Fair Employment (Northern Ireland) Act 1989 (repealed 1.3.1999)

41

• (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—

• (a) by an unqualified person, and

• (b) in response to an invitation by the public authority to submit offers.

• (3) This subsection applies to a contract falling within a class or description for the time being specified in an order made by the Department, where work is to be executed or goods or services supplied by any unqualified person.

• (4) Where a public authority enters into a contract—

• (a) made by the public authority accepting an offer made by any person, being an offer made in response to an invitation by the public authority to submit offers, or

• (b) falling within a class or description for the time being specified for the purposes of subsection (3) above,

the public authority shall take all such steps as are reasonable to secure that no work is executed or goods or services supplied for the purposes of the contract by any unqualified person.

• (5) An order under subsection (3) above may frame any class or description of contract by reference to—

• (a) any work to be executed or goods or services to be supplied under the contract,

• (b) any amounts to be paid under or in connection with the contract,

• (c) any terms of the contract, and

• (d) any surrounding circumstances,

and by reference to such other factors as the Department thinks fit.

• (6) Nothing in this section affects the validity of any contract.

• (7) This section does not apply to the execution of any work, or the provision of any goods or services, by any person which is certified in writing to be necessary or desirable—

• (a) by the Secretary of State for the purpose of safeguarding national security or protecting public safety or public order, or

• (b) by the Secretary of State, by the Department or, after consultation with the Department, by any other Northern Ireland department—

• (i) 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.

Enforcement at instance of Commission and actions for breach of duty

42

• (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.

Denial of financial assistance to unqualified persons

43

• (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

Offences by bodies corporate and partnerships

44

• (1) Where an offence under this Part of this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate is guilty of that offence and liable to be proceeded against and punished accordingly.

• (2) Where the affairs of a body corporate are managed by the members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

• (3) Where a partnership is guilty of an offence under this Part of this Act, every partner, other than a partner who is proved to have been ignorant of or to have attempted to prevent the commission of the offence, shall also be guilty of that offence and be liable to be proceeded against and punished accordingly.

Additional powers of Commission to obtain information

45

• (1) In connection with its functions under this Part of this Act, the Commission may require any person to give the Commission such information as it may specify for the purpose of determining—

• (a) whether a person is an employer or whether a concern has satisfied the condition for registration at the end of any week,

• (b) whether a body corporate is controlled by an employer or associated with him or whether any person is connected with him, and

• (c) whether a contract of either of the following kinds has been made or is likely to be made—

• (i) a contract made by a public authority accepting an offer to execute any work or supply any goods or services where the offer is made by any person in response to an invitation by the public authority to submit offers, or

• (ii) a contract 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 whether any person has executed any work or supplied any goods or services for the purposes of any such contract, or is likely to do so.

• (2) A requirement under this section to give any information—

• (a) shall be made by notice served on the person concerned, and

• (b) shall specify the time by which the information is to be given.

• (3) 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.

• (4) A person guilty of an offence under subsection (3) above—

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

• (b) if 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.

• (5) It is a defence for a person charged with an offence under subsection (3) 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.

• (6) 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.

• (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.

Procedure in case of default by Crown bodies

46

• (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 Interpretation 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.

Interpretation of Part II

47

• (1) In this Part of this Act—

• “employee” means— 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 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 Companies (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 Fair Employment (Northern Ireland) Act 1976—

• “contract”,

• “the Department”,

• “employment in Northern Ireland”,

• “Northern Ireland”,

• “notice”, and

• “practices”.

• (6) Part I of Schedule 2 to the Industrial Relations (Northern Ireland) Order 1976 (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 House of Commons Disqualification Act 1975 (Ministerial offices) as for the time being in force.

Index to Part II

48

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.

Expression	Relevant provision
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

Meaning of “discrimination”

49

• (1) In section 16 of the Fair 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.

Complaints of unlawful discrimination

50

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

(24) (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) (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) (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) (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. (28) (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) (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 Fair 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.

Power of High Court to revise contracts

51

• (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.

Discriminatory advertisements

52

• (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.

Provision of training

53

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

(37A) (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.

Redundancy

54

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

(37B) (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.

Measures to encourage applications etc. from under-represented community

55

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

(37C) 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

Restriction on proceedings for contravention of legislation

56

• (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.

Regulations and orders

57

• (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 Statutory 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 Interpretation 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.

Meaning of “affirmative action”

58

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

Minor and consequential amendments and repeals

59

• (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.

Citation, commencement and extent

60

• (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.

• (2) 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.

SCHEDULE 1

Preliminary

1

In this Schedule “the investigation” means an investigation under section 11 of this Act or under section 38 of the Fair 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.

7

• (1) For the purposes of the investigation the Commission may require any person who in its opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.

• (2) For those purposes the Commission shall have the same powers as the High Court in respect of—

• (a) the attendance and examination of witnesses, including the administration of oaths and the examination of witnesses abroad, and

• (b) the production of documents.

• (3) A person shall not be compelled for the purposes of the investigation—

• (a) to give any information or produce any document which he could not be compelled to give in evidence or produce in civil proceedings before the High Court, or

• (b) to give any information or produce any document which discloses, or from which there can be deduced, his religious belief, if he informs the Commission that he objects to doing so, or

• (c) to attend at any place unless the necessary expenses of his journey to and from that place are paid or tendered to him.

8

For the purposes of the investigation the Commission may also require an employer or vocational organisation to take such reasonable action as the Commission specifies for communicating to his or its employees or members (as the case requires), or to employees or members of any class, any written material provided for the purposes by the Commission.

Obstruction and contempt

9

• (1) If any person, without lawful authority or reasonable excuse, obstructs the Commission or any member or officer of the Commission in the performance of its or his functions in connection with the investigation, or is guilty of any act in relation to the investigation which, if the investigation were a proceeding in the High Court, would constitute contempt of court, the Commission may certify the offence to the High Court.

• (2) Where an offence is certified under this paragraph, the High Court may inquire into the matter and after hearing—

• (a) any witnesses who may be produced against or on behalf of the person charged with the offence, and

• (b) any statement that may be offered in defence,

may deal with the person charged with the offence in any manner in which the court could deal with him if he had committed the like offence in relation to the court.

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

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”.

The Fair Employment (Northern Ireland) Act 1976 (c. 25)

5

In section 1 of the Fair Employment (Northern Ireland) Act 1976 for “Agency”, wherever occurring, there is substituted “Commission”.

6

In section 2 of that Act—

• (a) for “Agency”, wherever occurring, there is substituted “Commission”, and

• (b) in subsection (1)(e), for “Schedule 5, paragraph 12(4)” there is substituted “section 19(1) of the Fair Employment (Northern Ireland) Act 1989”.

7

In section 16(3) of that Act—

• (a) in paragraph (b) for “this Act” there is substituted “the Fair Employment (Northern Ireland) Acts”, and

• (b) in paragraphs (c) and (d) for “this Act” there is substituted “those Acts”.

8

In section 37 of that Act—

• (a) in subsection (1) for “Parts II to IV” there is substituted “Parts III and IV and the Fair Employment (Northern Ireland) Act 1989”, and

• (b) in subsection (2) for “Part II” there is substituted “The Fair Employment (Northern Ireland) Act 1989”.

9

In section 38 of that Act—

• (a) for “Agency”, wherever it occurs in subsections (1), (2) and (3), there is substituted “Commission”, and

• (b) in subsection (4) for “Schedule 5” there is substituted “Schedule 1 to the Fair Employment (Northern Ireland) Act 1989”.

10

In sections 39(1)(b) and 40(1) of that Act for “this Act” there is substituted “the Fair Employment (Northern Ireland) Acts”.

11

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”.

18

• (1) Section 54 of that Act is amended as follows.

• (2) In subsection (1)—

• (a) for the words from “section 12” to “opportunity” there is substituted “section 11 of the Fair Employment (Northern Ireland) Act 1989, the Commission is of the opinion that action for promoting equality of opportunity ought to be taken”, and

• (b) for “section 13(2) to (8) and sections 14 and 15” there is substituted “sections 12(3), 14, 15 and 16 of that Act”.

• (3) In subsection (2) for “section 13(1)(b)” there is substituted “section 12(2)(b) of the Fair Employment (Northern Ireland) Act 1989”.

• (4) In subsection (4) for the words from the beginning to “Assembly” there is substituted “If a report is required by subsections (2) and (3) to be sent to the head of a Northern Ireland department and laid before the Northern Ireland Assembly at a time when no such head stands appointed, the report”.

19

In section 55(1) of that Act for “this Act” there is substituted “the Fair Employment (Northern Ireland) Acts”.

20

In section 56 of that Act—

• (a) in subsection (2), for “an order under section” there is substituted “regulations under section 28 or an order under section 26(9) or”; and

• (b) in subsection (3)(c) for “Agency” there is substituted “Commission”.

21

In section 57(1) of that Act—

• (a) 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