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The Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014

Type Ni-Statutory-Rule

Publication 2014-03-19

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

articles 1

Reform history JSON API PDF

Made: 19th March 2014

Coming into operation: 6th April 2014

The Department for Employment and Learning , in exercise of the powers conferred by Article 5 of the Employment Relations (Northern Ireland) Order 1999 , and now vested in it , makes the following Regulations:

Introductory provisions

Citation and commencement

1

These Regulations may be cited as the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 and shall come into operation on 6th April 2014.

Interpretation

2

(1) In these Regulations—

“employment agency” means a person who, for profit or not, provides services for the purposes of finding employment for workers or supplying employers with workers, and does not include a trade union by reason only of the services a trade union provides only for and in relation to its members;

“office”, in relation to a trade union, means any position—by virtue of which the holder is an official of the trade union, orto which Part 3 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 (duty to hold elections) applies,and “official” has the meaning given by Article 2(2) of that Order;

“prohibited list” has the meaning given by regulation 3(2);

“services”, in relation to an employment agency, means services for the purposes of finding employment for workers or supplying employers with workers;

“use”, in relation to a prohibited list, includes use of information contained in the list.

(2) References in these Regulations to information supplied by a person who contravenes regulation 3 include information supplied by a person who would contravene that regulation if that person's actions took place in Northern Ireland.

General prohibition

3

(1) Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list.

(2) A “prohibited list” is a list which—

(a) contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and

(b) is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.

(3) “Discrimination” means treating a person less favourably than another on grounds of trade union membership or trade union activities.

(4) In these Regulations references to membership of a trade union include references to—

(a) membership of a particular branch or section of a trade union, and

(b) membership of one of a number of particular branches or sections of a trade union;

and references to taking part in the activities of a trade union have a corresponding meaning.

Exceptions to general prohibition

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(1) A person does not contravene regulation 3 in the following cases.

(2) The first case is where a person supplies a prohibited list, but—

(a) does not know they are supplying a prohibited list, and

(b) could not reasonably be expected to know they are supplying a prohibited list.

(3) The second case is where a person compiles, uses or supplies a prohibited list, but—

(a) in doing so, that person's sole or principal purpose is to make known a contravention of regulation 3 or the possibility of such a contravention,

(b) no information in relation to a person whose details are included in the prohibited list is published without the consent of that person, and

(4) The third case is where a person compiles, uses, sells or supplies a prohibited list, but in doing so that person's sole or principal purpose is to apply a requirement either—

(a) that a person may not be considered for appointment to an office or for employment unless that person has experience or knowledge of trade union matters, and in all the circumstances it is reasonable to apply such a requirement, or

(b) that a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union.

(5) The fourth case is where a person compiles, uses, sells or supplies a prohibited list, but the compilation, use, sale or supply of the prohibited list is required or authorised—

(a) under a statutory provision,

(b) by any rule of law, or

(6) The fifth case is where a person uses or supplies a prohibited list—

(a) for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), or

(b) for the purpose of giving or obtaining legal advice,

where the use or supply is necessary in order to determine whether these Regulations have been, are being or will be complied with.

Refusal of employment or employment agency services

Refusal of employment

5

(1) A person (P) has a right of complaint to an industrial tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either—

(a) R contravenes regulation 3 in relation to that list, or

(b) R—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.

(2) R shall be taken to refuse to employ P if P seeks employment of any description with R and R—

(a) refuses or deliberately omits to entertain and process P's application or enquiry;

(b) causes P to withdraw or cease to pursue P's application or enquiry;

(d) makes P an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or

(e) makes P an offer of such employment but withdraws it or causes P not to accept it.

(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not.

Refusal of employment agency services

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(1) A person (P) has a right of complaint to an industrial tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either—

(a) E contravenes regulation 3 in relation to that list, or

(b) E—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.

(2) E shall be taken to refuse P a service if P seeks to make use of the service and E—

(a) refuses or deliberately omits to make the service available to P;

(b) causes P not to make use of the service or to cease to make use of it; or

(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that E contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless E shows that it did not.

Time limit for proceedings under regulation 5 or 6

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(1) Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 5 or 6 unless it is presented to the tribunal before the end of the period of three months beginning with the date of the conduct to which the complaint relates.

(1A) Regulation 18 (extension of time limit to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (1).

(2) An industrial tribunal may consider a complaint under regulation 5 or 6 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3) The date of the conduct to which a complaint under regulation 5 relates shall be taken to be—

(a) in the case of an actual refusal, the date of the refusal;

(b) in the case of a deliberate omission—

(i) to entertain and process P's application or enquiry, or

(ii) to offer employment,

the end of the period within which it was reasonable to expect R to act;

(c) in the case of conduct causing P to withdraw or cease to pursue P's application or enquiry, the date of that conduct;

(d) in a case where R made but withdrew an offer, the date R withdrew the offer;

(e) in any other case where R made an offer which was not accepted, the date on which R made the offer.

(4) The date of the conduct to which a complaint under regulation 6 relates shall be taken to be—

(a) in the case of an actual refusal, the date of the refusal;

(b) in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect E to act;

(c) in the case of conduct causing P not to make use of a service, or to cease to make use of it, the date of that conduct;

(d) in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact was provided.

Remedies in proceedings under regulation 5 or 6

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(1) Where an industrial tribunal finds that a complaint under regulation 5 or 6 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable—

(a) an order requiring the respondent to pay compensation;

(b) 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 conduct to which the complaint relates.

(2) Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.

(3) Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraph (4), (5) or (6) shall not be less than £5,700.

(4) If the respondent fails without reasonable justification to comply with a recommendation under paragraph (1)(b), the tribunal may increase its award of compensation or, if it has not made such an award, make one.

(5) Where the tribunal considers that any conduct of the complainant before the refusal to which the complaint under regulation 5 or 6 relates was such that it would be just and equitable to reduce the award of compensation, the tribunal shall reduce that amount accordingly.

(6) The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 29 of the Employment Rights (Northern Ireland) Order 1996 in respect of the same refusal.

(7) The total amount of compensation shall not exceed £76,600.

Detriment

9

(1) A person (P) has a right of complaint to an industrial tribunal against P's employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either—

(a) D contravenes regulation 3 in relation to that list, or

(b) D—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.

(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that D contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless D shows that it did not.

(3) This regulation does not apply where the detriment in question amounts to the dismissal of an employee within the meaning in Part 11 of the Employment Rights (Northern Ireland) Order 1996.

Time limit for proceedings under regulation 9

10

(1) Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 9 unless it is presented before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them.

(1A) Regulation 18 (extension of time limit to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (1).

(2) An industrial tribunal may consider a complaint under regulation 9 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3) For the purposes of paragraph (1)—

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of the period;

(b) a failure to act shall be treated as done when it was decided on.

(4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary D shall be taken to decide on a failure to act—

(a) when D does an act which is inconsistent with doing the failed act, or

(b) if D has done no such inconsistent act, when the period expires within which D might reasonably have been expected to do the failed act if it was done.

Remedies in proceedings under regulation 9

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(1) Where the industrial tribunal finds that a complaint under regulation 9 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by D to P in respect of the act or failure complained of.

(2) Subject to the following paragraphs, the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the act or failure complained of and to any loss sustained by P which is attributable to D's act or failure.

(3) The loss shall be taken to include—

(a) any expenses P reasonably incurred in consequence of the act or failure complained of; and

(b) loss of any benefit which P might reasonably be expected to have had but for that act or failure.

(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

(5) Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraphs (6), (7) and (8) of this regulation and Article 90AA of the Industrial Relations (Northern Ireland) Order 1992 or Article 17 of the Employment (Northern Ireland) Order 2003 shall not be less than £5,700.

(6) Where the conduct of P before the act or failure complained of was such that it would be just and equitable to reduce the amount of compensation, the tribunal shall reduce that amount accordingly.

(7) Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of P, it shall reduce or further reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

(8) The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 76 of the Employment Rights (Northern Ireland) Order 1996 in respect of the same act or failure.

(9) In determining the amount of compensation to be awarded no account shall be taken of any pressure exercised on D by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(10) Where P is a worker and the detriment to which P is subjected is the termination of P's contract, and that contract is not a contract of employment, the compensation awarded to P under this regulation shall not exceed £76,600.

Unfair dismissal

12

(1) Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) is amended as follows.

(2) After Article 135E insert—

(135F) (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either— (a) the employer contravenes regulation 3 of the 2014 Regulations in relation to that prohibited list, or (b) the employer— (i) relies on information supplied by a person who contravenes that regulation in relation to that list, and (ii) knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. (2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer— (a) contravened regulation 3 of the 2014 Regulations, or (b) relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not. (3) In this Article— - “the 2014 Regulations” means the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014; and - “prohibited list” has the meaning given in those Regulations (see regulation 3(2)).

(3) In Article 137 (selection for redundancy)—

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