerial offices) as for the time being in force.

48 Index to Part II.

The expressions listed in the left-hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Act listed in the right-hand column in relation to those expressions.

Affirmative action	Section 58
Associated body corporate	Section 47(4)
Code of practice	Section 7
Commission	Section 1
Community	Section 27(11)
Composition	Section 27(11)
Concern	Section 22(2)
Connected, in relation to a person	Section 47(4)
Contract	Section 47(5)
Control, in relation to a body corporate	Section 47(4)
Department	Section 47(5)
Employer	Section 47(1)
Employee and related expressions	Sections 23(8) and 47(1)
Employment in Northern Ireland	Section 47(5)
Employment practice	Section 31(6)
Monitoring return	Section 27(1)
Northern Ireland	Section 47(5)
Notice	Section 47(5)
Practices	Section 47(5)
Public authority	Section 25
Register	Section 47(1)
Registered concern	Sections 26(3) and 47(1)
Review	Section 31(6)
Satisfies the condition for registration	Section 23(2)
Tribunal	Section 2
Unqualified person	Section 38(2)
Week	Section 47(1)

Part III Discrimination

49 Meaning of “discrimination”.

1

In section 16 of the M22Fair Employment (Northern Ireland) Act 1976 (meaning in that Act of “discrimination” and “unlawful discrimination”) for subsection (2) there is substituted—

2
A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of this Act if—
a
on either of those grounds he treats that other less favourably than he treats or would treat other persons, or
b
he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—
i
which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it, and
ii
which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied, and
iii
which is to the detriment of the other because he cannot comply with it.

2

After subsection (4) of that section there is inserted—

4A
A comparison of the cases of persons of different religious belief or political opinion under subsection (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

50 Complaints of unlawful discrimination.

1

For sections 24 to 31 of the M23Fair Employment (Northern Ireland) Act 1976 there is substituted—

24 Jurisdiction of the Fair Employment Tribunal.
1
A complaint by any person (“the complainant”) that another person (“the respondent”) has committed unlawful discrimination against him may be presented to the Tribunal.
2
Subject to subsection (3), the Tribunal shall not consider a complaint unless it is brought before whichever is the earlier of—
a
the end of the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of, or
b
the end of the period of six months beginning with the day on which the act was done.
3
The Tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
4
The Tribunal shall not consider a complaint relating to an act which is unlawful by virtue of section 23 if the act is one in respect of which an appeal, or proceedings in the nature of an appeal, may be brought to a court under any enactment.
25 Conciliation.
1
Where a complaint is presented to the Tribunal under section 24, the Tribunal shall send a copy of the complaint to the Labour Relations Agency and it shall be the duty of the Agency—
a
in any case where it is requested to do so by both the complainant and the respondent, or
b
in any other case where it considers that it could act under this subsection with a reasonable prospect of success,
to endeavour to promote a settlement of the complaint without its being determined by the Tribunal.
2
Where, before a complaint such as is mentioned in subsection (1) has been presented to the Tribunal, a request is made to the Labour Relations Agency to make its services available in the matter by a person who, if the complaint were so presented, would be the complainant or respondent, subsection (1) applies as if the complaint had been so presented and a copy of it had been sent to the Agency.
3
In proceeding under subsection (1) or (2), the Labour Relations Agency shall where appropriate have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.
4
Anything communicated to the Labour Relations Agency in connection with the performance of its functions under this section shall not be admissible in evidence in any proceedings before the Tribunal except with the consent of the person who communicated it to the Agency.
26 Remedies on complaint under section 24.
1
Where the Tribunal finds that a complaint presented to it under section 24 is well-founded, the Tribunal shall make such of the following as it considers just and equitable—
a
an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates,
b
an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered to pay by the High Court if the complaint had been a claim in tort, and
c
a recommendation that the respondent take within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any unlawful discrimination to which the complaint relates.
2
As respects an act of unlawful discrimination falling within section 16(2)(b) no award of compensation shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on the ground of his religious belief or political opinion as the case may be.
3
Compensation awarded to a person under subsection (1)(b) may include compensation for injury to feelings whether or not it includes compensation under any other head.
4
The amount of compensation awarded to a person under subsection (1)(b) shall not exceed £30,000.
5
If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by the Tribunal under subsection (1)(c), then, if it considers it just and equitable to do so—
a
the Tribunal may (subject to the limit in subsection (4)) increase the amount of any compensation required to be paid to the complainant in respect of the complaint by an order made under subsection (1)(b), or
b
if an order under subsection (1)(b) could have been made but was not, the Tribunal may make such an order.
6
Where compensation falls to be awarded in respect of any act both under the provisions of this section and under any other enactment, the Tribunal shall not award compensation under this section in respect of any loss or other matter which has been taken into account under that other enactment by a court or tribunal in awarding compensation in an action in respect of that act.
7
Paragraphs (3) to (6) of Article 61 of the Industrial Relations (Northern Ireland) Order 1976 (which enables the Department to provide by order that sums payable in pursuance of decisions of industrial tribunals shall carry interest) shall apply with the necessary modifications in relation to an award of compensation under subsection (1)(b) as they apply in relation to a sum payable in pursuance of a decision of an industrial tribunal.
8
The Judgments Enforcement (Northern Ireland) Order 1981 shall apply with the necessary modifications in relation to an award of compensation under subsection (1)(b) as it applies to a sum due under a money judgment (within the meaning of that Order).
9
If it appears to the Department that there has been a change in the value of money since the relevant date, it may by order substitute for the sum for the time being specified in subsection (4) such other sum as appears to it to be justified by the change.
10
In subsection (9) “the relevant date” means—
a
in relation to the first order under that subsection, the commencement of section 50 of the Fair Employment (Northern Ireland) Act 1989, and
b
in relation to each subsequent order, the last occasion when the sum specified in subsection (4) was altered.
11
A statutory rule containing an order under subsection (9) shall be subject to negative resolution; and section 41(6) of the Interpretation Act (Northern Ireland) 1954 (meaning of “subject to negative resolution”) shall apply as if the power to make the order were conferred by a Measure of the Northern Ireland Assembly.
12
It is hereby declared that the limit imposed by subsection (4) applies to the amount which the Tribunal would, apart from that subsection, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law.
27 Appeal to Court of Appeal.
1
If any party to a complaint under section 24 is dissatisfied in point of law with a decision of the Tribunal, he may, according as rules of court may provide, either appeal from it to the Court of Appeal or require the Tribunal to state and sign a case for the opinion of the Court of Appeal.
2
Rules of court may provide for authorising or requiring the Tribunal to state, in the form of a special case for the decision of the Court of Appeal, any question of law arising in the proceedings.
Help for persons suffering discrimination
28 Help for aggrieved persons in obtaining information etc.
1
With a view to helping a person (“the person aggrieved”) who considers that another person may have unlawfully discriminated against him to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Department shall by regulations prescribe—
a
forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant, and
b
forms by which the respondent may if he so wishes reply to any questions.
2
Where the person aggrieved questions the respondent (whether in accordance with regulations under subsection (1) or not)—
a
the question, and any reply by the respondent (whether in accordance with the regulations or not) shall, subject to the following provisions of this section, be admissible as evidence in the proceedings, and
b
if it appears to the Tribunal that the respondent deliberately and without reasonable cause omitted to reply within a reasonable period or that his reply is evasive or equivocal, the Tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committeed an unlawful act.
3
The Department may by regulations—
a
prescribe the period within which questions must be duly served in order to be admissible under subsection (2)(a), and
b
prescribe the manner in which a question, and any reply by the respondent, may be duly served.
4
A statutory rule containing regulations under this section shall be subject to negative resolution; and section 41(6) of the Interpretation Act (Northern Ireland) 1954 (meaning of “subject to negative resolution”) shall apply as if the power to make the regulations were conferred by a Measure of the Northern Ireland Assembly.
5
In this section “respondent” includes a prospective respondent.
29 Advice and assistance by Commission.
1
Where a prospective complainant requests the Commission in writing for advice in relation to prospective proceedings under this Part, the Commission shall give him such advice unless it considers that the request is frivolous.
2
Where, in relation to proceedings or prospective proceedings under this Part, an individual who is an actual or prospective complainant applies to the Commission for assistance under this subsection, the Commission shall consider the application and may grant it if it thinks fit to do so on the ground that—
a
the case raises a question of principle, or
b
it is unreasonable, having regard to the complexity of the case or the applicant’s position in relation to the respondent, or another person involved, or to any other matter to expect the applicant to deal with the case unaided,
or by reason of any other special consideration.
3
Assistance given by the Commission under subsection (2) may include—
a
giving advice to an actual complainant,
b
procuring or attempting to procure the settlement of any matter in dispute,
c
arranging for the giving of advice or assistance by a solicitor or counsel,
d
arranging for representation by any person including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings, and
e
any other form of assistance which the Commission may consider appropriate.

2

Subsection (1) above, section 51 of this Act and the repeal by this Act of Schedule 5 to the M24Fair Employment (Northern Ireland) Act 1976 do not apply—

a

in relation to any complaint that was made to the Fair Employment Agency for Northern Ireland under section 24 of that Act but not disposed of before the commencement of this section, or

b

in relation to any act done before the commencement of this section in respect of which a complaint under section 24 of that Act could have been, but was not, made before that time or in relation to any such complaint made in respect of it,

but in relation to any such complaint or act Part III of that Act has effect as if references to the Agency were references to the Commission.

51 Power of High Court to revise contracts.

1

In section 32 of the Fair Employment (Northern Ireland) Act 1976 in subsection (1) for the words from “but” onwards there are substituted “but this subsection has effect subject to subsection (1A).”

2

After that subsection there is inserted—

1A
Where a complaint has been presented to the Tribunal under section 24, the complainant or respondent may apply to the High Court to revise the contract or any of its terms.

52 Discriminatory advertisements.

1

In section 33 of the Fair Employment (Northern Ireland) Act 1976 (discriminatory advertisements) after subsection (2) there is inserted—

2A
Subsection (1) does not apply to the publisher of an advertisement in respect of the publication of the advertisement if the intended act would not be unlawful by virtue of Part III but for section 16(2)(b).

2

In section 36 of that Act (enforcement of section 33) for subsection (1) there is substituted—

1
If it appears to the Commission—
a
that a person has done an act which by virtue of section 33 was unlawful, and
b
that unless restrained he is likely to do further acts which by virtue of that section are unlawful,
the Commission may apply to the High Court for an injunction restraining him from doing such acts.

53 Provision of training.

After section 37 of the Fair Employment (Northern Ireland) Act 1976 there is inserted—

37A Provision of training in pursuance of affirmative action.
1
This section applies where, in pursuance of affirmative action, persons are afforded access to facilities for training which would help to fit them for employment, for employment in a particular capacity or for a particular employment or occupation, but—
a
the facilities are provided only at a particular place in Northern Ireland or the training is confined to persons of a particular class, not being a class framed by reference to religious belief or political opinion, and
b
by providing the facilities only there or by so confining the training, access to the facilities by persons of a particular religious belief or political opinion is excluded or restricted.
2
For the purpose of determining whether any act done in, or in connection with, affording those facilities is by virtue of section 16(2) unlawful under any provision of Parts III and IV, the fact that, by providing the facilities only there or by so confining the training, their access to the facilities is thereby excluded or restricted is to be disregarded.

54 Redundancy.

After section 37A of the M25Fair Employment (Northern Ireland) Act 1976 there is inserted—

37B Redundancy.
1
This section applies where—
a
a practice relating to the selection of employees who may be dismissed as redundant is followed by an employer in pursuance of affirmative action and in accordance with an agreed procedure, and
b
the practice does not involve the application of any condition or requirement framed by reference to religious belief or political opinion, but has or may have the effect that the proportion of employees of a particular religious belief or political opinion who are selected is smaller than the proportion of employees not of that religious belief or, as the case may be, not of that political opinion who are selected.
2
The dismissal of an employee in pursuance of the practice is not by virtue of section 16(2) unlawful under any provision of Parts III and IV.

55 Measures to encourage applications etc. from under-represented community.

After section 37B of the Fair Employment (Northern Ireland) Act 1976 there is inserted—

37C Measures to encourage applications etc. from under-represented community.
Nothing in Parts III or IV shall render unlawful any act done by—
a
an employer,
b
an employment agency,
c
a vocational organisation, or
d
a person providing services as mentioned in section 22(1),
in or in connection with encouraging members of the Roman Catholic, or members of the Protestant, community in Northern Ireland to consider or to apply for a particular employment or particular training or to consider a particular occupation, where the act is done in pursuance of affirmative action.

Part IV Miscellaneous and General

56 Restriction on proceedings for contravention of legislation.

1

Except as provided by the Fair Employment (Northern Ireland) Acts or regulations made under those Acts, no proceedings whether civil or criminal shall be brought against any person in respect of a contravention of, or failure to comply with, any provision of those Acts or of such regulations.

2

Nothing in subsection (1) above prevents any application for judicial review.

57 Regulations and orders.

1

The power to make—

a

regulations under section 2(1), 5, 23(8), 28 or 29 of this Act, or

b

an order under section 9(10), 17(6), 25, 41(3) or 47(2) of this Act,

shall be exercisable by statutory rule, for the purposes of the M26Statutory Rules (Northern Ireland) Order 1979.

2

No regulations under section 23(8), 28 or 29 of this Act or order under section 47(2) of this Act shall be made unless a draft of the regulations or order has been laid before and approved by the Northern Ireland Assembly.

3

A statutory rule containing regulations under section 2(1) or 5 of this Act or an order under section 17(6), 25 or 41(3) of this Act shall be subject to negative resolution; and section 41(6) of the M27Interpretation Act (Northern Ireland) 1954 (meaning of “subject to negative resolution”) shall apply as if the power to make the regulations or order were conferred by a Measure of the Northern Ireland Assembly.

58 Meaning of “affirmative action”.

1

In this Act “affirmative action” means action designed to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in Northern Ireland by means including—

a

the adoption of practices encouraging such participation, and

b

the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation.

2

In this section—

“employment”—

a

in the application of this section for the purposes of Part I of this Act or the M28Fair Employment (Northern Ireland) Act 1976, has the same meaning as in that Act but includes an occupation within the meaning of that Act, and

b

in the application of this section for the purposes of Part II of this Act, has the same meaning as in that Part, and

“practices” includes procedures and arrangements.

59 Minor and consequential amendments and repeals.

1

The minor and consequential amendments in Schedule 2 to this Act have effect.

2

The enactments specified in Schedule 3 to this Act are repealed to the extent specified in the third column of that Schedule.

60 Citation, commencement and extent.

1

This Act may be cited as the Fair Employment (Northern Ireland) Act 1989; and this Act and the Fair Employment (Northern Ireland) Act 1976 may together be cited as the Fair Employment (Northern Ireland) Acts.

C12

This Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different provisions and for different purposes.

3

This Act extends to Northern Ireland only, except so far as it—

a

affects enactments extending to the United Kingdom, or

b

relates to the application, by virtue of regulations under section 5 of this Act or by virtue of paragraph 7 of Schedule 1 to this Act, of any enactment so extending.

SCHEDULES

SCHEDULE 1 Conduct of investigations by the Commission

Section 11(3).

Preliminary

1

In this Schedule “the investigation” means an investigation under section 11 of this Act or under section 38 of the M29Fair Employment (Northern Ireland) Act 1976 (investigations for purposes of review of exception of school teachers).

Notices

2

Before holding the investigation, the Commission shall—

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

3

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

4

The investigation shall be conducted in private.

5

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

Information and evidence

6

For the purposes of the investigation, the Commission may obtain information from such persons and (subject to paragraph 4 above) in such manner and may make such inquiries and call for such reports (including reports by officers of the Commission on inquiries or interviews conducted by them on the Commission’s behalf) as the Commission thinks fit.

Expenses

10

Without prejudice to paragraph 7(3)(c) above, 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.

SCHEDULE 2 Minor and consequential amendments

Section 59(1).

The Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969 (c.7 (N.I.))

1

In section 2(1) of the Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969 for paragraph (b) there is substituted—

b
the holder of any of the following offices who is remunerated, apart from any allowances, on an annual basis, that is to say—
i
President or Vice-President of the Industrial Tribunals and the Fair Employment Tribunal; and
ii
member of a panel of chairmen established by regulations under Article 30 of the Industrial Training (Northern Ireland) Order 1984 or appointed under section 3(1)(c) of the Fair Employment (Northern Ireland) Act 1989;

The Northern Ireland Constitution Act 1973 (c.36)

2

In section 20(2)(dd) of the Northern Ireland Constitution Act 1973 for “Agency” there is substituted “ Commission ”.

The House of Commons Disqualification Act 1975 (c.24)

3

In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 the entries relating to the Fair Employment Agency for Northern Ireland and the Fair Employment Appeals Board are omitted and there are inserted at the appropriate places “ The Fair Employment Commission for Northern Ireland ” and “ The Fair Employment Tribunal for Northern Ireland ”.

The Northern Ireland Assembly Disqualification Act 1975 (c.25)

4

In Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 the entries relating to the Fair Employment Agency for Northern Ireland and the Fair Employment Appeals Board are omitted and there are inserted at the appropriate places “ The Fair Employment Commission for Northern Ireland ” and “ The Fair Employment Tribunal for Northern Ireland ”.

In section 41(1) of that Act for “this Act”, where it first occurs, there is substituted “ the Fair Employment (Northern Ireland) Acts ”.

12

In section 42(1) of that Act for “This Act” there is substituted “ The Fair Employment (Northern Ireland) Acts ”.

13

1

Section 49 of that Act is amended as follows.

2

In subsections (1) and (2) for “this Act” there is substituted “ the Fair Employment (Northern Ireland) Acts ”.

3

In subsection (4) for “this Act is” there is substituted “ the Fair Employment (Northern Ireland) Acts are ”.

4

Subsection (7) is omitted.

5

In subsection (9) for “this Act” there is substituted “ the Fair Employment (Northern Ireland) Acts ”.

6

After subsection (9) there is inserted—

10
In the application of subsections (1) to (6) for the purposes of Part II of the Fair Employment (Northern Ireland) Act 1989, references to employment are references to employment within the meaning of that Part.

14

In section 50 of that Act, in subsections (1) and (2) after “this Act” there is inserted “ and Part I of the Fair Employment (Northern Ireland) Act 1989 ”.

15

In section 51 of that Act—

a

for “section 30”, in both places where it occurs, there is substituted “ section 24 ”, and

b

paragraph (a) and the word “and” immediately following it are omitted.

16

1

Section 52 of that Act is amended as follows.

2

In subsections (1) and (2) for “this Act” there is substituted “ the Fair Employment (Northern Ireland) Acts ”.

3

In subsection (5)—

a

for the words from “the Agency or” to “purposes of the Appeals Board” there is substituted “ the Commission or the Tribunal ”, and

b

for paragraph (a) there is substituted—

a
for the purpose of communicating in accordance with the provisions of the Fair Employment (Northern Ireland) Acts the Tribunal’s decision on an appeal and the reasons for it;

17

1

Section 53 of that Act is amended as follows.

2

In subsection (1) after “this Act” there is inserted “ and Part I of the Fair Employment (Northern Ireland) Act 1989 ”.

3

In subsection (2)(a)—

a

after “this Act”, where it first occurs, there is inserted “ or Part I of the Fair Employment (Northern Ireland) Act 1989 ”, and

b

for the words from “this Act”, in the second place where it occurs, to “paragraph 11” there is substituted “ that Part so far as not defrayed by sums paid by the Commission under paragraph 10 of Schedule 1 to that Act ”.

4

In subsection (3) after “this Act” there is inserted “ or Part I of the Fair Employment (Northern Ireland) Act 1989 ”.

5

In subsection (4)—

a

“investigation or” is omitted, and

b

after “this Act” there is inserted “ or Part I of the Fair Employment (Northern Ireland) Act 1989 ”.

after the definition of “advertisement” there is inserted—

“affirmative action” has the meaning given by section 58 of the Fair Employment (Northern Ireland) Act 1989;

b

after the definition of “benefits” there is inserted—

“the Commission” means the Fair Employment Commission for Northern Ireland;

c

in the definition of “complaint”, for “Agency” there is substituted “ Tribunal ”,

d

in the definition of “equality of opportunity” for “section 3” there is substituted “ section 20 of the Fair Employment (Northern Ireland) Act 1989 ”,

e

in the definition of “training”—

i

for “sections 3(3)(b)(ii), 12(1)(b)(v) and 22” there is substituted “ section 22 of this Act and sections 11(1)(e) and 20(4)(b)(ii) of the Fair Employment (Northern Ireland) Act 1989 ”, and

ii

for “education in” there is substituted “ education provided by ”, and

f

after the definition of “training” there is inserted—

“the Tribunal” means the Fair Employment Tribunal for Northern Ireland;

22

In Schedule 1 to that Act for paragraph 1 there is substituted—

1
The Commission shall continue in existence as a body corporate.

23

In Schedule 1 to that Act for “Agency” wherever it occurs in paragraphs 2 to 9, 10(1) and (2), 11 and 12, 13(1) to (5) and 14(1) and (2) there is substituted “Commission”.

24

In paragraph 6(1) of Schedule 1 to that Act for “Schedule 5” there is substituted “Schedule 1 to the Fair Employment (Northern Ireland) Act 1989”.

25

In paragraph 10(1) of Schedule 1 to that Act for the words from “in relation to” to the end of paragraph (b) there is substituted “in relation to any matter or class of matters falling to be dealt with by it”.

26

In paragraph 11 of Schedule 1 to that Act the words “complaint or other” are omitted.

27

In paragraph 13 of Schedule 1 to that Act—

a

in sub-paragraph (1) for the words from “the period” to “each subsequent” there is substituted “each”, and

b

in sub-paragraph (6) for “During the interim period” there is substituted “If no head of the Department stands appointed for the time being”.

28

In paragraph 14 of Schedule 1 to that Act—

a

in sub-paragraph (1) for the words from “the period” to “each subsequent” there is substituted “each”, and

b

in sub-paragraph (4) for “During the interim period” there is substituted “If no head of the Department stands appointed for the time being”.

The Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042(N.I.15))

29

At end of Article 49 of the Sex Discrimination (Northern Ireland) Order 1976 there is added—

4
Any act which by virtue of this Article or Article 48 could not be unlawful under Parts III to V (or, in the case of an act falling within paragraph (3), under Article 15) is not by virtue of section 16(2)(b) of the Fair Employment (Northern Ireland) Act 1976 (indirect discrimination on the grounds of religious belief or political opinion) unlawful under any provision of Parts III and IV of that Act.

30

At the end of Article 63 of that Order there is added—

3
Where a complaint is presented to an industrial tribunal under paragraph (1) and it appears to the tribunal that the act to which the complaint relates is one in respect of which (as being unlawful discrimination within the meaning of the Fair Employment (Northern Ireland) Act 1976)—
a
a complaint could be made to the Fair Employment Tribunal for Northern Ireland under Part III of that Act; or
b
such a complaint has been made, but the proceedings under that Act have not been disposed of,
the tribunal shall not proceed further under this Order in relation to the complaint unless all proceedings which can be taken under that Act in respect of the act have been disposed of.

The Industrial Relations (Northern Ireland) Order 1976 (S.I.1976/1043 (N.I.16))

31

In Article 29(2)(a) of the Industrial Relations (Northern Ireland) Order 1976 for “Agency” there is substituted “Tribunal”.

32

In Article 32(3) of that Order at the end there is added—

c
a dismissal which is an act of discrimination (within the meaning of the Fair Employment (Northern Ireland) Act 1976) which is unlawful by virtue of Part III of that Act.

33

In Article 38(2) of that Order for “court” there is substituted “the Fair Employment Tribunal for Northern Ireland”.

SCHEDULE 3 Repeals

Section 59(2).

1975 c. 24.	The House of Commons Disqualification Act 1975.	In Schedule 1, in Part II, the entries relating to the Fair Employment Agency for Northern Ireland and the Fair Employment Appeals Board.
1975 c. 25.	The Northern Ireland Assembly Disqualification Act 1975.	In Schedule 1, in Part II, the entries relating to the Fair Employment Agency for Northern Ireland and the Fair Employment Appeals Board.
1976 c. 25.	The Fair Employment (Northern Ireland) Act 1976.	Sections 3 to 15.
		Section 37(4).
		Sections 43 to 48.
		Section 49(7).
		In section 51, paragraph (a) and the word “and” immediately following it.
		In section 53(4), the words “investigation or”.
		In section 57(1), the definitions of “the Agency”, “the Appeals Board” and “the commencement of this Act”, in the definition of “complainant” the words from “or, in relation to” onwards, the definitions of “the county court”, “the Declaration of Principle and Intent”, “finding”, “the injured person”, “the interim period”, “the person oncerned”, “the register” and “satisfactory”.
		Section 57(4).
		Section 57(9) and (10).
		In section 59(2), the words from “or to” to “United Kingdom”.
		Section 59(6).
		In Schedule 1, in paragraph 11, the words “complaint or other” and in paragraph 14(1) the words “period or”.
		Schedules 2 to 5.
1976 c. 25.—continued	The Fair Employment (Northern Ireland) Act 1976.—continued	In Schedule 6, paragraphs 3 and 4.
S.I. 1980/397 (N.I. 3).	The County Courts (Northern Ireland) Order 1980.	In Schedule 1, in Part II, the entries relating to the Fair Employment (Northern Ireland) Act 1976.