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The Employment Rights (Northern Ireland) Order 1996

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This is the original version (as it was originally made).

PART XTERMINATION OF EMPLOYMENT

Minimum period of notice

Rights of employer and employee to minimum notice

118.—(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more—

(a)is not less than one week’s notice if his period of continuous employment is less than two years,

(b)is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

(c)is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.

(3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to paragraphs (1) and (2); but this Article does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

(4) Any contract of employment of a person who has been continuously employed for three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, paragraphs (1) and (2) apply to the contract.

(5) Paragraphs (1) and (2) do not apply to a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months unless the employee has been continuously employed for a period of more than three months.

(6) This Article does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.

Rights of employee in period of notice

119.—(1) If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for one month or more, the provisions of Articles 120 to 123 have effect as respects the liability of the employer for the period of notice required by Article 118(1).

(2) If an employee who has been continuously employed for one month or more gives notice to terminate his contract of employment, the provisions of Articles 120 to 123 have effect as respects the liability of the employer for the period of notice required by Article 118(2).

(3) In Articles 120 to 123 “period of notice” means—

(a)where notice is given by an employer, the period of notice required by Article 118(1), and

(b)where notice is given by an employee, the period of notice required by Article 118(2).

(4) This Article does not apply in relation to a notice given by the employer or the employee if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by Article 118(1).

Employments with normal working hours

120.—(1) If an employee has normal working hours under the contract of employment in force during the period of notice and during any part of those normal working hours—

(a)the employee is ready and willing to work but no work is provided for him by his employer,

(b)the employee is incapable of work because of sickness or injury,

(c)the employee is absent from work wholly or partly because of pregnancy or childbirth, or

(d)the employee is absent from work in accordance with the terms of his employment relating to holidays,

the employer is liable to pay the employee for the part of normal 8 working hours covered by any of sub-paragraphs (a), (b), (c) and (d) a sum not less than the amount of remuneration for that part of normal working hours calculated at the average hourly rate of remuneration produced by dividing a week’s pay by the number of normal working hours.

(2) Any payments made to the employee by his employer in respect of the relevant part of the period of notice (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, holiday pay or otherwise) go towards meeting the employer’s liability under this Article.

(3) Where notice was given by the employee, the employer’s liability under this Article does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.

Employments without normal working hours

121.—(1) If an employee does not have normal working hours under the contract of employment in force in the period of notice, the employer is liable to pay the employee for each week of the period of notice a sum not less than a week’s pay.

(2) The employer’s liability under this Article is conditional on the employee being ready and willing to do work of a reasonable nature and amount to earn a week’s pay.

(3) Paragraph (2) does not apply—

(a)in respect of any period during which the employee is incapable of work because of sickness or injury,

(b)in respect of any period during which the employee is absent from work wholly or partly because of pregnancy or childbirth, or

(c)in respect of any period during which the employee is absent from work in accordance with the terms of his employment relating to holidays.

(4) Any payment made to an employee by his employer in respect of a period within paragraph (3) (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, holiday pay or otherwise) shall be taken into account for the purposes of this Article as if it were remuneration paid by the employer in respect of that period.

(5) Where notice was given by the employee, the employer’s liability under this Article does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.

Short-term incapacity benefit and industrial injury benefit

122.—(1) This Article has effect where the arrangements in force relating to the employment are such that—

(a)payments by way of sick pay are made by the employer to employees to whom the arrangements apply, in cases where any such employees are incapable of work because of sickness or injury, and

(b)in calculating any payment so made to any such employee an amount representing, or treated as representing, short-term incapacity benefit or industrial injury benefit is taken into account, whether by way of deduction or by way of calculating the payment as a supplement to that amount.

(2) If—

(a)during any part of the period of notice the employee is incapable of work because of sickness or injury,

(b)one or more payments by way of sick pay are made to him by the employer in respect of that part of the period of notice, and

(c)in calculating any such payment such an amount as is referred to in sub-paragraph (b) of paragraph (1) is taken into account as mentioned in that sub-paragraph,

for the purposes of Article 120 or 121 the amount so taken into account shall be treated as having been paid by the employer to the employee by way of sick pay in respect of that part of that period, and shall go towards meeting the liability of the employer under that Article accordingly.

Supplementary

123.—(1) An employer is not liable under Article 120 or 121 to make any payment in respect of a period during which an employee is absent from work with the leave of the employer granted at the request of the employee, including any period of time off taken in accordance with Part VII.

(2) No payment is due under Article 120 or 121 in consequence of a notice to terminate a contract given by an employee if, after the notice is given and on or before the termination of the contract, the employee takes part in a strike of employees of the employer.

(3) If, during the period of notice, the employer breaks the contract of employment, payments received under Article 120 or 121 in respect of the part of the period after the breach go towards mitigating the damages recoverable by the employee for loss of earnings in that part of the period of notice.

(4) If, during the period of notice, the employee breaks the contract and the employer rightfully treats the breach as terminating the contract, no payment is due to the employee under Article 120 or 121 in respect of the part of the period falling after the termination of the contract.

(5) If an employer fails to give the notice required by Article 118, the rights conferred by Articles 119 to 122 and this Article shall be taken into account in assessing his liability for breach of the contract.

(6) Articles 118 to 122 and this Article apply in relation to a contract all or any of the terms of which are terms which take effect by virtue of any statutory provision as in relation to any other contract.

Written statement of reasons for dismissal

Right to written statement of reasons for dismissal

124.—(1) An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee’s dismissal—

(a)if the employee is given by the employer notice of termination of his contract of employment,

(b)if the employee’s contract of employment is terminated by the employer without notice, or

(c)if the employee is employed under a contract for a fixed term and that term expires without being renewed under the same contract.

(2) Subject to paragraph (4), an employee is entitled to a written statement under this Article only if he makes a request for one; and a statement shall be provided within fourteen days of such a request.

(3) Subject to paragraph (4), an employee is not entitled to a written statement under this Article unless on the effective date of termination he has been, or will have been, continuously employed for a period of not less than two years ending with that date.

(4) An employee is entitled to a written statement under this Article without having to request it and irrespective of whether she has been continuously employed for any period if she is dismissed—

(a)at any time while she is pregnant, or

(b)after childbirth in circumstances in which her maternity leave period ends by reason of the dismissal.

(5) A written statement under this Article is admissible in evidence in any proceedings.

(6) Subject to paragraph (7), in this Article “the effective date of termination”—

(a)in relation to an employee whose contract of employment is terminated by notice, means the date on which the notice expires,

(b)in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

(c)in relation to an employee who is employed under a contract for a fixed term which expires without being renewed under the same contract, means the date on which the term expires.

(7) Where—

(a)the contract of employment is terminated by the employer, and

(b)the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by paragraph (6)),

the later date is the effective date of termination.

(8) In paragraph (7)(b) “the material date” means—

(a)the date when notice of termination was given by the employer, or

(b)where no notice was given, the date when the contract of employment was terminated by the employer.

Complaints to industrial tribunal

125.—(1) A complaint may be presented to an industrial tribunal by an employee on the ground that—

(a)the employer unreasonably failed to provide a written statement under Article 124, or

(b)the particulars of reasons given in purported compliance with that Article are inadequate or untrue.

(2) Where an industrial tribunal finds a complaint under this Article well-founded, the tribunal—

(a)may make a declaration as to what it finds the employer’s reasons were for dismissing the employee, and

(b)shall make an award that the employer pay to the employee a sum equal to the amount of two weeks' pay.

(3) An industrial tribunal shall not consider a complaint under this Article relating to the reasons for a dismissal unless it is presented to the tribunal at such a time that the tribunal would, in accordance with Article 145, consider a complaint of unfair dismissal in respect of that dismissal presented at the same time.

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