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STATUTORY RULES OF NORTHERN IRELAND


2004 No. 521

EMPLOYMENT

Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004

  Made 21st December 2004 
  To be laid before Parliament under paragraph 7(3) of the Schedule to the Northern Ireland Act 2000
  Coming into operation 3rd April 2005 

The Department for Employment and Learning[1], in exercise of the powers conferred on it by Article 17(6), 18(6), 19(7), 20(6), 21, 22 and 34(1) and (3) of the Employment (Northern Ireland) Order 2003[2] and of every other power enabling it in that behalf, hereby makes the following Regulations:

Citation and commencement
     1. These Regulations may be cited as the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, and shall come into operation on 3rd April 2005.

Interpretation
    
2.  - (1) In these Regulations -

and a reference to a Schedule is a reference to a Schedule to the Order of 2003.

    (2) In determining whether a meeting or written communication fulfils a requirement of Schedule 1, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 1).

Application of dismissal and disciplinary procedures
     3.  - (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

    (2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where -

but neither of the dismissal and disciplinary procedures applies in relation to such a dismissal where the employee presents a complaint relating to the dismissal to a tribunal at a time when the employer has not complied with paragraph 4 of Schedule 1.

Dismissals to which the dismissal and disciplinary procedures do not apply
    
4.  - (1) Neither of the dismissal and disciplinary procedures applies in relation to the dismissal of an employee where -

    (2) For the purposes of paragraph (1) -

and an employer shall be regarded as offering to re-engage an employee if that employer, a successor of that employer or an associated employer of that employer offers to re-engage the employee, either in the job which he held immediately before the date of dismissal or in a different job which would be suitable in his case.

Circumstances in which parties are treated as complying with the dismissal and disciplinary procedures
     5.  - (1) Where -

the parties shall be treated as having complied with the requirements of paragraph 3 or 5 of Schedule 1.

    (2) Where either of the dismissal and disciplinary procedures is the applicable statutory procedure in relation to the dismissal of an employee or to relevant disciplinary action taken against an employee but -

the parties shall be treated as having complied with the requirements of paragraph 3 or 5 of Schedule 1.

    (3) For the purposes of paragraph (2) a procedure is appropriate if it -

Application of the grievance procedures
     6.  - (1) The grievance procedures apply, in accordance with paragraphs (2) to (7), in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to a tribunal under -

or could do so if the action took place.

    (2) Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance.

    (3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance where -

    (4) Neither of the grievance procedures applies where -

    (5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

    (6) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1).

    (7) Neither of the grievance procedures applies where regulation 11(1) applies.

Circumstances in which parties are treated as complying with the grievance procedures
    
7.  - (1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is -

the standard grievance procedure or, as the case may be, modified grievance procedure shall apply but the parties shall be treated as having complied with the applicable procedure if the employee complies with the requirement in paragraph (2).

    (2) The requirement is that the employee must set out the grievance in a written statement and send the statement or a copy of it to the employer -

    (3) In paragraph (1)(a) "unlawful discrimination" means an act or omission in respect of which a right of complaint lies to a tribunal under any of the following tribunal jurisdictions -

Application of grievance procedures where employment has ceased
     8.  - (1) Where -

the parties shall be treated, subject to paragraph (2), as having complied with such of those paragraphs of Schedule 1 as have not been complied with.

    (2) In a case where paragraph (1) applies and the requirements of paragraphs 7(1) to (3) of Schedule 1 have been complied with but the requirement in paragraph 7(4) of Schedule 1 has not, the employer shall be treated as having failed to comply with paragraph 7(4) unless he informs the employee in writing of his decision as to his response to the grievance.

Application of grievance procedures where grievance is raised by a representative
    
9.  - (1) Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has -

    (2) For the purposes of paragraph (1), a person is an appropriate representative if, at the time he writes to the employer setting out the grievance, he is -

    (3) For the purposes of paragraph (2)(a) the terms "official", "recognised" and "collective bargaining" have the meanings given to them by, respectively, Article 2(2) of the Trade Union and Labour Relations (Northern Ireland) Order 1995[18], and Article 39(2) and 2(2) of the Order of 1992.

Application of grievance procedures where a collective agreement operates
     10. Where either of the grievance procedures is the applicable statutory procedure but -

the parties shall be treated as having complied with the applicable statutory procedure.

General circumstances in which the statutory procedures do not apply or are treated as being complied with
    
11.  - (1) Where the circumstances specified in paragraph (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure (by complying with paragraph 1, 4, 6 or 9 of Schedule 1), the procedure does not apply.

    (2) Where the applicable statutory procedure has been commenced, but the circumstances specified in paragraph (3) apply and in consequence a party does not comply with a subsequent requirement of the procedure, the parties shall be treated as having complied with the procedure.

    (3) The circumstances referred to in paragraphs (1) and (2) are that -

    (4) In paragraph (3)(b), "harassment" means conduct which has the purpose or effect of -

but conduct shall only be regarded as having that purpose or effect if, having regard to all the circumstances, including in particular the perception of the person who was the subject of the conduct, it should reasonably be considered as having that purpose or effect.

Failure to comply with the statutory procedures
    
12.  - (1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part III of Schedule 1, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.

    (2) Except as mentioned in paragraph (4), where the parties are to be treated as complying with the applicable statutory procedure or any requirement of it there is no failure to comply with the procedure or requirement.

    (3) Notwithstanding that if regulation 11(1) applies the procedure that would otherwise be the applicable statutory procedure does not apply, where that regulation applies because the circumstances in sub-paragraph (a) or (b) of regulation 11(3) apply and it was the behaviour of one of the parties that resulted in those circumstances applying, that party shall be treated as if -

    (4) In a case where regulation 11(2) applies in relation to a requirement of the applicable statutory procedure because the circumstances in sub-paragraph (a) or (b) of regulation 11(3) apply, and it was the behaviour of one of the parties that resulted in those circumstances applying, the fact that the requirement was not complied with shall be treated as being a failure, attributable to that party, to comply with a requirement of the procedure.

Failure to attend a meeting
    
13.  - (1) Without prejudice to regulation 11(2) and (3)(c), if it is not reasonably practicable for -

to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee or, as the case may be, employer shall not be treated as having failed to comply with that requirement of the procedure.

    (2) In the circumstances set out in paragraph (1), the employer shall continue to be under the duty in the applicable statutory procedure to invite the employee to attend a meeting and, where the employee is exercising his rights under Article 12 of the Order of 1999 and the employee proposes an alternative time under paragraph (4) of that Article, the employer shall be under a duty to invite the employee to attend a meeting at that time.

    (3) The duty to invite the employee to attend a meeting referred to in paragraph (2) shall cease if the employer has invited the employee to attend two meetings and paragraph (1) applied in relation to each of them.

    (4) Where the duty in paragraph (2) has ceased as a result of paragraph (3), the parties shall be treated as having complied with the applicable statutory procedure.

Questions to obtain information not to constitute statement of grievance
    
14.  - (1) Where a person aggrieved questions a respondent under any of the provisions set out in paragraph (2), those questions shall not constitute a statement of grievance under paragraph 6 or 9 of Schedule 1.

    (2) The provisions referred to in paragraph (1) are -

Extension of time limits
     15.  - (1) Where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998, and -

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

    (2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

    (3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal -

    (4) For the purposes of paragraph (3) the following acts shall be treated, in a case to which the specified regulation applies, as constituting compliance with paragraph 6 or 9 of Schedule 1 -

    (5) In this regulation "the normal time limit" means -

National security
     16. Where it would not be possible to comply with an applicable statutory procedure without disclosing information the disclosure of which would be contrary to the interests of national security, nothing in these Regulations requires either party to comply with that procedure.

Amendments to subordinate legislation
    
17. The statutory rules referred to in this regulation shall be amended as follows -

Transitional provisions
     18.  - (1) Subject to paragraph (2), these Regulations shall apply -

    (2) These Regulations shall not apply in relation to a grievance -



Sealed with the Official Seal of the Department for Employment and Learning on


21st December 2004.

L.S.


R. B. Gamble
A senior officer of the Department for Employment and Learning


EXPLANATORY NOTE

(This note is not part of the Regulations.)


These Regulations provide for the application of the statutory dismissal and disciplinary and grievance procedures set out in Schedule 1 to the Employment (Northern Ireland) Order 2003. In particular they make provision as to:

The Regulations also provide that the issuing of a discrimination questionnaire shall not constitute a statement of grievance (regulation 14) and for the situation when complying with the procedures would be contrary to the interests of national security (regulation 16).

Regulation 17 amends certain other subordinate legislation. Regulation 18 contains transitional provisions.


Notes:

[1] Formerly the Department of Higher and Further Education, Training and Employment; see 2001 c. 15 (N.I.)back

[2] S.I. 2003/2902 (N.I. 15)back

[3] S.I. 1992/807 (N.I. 5)back

[4] S.I. 1998/3162 (N.I. 21)back

[5] S.I. 1999/2790 (N.I. 9)back

[6] This definition was amended by Schedule 2 to S.I. 1995/1980 (N.I. 12)back

[7] Article 127(1)(b) was amended by S.R. 2002 No. 298, Schedule 2, paragraph 2(7)back

[8] S.I. 1996/1921 (N.I. 18)back

[9] Article 144A was inserted by paragraph 6 of Schedule 5 to the Order of 1999back

[10] Article 142 was amended by Article 13(1), (2), (3) and (5) of S.I. 1998/1265 (N.I. 8)back

[11] Article 163 was amended by regulation 32(6) of S.R. 1998 No. 386, Article 13 of S.I. 1998/1763 (N.I. 17) and Article 8 of S.I. 1999/2790 (N.I. 9)back

[12] 1970 c. 32 (N.I.). Section 2 was modified by paragraphs 2 and 6 of Part I of Schedule 1 to S.I. 1976/1042 (N.I. 15) and regulation 3 of S.R. 2004 No. 171back

[13] S.I. 1976/1042 (N.I. 15). Article 63 was amended by Schedule 3 to S.I. 1998/3162 (N.I. 21)back

[14] 1995 c. 50. Section 17A was inserted by regulations 3(1) and 9(1) of S.R. 2004 No. 55; the new section replaced section 8 of this Act and contained amendmentsback

[15] S.I. 1997/869 (N.I. 6). Article 52 was amended by Schedule 3 to S.I. 1998/3162 (N.I. 21) and regulation 39 of S.R. 2003 No. 341back

[16] Article 38 was amended by regulation 23 of S.R. 2003 No. 520back

[17] S.R. 2003 No. 497back

[18] S.I. 1995/1980 (N.I. 12)back

[19] Section 6B was inserted by Article 30 of the Order of 2003back

[20] Article 74 was modified by S.I. 1999/663back

[21] Section 56 was amended by regulation 22 of S.R. 2004 No. 55back

[22] Article 63 was amended by regulation 48 of S.R. 2003 No. 341back

[23] Article 44 was amended by regulation 28 of S.R. 2003 No. 520back

[24] Section 2(4) was amended by regulation 3 of S.R. 2004 No. 171back

[25] S.R. 1976 No. 322back

[26] S.R. 1994 No. 308back

[27] S.R. 1996 No. 604back

[28] S.R. 1997 No. 322back

[29] S.R. 1998 No. 386back

[30] S.R. 1999 No. 463back



ISBN 0 337 95785 1


  © Crown copyright 2004

Prepared 11 January 2005


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