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

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Changes over time for: Cross Heading: Right not to be unjustifiably disciplined

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The Trade Union and Labour Relations (Northern Ireland) Order 1995, Cross Heading: Right not to be unjustifiably disciplined is up to date with all changes known to be in force on or before 21 August 2019. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Right not to be unjustifiably disciplinedF4N.I.

F4functions transf. by SR 1999/481

Non-textual amendments applied to the whole Legislation can be found in the Introduction

Right not to be unjustifiably disciplinedN.I.

31.—(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.

(2) For this purpose an individual is “disciplined” by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that—

(a)he should be expelled from the union or a branch or section of the union,

(b)he should pay a sum to the union, to a branch or section of the union or to any other person;

(c)sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose,

(d)he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union,

(e)another trade union, or a branch or section of it, should be encouraged or advised not to accept him as a member, or

(f)he should be subjected to some other detriment;

and whether an individual is “unjustifiably disciplined” shall be determined in accordance with Article 32.

(3) Where a determination made in infringement of an individual's right under this Article requires the payment of a sum or the performance of an obligation, no person is entitled in any proceedings to rely on that determination for the purpose of recovering the sum or enforcing the obligation.

(4) Subject to that, the remedies for infringement of the right conferred by this Article are as provided by Articles 33 and 34, and not otherwise.

(5) The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this Article; and, subject to Article 33(4), nothing in this Article or Articles 32 to 34 affects any remedy for infringement of any such right.

Meaning of “unjustifiably disciplined”N.I.

32.—(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is—

(a)conduct to which this Article applies, or

(b)something which is believed by the union to amount to such conduct;

but subject to paragraph (6) (cases of bad faith in relation to assertion of wrongdoing).

(2) This Article applies to conduct which consists in—

(a)failing to participate in or support a strike or other industrial action (whether by members of the union or by others), orindicating opposition to or a lack of support for such action;

(b)failing to contravene, for a purpose connected with such a strike or other industrial action, a requirement imposed on him by or under a contract of employment;

(c)asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any statutory provision or any rule of law;

(d)encouraging or assisting a person—

(i)to perform an obligation imposed on him by a contract of employment, or

(ii)to make or attempt to vindicate any such assertion as is mentioned in sub-paragraph (c);

(e)contravening a requirement imposed by or in consequence of a determination which infringes the individual's or another individual's right not to be unjustifiably disciplined;

(f)failing to agree, or withdrawing agreement, to the making from his wages (in accordance with arrangements between his employer and the union) of deductions representing payments to the union in respect of his membership;

(g)resigning or proposing to resign from the union or from another union, becoming or proposing to become a member of another union, refusing to become a member of another union, or being a member of another union;

(h)working with, or proposing to work with, individuals who are not members of the union or who are or are not members of another union;

(j)working for, or proposing to work for, an employer who employs or who has employed individuals who are not members of the union or who are or are not members of another union; or

(k)requiring the union to do an act which the union is, by any provision of this Order or the 1992 Order, required to do on the requisition of a member.

(3) This Article applies to conduct which involvesF1. . . the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject-matter of any such assertion as is mentioned in paragraph (2)(c).

(4) This Article also applies to conduct which consists in proposing to engage in, or doing anything preparatory or incidental to, conduct falling within paragraph (2) or (3).

(5) This Article does not apply to an act or statement comprised in conduct falling within paragraph (2). (3) or (4) if it is shown that the act or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts or statements were in connection with conduct within paragraph (2) or (3).

(6) An individual is not unjustifiably disciplined if it is shown—

(a)that the reason for disciplining him, or one of them, is that he made such an assertion as is mentioned in paragraph (2)(c), or encouraged or assisted another person to make or attempt to vindicate such an assertion,

(b)that the assertion was false, and

(c)that he made the assertion, or encouraged or assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith,

and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined.

(7) In this Article—

  • “contract of employment”, in relation to an individual, includes any agreement between that individual and a person for whom he works or normally works,

  • “employer” includes such a person and related expressions shall be construed accordingly;

  • “representative”, in relation to a union, means a person acting or purporting to act—

    (a)

    in his capacity as a member of the union, or

    (b)

    on the instructions or advice of a person acting or purporting to act in that capacity or in the capacity of an official of the union;

  • “require” (on the part of an individual) includes request or apply for, and “requisition” shall be construed accordingly;

  • “wages” shall be construed in accordance with the definitions of “contract of employment”, “employer” and related expressions.

(8) Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between him and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this Article.

Complaint of infringement of rightN.I.

33.—(1) An individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the union to an industrial tribunal.

(2) The tribunal shall not entertain such a complaint unless it is presented—

(a)before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or

(b)where the tribunal is satisfied—

(i)that it was not reasonably practicable for the complaint to be presented before the end of that period, or

(ii)that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,

within such further period as the tribunal considers reasonable.

(3) Where the tribunal finds the complaint well-founded, it shall make a declaration to that effect.

(4) Where a complaint relating to an expulsion which is presented under this Article is declared to be well-founded, no complaint in respect of the expulsion shall be presented or proceeded with under Article 38 (right not to be expelled from trade union).

Further remedies for infringement of rightN.I.

34.—(1) An individual whose complaint under Article 33 has been declared to be well-founded may make an application to an industrial tribunal for one or both of the following—

(a)an award of compensation to be paid to him by the union;

(b)an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in Article 31(2)(b).

(2) An application under this Article shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date.

(3) The amount of compensation awarded shall, subject to the following provisions, be such as the industrial tribunal considers just and equitable in all the circumstances.

(4) In determining the amount of compensation to be awarded, the same rule shall be applied concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

(5) Where the industrial tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

(6) The amount of compensation calculated in accordance with paragraphs (3) to (5) shall not exceed the aggregate of—

(a)an amount equal to 30 times the limit for the time being imposed by[F2 Article 23(1)(a) of the Employment Rights Order] (maximum amount of a week's pay for basic award in unfair dismissal cases), and

(b)an amount equal to the limit for the time being imposed by[F2 Article 158(1)] of that Order (maximum compensatory award in such cases);

and, in a case to which paragraph (7) applies, shall not be less than the amount for the time being specified inF3 Article 40(6) of this Order.

(7) This paragraph applies to a case where when the application under this Article is made—

(a)the determination infringing the applicant's right not to be unjustifiably disciplined has not been revoked, or

(b)the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination.

F3prosp. subst. by 2004 NI 19

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