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You are here: BAILII >> Databases >> Statutory Rules of Northern Ireland >> The Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 No. 88 URL: http://www.bailii.org/nie/legis/num_reg/2014/nisr_201488_en_1.html |
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Regulations made by the Department for Employment and Learning and laid before the Assembly under Article 39 of the Employment Relations (Northern Ireland) Order 1999 for approval of the Assembly before the expiration of six months from the date of their coming into operation
Statutory Rules of Northern Ireland
Employment
Made
19th March 2014
Coming into operation
6th April 2014
1. These Regulations may be cited as the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 and shall come into operation on 6th April 2014.
2. (1) In these Regulations-
"employment agency" means a person who, for profit or not, provides services for the purposes of finding employment for workers or supplying employers with workers, and does not include a trade union by reason only of the services a trade union provides only for and in relation to its members;
"office", in relation to a trade union, means any position-
by virtue of which the holder is an official of the trade union, or
to which Part 3 of the Trade Union and Labour Relations (Northern Ireland) Order 1995(4) (duty to hold elections) applies,
and "official" has the meaning given by Article 2(2) of that Order;
"prohibited list" has the meaning given by regulation 3(2);
"services", in relation to an employment agency, means services for the purposes of finding employment for workers or supplying employers with workers;
"use", in relation to a prohibited list, includes use of information contained in the list.
(2) References in these Regulations to information supplied by a person who contravenes regulation 3 include information supplied by a person who would contravene that regulation if that person's actions took place in Northern Ireland.
3. (1) Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list.
(2) A "prohibited list" is a list which-
(a)contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and
(b)is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.
(3) "Discrimination" means treating a person less favourably than another on grounds of trade union membership or trade union activities.
(4) In these Regulations references to membership of a trade union include references to-
(a)membership of a particular branch or section of a trade union, and
(b)membership of one of a number of particular branches or sections of a trade union;
and references to taking part in the activities of a trade union have a corresponding meaning.
4. (1) A person does not contravene regulation 3 in the following cases.
(2) The first case is where a person supplies a prohibited list, but-
(a)does not know they are supplying a prohibited list, and
(b)could not reasonably be expected to know they are supplying a prohibited list.
(3) The second case is where a person compiles, uses or supplies a prohibited list, but-
(a)in doing so, that person's sole or principal purpose is to make known a contravention of regulation 3 or the possibility of such a contravention,
(b)no information in relation to a person whose details are included in the prohibited list is published without the consent of that person, and
(c)in all the circumstances compiling, using or supplying the prohibited list is justified in the public interest.
(4) The third case is where a person compiles, uses, sells or supplies a prohibited list, but in doing so that person's sole or principal purpose is to apply a requirement either-
(a)that a person may not be considered for appointment to an office or for employment unless that person has experience or knowledge of trade union matters, and in all the circumstances it is reasonable to apply such a requirement, or
(b)that a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union.
(5) The fourth case is where a person compiles, uses, sells or supplies a prohibited list, but the compilation, use, sale or supply of the prohibited list is required or authorised-
(a)under a statutory provision,
(b)by any rule of law, or
(c)by an order of the court.
(6) The fifth case is where a person uses or supplies a prohibited list-
(a)for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), or
(b)for the purpose of giving or obtaining legal advice,
where the use or supply is necessary in order to determine whether these Regulations have been, are being or will be complied with.
5. (1) A person (P) has a right of complaint to an industrial tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either-
(a)R contravenes regulation 3 in relation to that list, or
(b)R-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.
(2) R shall be taken to refuse to employ P if P seeks employment of any description with R and R-
(a)refuses or deliberately omits to entertain and process P's application or enquiry;
(b)causes P to withdraw or cease to pursue P's application or enquiry;
(c)refuses or deliberately omits to offer P employment of that description;
(d)makes P an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or
(e)makes P an offer of such employment but withdraws it or causes P not to accept it.
(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not.
6. (1) A person (P) has a right of complaint to an industrial tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either-
(a)E contravenes regulation 3 in relation to that list, or
(b)E-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.
(2) E shall be taken to refuse P a service if P seeks to make use of the service and E-
(a)refuses or deliberately omits to make the service available to P;
(b)causes P not to make use of the service or to cease to make use of it; or
(c)does not provide P the same service, on the same terms, as is provided to others.
(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that E contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless E shows that it did not.
7. (1) Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 5 or 6 unless it is presented to the tribunal before the end of the period of three months beginning with the date of the conduct to which the complaint relates.
(2) An industrial tribunal may consider a complaint under regulation 5 or 6 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) The date of the conduct to which a complaint under regulation 5 relates shall be taken to be-
(a)in the case of an actual refusal, the date of the refusal;
(b)in the case of a deliberate omission-
(i)to entertain and process P's application or enquiry, or
(ii)to offer employment,
the end of the period within which it was reasonable to expect R to act;
(c)in the case of conduct causing P to withdraw or cease to pursue P's application or enquiry, the date of that conduct;
(d)in a case where R made but withdrew an offer, the date R withdrew the offer;
(e)in any other case where R made an offer which was not accepted, the date on which R made the offer.
(4) The date of the conduct to which a complaint under regulation 6 relates shall be taken to be-
(a)in the case of an actual refusal, the date of the refusal;
(b)in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect E to act;
(c)in the case of conduct causing P not to make use of a service, or to cease to make use of it, the date of that conduct;
(d)in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact was provided.
8. (1) Where an industrial tribunal finds that a complaint under regulation 5 or 6 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable-
(a)an order requiring the respondent to pay compensation;
(b)a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.
(2) Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.
(3) Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraph (4), (5) or (6) shall not be less than £5,700.
(4) If the respondent fails without reasonable justification to comply with a recommendation under paragraph (1)(b), the tribunal may increase its award of compensation or, if it has not made such an award, make one.
(5) Where the tribunal considers that any conduct of the complainant before the refusal to which the complaint under regulation 5 or 6 relates was such that it would be just and equitable to reduce the award of compensation, the tribunal shall reduce that amount accordingly.
(6) The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 29 of the Employment Rights (Northern Ireland) Order 1996(5) in respect of the same refusal.
(7) The total amount of compensation shall not exceed £76,600.
9. (1) A person (P) has a right of complaint to an industrial tribunal against P's employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either-
(a)D contravenes regulation 3 in relation to that list, or
(b)D-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.
(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that D contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless D shows that it did not.
(3) This regulation does not apply where the detriment in question amounts to the dismissal of an employee within the meaning in Part 11 of the Employment Rights (Northern Ireland) Order 1996.
10. (1) Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 9 unless it is presented before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them.
(2) An industrial tribunal may consider a complaint under regulation 9 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) For the purposes of paragraph (1)-
(a)where an act extends over a period, the reference to the date of the act is a reference to the last day of the period;
(b)a failure to act shall be treated as done when it was decided on.
(4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary D shall be taken to decide on a failure to act-
(a)when D does an act which is inconsistent with doing the failed act, or
(b)if D has done no such inconsistent act, when the period expires within which D might reasonably have been expected to do the failed act if it was done.
11. (1) Where the industrial tribunal finds that a complaint under regulation 9 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by D to P in respect of the act or failure complained of.
(2) Subject to the following paragraphs, the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the act or failure complained of and to any loss sustained by P which is attributable to D's act or failure.
(3) The loss shall be taken to include-
(a)any expenses P reasonably incurred in consequence of the act or failure complained of; and
(b)loss of any benefit which P might reasonably be expected to have had but for that act or failure.
(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(5) Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraphs (6), (7) and (8) of this regulation and Article 90AA of the Industrial Relations (Northern Ireland) Order 1992(6) or Article 17 of the Employment (Northern Ireland) Order 2003(7) shall not be less than £5,700.
(6) Where the conduct of P before the act or failure complained of was such that it would be just and equitable to reduce the amount of compensation, the tribunal shall reduce that amount accordingly.
(7) Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of P, it shall reduce or further reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
(8) The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 76 of the Employment Rights (Northern Ireland) Order 1996(8) in respect of the same act or failure.
(9) In determining the amount of compensation to be awarded no account shall be taken of any pressure exercised on D by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.
(10) Where P is a worker and the detriment to which P is subjected is the termination of P's contract, and that contract is not a contract of employment, the compensation awarded to P under this regulation shall not exceed £76,600.
12. (1) Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) is amended as follows.
(2) After Article 135E(9) insert-
135F. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either-
(a)the employer contravenes regulation 3 of the 2014 Regulations in relation to that prohibited list, or
(b)the employer-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.
(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer-
(a)contravened regulation 3 of the 2014 Regulations, or
(b)relied on information supplied in contravention of that regulation,
the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not.
(3) In this Article-
"the 2014 Regulations" means the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014; and
"prohibited list" has the meaning given in those Regulations (see regulation 3(2)).".
(3) In Article 137(10) (selection for redundancy)-
(a)in paragraph (1)(c) for "(7L)" substitute "(7M)";
(b)after paragraph (7L) insert-
"(7M) This paragraph applies if-
(a)the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1), and
(b)the condition in sub-paragraph (a) or (b) of that paragraph was met.".
(4) In Article 140(3)(11) (qualifying period of employment: cases where no qualifying period required), after sub-paragraph (fj) insert-
"(fk)paragraph (1) of Article 135F (read with paragraph (2) of that Article) applies,".
(5) In Article 145 (complaint to industrial tribunal)-
(a)in paragraph (2) (general requirement to present complaint within three months beginning with effective date of termination), for "Subject to paragraph (3)" substitute "Subject to the following provisions of this Article"; and
(b)after paragraph (4) add-
"(5) Where the dismissal is alleged to be unfair by virtue of Article 135F (blacklists)-
(a)paragraph (2)(b) does not apply, and
(b)an industrial tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.".
(6) In Article 154(12) (minimum basic award in certain cases), after paragraph (1B) insert-
"(1C) Where an employee is regarded as unfairly dismissed by virtue of Article 135F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of the basic award of compensation (before any reduction is made under Article 156) shall not be less than £5,700.".
(7) In Article 156(13) (reduction of basic award), after paragraph (4) add-
"(5) Where a dismissal is regarded as unfair by virtue of Article 135F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award under Article 154(1) in respect of the same dismissal under Article 136(1) (dismissal on grounds related to trade union membership or activities) or Article 137(1) and (7) (selection for redundancy on grounds related to trade union membership or activities).".
(8) In Article 158(14) (limit of compensatory award etc.)-
(a)in paragraph (1A) after "134A," insert "135F,"; and
(b)after paragraph (1A) insert-
"(1B) Where an employee is regarded as unfairly dismissed by virtue of Article 135F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of award of compensation shall not exceed £76,600.".
(9) In Article 163(15) (interim relief pending determination of complaint), for paragraph (1) substitute-
"(1) An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed and-
(a)that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in-
(i)Article 132(1)(a) and (b), 132A(1)(d), 133(1), 134, 134A or 136(1), or
(ii)paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order, or
(b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1) and the condition in sub-paragraph (a) or (b) of that paragraph was met,
may apply to the tribunal for interim relief.".
(10) In Article 164(16) (procedure on hearing of application for interim relief), for paragraph (1) substitute-
"(1) This Article applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find-
(a)that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in-
(i)Article 132(1)(a) and (b), 132A(1)(d), 133(1), 134, 134A or 136(1), or
(ii)paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order, or
(b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1) and the condition in sub-paragraph (a) or (b) of that paragraph was met.".
13. (1) A contravention of regulation 3 is actionable as a breach of statutory duty.
(2) If there are facts from which the court could conclude, in the absence of any other explanation, that the defendant has contravened, or is likely to contravene, regulation 3, the court must find that such a contravention occurred, or is likely to occur, unless the defendant shows that it did not, or is not likely to, occur.
(3) In proceedings brought by virtue of this regulation, the court may (without prejudice to any of its other powers)-
(a)make such order as it considers appropriate for the purpose of restraining or preventing the defendant from contravening regulation 3; and
(b)award damages, which may include compensation for injured feelings.
(4) A person may complain to an industrial tribunal under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as it applies by virtue of these Regulations and bring an action for breach of statutory duty in respect of the same conduct for the purpose of restraining or preventing the defendant from contravening regulation 3.
(5) Except as mentioned in paragraph (4), a person may not bring an action for breach of statutory duty and complain to an industrial tribunal under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as it applies by virtue of these Regulations, in respect of the same conduct.
14. (1) Where P has a right of complaint under regulation 5 or 6 against R and E arising out of the same facts, P may present a complaint against either R or E or against R and E jointly.
(2) If P presents a complaint against only one party, that party or P may request the tribunal to join the other as a party to the proceedings.
(3) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.
(4) Where P brings a complaint against R and E jointly, or where P brings a complaint against one of them and the other is joined as a party to the proceedings, and the tribunal-
(a)finds that the complaint is well-founded as against R and E, and
(b)awards compensation,
the tribunal may order that the compensation shall be paid by R, by E, or partly by R and partly by E, as the tribunal may consider just and equitable in all the circumstances.
15. (1) If in proceedings on a complaint under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 as it applies by virtue of these Regulations, either the respondent or complainant claims that another person contravened regulation 3 in respect of the prohibited list to which the complaint relates, the complainant or respondent may request the tribunal to direct that other person be joined as a party to the proceedings.
(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made if it is made after the tribunal has made a decision as to whether the complaint is well-founded.
(3) Where a person has been so joined as a party to the proceedings and the tribunal-
(a)finds that the complaint is well-founded,
(b)awards compensation, and
(c)finds the claim in paragraph (1) is well-founded,
the tribunal shall make a declaration to that effect and may award such of the remedies mentioned in paragraph (4) as it considers just and equitable.
(4) The remedies the tribunal may award are-
(a)an order that compensation shall be paid by the person joined instead of by the respondent, or partly by that person and partly by the respondent;
(b)a recommendation that within a specified period the person joined takes action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.
(5) If the person joined fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one.
(6) Where by virtue of regulation 14 (complaint against employer and employment agency) there is more than one respondent, the above provisions apply to either or both of them.
16. Article 245 of the Employment Rights (Northern Ireland) Order 1996(17) (restrictions on contracting out) applies in relation to regulations 5, 6 and 9 as if they were contained in that Order.
17. (1) The Industrial Tribunals (Northern Ireland) Order 1996(18) is amended as follows.
(2) In Article 12(1)(19) (dismissal of complaint where action taken for purpose of safeguarding national security) after sub-paragraph (b) insert-
", or
(c)regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (detriment connected with prohibited list).".
(3) In Article 18(1)(20) (recoupment of benefits: payments in relation to which power exercisable)-
(a)omit the word "or" at the end of sub-paragraph (b); and
(b)after sub-paragraph (c) insert-
"or
(d)payments by employers to employees under regulation 5, 6 or 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014,".
(4) In Article 20(1)(21) (conciliation: proceedings and claims to which Article applies)-
(a)omit the word "or" at the end of sub-paragraph (t);
(b)after sub-paragraph (u) insert-
", or
(v)under regulation 5, 6 or 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014.".
(5) In the list in Schedule 4A to the Industrial Relations (Northern Ireland) Order 1992(22) (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of failure to comply with code of practice), after the entry relating to regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 insert-
"Regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (S.R. 2014 No. 88) (detriment connected with prohibited list)."
(6) In the list in Schedule 2 to the Employment (Northern Ireland) Order 2003(23) (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of non-completion of statutory dispute resolution procedure), after the entry relating to regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 insert-
"Regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (detriment connected with prohibited list)."
Sealed with the Official Seal of the Department for Employment and Learning on 19th March 2014.
Dr Stephen Farry
Minister for Employment and Learning
(This note is not part of the Regulations)
These Regulations generally prohibit the compilation, use, sale or supply of blacklists containing details of trade union members and activists, where the purpose of that list is to discriminate against workers on grounds of trade union membership or trade union activities (regulation 3). The Regulations give rights to persons to complain to the industrial tribunal in certain circumstances. These rights arise where a person has been refused employment (regulation 5) or employment agency services (regulation 6) or has been subjected to a detriment (regulation 9) for a reason related to a blacklist.
The Regulations make amendments to the Employment Rights (Northern Ireland) Order 1996 to also give a right of complaint to the industrial tribunal where a person has been unfairly dismissed for a reason relating to a blacklist. The Regulations provide for minimum and maximum compensation available from the industrial tribunal in specified cases. Persons who have suffered or will suffer a loss due to the use or apprehended use of a blacklist may apply to the Court for damages, including damages for injury to feelings, and for orders restraining or preventing the compilation, use, sale or supply of the blacklist (regulation 13). A person cannot claim compensation from the industrial tribunal and damages from the Court in respect of the same conduct (regulation 13(5)). Where a person is pursuing a complaint before the industrial tribunal, that person is permitted to apply to the Court for orders restraining or preventing the compilation, use, sale or supply of the blacklist in question (regulation 13(4)).
Formerly the Department of Higher and Further Education, Training and Employment; see 2001 c. 15 (N.I.)
S.I. 1995/1980 (N.I. 12); Article 12 amended by Articles 26, 30(2) and Schedule 3 of the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19)); Article 2(2) to which there are amendments not relevant to these Regulations
S.I. 1992/807 (N.I. 5); Article 90AA inserted by section 4 of the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.))
S.I. 1996/1919 (N.I. 16); Article 76 amended by Article 4 and paragraph 5 of Schedule 2 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)
S.I. 1996/1919 (N.I. 16); Article 135E inserted by section 15 and paragraph 6 of Part 2 of Schedule 3 to the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.))
S.I. 1996/1919 (N.I. 16); Article 137 amended by regulation 32(1) and paragraph 11 of Schedule 3 to the European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), by paragraph 6 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 48), by regulation 48(1) and paragraph 8 of Schedule 2 to the Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), by regulation 3(2) of the Employment Equality (Age) (Consequential Amendments) Regulations (Northern Ireland) 2007 (S.R. 2007 No. 225), by section 57 of the Pensions (No. 2) Act (Northern Ireland) 2008 (c. 13), by regulation 30 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402), by regulation 3(4) of the Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 (S.R. 2011 No. 168), by paragraph 14 of Schedule 2 to the Agency Workers Regulations (Northern Ireland) 2011 (S.R. 2011 No. 350) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 140 amended by articles 4 and 5 of the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order (Northern Ireland) 1999 (S.R. 1999 No. 277), by section 26 of the National Minimum Wage Act 1998 (c. 39), by section 27 and paragraph 4 of Schedule 1 to the Tax Credits Act 2002 (c. 21), by Article 35 and paragraph 2 of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15)), by section 57(5) of the Pensions (No. 2) Act (Northern Ireland) 2008 (c. 13 (N.I.)), by section 15 and paragraph 8 of Part 2 of Schedule 3 to the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 154 amended by Article 23(5) of the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 156 amended by Article 16 and paragraph 13 of Schedule 1 to the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 158 amended by Article 36(1) of, and paragraph 10 of Schedule 9 to, the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 163 amended by regulation 2(2) and 32(6) of the Working Time Regulations (Northern Ireland)1998 (S.R. 1998 No. 386), by Article 13 of the Public Interest Disclosure (Northern Ireland) Order 1998 (S.I. 1998/1763 (N.I. 17)), by Article 8 of the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 164 amended by regulation 2(2) and 32(6) of the Working Time Regulations (Northern Ireland)1998 (S.R. 1998 No. 386), by Article 13 of the Public Interest Disclosure (Northern Ireland) Order 1998 (S.I. 1998/1763 (N.I. 17)), by Article 8 of the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 245 amended by Articles 9(4), 10(2), 11(2), 16, paragraph 13 and 15 of Schedule 1 and Schedule 2 to the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8)), by Article 40 and Schedule 9 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and by regulation 11 and paragraph 2(16) of Schedule 2 to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 298)
S.I. 1996/1921 (N.I. 18); Article 12 substituted by Article 38 and paragraph 3 of Schedule 8 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and amended by Articles 17 and 30(1) and paragraph 23 of Schedule 2 to the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19))
S.I. 1996/1921 (N.I. 18); Article 18 amended by Article 78, paragraph 118 of Schedule 6, and Schedule 7 to the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)), by section 28 and paragraph 9 of Schedule 3 to the Welfare Reform Act (Northern Ireland) 2007 (c. 2 (N.I.)) and by section 34 and Part 1 of Schedule 4 to the Welfare Reform Act (Northern Ireland) 2010 (c. 13 (N.I.))
S.I. 1996/1921 (N.I. 18); Article 20 amended by regulation 17 and paragraph 9 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employees) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 48), by regulation 52 and paragraph 11 of Schedule 2 to the Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), by regulation 19 and paragraph 1 of Schedule 3 to the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 (S.R. 2008 No. 315), by section 56(6) of the Pensions (No. 2) Act (Northern Ireland) 2008 (c.13 (N.I.)), by regulation 33 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402), by paragraph 18 of Part 1 of Schedule 2 to the Agency Workers Regulations (Northern Ireland) 2011 (S.R. 2011 No. 350) and by other amendments not relevant to these Regulations
S.I. 1992/807 (N.I. 5); Schedule 4A inserted by section 4(4) of, and Schedule 2 to, the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.)) and amended by regulation 2 of the Labour Relations Agency (Code of Practice on Disciplinary and Grievance Procedures) (Jurisdictions) Order (Northern Ireland) 2011 (S.R. 2011 No. 411)
S.I. 2003/2902 (N.I. 15); Schedule 2 amended by regulation 30(5) of the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 (S.R. 2004 No. 55), by Article 30 and paragraph 25 of Schedule 2 to the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19)), by regulation 44 and paragraph 4(a) of Schedule 5 to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (S.R. 2003 No. 497), by regulation 53(1) and paragraph 6(a) of Part 1 of Schedule 7 to the Employment Equality (Age) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 261), by regulation 34(4)(a) of the European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059) as substituted by paragraph 13(2) of Schedule 3 to those Regulations, by Article 3(a) of the Employment (Northern Ireland) Order 2003 (Amendment of Schedules 2,3 and 4) Order (Northern Ireland) 2007 (S.R. 2007 No. 91), by regulations 22(3) and 63(a) of the Companies (Cross-border Mergers) Regulations 2007 (S.I. 2007/2974) as substituted by paragraph 19 of Schedule 2 to those Regulations and by regulation 19 and paragraph 3(a) of Schedule 3 to the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 (S.R. 2008 No. 315)
Regulations made by the Department for Employment and Learning and laid before the Assembly under Article 39 of the Employment Relations (Northern Ireland) Order 1999 for approval of the Assembly before the expiration of six months from the date of their coming into operation
Statutory Rules of Northern Ireland
Employment
Made
19th March 2014
Coming into operation
6th April 2014
1. These Regulations may be cited as the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 and shall come into operation on 6th April 2014.
2. (1) In these Regulations-
"employment agency" means a person who, for profit or not, provides services for the purposes of finding employment for workers or supplying employers with workers, and does not include a trade union by reason only of the services a trade union provides only for and in relation to its members;
"office", in relation to a trade union, means any position-
by virtue of which the holder is an official of the trade union, or
to which Part 3 of the Trade Union and Labour Relations (Northern Ireland) Order 1995(4) (duty to hold elections) applies,
and "official" has the meaning given by Article 2(2) of that Order;
"prohibited list" has the meaning given by regulation 3(2);
"services", in relation to an employment agency, means services for the purposes of finding employment for workers or supplying employers with workers;
"use", in relation to a prohibited list, includes use of information contained in the list.
(2) References in these Regulations to information supplied by a person who contravenes regulation 3 include information supplied by a person who would contravene that regulation if that person's actions took place in Northern Ireland.
3. (1) Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list.
(2) A "prohibited list" is a list which-
(a)contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and
(b)is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.
(3) "Discrimination" means treating a person less favourably than another on grounds of trade union membership or trade union activities.
(4) In these Regulations references to membership of a trade union include references to-
(a)membership of a particular branch or section of a trade union, and
(b)membership of one of a number of particular branches or sections of a trade union;
and references to taking part in the activities of a trade union have a corresponding meaning.
4. (1) A person does not contravene regulation 3 in the following cases.
(2) The first case is where a person supplies a prohibited list, but-
(a)does not know they are supplying a prohibited list, and
(b)could not reasonably be expected to know they are supplying a prohibited list.
(3) The second case is where a person compiles, uses or supplies a prohibited list, but-
(a)in doing so, that person's sole or principal purpose is to make known a contravention of regulation 3 or the possibility of such a contravention,
(b)no information in relation to a person whose details are included in the prohibited list is published without the consent of that person, and
(c)in all the circumstances compiling, using or supplying the prohibited list is justified in the public interest.
(4) The third case is where a person compiles, uses, sells or supplies a prohibited list, but in doing so that person's sole or principal purpose is to apply a requirement either-
(a)that a person may not be considered for appointment to an office or for employment unless that person has experience or knowledge of trade union matters, and in all the circumstances it is reasonable to apply such a requirement, or
(b)that a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union.
(5) The fourth case is where a person compiles, uses, sells or supplies a prohibited list, but the compilation, use, sale or supply of the prohibited list is required or authorised-
(a)under a statutory provision,
(b)by any rule of law, or
(c)by an order of the court.
(6) The fifth case is where a person uses or supplies a prohibited list-
(a)for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), or
(b)for the purpose of giving or obtaining legal advice,
where the use or supply is necessary in order to determine whether these Regulations have been, are being or will be complied with.
5. (1) A person (P) has a right of complaint to an industrial tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either-
(a)R contravenes regulation 3 in relation to that list, or
(b)R-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.
(2) R shall be taken to refuse to employ P if P seeks employment of any description with R and R-
(a)refuses or deliberately omits to entertain and process P's application or enquiry;
(b)causes P to withdraw or cease to pursue P's application or enquiry;
(c)refuses or deliberately omits to offer P employment of that description;
(d)makes P an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or
(e)makes P an offer of such employment but withdraws it or causes P not to accept it.
(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not.
6. (1) A person (P) has a right of complaint to an industrial tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either-
(a)E contravenes regulation 3 in relation to that list, or
(b)E-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.
(2) E shall be taken to refuse P a service if P seeks to make use of the service and E-
(a)refuses or deliberately omits to make the service available to P;
(b)causes P not to make use of the service or to cease to make use of it; or
(c)does not provide P the same service, on the same terms, as is provided to others.
(3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that E contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless E shows that it did not.
7. (1) Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 5 or 6 unless it is presented to the tribunal before the end of the period of three months beginning with the date of the conduct to which the complaint relates.
(2) An industrial tribunal may consider a complaint under regulation 5 or 6 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) The date of the conduct to which a complaint under regulation 5 relates shall be taken to be-
(a)in the case of an actual refusal, the date of the refusal;
(b)in the case of a deliberate omission-
(i)to entertain and process P's application or enquiry, or
(ii)to offer employment,
the end of the period within which it was reasonable to expect R to act;
(c)in the case of conduct causing P to withdraw or cease to pursue P's application or enquiry, the date of that conduct;
(d)in a case where R made but withdrew an offer, the date R withdrew the offer;
(e)in any other case where R made an offer which was not accepted, the date on which R made the offer.
(4) The date of the conduct to which a complaint under regulation 6 relates shall be taken to be-
(a)in the case of an actual refusal, the date of the refusal;
(b)in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect E to act;
(c)in the case of conduct causing P not to make use of a service, or to cease to make use of it, the date of that conduct;
(d)in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact was provided.
8. (1) Where an industrial tribunal finds that a complaint under regulation 5 or 6 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable-
(a)an order requiring the respondent to pay compensation;
(b)a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.
(2) Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.
(3) Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraph (4), (5) or (6) shall not be less than £5,700.
(4) If the respondent fails without reasonable justification to comply with a recommendation under paragraph (1)(b), the tribunal may increase its award of compensation or, if it has not made such an award, make one.
(5) Where the tribunal considers that any conduct of the complainant before the refusal to which the complaint under regulation 5 or 6 relates was such that it would be just and equitable to reduce the award of compensation, the tribunal shall reduce that amount accordingly.
(6) The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 29 of the Employment Rights (Northern Ireland) Order 1996(5) in respect of the same refusal.
(7) The total amount of compensation shall not exceed £76,600.
9. (1) A person (P) has a right of complaint to an industrial tribunal against P's employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either-
(a)D contravenes regulation 3 in relation to that list, or
(b)D-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that information relied on is supplied in contravention of that regulation.
(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that D contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless D shows that it did not.
(3) This regulation does not apply where the detriment in question amounts to the dismissal of an employee within the meaning in Part 11 of the Employment Rights (Northern Ireland) Order 1996.
10. (1) Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 9 unless it is presented before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both), the last of them.
(2) An industrial tribunal may consider a complaint under regulation 9 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(3) For the purposes of paragraph (1)-
(a)where an act extends over a period, the reference to the date of the act is a reference to the last day of the period;
(b)a failure to act shall be treated as done when it was decided on.
(4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary D shall be taken to decide on a failure to act-
(a)when D does an act which is inconsistent with doing the failed act, or
(b)if D has done no such inconsistent act, when the period expires within which D might reasonably have been expected to do the failed act if it was done.
11. (1) Where the industrial tribunal finds that a complaint under regulation 9 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by D to P in respect of the act or failure complained of.
(2) Subject to the following paragraphs, the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the act or failure complained of and to any loss sustained by P which is attributable to D's act or failure.
(3) The loss shall be taken to include-
(a)any expenses P reasonably incurred in consequence of the act or failure complained of; and
(b)loss of any benefit which P might reasonably be expected to have had but for that act or failure.
(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(5) Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraphs (6), (7) and (8) of this regulation and Article 90AA of the Industrial Relations (Northern Ireland) Order 1992(6) or Article 17 of the Employment (Northern Ireland) Order 2003(7) shall not be less than £5,700.
(6) Where the conduct of P before the act or failure complained of was such that it would be just and equitable to reduce the amount of compensation, the tribunal shall reduce that amount accordingly.
(7) Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of P, it shall reduce or further reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
(8) The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 76 of the Employment Rights (Northern Ireland) Order 1996(8) in respect of the same act or failure.
(9) In determining the amount of compensation to be awarded no account shall be taken of any pressure exercised on D by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.
(10) Where P is a worker and the detriment to which P is subjected is the termination of P's contract, and that contract is not a contract of employment, the compensation awarded to P under this regulation shall not exceed £76,600.
12. (1) Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) is amended as follows.
(2) After Article 135E(9) insert-
135F. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either-
(a)the employer contravenes regulation 3 of the 2014 Regulations in relation to that prohibited list, or
(b)the employer-
(i)relies on information supplied by a person who contravenes that regulation in relation to that list, and
(ii)knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.
(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer-
(a)contravened regulation 3 of the 2014 Regulations, or
(b)relied on information supplied in contravention of that regulation,
the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not.
(3) In this Article-
"the 2014 Regulations" means the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014; and
"prohibited list" has the meaning given in those Regulations (see regulation 3(2)).".
(3) In Article 137(10) (selection for redundancy)-
(a)in paragraph (1)(c) for "(7L)" substitute "(7M)";
(b)after paragraph (7L) insert-
"(7M) This paragraph applies if-
(a)the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1), and
(b)the condition in sub-paragraph (a) or (b) of that paragraph was met.".
(4) In Article 140(3)(11) (qualifying period of employment: cases where no qualifying period required), after sub-paragraph (fj) insert-
"(fk)paragraph (1) of Article 135F (read with paragraph (2) of that Article) applies,".
(5) In Article 145 (complaint to industrial tribunal)-
(a)in paragraph (2) (general requirement to present complaint within three months beginning with effective date of termination), for "Subject to paragraph (3)" substitute "Subject to the following provisions of this Article"; and
(b)after paragraph (4) add-
"(5) Where the dismissal is alleged to be unfair by virtue of Article 135F (blacklists)-
(a)paragraph (2)(b) does not apply, and
(b)an industrial tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.".
(6) In Article 154(12) (minimum basic award in certain cases), after paragraph (1B) insert-
"(1C) Where an employee is regarded as unfairly dismissed by virtue of Article 135F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of the basic award of compensation (before any reduction is made under Article 156) shall not be less than £5,700.".
(7) In Article 156(13) (reduction of basic award), after paragraph (4) add-
"(5) Where a dismissal is regarded as unfair by virtue of Article 135F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award under Article 154(1) in respect of the same dismissal under Article 136(1) (dismissal on grounds related to trade union membership or activities) or Article 137(1) and (7) (selection for redundancy on grounds related to trade union membership or activities).".
(8) In Article 158(14) (limit of compensatory award etc.)-
(a)in paragraph (1A) after "134A," insert "135F,"; and
(b)after paragraph (1A) insert-
"(1B) Where an employee is regarded as unfairly dismissed by virtue of Article 135F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of award of compensation shall not exceed £76,600.".
(9) In Article 163(15) (interim relief pending determination of complaint), for paragraph (1) substitute-
"(1) An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed and-
(a)that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in-
(i)Article 132(1)(a) and (b), 132A(1)(d), 133(1), 134, 134A or 136(1), or
(ii)paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order, or
(b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1) and the condition in sub-paragraph (a) or (b) of that paragraph was met,
may apply to the tribunal for interim relief.".
(10) In Article 164(16) (procedure on hearing of application for interim relief), for paragraph (1) substitute-
"(1) This Article applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find-
(a)that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in-
(i)Article 132(1)(a) and (b), 132A(1)(d), 133(1), 134, 134A or 136(1), or
(ii)paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order, or
(b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1) and the condition in sub-paragraph (a) or (b) of that paragraph was met.".
13. (1) A contravention of regulation 3 is actionable as a breach of statutory duty.
(2) If there are facts from which the court could conclude, in the absence of any other explanation, that the defendant has contravened, or is likely to contravene, regulation 3, the court must find that such a contravention occurred, or is likely to occur, unless the defendant shows that it did not, or is not likely to, occur.
(3) In proceedings brought by virtue of this regulation, the court may (without prejudice to any of its other powers)-
(a)make such order as it considers appropriate for the purpose of restraining or preventing the defendant from contravening regulation 3; and
(b)award damages, which may include compensation for injured feelings.
(4) A person may complain to an industrial tribunal under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as it applies by virtue of these Regulations and bring an action for breach of statutory duty in respect of the same conduct for the purpose of restraining or preventing the defendant from contravening regulation 3.
(5) Except as mentioned in paragraph (4), a person may not bring an action for breach of statutory duty and complain to an industrial tribunal under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as it applies by virtue of these Regulations, in respect of the same conduct.
14. (1) Where P has a right of complaint under regulation 5 or 6 against R and E arising out of the same facts, P may present a complaint against either R or E or against R and E jointly.
(2) If P presents a complaint against only one party, that party or P may request the tribunal to join the other as a party to the proceedings.
(3) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.
(4) Where P brings a complaint against R and E jointly, or where P brings a complaint against one of them and the other is joined as a party to the proceedings, and the tribunal-
(a)finds that the complaint is well-founded as against R and E, and
(b)awards compensation,
the tribunal may order that the compensation shall be paid by R, by E, or partly by R and partly by E, as the tribunal may consider just and equitable in all the circumstances.
15. (1) If in proceedings on a complaint under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 as it applies by virtue of these Regulations, either the respondent or complainant claims that another person contravened regulation 3 in respect of the prohibited list to which the complaint relates, the complainant or respondent may request the tribunal to direct that other person be joined as a party to the proceedings.
(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made if it is made after the tribunal has made a decision as to whether the complaint is well-founded.
(3) Where a person has been so joined as a party to the proceedings and the tribunal-
(a)finds that the complaint is well-founded,
(b)awards compensation, and
(c)finds the claim in paragraph (1) is well-founded,
the tribunal shall make a declaration to that effect and may award such of the remedies mentioned in paragraph (4) as it considers just and equitable.
(4) The remedies the tribunal may award are-
(a)an order that compensation shall be paid by the person joined instead of by the respondent, or partly by that person and partly by the respondent;
(b)a recommendation that within a specified period the person joined takes action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates.
(5) If the person joined fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one.
(6) Where by virtue of regulation 14 (complaint against employer and employment agency) there is more than one respondent, the above provisions apply to either or both of them.
16. Article 245 of the Employment Rights (Northern Ireland) Order 1996(17) (restrictions on contracting out) applies in relation to regulations 5, 6 and 9 as if they were contained in that Order.
17. (1) The Industrial Tribunals (Northern Ireland) Order 1996(18) is amended as follows.
(2) In Article 12(1)(19) (dismissal of complaint where action taken for purpose of safeguarding national security) after sub-paragraph (b) insert-
", or
(c)regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (detriment connected with prohibited list).".
(3) In Article 18(1)(20) (recoupment of benefits: payments in relation to which power exercisable)-
(a)omit the word "or" at the end of sub-paragraph (b); and
(b)after sub-paragraph (c) insert-
"or
(d)payments by employers to employees under regulation 5, 6 or 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014,".
(4) In Article 20(1)(21) (conciliation: proceedings and claims to which Article applies)-
(a)omit the word "or" at the end of sub-paragraph (t);
(b)after sub-paragraph (u) insert-
", or
(v)under regulation 5, 6 or 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014.".
(5) In the list in Schedule 4A to the Industrial Relations (Northern Ireland) Order 1992(22) (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of failure to comply with code of practice), after the entry relating to regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 insert-
"Regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (S.R. 2014 No. 88) (detriment connected with prohibited list)."
(6) In the list in Schedule 2 to the Employment (Northern Ireland) Order 2003(23) (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of non-completion of statutory dispute resolution procedure), after the entry relating to regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 insert-
"Regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (detriment connected with prohibited list)."
Sealed with the Official Seal of the Department for Employment and Learning on 19th March 2014.
Dr Stephen Farry
Minister for Employment and Learning
(This note is not part of the Regulations)
These Regulations generally prohibit the compilation, use, sale or supply of blacklists containing details of trade union members and activists, where the purpose of that list is to discriminate against workers on grounds of trade union membership or trade union activities (regulation 3). The Regulations give rights to persons to complain to the industrial tribunal in certain circumstances. These rights arise where a person has been refused employment (regulation 5) or employment agency services (regulation 6) or has been subjected to a detriment (regulation 9) for a reason related to a blacklist.
The Regulations make amendments to the Employment Rights (Northern Ireland) Order 1996 to also give a right of complaint to the industrial tribunal where a person has been unfairly dismissed for a reason relating to a blacklist. The Regulations provide for minimum and maximum compensation available from the industrial tribunal in specified cases. Persons who have suffered or will suffer a loss due to the use or apprehended use of a blacklist may apply to the Court for damages, including damages for injury to feelings, and for orders restraining or preventing the compilation, use, sale or supply of the blacklist (regulation 13). A person cannot claim compensation from the industrial tribunal and damages from the Court in respect of the same conduct (regulation 13(5)). Where a person is pursuing a complaint before the industrial tribunal, that person is permitted to apply to the Court for orders restraining or preventing the compilation, use, sale or supply of the blacklist in question (regulation 13(4)).
Formerly the Department of Higher and Further Education, Training and Employment; see 2001 c. 15 (N.I.)
S.I. 1995/1980 (N.I. 12); Article 12 amended by Articles 26, 30(2) and Schedule 3 of the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19)); Article 2(2) to which there are amendments not relevant to these Regulations
S.I. 1992/807 (N.I. 5); Article 90AA inserted by section 4 of the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.))
S.I. 1996/1919 (N.I. 16); Article 76 amended by Article 4 and paragraph 5 of Schedule 2 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)
S.I. 1996/1919 (N.I. 16); Article 135E inserted by section 15 and paragraph 6 of Part 2 of Schedule 3 to the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.))
S.I. 1996/1919 (N.I. 16); Article 137 amended by regulation 32(1) and paragraph 11 of Schedule 3 to the European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), by paragraph 6 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 48), by regulation 48(1) and paragraph 8 of Schedule 2 to the Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), by regulation 3(2) of the Employment Equality (Age) (Consequential Amendments) Regulations (Northern Ireland) 2007 (S.R. 2007 No. 225), by section 57 of the Pensions (No. 2) Act (Northern Ireland) 2008 (c. 13), by regulation 30 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402), by regulation 3(4) of the Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 (S.R. 2011 No. 168), by paragraph 14 of Schedule 2 to the Agency Workers Regulations (Northern Ireland) 2011 (S.R. 2011 No. 350) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 140 amended by articles 4 and 5 of the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order (Northern Ireland) 1999 (S.R. 1999 No. 277), by section 26 of the National Minimum Wage Act 1998 (c. 39), by section 27 and paragraph 4 of Schedule 1 to the Tax Credits Act 2002 (c. 21), by Article 35 and paragraph 2 of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15)), by section 57(5) of the Pensions (No. 2) Act (Northern Ireland) 2008 (c. 13 (N.I.)), by section 15 and paragraph 8 of Part 2 of Schedule 3 to the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 154 amended by Article 23(5) of the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 156 amended by Article 16 and paragraph 13 of Schedule 1 to the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 158 amended by Article 36(1) of, and paragraph 10 of Schedule 9 to, the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)) and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 163 amended by regulation 2(2) and 32(6) of the Working Time Regulations (Northern Ireland)1998 (S.R. 1998 No. 386), by Article 13 of the Public Interest Disclosure (Northern Ireland) Order 1998 (S.I. 1998/1763 (N.I. 17)), by Article 8 of the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 164 amended by regulation 2(2) and 32(6) of the Working Time Regulations (Northern Ireland)1998 (S.R. 1998 No. 386), by Article 13 of the Public Interest Disclosure (Northern Ireland) Order 1998 (S.I. 1998/1763 (N.I. 17)), by Article 8 of the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and by other amendments not relevant to these Regulations
S.I. 1996/1919 (N.I. 16); Article 245 amended by Articles 9(4), 10(2), 11(2), 16, paragraph 13 and 15 of Schedule 1 and Schedule 2 to the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8)), by Article 40 and Schedule 9 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and by regulation 11 and paragraph 2(16) of Schedule 2 to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 298)
S.I. 1996/1921 (N.I. 18); Article 12 substituted by Article 38 and paragraph 3 of Schedule 8 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)), and amended by Articles 17 and 30(1) and paragraph 23 of Schedule 2 to the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19))
S.I. 1996/1921 (N.I. 18); Article 18 amended by Article 78, paragraph 118 of Schedule 6, and Schedule 7 to the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)), by section 28 and paragraph 9 of Schedule 3 to the Welfare Reform Act (Northern Ireland) 2007 (c. 2 (N.I.)) and by section 34 and Part 1 of Schedule 4 to the Welfare Reform Act (Northern Ireland) 2010 (c. 13 (N.I.))
S.I. 1996/1921 (N.I. 18); Article 20 amended by regulation 17 and paragraph 9 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employees) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 48), by regulation 52 and paragraph 11 of Schedule 2 to the Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), by regulation 19 and paragraph 1 of Schedule 3 to the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 (S.R. 2008 No. 315), by section 56(6) of the Pensions (No. 2) Act (Northern Ireland) 2008 (c.13 (N.I.)), by regulation 33 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402), by paragraph 18 of Part 1 of Schedule 2 to the Agency Workers Regulations (Northern Ireland) 2011 (S.R. 2011 No. 350) and by other amendments not relevant to these Regulations
S.I. 1992/807 (N.I. 5); Schedule 4A inserted by section 4(4) of, and Schedule 2 to, the Employment Act (Northern Ireland) 2011 (c. 13 (N.I.)) and amended by regulation 2 of the Labour Relations Agency (Code of Practice on Disciplinary and Grievance Procedures) (Jurisdictions) Order (Northern Ireland) 2011 (S.R. 2011 No. 411)
S.I. 2003/2902 (N.I. 15); Schedule 2 amended by regulation 30(5) of the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 (S.R. 2004 No. 55), by Article 30 and paragraph 25 of Schedule 2 to the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19)), by regulation 44 and paragraph 4(a) of Schedule 5 to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (S.R. 2003 No. 497), by regulation 53(1) and paragraph 6(a) of Part 1 of Schedule 7 to the Employment Equality (Age) Regulations (Northern Ireland) 2006 (S.R. 2006 No. 261), by regulation 34(4)(a) of the European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059) as substituted by paragraph 13(2) of Schedule 3 to those Regulations, by Article 3(a) of the Employment (Northern Ireland) Order 2003 (Amendment of Schedules 2,3 and 4) Order (Northern Ireland) 2007 (S.R. 2007 No. 91), by regulations 22(3) and 63(a) of the Companies (Cross-border Mergers) Regulations 2007 (S.I. 2007/2974) as substituted by paragraph 19 of Schedule 2 to those Regulations and by regulation 19 and paragraph 3(a) of Schedule 3 to the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 (S.R. 2008 No. 315)
