The Employment (Northern Ireland) Order 2002

SCHEDULES

SCHEDULE I PENALTIES: PROCEDURE AND APPEALS

Determination of penalties by officer of Board

1.—(1) Subject to sub-paragraph (2) and except where proceedings have been instituted under paragraph 5, an officer of the Board authorised by the Board for the purposes of this paragraph may make a determination—

(a) imposing a penalty under Article 12 or 13, and

(b) setting it at such amount as, in his opinion, is correct or appropriate.

(2) Articles 12 and 13 does not apply to the imposition of such a penalty as is an Article 12(2)(a).

(3) Notice of a determination of a penalty under this paragraph shall be served on the person liable to the penalty and shall state the date on which it is issued and the time within which an appeal against the determination may be made.

(4) After the notice of a determination under this paragraph has been served the determination shall not be altered except in accordance with this paragraph or on appeal.

(5) If it is discovered by an officer of the Board authorised by the Board for the purposes of this paragraph that the amount of a penalty determined under this paragraph is or has become insufficient, the officer may make a determination in a further amount so that the penalty is set at the amount which, in his opinion, is correct or appropriate.

Provisions supplementary to paragraph 1

2.—(1) A penalty determined under paragraph l shall be due and payable at the end of the period of thirty days beginning with the date of the issue of the notice of determination.

(2) Part VI of the Taxes Management Act 1970 (c. 9) shall apply in relation to a penalty determined under paragraph 1 as if it were tax charged in an assessment and due and payable.

Appeals against penalty determinations

3—(1) An appeal may be brought against the determination of a penalty under paragraph 1.

(2) The provisions of the Taxes Management Act 1970 relating to appeals, except section 50(6) to (8), shall have effect in relation to an appeal against such a determination as they have effect in relation to an appeal against an assessment to tax.

(3) On an appeal by virtue of sub-paragraph (2) against the determination of a penalty under paragraph 1, the General or Special Commissioners may—

(a) if it appears to them that no penalty has been incurred, set the determination aside;

(b) if the amount determined appears to them to be appropriate, confirm the determination;

(c) if the amount determined appears to them to be excessive, reduce it to such other amount (including nil) as they consider appropriate;

(d) if the amount determined appears to them to be insufficient, increase it to such amount not exceeding the permitted maximum as they consider appropriate.

(4) An appeal from a decision of the Commissioners against the amount of a penalty which has been determined under paragraph 1 or this paragraph shall lie, at the instance of the person liable to the penalty to the High Court, and on that appeal the court shall have the like jurisdiction as is conferred on the Commissioners by virtue of this paragraph.

Penalty proceedings before Commissioners

4.—(1) An officer of the Board authorised by the Board for the purposes ofthis paragraph may commence proceedings for any penalty to which sub-paragraph (1) of paragraph 1 does not apply by virtue of sub-paragraph (2) of that paragraph.

(2) Proceedings under this paragraph shall be by way of information in writing, made to the General or Special Commissioners, and upon summons issued by them to the defendant to appear before them at a time and place stated in the summons and they shall hear and decide each case in a summary way.

(3) Part VI of the Taxes Management Act 1970 (c. 9) shall apply in relation to a penalty determined in proceedings under this paragraph as if it were tax charged in an assessment and due and payable.

(4) An appeal against the determination of a penalty in proceedings under this paragraph shall lie to the High Court—

(a) by any party on a question of law, and

(b) by the defendant against the amount of the penalty.

(5) On any such appeal the court may—

(a) if it appears that no penalty has been incurred, set the determination aside;

(b) if the amount determined appears to be appropriate, confirm the determination;

(c) if the amount determined appears to be excessive, reduce it to such other amount (including nil) as the court considers appropriate;

(d) if the amount determined appears to be insufficient, increase it to such amount not exceeding the permitted maximum as the court considers appropriate.

Penalty proceedings before court

5.—(1) Where in the opinion of the Board the liability of any person for a penalty under Article 12 or 13 arises by reason of the fraud of that or any other person, proceedings for the penalty may be instituted before the High Court.

(2) Subject to sub-paragraph (3), proceedings under this paragraph shall be instituted in the name of the Attorney General for Northern Ireland.

(3) Sub-paragraph (2) shall not prevent proceedings under this paragraph being instituted under the Crown Proceedings Act 1947 (c. 44) by and in the name of the Board as an authorised department for the purposes of that Act.

(4) Any proceedings under this paragraph shall be deemed to be civil proceedings by the Crown within the meaning of Part II of the Crown Proceedings Act 1947 (c. 44).

(5) If in proceedings under this paragraph the court does not find that fraud is proved but considers that the person concerned is nevertheless liable to a penalty, the court may determine a penalty notwithstanding that, but for the opinion of the Board as to fraud, the penalty would not have been a matter for the court.

Mitigation of penalties

6.  The Board may in their discretion mitigate any penalty under Article 12 or 13, or stay or compound any proceedings for a penalty, and may also, after judgment, further mitigate or entirely remit the penalty.

Time limits for penalties

7.  A penalty under Article 12 or 13 may be determined by an officer of the Board, or proceedings for the penalty may be commenced before the Commissioners or the court, at any time within six years after the date on which the penalty was incurred or began to be incurred.

Interest on penalties

8.—(1) After paragraph (q) of section 178(2) of the Finance Act 1989 (c. 26) (setting rates of interest) there shall be inserted—

“(r) paragraph 8 of Schedule I to the Employment (Northem Ireland) Order 2002.”

(2) A penalty under Article 12 or 13 shall carry interest at the rate applicable under section 178 of the Finance Act 1989 (c. 26) from the date on which it becomes due and payable until payment.

Interpretation

9.  In this Schedule “General Commissioners” and “Special Commissioners” have the same meanings as in the Taxes Management Act 1970 (c. 9).

SCHEDULE 2 AMENDMENTS

The Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7)

1.—(1) In section 4 (payments treated as remuneration and earnings), in subsection (l)(a) (payments in satisfaction of entitlement to statutory sick pay or maternity pay), after “maternity pay;” insert

“or

(iii) statutory paternity pay, or

(iv) statutory adoption pay”.

(2) In section 170 in the definition of “the Department” after “means” insert “(except in Parts XIIZA and XIIZB above)”.

(3) In section 172(2)(a) (Assembly control) at the end insert “or section 167ZE(1) or section 167ZN (1) above”.

The Social Security Administration (Northern Ireland) Act 1992 (c. 8)

2.—(1) In section 5 after subsection (4) insert—

“(4A) Subsection (1)(g), (j), (m), (q) and (r) above shall have effect as if—

(a) statutory paternity pay and statutory adoption pay were benefits to which this section applies; and

(b) for the words “Regulations may” at the beginning of subsection (1) there were substituted the words “The Department for Employment and Learning may by regulations subject to negative resolution (within the meaning of section 166(12))”.

(2) In section 116AA (disclosure of information by the Inland Revenue), in subsection (1) (which permits the disclosure of information relating to statutory sick pay and maternity pay by the Board to certain authorities, or in connection with certain agreements with countries outside the United Kingdom), for “or statutory maternity pay” substitute “, statutory maternity pay, statutory paternity pay or statutory adoption pay”.

The Industrial Relations (Northern Ireland) Order 1992 (N.I. 5)

3.  In Article 84A(1) (claims and proceedings to which Agency arbitration scheme applies)—

(a) after “tribunal” insert “under, or”;

(b) after “contravention of” insert—

“(za) Article 112G(1) or 112H(1)(b) of the Employment Rights (Northern Ireland) Order 1996 (flexible working);” and

(c) in sub-paragraph (a) for “the Employment Rights (Northern Ireland) Order 1996” substitute “that Order”.

The Employment Rights (Northem Ireland) Order 1996 (N.I. 16)

4.—(1) In Article 2(3) (definitions) insert at the appropriate place—

““paternity leave” means leave under Article 112A or 112B,”.

(2) In Article 2(3) in the definition of “week” for “Article 118” substitute “Articles 112A, 112B and 118”.

(3) In Article 21 (definition of calculation date for the purposes of the calculation of a week’s pay in relation to cases connected with rights during employment), at the end insert—

“(6) Where the calculation is for the purposes of Article 112I, the calculation date is the day on which the application under Article 112F was made.”.

(4) In Article 23(1) (maximum amount of week’s pay) before sub-paragraph (a) insert—

“(za) an award of compensation under Article 112I(1)(b),”.

(5) In Article 59(1) (meaning of “wages”), after sub-paragraph (c) insert—

“(ca) statutory paternity pay under Part XllZA of that Act,

(cb) statutory adoption pay under Part XllZB of that Act,”.

(6) In Article 70C (leave for family and domestic reasons) after sub-paragraph (b) of paragraph (2) insert—

“(ba) ordinary or additional adoption leave,”.

(7) In Article 70C for “or” at the end of sub-paragraph (c) of paragraph (2) substitute—

“(ca) paternity leave, or”.

(8) In Article 71(1) (right to present complaint of detriment to industrial tribunal), for “or 70C” substitute “, 70C or 70D”.

(9) In Article 110 (parental leave: special cases), in paragraph (6), for the words from “to maternity” to the end substitute—

“to parental leave and partly to—

(a) maternity leave, or

(b) adoption leave,

or to both.”

(10) In Article 120 (pay during notice period: employments with normal working hours) in paragraph ( I )(c ), for “parental leave” substitute “adoption leave, -parental leave or paternity leave” and in paragraph (2), after “statutory maternity pay,” insert “paternity pay, statutory patemity pay, adoption pay, statutory adoption pay,”.

(11) In Article 121 (pay during notice period: employments without normal working hours) in paragraph (3)(b), for “parental leave” substitute “adoption leave, parental leave or paternity leave” and in paragraph (4), after “statutory maternity pay,” insert “paternity pay, statutory paternity pay, adoption pay, statutory adoption pay,”.

(12) In Article 124 (right to written statement of reasons for dismissal), in paragraphs (2) and (3) for “paragraph (4)” substitute “paragraphs (4) and (4A)”, and after paragraph ( 4) insert—

“(4A) An employee who is dismissed while absent from work during an ordinary or additional adoption leave period is entitled to a written statement under this Article without having to request it and irrespective of whether he has been continuously employed for any period if he is dismissed in circumstances in which that period ends by reason of the dismissal.”

(13) In Article 131 (unfair dismissal: leave for family reasons) after sub-paragraph (b) of paragraph (3) insert—

“(ba) ordinary or additional adoption leave,”.

(l4) In Article 131 for “or” .at the end of sub-paragraph (c) of paragraph (3) substitute—

“(ca) paternity leave, or”.

(15) In Article 138 (dismissal of replacement employees), in paragraph (2)(a), after “childbirth,” insert “or on adoption leave”.

(16) In Article 236(2) (provisions of the Order which have effect in relation to Crown employment), in sub-paragraph (a) for “IX” substitute “IXA,”.

(17) In Article 237(2) (provisions of the Order which have effect in relation to service as a member of the armed forces) in sub-paragraph (e) after “134” insert “, 135C”.

(18) In Article 242 (application of the Order to mariners) in paragraphs (2) and (8)(d) for “and IX” substitute “, IX and IXA”

(19) In Article 251(1A) (procedure for making regulations) after “105,” insert “107A, 107B,” and after “108,” insert “112A, 112B, 112G,”.

The Industrial Tribunals (Northern Ireland) Order 1996 (N.I. 18)

5.  In Article 20(1) (claims and proceedings to which provisions as to conciliation apply)—

(a) in sub-paragraph (c)—

(i) at the beginning insert “under, or”;

(ii) after head (vii) insert—

“(viia) Article 112G(1) or 112H(I)(b) (flexible working);” and

(b) in sub-paragraph (e) at the beginning insert “under, or”

The Employment Relations (Northern Ireland) Order 1999 (N.I. 9 )

6.  In Article 24(1) (power to confer rights on individuals) at the end add—

“(g) the Employment (Northern Ireland) Order 2002.”.

The Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1999/671)

7.  In Article 23(1) and (2) after “the Department” insert “or the Department for Employment and Learning”.