The Trade Union and Labour Relations (Northern Ireland) Order 1995

Restriction on contracting out N.I.

146.—(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a) to exclude or limit the operation of any provision of this Order, or

(b) to preclude a person from bringing proceedings before an industrial tribunal under any provision of this Order.

(2) Paragraph (1) does not apply to an agreement to refrain from instituting or continuing proceedings where the Agency has taken action under[F1 Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996] (general provisions as to conciliation).

(3) Paragraph (1) does not apply to an agreement to refrain from instituting or continuing any proceedings specified in Article 148 before an industrial tribunal if the conditions regulating compromise agreements under this Order are satisfied in relation to the agreement.

(4) The conditions regulating compromise agreements under this Order are that—

(a) the agreement must be in writing;

(b) the agreement must relate to the particular[F2 proceedings];

(c) the complainant must have received[F3 advice from a relevant independent adviser] as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an industrial tribunal;

(d) there must be in force, when the adviser gives the advice, a[F4 contract of insurance, or an indemnity provided for members of a profession or professional body,] covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

(e) the agreement must identify the adviser; and

(f) the agreement must state that the conditions regulating compromise agreements under this Order are satisfied.

[F2 (5) A person is a relevant independent adviser for the purposes of paragraph (4)(c)—

(a) if he is a qualified lawyer,

(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

(d) if he is a person of a description specified in an order made by the Department.

(5A) But a person is not a relevant independent adviser for the purposes of paragraph (4)(c) in relation to the complainant—

(a) if he is, is employed by or is acting in the matter for the other party or for a person who is connected with the other party,

(b) in the case of a person within paragraph (5)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,

(c) in the case of a person within paragraph (5)(c), if the complainant makes a payment for the advice received from him, or

(d) in the case of a person of a description specified in an order under paragraph (5)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

(5B) In paragraph (5)(a) “qualified lawyer” means a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

(6) For the purposes of paragraph (5A) any two persons are to be treated as connected—

(a) if one is a company of which the other (directly or indirectly) has control, or

(b) if both are companies of which a third person (directly or indirectly) has control.]

[F5 (7) An agreement under which the parties agree to submit a dispute to arbitration—

(a) shall be regarded for the purposes of paragraphs (2) and (3) as being an agreement to refrain from instituting or continuing proceedings if—

(i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992; and

(ii) the agreement is to submit it to arbitration in accordance with the scheme, but

(b) shall be regarded for those purposes as neither being nor including such an agreement in any other case.]

F1 1996 NI 18

F2 1998 NI 8

F3 1998 NI 8

F4 1998 NI 8

F5 1998 NI 8