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

Status:

This is the original version (as it was originally made).

Unfair dismissal

Dismissal of those taking part in unofficial industrial action

136.—(1) After Article 23 of the No. 1 Order there shall be inserted—

Dismissal of those taking part in unofficial industrial action

23A.(1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(2) Paragraph (1) does not apply to the dismissal of the employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal was one of those specified in Article 22B(1) (read with (2) and (3)) of this Order or in Article 29 of the No. 2 Order.

(3) A strike or other industrial action is unofficial in relation to an employee unless—

(a)he is a member of a trade union and the action is authorised or endorsed by that union, or

(b)he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(4) The provisions of Article 21(2) of the 1992 Order apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

(5) The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal.

Provided that, where an act is repudiated as mentioned in Article 21A of the 1992 Order, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place.

(6) In this Article the “time of dismissal” means—

(a)where the employee’s contract of employment is terminated by notice, when the notice is given,

(b)where the employee’s contract of employment is terminated without notice, when the termination takes effect, and

(c)where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires;

and a “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971(1)

(7) For the purposes of this Article membership of a trade union for purposes unconnected with the employment in question shall be disregarded; but an employee who was a member of a trade union when he began to take part in industrial action shall continue to be treated as a member for the purpose of determining whether that action is unofficial in relation to him or another notwithstanding that he may in fact have ceased to be a member..

(2) In Article 23 of the No. 1 Order (dismissal in connection with a lock-out, strike or other industrial action) after paragraph (5) there shall be added—

(6) The provisions of this Article do not apply to an employee who by virtue of Article 23A has no right to complain of unfair dismissal; but nothing in Article 23A affects the question who are relevant employees in relation to an employee to whom the provisions of this Article do apply..

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