Northern Ireland Orders in Council

Article 18: Non-completion of statutory procedure: adjustment of awards by Fair Employment Tribunal

Article 18 is the analogue to Article 17, with relevance not to industrial tribunal jurisdictions, but to applications to the Fair Employment Tribunal under Article 38 of FETO. The adjustments to awards under Article 18 are to be made before reductions under Article 28 for contributory fault or redundancy payments in excess of the basic award.

Article 19: Complaints about grievances: industrial tribunals

Article 19 specifies jurisdictions, as set out in the accompanying Schedule 3, to which the Article applies. It prevents certain categories of complaint from being presented to an industrial tribunal until Step 1 of the grievance procedures, detailed in Schedule 1, has been completed and at least 28 days have elapsed thereafter. The Department is empowered to make provision about the application of the grievance procedure and what constitutes compliance. The aim is to enable grievances to be resolved, where possible, close to their source in the workplace.

Article 20: Complaints about grievances: Fair Employment Tribunal

Article 20 is the analogue to Article 19 in relation to applications to the Fair Employment Tribunal made under Article 38 of FETO. As with Article 19, the aim is to enable grievances to be resolved, where possible, in the workplace.

Article 21: Consequential adjustment of time limits: industrial tribunals

Article 21 is an enabling power allowing the Department to make regulations about the time limits for beginning certain proceedings in an industrial tribunal. In particular, this provision is designed to permit time for the relevant statutory procedures to be completed before a complaint is presented to an industrial tribunal. Regulations may cover extending the time for beginning proceedings, the exercising of discretion to extend the time for the beginning of proceedings and the treating of proceedings begun out of time as having been begun within time. This is designed to allow the relevant statutory procedures to be completed. It is envisaged that regulations will enable an extension of three months to be applied to allow for the completion of statutory procedures.

Article 22: Consequential adjustment of time limits: Fair Employment Tribunal

Article 22 is an analogue to Article 21, allowing regulations to permit extension of time limits in relation to Fair Employment Tribunal cases brought under Article 38 of FETO.

Article 23: Procedural fairness in unfair dismissal

Article 23 makes it unfair for an employer to dismiss an employee without meeting obligations under the relevant statutory procedure.

At present, if an ex-employee makes a complaint to a tribunal that he has been unfairly dismissed, then the former employer needs to meet two tests to show that the dismissal was fair and reasonable. Firstly, it must be demonstrated that the reason for the dismissal was one of five reasons listed in Article 130 of the Employment Rights (Northern Ireland) Order 1996 ("ERO"). Secondly, it must be demonstrated that the dismissal was reasonable, a concept that has given rise to much complex case law, the culmination of which came in the form of a House of Lords decision (Polkey vs A E Dayton Services Ltd, 1988). The decision had the effect of finding fault with an employer who failed to follow appropriate disciplinary procedures before dismissal even where adhering to procedure would have made no difference to the outcome of the case. It has been argued that this judgement, by removing the so-called 'no difference' test, forces tribunals to put undue weight on questions of disciplinary procedure, rather than on the actual reasons for the dismissal.

Article 23, by inserting a new Article 130A into ERO, has the effect of rendering a dismissal unfair if the employer has failed to follow the minimum grievance procedure outlined in Schedule 1. Provision is made that an employee will generally receive a minimum of four weeks' pay as compensation where unfair dismissal takes place and the minimum disciplinary and dismissal procedure has not been complied with. However, a tribunal will be able to disregard procedural mistakes beyond the minimum where these have no impact on the outcome of the case.

Article 24: Particulars of procedures relating to discipline or dismissal

Article 24 amends Article 35 of ERO to provide that the part of the written statement of employment particulars dealing with disciplinary and grievance matters must cover the procedures which apply when an employee is dismissed or disciplined. At present, an employer is obliged to provide a new employee with details of their main terms and conditions not later than two months after the employee starts work with the employer, and must furnish the employee with details when these change. However, currently, there is only a requirement that the statement describe steps to be taken where an employee is dissatisfied with disciplinary action taken against them. The change made by Article 24 ensures that all stages of the new minimum disciplinary and dismissal procedures must be set out in the written statement.

Article 25: Removal of exemption for small employers

Article 25 removes an exemption currently excepting those employing fewer than 20 people from the requirement to refer to disciplinary rules and the new minimum procedures in the written statement of particulars provided to employees.

Article 26: Use of alternative documents to give particulars

Article 26 inserts new Articles 39A and 39B into ERO allowing greater flexibility to be afforded to employers in providing written particulars. It will be possible for employers to include particulars in a copy of the contract of employment or letter of engagement given to the employee to form, or to form part of, the written statement. This will reduce the need for employers to duplicate existing documents. It will be possible to furnish an employee with such documents before their employment begins.

Article 27: Failure to give statements of employment particulars, etc.: industrial tribunals

Article 27 makes it mandatory for industrial tribunals, in dealing with claims under jurisdictions specified in Schedule 4, to make certain awards where an incomplete or inaccurate written statement has been provided. Industrial tribunals are required to increase the award by 2 or 4 weeks' pay, or to award 2 or 4 weeks' pay where compensation is not a possible or desirable remedy. The decision as to whether to award 2 or 4 weeks' pay is a matter for the tribunal's discretion. No award need be made or increased if the tribunal considers such a course of action unjust or inequitable.

Article 28: Failure to give statements of employment particulars, etc.: Fair Employment Tribunal

Article 28 makes provisions for applications made under Article 38 of FETO. The provisions parallel those made in Article 27 in relation to industrial tribunals.

Article 29: Unfair dismissal: adjustments under Articles 17 and 27

Article 29 inserts a new Article 158A in ERO, dealing with adjustments to an award made by an industrial tribunal under Articles 17 or 27.

Article 30: Equal pay questionnaires

Article 30 inserts a new Section 6B into the Equal Pay Act (Northern Ireland) 1970, making provision for the prescription of forms to be used by claimants and respondents in equal value cases, which can be admitted as evidence in subsequent tribunal proceedings. Tribunals may draw inference from an employer's failure to respond to a questionnaire. The procedure will include prescription of forms, questions and answers as case evidence, a time period for serving questions, and the manner in which these questions and answers can be served. The questionnaire will enable key facts to be established early and should assist the settlement of some cases before they proceed to an industrial tribunal.

A questionnaire procedure is currently available to individuals pursuing disputes over other forms of discrimination, but is not yet used in equal pay disputes. The procedure has proven useful elsewhere, since it assists applicants to set out key facts before a tribunal hearing. The question and answer format can help to identify whether the case is weak or strong. The process is familiar to industrial tribunals, as it has been in place for some time under the Sex Discrimination (Northern Ireland) Order 1976, the Disability Discrimination Act 1995, and the Race Relations (Northern Ireland) Order 1997.

It will also be possible for prescription, by order, of a time period within which questions must be served in order to be admissible as evidence in tribunal proceedings. This is intended to encourage the applicant to pursue a case swiftly. If a tribunal considers that the respondent deliberately and without reasonable excuse failed to reply within the period prescribed, it will be able to draw any inference it considers just or equitable. Tribunals will also be able to draw such an inference if it is considered that the respondent's reply was evasive or equivocal.

Article 31: Union learning representatives

Article 31 provides rights for union learning representatives ("ULRs") analogous to those enjoyed by officials of an independent trade union which is recognised by their employer for collective bargaining purposes. It does so by inserting into ERO a new Article 92A. Provision is also made by this insertion to extend the right to unpaid time off for union members accessing the services of a ULR. The LRA and the Department are empowered to issue a Code of Practice providing practical guidance on the application of these entitlements to reasonable time off. A tribunal claim may be presented where the employer has failed to provide such time off, and a tribunal may award compensation accordingly.

ULRs provide advice about training, educational and developmental needs. At present, they do not enjoy the same rights as officials of independent trade unions recognised at a given workplace for collective bargaining purposes. These rights, established under Article 92 of ERO, are to reasonable time off during working hours to carry out union duties or undergo relevant training. An employer who permits such time off must pay the officials for the time off taken, in accordance with Article 93 of ERO.

Additionally, employees are currently entitled, under Article 94 of ERO, to reasonable time off during working hours to participate in union activities. This right applies where the employees belong to an independent union recognised by their employer, and where they form part of the bargaining unit for which the union is recognised. The definition of an "independent trade union" is provided in Article 2 of ERO. Employers are not required to pay their employees when they permit them to take this time off.

Article 32: Dismissal procedures agreements

Article 32 inserts a new paragraph (3A) after paragraph (3) of Article 142 of ERO. Currently, the Department may designate certain agreements as Dismissal Procedures Agreements ("DPAs"). This has the effect of replacing the statutory right to claim unfair dismissal before an industrial tribunal under Part XI of ERO with access to the procedures of the DPA for employees who are covered by the agreement. Such an agreement must meet a number of specific criteria. Among these are:

• a joint application is made to the Department by all parties to the agreement, and;

• the scheme offers remedies that are on the whole as beneficial (but not necessarily identical with) those provided in respect of unfair dismissal at a tribunal.

Article 32 empowers the Department to add to these criteria. This is intended to give scope to bring in requirements aimed at ensuring that DPAs comply with the Human Rights Act 1998. It is achieved by giving the Department power by order to add to the requirements in section 142(3) of ERO.

Article 33: Deputy Certification Officer

Article 33 enables the Certification Officer for Northern Ireland to appoint one or more assistants to discharge delegated functions that he may deem it suitable for them to perform. This is achieved by substituting a paragraph in Article 69 of the Industrial Relations (Northern Ireland) Order 1992.

Article 34: Regulations and orders

Article 34 makes provision in relation to regulations and orders under the Order, requiring various levels of approval by the Northern Ireland Assembly in order for regulations to be made.

Article 35: Amendments and repeals

Article 35 gives effect to Schedule 5, which makes consequential amendments following the making of this Order, and Schedule 6, which contains repeals.

COMMENCEMENT

11.     Article 1(2) and (3) of the Order provides for Parts II to V (with the Schedules) to be commenced by one or more orders, with any appropriate transitional provisions and savings.