Fair Employment (Northern Ireland) Act 1989 (repealed 1.3.1999)

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

The Fair Employment Commission

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• (1) The body corporate established by section 1 of the Fair 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

Constitution of the Tribunal

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• (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 Fair 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.

The President and Vice-President

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• (1) There shall be—

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

• (b) a Vice-President of the Industrial 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 at the end of the completed year of service in which he attains the age of seventy-two.

• (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 Industrial Tribunals shall be the President.

• (9) For Article 30(2)(a) of the Industrial Training (Northern Ireland) Order 1984 (remuneration of the President of the Industrial Tribunals) there is substituted—

(a) the President and Vice-President of the Industrial Tribunals and the Fair Employment Tribunal;

.

Remuneration and allowances

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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.

Tribunal procedure

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• (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 Fair 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 Fair 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) The Arbitration Act (Northern Ireland) 1937 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.

Complaints involving matters within the jurisdiction of industrial tribunal

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• (1) This section applies where a complaint has been made to the Tribunal under Part III of the Fair 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 industrial tribunal on the ground that—

• (i) the complainant has been unfairly dismissed within the meaning of Part III of the Industrial Relations (Northern Ireland) Order 1976, 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

• (b) a complaint has been made to an industrial tribunal on that ground, but the proceedings under the Industrial Relations (Northern Ireland) Order 1976 or the Sex Discrimination (Northern Ireland) Order 1976 have 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 industrial tribunal could appropriately be heard and determined by the Tribunal, he may direct that those matters shall be so heard and determined.

• (3) For the purposes of complying with a direction under subsection (2) above the Tribunal shall have the jurisdiction, and may exercise all the powers, of an industrial tribunal.

Code of practice

Code of practice for the promotion of equality of opportunity

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• (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.

Contents of the code

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• (1) The guide to good manpower policy and practice having effect under section 5 of the Fair 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.

Approval of code

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• (1) This section applies where the Commission determines to proceed with the revision of the code of practice after publishing a draft under section 8(4) of this Act.

• (2) The Commission shall send a draft of the revised code to the head of the Department or, if no head of the Department stands appointed for the time being, to the Secretary of State.

• (3) Where the draft of the revised code is sent to the head of the Department, he shall—

• (a) if he approves of it, lay it before the Northern Ireland Assembly, and

• (b) if he does not approve of it, publish details of his reasons.

• (4) If, within the period of forty days beginning with the day on which the draft of the revised code is laid before the Assembly, the Assembly so resolves, no further proceedings shall be taken on it, but without prejudice to the laying before the Assembly of a new draft.

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

• (6) In reckoning the period of forty days referred to in subsection (4) above, no account shall be taken of any period during which the Assembly is dissolved by virtue of section 27(2) of the Northern Ireland Constitution Act 1973 or is prorogued or adjourned for more than four days.

• (7) Where the draft of the revised code is sent to the Secretary of State he shall—

• (a) if he approves of it, lay it before Parliament, and

• (b) if he does not approve of it, publish details of his reasons.

• (8) If, within the period of forty days beginning with the day on which the draft of the revised code is laid before each House of Parliament or, if the draft is laid on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken on it, but without prejudice to the laying before Parliament of a new draft.

• (9) In reckoning the period of forty days referred to in subsection (8) above, no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

• (10) If no such resolution is passed as is referred to in subsection (4) or (8) above, the Commission shall issue the code in the form of the draft and the code shall come into effect on such day as the Department may by order appoint.

Identification of patterns and trends of employment, etc.

Survey of employment, etc., patterns

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• (1) It shall be the duty of the Commission to identify and keep under review patterns and trends of employment in Northern Ireland and of occupations in Northern Ireland for the purposes of—

• (a) considering whether they reveal the existence or absence of equality of opportunity, and

• (b) assisting the Commission in forming an opinion about—

• (i) the manner in which equality of opportunity can best be achieved, or

• (ii) where such equality is absent, the reasons for its absence.

• (2) It shall also be the duty of the Commission to keep itself informed about proceedings on complaints under Part III of the Fair Employment (Northern Ireland) Act 1976.

Investigation of practices

Investigation of employment etc., practices

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• (1) The Commission may conduct the investigations mentioned in subsection (2) below for the purpose of assisting it in considering what, if any, action for promoting equality of opportunity ought to be taken by any of the following persons, that is to say—

• (a) any employer,

• (b) any person who is empowered by virtue of an enactment to select or nominate another person for employment by a third person,

• (c) any employment agency,

• (d) any vocational organisation,

• (e) any person who provides services in connection with training for employment in any capacity or for a particular employment (not being services provided by the employer of a person who is seeking to obtain or is receiving those services) or in connection with training for a particular occupation, and