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Statutory Rules of Northern Ireland

2006 No. 261

AGE DISCRIMINATION

The Employment Equality (Age) Regulations (Northern Ireland) 2006

Made

13th June 2006

Coming into operation in accordance with regulation 1

The Office of the First Minister and deputy First Minister, being a Department designated for the purposes of section 2(2) of the European Communities Act 1972(1) in relation to discrimination (2), in exercise of the powers conferred by section 2(2) of that Act makes the following Regulations:

PART 1GENERAL

Citation and commencement

1.—(1) These Regulations may be cited as the Employment Equality (Age) Regulations (Northern Ireland) 2006 and with the exception of this regulation and regulations 2, 37, 38 and 39 shall come into operation on 1st October 2006.

(2) This regulation and regulations 2, 37, 38 and 39 shall come into operation on 14th June 2006.

Interpretation

2.—(1) The Interpretation Act (Northern Ireland) 1954(3) shall apply to these Regulations as it applies to an Act of the Assembly.

(2) In these Regulations, references to discrimination are to any discrimination falling within regulation 3 (discrimination on grounds of age), regulation 4 (discrimination by way of victimisation), or regulation 5 (instructions to discriminate), and related expressions shall be construed accordingly, and references to harassment shall be construed in accordance with regulation 6 (harassment on grounds of age).

(3) In these Regulations—

“the 1996 Order” means the Employment Rights (Northern Ireland) Order 1996(4);

“act” includes a deliberate omission;

“benefits”, except in regulation 12 and Schedule 1 (pension schemes), includes facilities and services;

the Commission” means the Equality Commission for Northern Ireland established by section 73 of the Northern Ireland Act 1998(5);

“Crown employment” means—

(a)

service for purposes of a Minister of the Crown, a Northern Ireland Minister or government department, other than service of a person holding a statutory office; or

(b)

service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body;

“detriment” does not include harassment within the meaning of regulation 6;

“employment” means employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions (such as “employee” and “employer”) shall be construed accordingly, but this definition does not apply in relation to regulation 32 (exception for retirement) or to Schedules 1, 5, 6 and 7;

“Minister of the Crown” includes the Treasury and the Defence Council;

“Northern Ireland” includes such of the territorial waters of the United Kingdom as are adjacent to Northern Ireland;

“Northern Ireland Minister” includes the First Minister and deputy First Minister acting jointly;

“proprietor”, in relation to a school, has the same meaning as in Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986(6);

“school” has the same meaning as in Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986;

“service for purposes of a Minister of the Crown, a Northern Ireland Minister or government department” does not include service in any office mentioned in Schedule 2 (Ministerial offices) to the House of Commons Disqualification Act 1975(7);

“statutory body” means a body set up by or in pursuance of a statutory provision, and “statutory office” means an office so set up;

“statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954; and

“worker”, in relation to regulations 34 and 36 and to Schedule 1, means, as the case may be—

(a)

an employee;

(b)

a person holding an office or post to which regulation 13 (office-holders etc) applies;

(c)

a person holding the office of constable;

(d)

a partner within the meaning of regulation 18 (partnerships);

(e)

a member of a limited liability partnership within the meaning of that regulation or;

(f)

a person in Crown employment.

(4) In these Regulations, references to “employer”, in their application to a person at any time seeking to employ another, include a person who has no employees at that time.

Discrimination on grounds of age

3.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if —

(a)on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or

(b)A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—

(i)which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii)which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) In this regulation—

(a)“age group” means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b)the reference in paragraph (1)(a) to B’s age, includes B’s apparent age.

Discrimination by way of victimisation

4.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if he treats B less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that B has—

(a)brought proceedings against A or any other person under these Regulations;

(b)given evidence or information in connection with proceedings brought by any person against A or any other person under these Regulations;

(c)otherwise done anything under or by reference to these Regulations in relation to A or any other person; or

(d)alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these Regulations,

or by reason that A knows that B intends to do any of those things, or suspects that B has done or intends to do any of them.

(2) Paragraph (1) does not apply to treatment of B by reason of any allegation made by him, or evidence or information given by him, if the allegation, evidence or information was false and not made (or, as the case may be, given) in good faith.

Instructions to discriminate

5.  For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if he treats B less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that—

(a)B has not carried out (in whole or in part) an instruction to do an act which is unlawful by virtue of these Regulations, or

(b)B, having been given an instruction to do such an act, complains to A or to any other person about that instruction.

Harassment on grounds of age

6.—(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of age, A engages in unwanted conduct which has the purpose or effect of—

(a)violating B’s dignity; or

(b)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

PART 2DISCRIMINATION IN EMPLOYMENT AND VOCATIONAL TRAINING

Applicants and employees

7.—(1) It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a person—

(a)in the arrangements he makes for the purpose of determining to whom he should offer employment;

(b)in the terms on which he offers that person employment; or

(c)by refusing to offer, or deliberately not offering, him employment.

(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person—

(a)in the terms of employment which he affords him;

(b)in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit;

(c)by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d)by dismissing him, or subjecting him to any other detriment.

(3) It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment a person whom he employs or who has applied to him for employment.

(4) Subject to paragraph (5), paragraph (1)(a) and (c) do not apply in relation to a person—

(a)whose age is greater than the employer’s normal retirement age or, if the employer does not have a normal retirement age, the age of 65; or

(b)who would, within a period of six months from the date of his application to the employer, reach the employer’s normal retirement age or, if the employer does not have a normal retirement age, the age of 65.

(5) Paragraph (4) only applies to a person to whom, if he was recruited by the employer, regulation 32 (exception for retirement) could apply.

(6) Paragraph (2) does not apply to benefits of any description if the employer is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless—

(a)that provision differs in a material respect from the provision of the benefits by the employer to his employees;

(b)the provision of the benefits to the employee in question is regulated by his contract of employment; or

(c)the benefits relate to training.

(7) In paragraph (2)(d), reference to the dismissal of a person from employment includes reference—

(a)to the termination of that person’s employment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment is renewed on the same terms; and

(b)to the termination of that person’s employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.

(8) In paragraph (4), “normal retirement age” is an age of 65 or more which meets the requirements of Article 130ZH of the 1996 Order(8).

Discrimination by persons with statutory power to select employees for others

8.—(1) It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to discriminate against a person, in relation to employment at an establishment in Northern Ireland—

(a)by refusing to select or nominate, or deliberately not selecting or nominating, him for employment; or

(b)where candidates are selected or nominated in order of preference, by selecting or nominating him lower in order than any other who is selected or nominated.

(2) It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to subject that other to harassment in relation to employment at an establishment in Northern Ireland.

Exception for genuine occupational requirement etc.

9.—(1) In relation to discrimination falling within regulation 3 (discrimination on grounds of age)—

(a)regulation 7(1)(a) or (c) does not apply to any employment;

(b)regulation 7(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and

(c)regulation 7(2)(d) does not apply to dismissal from any employment,

where paragraph (2) applies.

(2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out—

(a)possessing a characteristic related to age is a genuine and determining occupational requirement;

(b)it is proportionate to apply that requirement in the particular case; and

(c)either—

(i)the person to whom that requirement is applied does not meet it; or

(ii)the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

Contract workers

10.—(1) It is unlawful for a principal, in relation to contract work at an establishment in Northern Ireland, to discriminate against a contract worker—

(a)in the terms on which he allows him to do that work;

(b)by not allowing him to do it or continue to do it;

(c)in the way he affords him access to any benefits or by refusing or deliberately not affording him access to them; or

(d)by subjecting him to any other detriment.

(2) It is unlawful for a principal, in relation to contract work at an establishment in Northern Ireland, to subject a contract worker to harassment.

(3) A principal does not contravene paragraph (1)(b) by doing any act in relation to a contract worker where, if the work were to be done by a person taken into the principal’s employment, that act would be lawful by virtue of regulation 9 (exception for genuine occupational requirement etc.).

(4) Paragraph (1) does not apply to benefits of any description if the principal is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public to which the contract worker in question belongs, unless that provision differs in a material respect from the provision of the benefits by the principal to his contract workers.

(5) In this regulation—

“principal” means a person (“A”) who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A;

“contract work” means work so made available; and

“contract worker” means any individual who is supplied to the principal under such a contract.

Meaning of employment and contract work at establishment in Northern Ireland

11.—(1) For the purposes of this Part (“the relevant purposes”), employment is to be regarded as being at an establishment in Northern Ireland if the employee—

(a)does his work wholly or partly in Northern Ireland; or

(b)does his work wholly outside Northern Ireland and paragraph (2) applies.

(2) This paragraph applies if—

(a)the employer has a place of business at an establishment in Northern Ireland;

(b)the work is for the purposes of the business carried on at that establishment; and

(c)the employee is ordinarily resident in Northern Ireland—

(i)at the time when he applies for or is offered the employment, or

(ii)at any time during the course of the employment.

(3) The reference to “employment” in paragraph (1) includes—

(a)employment on board a ship only if the ship is registered at a port of registry in Northern Ireland; and

(b)employment on an aircraft or hovercraft only if the aircraft or hovercraft is registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland.

(4) For the purposes of determining if employment concerned with the exploration of the sea bed or sub-soil or the exploitation of their natural resources is outside Northern Ireland, this regulation has effect as if references to Northern Ireland included any area designated under section 1(7) of the Continental Shelf Act 1964(9), or any part of such an area, in which the law of Northern Ireland applies.

(5) This regulation applies in relation to contract work within the meaning of regulation 10 as it applies in relation to employment; and, in its application to contract work, references to “employee”, “employer”, and “employment” are references to (respectively) “contract worker”, “principal” and “contract work” within the meaning of regulation 10.

Pension schemes

12.—(1) It is unlawful, except in relation to rights accrued or benefits payable in respect of periods of service prior to 1st October 2006, for the trustees or managers of an occupational pension scheme to discriminate against a member or prospective member of the scheme in carrying out any of their functions in relation to it (including in particular their functions relating to the admission of members to the scheme and the treatment of members of it).

(2) It is unlawful for the trustees or managers of an occupational pension scheme, in relation to the scheme, to subject to harassment a member or prospective member of it.

(3) Schedule 1 (pension schemes) shall have effect for the purposes of—

(a)defining terms used in this regulation and in that Schedule;

(b)exempting certain rules and practices in or relating to pension schemes from Parts 2 and 3;

(c)treating every occupational pension scheme as including a non-discrimination rule;

(d)giving trustees or managers of an occupational pension scheme power to alter the scheme so as to secure conformity with the non-discrimination rule;

(e)making provision in relation to the procedures, and remedies which may be granted, on certain complaints relating to occupational pension schemes presented to an industrial tribunal under regulation 41 (jurisdiction of industrial tribunals).

Office-holders etc.

13.—(1) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this regulation applies, to discriminate against a person—

(a)in the arrangements which he makes for the purposes of determining to whom the appointment should be offered;

(b)in the terms on which he offers him the appointment; or

(c)by refusing to offer him the appointment.

(2) It is unlawful, in relation to an appointment to an office or post to which this regulation applies and which is an office or post referred to in paragraph (8)(b), for a relevant person on whose recommendation (or subject to whose approval) appointments to the office or post are made, to discriminate against a person—

(a)in the arrangements which he makes for the purpose of determining who should be recommended or approved in relation to the appointment; or

(b)in making or refusing to make a recommendation, or giving or refusing to give an approval, in relation to the appointment.

(3) It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this regulation applies, to discriminate against him—

(a)in the terms of the appointment;

(b)in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit, or by refusing to afford him any such opportunity;

(c)by terminating the appointment; or

(d)by subjecting him to any other detriment in relation to the appointment.

(4) It is unlawful for a relevant person, in relation to an office or post to which this regulation applies, to subject to harassment a person—

(a)who has been appointed to the office or post;

(b)who is seeking or being considered for appointment to the office or post; or

(c)who is seeking or being considered for a recommendation or approval in relation to an appointment to an office or post referred to in paragraph (8)(b).

(5) Paragraphs (1) and (3) do not apply to any act in relation to an office or post where, if the office or post constituted employment, that act would be lawful by virtue of regulation 9 (exception for genuine occupational requirement etc); and paragraph (2) does not apply to any act in relation to an office or post where, if the office or post constituted employment, it would be lawful by virtue of regulation 9 to refuse to offer the person such employment.

(6) Paragraph (3) does not apply to benefits of any description if the relevant person is concerned with the provision (for payment or not) of benefits of that description to the public, or a section of the public to which the person appointed belongs, unless—

(a)that provision differs in a material respect from the provision of the benefits by the relevant person to persons appointed to offices or posts which are the same as, or not materially different from, that which the person appointed holds; or

(b)the provision of the benefits to the person appointed is regulated by the terms and conditions of his appointment; or

(c)the benefits relate to training.

(7) In paragraph (3)(c), the reference to the termination of the appointment includes a reference—

(a)to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and

(b)to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment without notice by reason of the conduct of the relevant person.

(8) This regulation applies to—

(a)any office or post to which persons are appointed to discharge functions personally under the direction of another person, and in respect of which they are entitled to remuneration; and

(b)any office or post to which appointments are made by (or on the recommendation of or subject to the approval of) a Minister of the Crown, a Northern Ireland Minister, the Assembly or a government department,

but not to a political office or a case where regulation 7 (applicants and employees), regulation 8 (discrimination by persons with statutory powers to select employees for others), regulation 10 (contract workers), regulation 17 (barristers), or regulation 18 (partnerships) applies, or would apply but for the operation of any other provision of these Regulations.

(9) For the purposes of paragraph (8)(a), the holder of an office or post—

(a)is to be regarded as discharging his functions under the direction of another person if that other person is entitled to direct him as to when and where he discharges those functions;

(b)is not to be regarded as entitled to remuneration merely because he is entitled to payments—

(i)in respect of expenses incurred by him in carrying out the functions of the office or post; or

(ii)by way of compensation for the loss of income or benefits he would or might have received from any person had he not been carrying out the functions of the office or post.

(10) In this regulation—

(a)appointment to an office or post does not include election to an office or post;

(b)“political office” means—

(i)any office of the House of Commons held by a member of it,

(ii)a life peerage within the meaning of the Life Peerages Act 1958(10), or any office of the House of Lords held by a member of it,

(iii)any office of the Assembly held by a member of it,

(iv)any office of a district council held by a member of it,

(v)any office of a political party;

(c)“relevant person”, in relation to an office or post, means—

(i)any person with power to make or terminate appointments to the office or post, or to determine the terms of appointment,

(ii)any person with power to determine the working conditions of a person appointed to the office or post in relation to opportunities for promotion, a transfer, training or for receiving any other benefit, and

(iii)any person or body referred to in paragraph (8)(b) on whose recommendation or subject to whose approval appointments are made to the office or post;

(d)references to making a recommendation include references to making a negative recommendation; and

(e)references to refusal include references to deliberate omission.

Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve

14.—(1) For the purposes of this Part, the holding of the office of constable as a police officer shall be treated as employment—

(a)by the Chief Constable as respects any act done by him in relation to that office or a holder of it;

(b)by the Policing Board as respects any act done by it in relation to that office or the holder of it.

(2) For the purposes of regulation 26 (liability of employers and principals)—

(a)the holding of the office of constable as a police officer shall be treated as employment by the Chief Constable (and as not being employment by any other person); and

(b)anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(3) There shall be paid out of funds put at the disposal of the Chief Constable under section 10(5) of the Police (Northern Ireland) Act 2000(11)—

(a)any compensation, damages or costs awarded against the Chief Constable in any proceedings brought against him under these Regulations, and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b)any sum required by the Chief Constable for the settlement of any claim made against him under these Regulations if the settlement is approved by the Policing Board.

(4) The Chief Constable may, in such cases and to such extent as appear to him to be appropriate, pay—

(a)any compensation, damages or costs awarded in proceedings under these Regulations against a police officer;

(b)any costs incurred and not recovered by a police officer in such proceedings; and

(c)any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings if the settlement is approved by the Policing Board.

(5) The Chief Constable may make arrangements for the legal representation of a police officer in any proceedings mentioned in paragraph (4).

(6) This regulation—

(a)applies in relation to a person serving with the Police Service of Northern Ireland by virtue of section 98 of the Police Act 1996(12), or section 23 of the Police Act 1997(13) as it applies in relation to a police officer;

(b)applies in relation to a police officer who, by virtue of paragraph 7(2)(a) or 8(4)(a) of Schedule 3 to the Police (Northern Ireland) Act 1998(14), is under the direction and control of the Police Ombudsman for Northern Ireland, as if—

(i)in paragraph (1), the reference to the Chief Constable included a reference to the Ombudsman; and

(ii)in paragraphs (2), (4) and (5), the references to the Chief Constable were references to the Ombudsman.

(7) This regulation is subject to regulation 16 (Serious Organised Crime Agency).

Other police bodies

15.—(1) For the purposes of this Part, the holding of the office of constable otherwise than as a police officer shall be treated as employment—

(a)by the chief officer of police as respects any act done by him in relation to that office or a holder of it;

(b)by the policing authority as respects any act done by it in relation to that office or the holder of it.

(2) For the purposes of regulation 26 (liability of employers and principals)—

(a)the holding of the office of constable otherwise than as a police officer shall be treated as employment by the chief officer of police (and as not being employment by any other person); and

(b)anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(3) There shall be paid out of the police fund—

(a)any compensation, damages or costs awarded against a chief officer of police in any proceedings brought against him under these Regulations, and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b)any sum required by a chief officer of police for the settlement of any claim made against him under these Regulations if the settlement is approved by the police authority.

(4) A police authority may, in such cases and to such extent as appear to it to be appropriate, pay out of the police fund—

(a)any compensation, damages or costs awarded in proceedings under these Regulations against a person under the direction and control of the chief officer of police;

(b)any costs incurred and not recovered by such a person in such proceedings; and

(c)any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.

(5) A police authority may make arrangements for the legal representation of any person under the direction and control of the chief officer of police in any proceedings mentioned in paragraph (4).

(6) Subject to paragraph (8), in this regulation—

“chief officer of police” means the person who has the direction and control of the body of constables in question;

“police authority” means the authority by which members of the body of constables are paid;

“police fund” means money provided by the authority by which the members of the body of constables are paid.

(7) Nothing in paragraphs (3) to (6) applies in relation to the police.

(8) In relation to a constable of a force who is not under the direction and control of the chief officer of police for that force, references in this regulation to the chief officer of police are references to the chief officer of the force under whose direction and control he is, and references in this regulation to the police authority are references to the relevant police authority for that force.

(9) This regulation is subject to regulation 16 (Serious Organised Crime Agency).

Serious Organised Crime Agency

16.—(1) For the purposes of this Part, any constable or other person who has been seconded to SOCA to serve as a member of its staff shall be treated as employed by SOCA.

(2) For the purposes of regulation 26 (liability of employers and principals)—

(a)the secondment of any constable or other person to SOCA to serve as a member of its staff shall be treated as employment by SOCA (and not as employment by any other person); and

(b)anything done by a person so seconded in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(3) In this regulation, “SOCA” means the Serious Organised Crime Agency established under section 1 of, and Schedule 1 to, the Serious Organised Crime and Police Act 2005(15).

Barristers

17.—(1) It is unlawful for a barrister, in relation to taking any person as his pupil, to discriminate against a person—

(a)in the arrangements which he makes for the purpose of determining whom he will take as his pupil;

(b)in respect of any terms on which he offers to take any person as his pupil; or

(c)by refusing, or deliberately omitting, to take as his pupil.

(2) It is unlawful for a barrister, in relation to a person who is his pupil, to discriminate against him—

(a)in respect of any terms applicable to him as his pupil;

(b)in the opportunities for training, or gaining experience, which are afforded or denied to him;

(c)in the benefits which are afforded or denied to him; or

(d)by terminating the relationship or by subjecting him to any pressure to terminate the relationship, or any other detriment.

(3) It is unlawful for a barrister to subject to harassment a person who is his pupil or has applied to be his pupil.

(4) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against any person by subjecting him to a detriment, or to subject him to harassment.

(5) In this regulation, “pupil” has the meaning commonly associated with its use in the context of a person training as a barrister.

Partnerships

18.—(1) It is unlawful for a firm, in relation to a position as partner in the firm, to discriminate against a person—

(a)in the arrangements they make for the purpose of determining to whom they should offer that position;

(b)in the terms on which they offer him that position;

(c)by refusing to offer, or deliberately not offering, him that position; or

(d)in a case where the person already holds that position—

(i)in the way they afford him access to any benefits or by refusing to afford, or deliberately not affording, him access to them, or

(ii)by expelling him from that position, or subjecting him to any other detriment.

(2) It is unlawful for a firm, in relation to a position as partner in the firm, to subject to harassment a person who holds or has applied for that position.

(3) Paragraphs (1)(a) to (c) and (2) apply in relation to persons proposing to form themselves into a partnership as they apply in relation to a firm.

(4) Paragraph (1) does not apply to any act in relation to a position as partner where, if the position were employment, that act would be lawful by virtue of regulation 9 (exception for genuine occupational requirement etc).

(5) In the case of a limited partnership, references in this regulation to a partner shall be construed as references to a general partner as defined in section 3 of the Limited Partnerships Act 1907(16).

(6) This regulation applies to a limited liability partnership as it applies to a firm; and, in its application to a limited liability partnership, references to a partner in a firm are references to a member of the limited liability partnership.

(7) In paragraph (6)—

“limited liability partnership” has the meaning given by section 1(2) of the Limited Liability Partnerships Act (Northern Ireland) 2002(17); and

“member” shall be construed in accordance with section 4 of the Limited Liability Partnerships Act (Northern Ireland) 2002.

(8) In this regulation, “firm” has the meaning given by section 4 of the Partnership Act 1890(18).

(9) In paragraph (1)(d), reference to the expulsion of a person from a position as partner includes reference—

(a)to the termination of that person’s partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the partnership is renewed on the same terms; and

(b)to the termination of that person’s partnership by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the other partners.

Trade organisations

19.—(1) It is unlawful for a trade organisation to discriminate against a person—

(a)in the terms on which it is prepared to admit him to membership of the organisation; or

(b)by refusing to accept, or deliberately not accepting, his application for membership.

(2) It is unlawful for a trade organisation, in relation to a member of the organisation, to discriminate against him—

(a)in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them;

(b)by depriving him of membership, or varying the terms on which he is a member; or

(c)by subjecting him to any other detriment.

(3) It is unlawful for a trade organisation, in relation to a person’s membership or application for membership of that organisation, to subject that person to harassment.

(4) In this regulation—

“trade organisation” means an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists;

“profession” includes any vocation or occupation; and

“trade” includes any business.

Qualifications bodies

20.—(1) It is unlawful for a qualifications body to discriminate against a person—

(a)in the terms on which it is prepared to confer a professional or trade qualification on him;

(b)by refusing or deliberately not granting any application by him for such a qualification; or

(c)by withdrawing such a qualification from him or varying the terms on which he holds it.

(2) It is unlawful for a qualifications body, in relation to a professional or trade qualification conferred by it, to subject to harassment a person who holds or applies for such a qualification.

(3) In this regulation—

“qualifications body” means any authority or body which can confer a professional or trade qualification, but it does not include—

(a)

a governing body of an educational establishment to which regulation 24 (institutions of further and higher education) applies, or would apply but for the operation of any other provision of these Regulations, or

(b)

a proprietor of a school;

“confer” includes renew or extend;

“professional or trade qualification” means any authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilities engagement in, a particular profession or trade;

“profession” and “trade” have the same meaning as in regulation 19 (trade organisations).

The provision of vocational training

21.—(1) It is unlawful, in relation to a person seeking or undergoing training, for any training provider to discriminate against him—

(a)in the arrangements he makes for the purpose of determining to whom he should offer training;

(b)in the terms on which the training provider affords him access to any training;

(c)by refusing or deliberately not affording him such access;

(d)by terminating his training; or

(e)by subjecting him to any other detriment during his training.

(2) It is unlawful for a training provider, in relation to a person seeking or undergoing training, to subject him to harassment.

(3) Paragraph (1) does not apply if the discrimination only concerns training that would only fit a person for employment which, by virtue of regulation 9 (exception for genuine occupational requirement etc), the employer could lawfully refuse to offer the person seeking training.

(4) In this regulation—

“professional or trade qualification” has the same meaning as in regulation 20 (qualifications bodies);

“registered pupil” has the same meaning as in Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986(19);

“training” means—

(a)

all types and all levels of training which would help fit a person for any employment;

(b)

vocational guidance;

(c)

facilities for training;

(d)

practical work experience provided by an employer to a person whom he does not employ; and

(e)

any assessment related to the award of any professional or trade qualification;

“training provider” means any person who provides, or makes arrangements for the provision of, training, but it does not include—

(a)

an employer in relation to training for persons employed by him;

(b)

a governing body of an educational establishment to which regulation 24 (institutions of further and higher education) applies, or would apply but for the operation of any other provision of these Regulations; or

(c)

a proprietor of a school in relation to a registered pupil.

Employment agencies, careers guidance etc.

22.—(1) It is unlawful for an employment agency to discriminate against a person—

(a)in the terms on which the agency offers to provide any of its services;

(b)by refusing or deliberately not providing any of its services; or

(c)in the way it provides any of its services.

(2) It is unlawful for an employment agency, in relation to a person to whom it provides its services, or who has requested it to provide its services, to subject that person to harassment.

(3) Paragraph (1) does not apply to discrimination if it only concerns employment which, by virtue of regulation 9 (exception for genuine occupational requirement etc.), the employer could lawfully refuse to offer the person in question.

(4) An employment agency shall not be subject to any liability under this regulation if it proves that—

(a)it acted in reliance on a statement made to it by the employer to the effect that, by reason of the operation of paragraph (3), its actions would not be unlawful, and

(b)it was reasonable for it to rely on the statement.

(5) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (4)(a) which in a material respect is false or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) For the purposes of this regulation—

(a)“employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers, but it does not include—

(i)a governing body of an educational establishment to which regulation 24 (institutions of further and higher education) applies, or would apply but for the operation of any other provision of these Regulations, or

(ii)a proprietor of a school; and

(b)references to the services of an employment agency include guidance on careers and any other services related to employment.

Assisting persons to obtain employment etc.

23.—(1) It is unlawful for the Department for Employment and Learning to discriminate against any person by subjecting him to a detriment, or to subject a person to harassment, in the provision of facilities or services under section 1 of the Employment and Training (Northern Ireland) Act 1950(20) (general functions of the Department as to employment and training for employment).

(2) This regulation does not apply in a case where—

(a)regulation 21 (the provision of vocational training) applies, or would apply but for the operation of any other provision of these Regulations, or

(b)the Department for Employment and Learning is acting as an employment agency within the meaning of regulation 22 (employment agencies, careers guidance etc.).

Institutions of further and higher education

24.—(1) It is unlawful, in relation to an educational establishment to which this regulation applies, for the governing body of that establishment to discriminate against a person—

(a)in the terms on which it offers to admit him to the establishment as a student;

(b)by refusing or deliberately not accepting an application for his admission to the establishment as a student; or

(c)where he is a student of the establishment—

(i)in the way it affords him access to any benefits,

(ii)by refusing or deliberately not affording him access to them, or

(iii)by excluding him from the establishment or subjecting him to any other detriment.

(2) It is unlawful, in relation to an educational establishment to which this regulation applies, for the governing body of that establishment to subject to harassment a person who is a student at the establishment, or who has applied for admission to the establishment as a student.

(3) Paragraph (1) does not apply if the discrimination only concerns training which would help fit a person for employment which, by virtue of regulation 9 (exception for genuine occupational requirement etc.), the employer could lawfully refuse to offer the person in question.

(4) This regulation applies to the following educational establishments in Northern Ireland, namely—

(a)an institution of further education (as recognised under Article 8 of the Further Education (Northern Ireland) Order 1997)(21);

(b)a higher education institution (within the meaning of Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993)(22).

(5) In this regulation, “student” means any person who receives education at an educational establishment to which this regulation applies.

Relationships which have come to an end

25.—(1) In this regulation, a “relevant relationship” is a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship (“B”) by the other party to it (“A”) is unlawful by virtue of any preceding provision of this Part.

(2) Where a relevant relationship has come to an end, it is unlawful for A—

(a)to discriminate against B by subjecting him to a detriment; or

(b)to subject B to harassment,

where the discrimination or harassment arises out of and is closely connected to that relationship.

(3) In paragraph (1), reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before 1st October 2006, reference to an act of discrimination or harassment which would, after that date, be unlawful.

PART 3OTHER UNLAWFUL ACTS

Liability of employers and principals

26.—(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him.

(3) In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

Aiding unlawful acts

27.—(1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purpose of these Regulations as himself doing an unlawful act of the like description.

(2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under regulation 26 (or would be so liable but for regulation 26(3)) shall be deemed to aid the doing of the act by the employer or principal.

(3) A person does not under this regulation knowingly aid another to do an unlawful act if—

(a)he acts in reliance on a statement made to him by that other person that, by reason of any provision of these Regulations, the act which he aids would not be unlawful; and

(b)it is reasonable for him to rely on the statement.

(4) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (3)(a) which in a material respect is false or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

PART 4GENERAL EXCEPTIONS FROM PARTS 2 AND 3

Exception for statutory authority

28.  Nothing in Part 2 or 3 shall render unlawful any act done in order to comply with a requirement of any statutory provision.

Exception for national security etc

29.  Nothing in Part 2 or 3 shall render unlawful any act done by any person if—

(a)the act is done for the purpose of safeguarding national security or protecting public safety or public order; and

(b)the doing of the act is justified by that purpose.

Effect of certificates by Secretary of State

30.—(1) This regulation applies where in any proceedings—

(a)a person claims that an act discriminated against him in contravention of any provision of Part 2 or 3; and

(b)the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying—

(i)that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and

(ii)that the doing of the act was justified by that purpose.

(2) The claimant may, in accordance with rules under section 91 of the Northern Ireland Act 1998(23), appeal against the certificate to the tribunal established under that section.

(3) If on an appeal under paragraph (2) that tribunal determines—

(a)that the act specified in the certificate was done for the certified purpose; and

(b)that the doing of the act was justified by that purpose,

the tribunal shall uphold the certificate; in any other case, the tribunal shall quash the certificate.

(4) If—

(a)the claimant does not appeal against the certificate; or

(b)the certificate is upheld on appeal,

the certificate shall be conclusive evidence of the matters certified by it.

(5) Sections 91 and 92 of the Northern Ireland Act 1998 shall apply in relation to appeals under this regulation as they apply in relation to appeals under section 90 of that Act.

(6) In this regulation—

“claim” includes complaint; and

“claimant” includes complainant.

Exceptions for positive action

31.—(1) Nothing in Part 2 or 3 shall render unlawful any act done in or in connection with—

(a)affording persons of a particular age or age group access to facilities for training which would help fit them for particular work; or

(b)encouraging persons of a particular age or age group to take advantage of opportunities for doing particular work,

where it reasonably appears to the person doing the act that it prevents or compensates for disadvantages linked to age suffered by persons of that age or age group doing that work or likely to take up that work.

(2) Nothing in Part 2 or 3 shall render unlawful any act done by a trade organisation within the meaning of regulation 19 (trade organisations) in or in connection with—

(a)affording only members of the organisation who are of a particular age or age group access to facilities for training which would help fit them for holding a post of any kind in the organisation; or

(b)encouraging only members of the organisation who are of a particular age or age group to take advantage of opportunities for holding such posts in the organisation,

where it reasonably appears to the organisation that the act prevents or compensates for disadvantages linked to age suffered by those of that age or age group holding such posts or likely to hold such posts.

(3) Nothing in Part 2 or 3 shall render unlawful any act done by a trade organisation within the meaning of regulation 19 (trade organisations) in or in connection with encouraging only persons of a particular age or age group to become members of the organisation where it reasonably appears to the organisation that the act prevents or compensates for disadvantages linked to age suffered by persons of that age or age group who are, or are eligible to become, members.

Exception for retirement

32.—(1) This regulation applies in relation to an employee within the meaning of Article 3 of the 1996 Order and a person in Crown employment.

(2) Nothing in Part 2 or 3 shall render unlawful the dismissal of a person to whom this regulation applies at or over the age of 65 where the reason for the dismissal is retirement.

(3) For the purposes of this regulation, whether or not the reason for a dismissal is retirement shall be determined in accordance with Articles 130ZA to 130ZH of the 1996 Order(24).

Exception for the national minimum wage

33.—(1) Nothing in Part 2 or 3 shall render it unlawful for a relevant person (“A”) to be remunerated in respect of his work at a rate which is lower than the rate at which another such person (“B”) is remunerated for his work where—

(a)the hourly rate of the national minimum wage for a person of A’s age is lower than that for a person of B’s age, and

(b)the rate at which A is remunerated is below the single hourly rate for the national minimum wage prescribed by the Secretary of State under section 1(3) of the National Minimum Wage Act 1998(25).

(2) Nothing in Part 2 or 3 shall render it unlawful for an apprentice who is not a relevant person to be remunerated in respect of his work at a rate which is lower than the rate at which an apprentice who is a relevant person is remunerated for his work.

(3) In this regulation—

“apprentice” means a person who is employed under a contract of apprenticeship or, in accordance with regulation 12(3) of the National Minimum Wage Regulations 1999(26), is to be treated as employed under a contract of apprenticeship;

“relevant person” means a person who qualifies for the national minimum wage(27) (whether at the single hourly rate for the national minimum wage prescribed by the Secretary of State under section 1(3) of the National Minimum Wage Act 1998 or at a different rate).

Exception for provision of certain benefits based on length of service

34.—(1) Subject to paragraph (2), nothing in Part 2 or 3 shall render it unlawful for a person (“A”), in relation to the award of any benefit by him, to put a worker (“B”) at a disadvantage when compared with another worker (“C”), if and to the extent that the disadvantage suffered by B is because B’s length of service is less than that of C.

(2) Where B’s length of service exceeds 5 years, it must reasonably appear to A that the way in which he uses the criterion of length of service, in relation to the award in respect of which B is put at a disadvantage, fulfils a business need of his undertaking (for example, by encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers).

(3) In calculating a worker’s length of service for these purposes, A shall calculate—

(a)the length of time the worker has been working for him doing work which he reasonably considers to be at or above a particular level (assessed by reference to the demands made on the worker, for example, in terms of effort, skills and decision making); or

(b)the length of time the worker has been working for him in total;

and on each occasion on which he decides to use the criterion of length of service in relation to the award of a benefit to workers, it is for him to decide which of these definitions to use to calculate their lengths of service.

(4) For the purposes of paragraph (3), in calculating the length of time a worker has been working for him—

(a)A shall calculate the length of time in terms of the number of weeks during the whole or part of which the worker was working for him;

(b)A may discount any period during which the worker was absent from work (including any period of absence which at the time it occurred was thought by A or the worker to be permanent) unless in all the circumstances (including the way in which other workers' absences occurring in similar circumstances are treated by A in calculating their lengths of service) it would not be reasonable for him to do so;

(c)A may discount any period of time during which the worker was present at work (“the relevant period”) where—

(i)the relevant period preceded a period during which the worker was absent from work, and

(ii)in all the circumstances (including the length of the worker’s absence, the reason for his absence, the effect his absence has had on his ability to discharge the duties of his work, and the way in which other workers are treated by A in similar circumstances) it is reasonable for A to discount the relevant period.

(5) For the purposes of paragraph (3)(b), a worker shall be treated as having worked for A during any period during which he worked for another if—

(a)that period is treated as a period of employment with A for the purposes of the 1996 Order by virtue of the operation of Article 14 of that Order; or

(b)were the worker to be made redundant by A, that period and the period he has worked for A would amount to “relevant service” within the meaning of Article 190 of the 1996 Order.

(6) In paragraph (5)—

(a)the reference to being made redundant is a reference to being dismissed by reason of redundancy for the purposes of the 1996 Order;

(b)the reference to Article 190 of the 1996 Order is a reference to that Article as modified by the Redundancy Payments (Continuity of Employment in Local Government, etc.) (Modification) Order (Northern Ireland) 1999(28).

(7) In this regulation, “benefit” does not include any benefit awarded to a worker by virtue of his ceasing to work for A.

Exception for provision of enhanced redundancy payments to employees

35.—(1) Nothing in Part 2 or 3 shall render it unlawful for an employer—

(a)to give a qualifying employee an enhanced redundancy payment which is less in amount than the enhanced redundancy payment which he gives to another such employee if both amounts are calculated in the same way;

(b)to give enhanced redundancy payments only to those who are qualifying employees by virtue of sub-paragraph (a) or (c)(i) of the definition of qualifying employee below.

(2) In this regulation—

“the appropriate amount” has the same meaning as in Article 197 of the 1996 Order(29);

“enhanced redundancy payment” means a payment of an amount calculated in accordance with paragraph (3) or (4);

“qualifying employee” means—

(a)

an employee who is entitled to a redundancy payment by virtue of Article 170 of the 1996 Order;

(b)

an employee who would have been so entitled but for the operation of Article 190 of the 1996 Order;

(c)

an employee who agrees to the termination of his employment in circumstances where, had he been dismissed—

(i)

he would have been a qualifying employee by virtue of paragraph (a) of this definition; or

(ii)

he would have been a qualifying employee by virtue of paragraph (b);

“a redundancy payment” has meaning given by Part XII of the 1996 Order;

“a week’s pay” has the meaning given by Chapter IV of Part I of the 1996 Order.

(3) For an amount to be calculated in accordance with this paragraph it must be calculated in accordance with Article 197(1) to (3) of the 1996 Order.

(4) For an amount to be calculated in accordance with this paragraph—

(a)it must be calculated as in paragraph (3);

(b)however, in making that calculation, the employer may do one or both of the following things—

(i)he may treat a week’s pay as not being subject to a maximum amount or as being subject to a maximum amount above the amount laid down in Article 23(1) of the 1996 Order(30);

(ii)he may multiply the appropriate amount allowed for each year of employment by a figure of more than one;

(c)having made the calculation as in paragraph (3) (whether or not in making that calculation he has done anything mentioned in sub-paragraph (b)) the employer may increase the amount thus calculated by multiplying it by a figure of more than one.

(5) For the purposes of paragraphs (3) and (4), the reference to “the relevant date” in Article 197(1)(a) of the 1996 Order is to be read, in the case of a qualifying employee who agrees to the termination of his employment, as a reference to the date on which that termination takes effect.

Exception for provision of life assurance cover to retired workers

36.—(1) Where a person (“A”) arranges for workers to be provided with life assurance cover after their early retirement on grounds of ill health, nothing in Part 2 or 3 shall render it unlawful—

(a)where a normal retirement age applied in relation to any such workers at the time they took early retirement, for A to arrange for such cover to cease when such workers reach that age;

(b)in relation to any other workers, for A to arrange for such cover to cease when the workers reach the age of 65.

(2) In this regulation , “normal retirement age”, in relation to a worker who has taken early retirement, means the age at which workers in A’s undertaking who held the same kind of position as the worker held at the time of his retirement are normally required to retire.

PART 5FUNCTIONS OF THE EQUALITY COMMISSION

General duty of Commission

37.  It shall be the duty of the Commission—

(a)to work towards the elimination of discrimination;

(b)to promote equality of opportunity between persons of differing age groups; and

(c)to keep under review the working of these Regulations and, when it is so required by the Office of the First Minister and deputy First Minister or otherwise thinks it necessary, draw up and submit to the Office of the First Minister and deputy First Minister proposals for amending these Regulations.

Research and education

38.—(1) The Commission may undertake or assist (financially or otherwise) the undertaking by other persons of any research, and any educational activities, which appear to the Commission necessary or expedient for the purposes of regulation 37 (general duty of Commission).

(2) The Commission may make charges for educational or other facilities or services made available by it.

Codes of practice

39.—(1) The Commission may issue codes of practice containing such practical guidance as the Commission thinks fit for all or any of the following purposes, namely—

(a)the elimination of discrimination or harassment which is unlawful by virtue of these Regulations;

(b)the promotion of equality of opportunity in any field to which these Regulations apply between persons of differing age groups.

(2) Without prejudice to the generality of paragraph (1), a code of practice issued under this regulation may include such practical guidance as the Commission thinks fit as to what steps it is reasonably practicable for employers to take for the purpose of preventing their employees from doing in the course of their employment acts made unlawful by these Regulations.

(3) When the Commission proposes to issue a code of practice, it shall prepare and publish a draft of that code, shall consider any representations made to it about the draft and may modify the draft accordingly.

(4) In the course of preparing any draft code of practice for eventual publication under paragraph (3), the Commission shall consult with—

(a)such organisations or associations of organisations representative of employers or of workers; or

(b)such other organisations or bodies,

as appear to the Commission to be appropriate.

(5) The Commission may from time to time revise the whole or any part of a code of practice issued under this regulation and issue that revised code, and paragraphs (3) and (4) shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of a code.

PART 6ENFORCEMENT

Restriction of proceedings for breach of Regulations

40.—(1) Except as provided by these Regulations, no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of these Regulations.

(2) Paragraph (1) does not prevent the making of an application for judicial review or the investigation or determination of any matter in accordance with Part X (investigations: the Pensions Ombudsman) of the Pension Schemes (Northern Ireland) Act 1993(31) by the Pensions Ombudsman.

Jurisdiction of industrial tribunals

41.—(1) A complaint by any person (“the complainant”) that another person (“the respondent”)—

(a)has committed against the complainant an act to which this regulation applies; or

(b)is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

may be presented to an industrial tribunal.

(2) This regulation applies to any act of discrimination or harassment which is unlawful by virtue of any provision of Part 2 other than—

(a)where the act is one in respect of which an appeal or proceedings in the nature of an appeal may be brought under any statutory provision, regulation 20 (qualifications bodies);

(b)regulation 24 (institutions of further and higher education); or

(c)where the act arises out of and is closely connected to a relationship between the complainant and the respondent which has come to an end but during the course of which an act of discrimination against, or harassment of, the complainant by the respondent would have been unlawful by virtue of regulation 25 (relationships which have come to an end).

(3) In paragraph (2)(c), reference to an act of discrimination or harassment which would have been unlawful includes, in the case of a relationship which has come to an end before 1st October 2006, reference to an act of discrimination or harassment which would, after that date, have been unlawful.

(4) Where a complaint is presented to an industrial tribunal under paragraph (1) and it appears to the tribunal that the act to which the complaint relates is one in respect of which (as being unlawful discrimination within the meaning of the Fair Employment and Treatment (Northern Ireland) Order 1998(32))—

(a)a complaint could be made to the Fair Employment Tribunal for Northern Ireland under Part VI of that Order; or

(b)such a complaint has been made, but the proceedings under that Order have not been disposed of,

the tribunal shall not proceed further under these Regulations in relation to the complaint unless all proceedings which can be taken under the Fair Employment and Treatment (Northern Ireland) Order 1998 in respect of the act have been disposed of.

Burden of proof: industrial tribunals

42.—(1) This regulation applies to any complaint presented under regulation 41 to an industrial tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—

(a)has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or

(b)is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.

Remedies on complaints in industrial tribunals

43.—(1) Where an industrial tribunal finds that a complaint presented to it under regulation 41 (jurisdiction of industrial tribunals) is well-founded, the tribunal shall make such of the following as it considers just and equitable—

(a)an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

(b)an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court to pay to the complainant if the complaint had fallen to be dealt with under regulation 44 (jurisdiction of county courts);

(c)a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination or harassment to which the complaint relates.

(2) As respects an unlawful act of discrimination falling within regulation 3(1)(b) (discrimination on grounds of age), if the respondent proves that the provision, criterion or practice was not applied with the intention of treating the complainant unfavourably on grounds of age, an order may be made under paragraph (1)(b) only if the industrial tribunal—

(a)makes such order under paragraph (1)(a) (if any) and such recommendation under paragraph (1)(c) (if any) as it would have made if it had no power to make an order under paragraph (1)(b); and

(b)(where it makes an order under paragraph (1)(a) or a recommendation under paragraph (1)(c), or both) considers that it is just and equitable to make an order under paragraph (1)(b) as well.

(3) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by an industrial tribunal under paragraph (1)(c), then, if it thinks it just and equitable to do so—

(a)the tribunal may increase the amount of compensation required to be paid to the complainant in respect of the complaint by an order made under paragraph (1)(b); or

(b)if an order under paragraph (1)(b) was not made, the tribunal may make such an order.

(4) Where an amount of compensation falls to be awarded under paragraph (1)(b), the tribunal may include in the award interest on that amount subject to, and in accordance with, the provisions of the Industrial Tribunals (Interest on Awards in Age Discrimination Cases) Regulations (Northern Ireland) 2006(33).

(5) This regulation has effect subject to paragraph 6 of Schedule 1 (pension schemes).

Jurisdiction of county courts

44.—(1) A claim by any person (“the claimant”) that another person (“the respondent”)—

(a)has committed against the claimant an act to which this regulation applies; or

(b)is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the claimant such an act,

may be made the subject of civil proceedings in like manner as any other claim in tort for breach of statutory duty.

(2) Proceedings brought under paragraph (1) shall be brought only in a county court.

(3) For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act to which this regulation applies may include compensation for injury to feelings whether or not they include compensation under any other head.

(4) This regulation applies to any act of discrimination or harassment which is unlawful by virtue of —

(a)regulation 24 (institutions of further and higher education); or

(b)where the act arises out of and is closely connected to a relationship between the claimant and the respondent which has come to an end but during the course of which an act of discrimination against, or harassment of, the claimant by the respondent would have been unlawful by virtue of regulation 25 (relationships which have come to an end).

(5) In paragraph (4)(b), reference to an act of discrimination or harassment which would have been unlawful includes, in the case of a relationship which has come to an end before 1st October 2006, reference to an act of discrimination or harassment which would, after that date, have been unlawful.

Burden of proof: county courts

45.—(1) This regulation applies to any claim brought under regulation 44(1) in a county court.

(2) Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—

(a)has committed against the claimant an act to which regulation 44 (jurisdiction of county courts) applies; or

(b)is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the claimant such an act,

the court shall uphold the claim unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, the act.

Help for persons in obtaining information etc.

46.—(1) In accordance with this regulation, a person (“the person aggrieved”) who considers he may have been discriminated against, or subjected to harassment, in contravention of these Regulations may serve on the respondent to a complaint presented under regulation 41 (jurisdiction of industrial tribunals) or a claim brought under regulation 44 (jurisdiction of county courts) questions in the form set out in Schedule 2; and the respondent may if he so wishes reply to such questions by way of the form set out in Schedule 3.

(2) Where the person aggrieved questions the respondent (whether in accordance with paragraph (1) or not)—

(a)the questions, and any reply by the respondent (whether in accordance with paragraph (1) or not) shall, subject to the following provisions of this regulation, be admissible as evidence in the proceedings;

(b)if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within eight weeks of service of the questions or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act.

(3) In proceedings before a county court a question shall only be admissible as evidence in pursuance of paragraph (2)(a)—

(a)where it was served before those proceedings had been instituted, if it was so served within the period of six months beginning when the act complained of was done;

(b)where it was served when those proceedings had been instituted, if it was served with the leave of, and within a period specified by, the court in question.

(4) In proceedings before an industrial tribunal, a question shall only be admissible as evidence in pursuance of paragraph (2)(a)—

(a)where it was served before a complaint had been presented to the tribunal, if it was so served—

(i)within the period of three months beginning when the act complained of was done, or

(ii)where regulation 48(2) applies, within the extended period;

(b)where it was so served when a complaint had been presented to the tribunal, either—

(i)if it was so served within the period of twenty-one days beginning with the day on which the complaint was presented, or

(ii)if it was so served later with leave given, and within a period specified, by a direction of the tribunal.

(5) A question and any reply thereto may be served on the respondent or, as the case may be, on the person aggrieved—

(a)by delivering it to him;

(b)by delivering it to him personally or by sending it by ordinary pre-paid post to him at his usual or last-known residence or place of business;

(c)where the person to be served is a body corporate or is a trade union or employers' association within the meaning of the Industrial Relations (Northern Ireland) Order 1992(34), by delivering it to the secretary or clerk of the body, union or association at its registered or principal office or by sending it by post to the secretary or clerk at that office;

(d)where the person to be served is acting by a solicitor, by delivering it at, or by sending it by post, to the solicitor’s address for service; or

(e)where the person to be served is the person aggrieved, by delivering the reply, or sending it by post, to him at his address for reply as stated by him in the document containing the questions.

(6) This regulation is without prejudice to any other statutory provision or rule of law regulating interlocutory and preliminary matters in proceedings before a county court or industrial tribunal, and has effect subject to any statutory provision or rule of law regulating the admissibility of evidence in such proceedings.

(7) In this regulation, “respondent” includes a prospective respondent.

Assistance by Commission

47.—(1) Where, in relation to proceedings or prospective proceedings under these Regulations, an individual who is an actual or prospective complainant applies to the Commission for assistance under this regulation, the Commission shall consider the application and may grant it if it thinks fit to do so—

(a)on the ground that the case raises a question of principle;

(b)on the ground that it is unreasonable, having regard to the complexity of the case, or to the applicant’s position in relation to the respondent or another person involved, or to any other matter, to expect the applicant to deal with the case unaided; or

(c)by reason of any other special consideration.

(2) Assistance by the Commission under this regulation may include—

(a)giving advice;

(b)procuring or attempting to procure the settlement of any matter in dispute;

(c)arranging for the giving of advice or assistance by a solicitor or counsel;

(d)arranging for representation by any person, including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings; or

(e)any other form of assistance which the Commission may consider appropriate,

but sub-paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend, and address the court in, any proceedings.

(3) In so far as expenses are incurred by the Commission in providing the applicant with assistance under this regulation, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules or regulations) shall constitute a first charge for the benefit of the Commission—

(a)on any costs which (whether by virtue of a judgement or order of a court or tribunal or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and

(b)so far as relates to any costs, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

(4) The charge conferred by paragraph (3) is subject to any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981(35) and is subject to any provision in that Order for payment of any sum into the legal aid fund.

(5) In this regulation “respondent” includes a prospective respondent and “rules or regulations”—

(a)in relation to county court proceedings, means county court rules;

(b)in relation to industrial tribunal proceedings, means industrial tribunal procedure regulations under the Industrial Tribunals (Northern Ireland) Order 1996(36).

Period within which proceedings to be brought

48.—(1) An industrial tribunal shall not consider a complaint under regulation 41 (jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

(2) Where the period within which a complaint must be presented in accordance with paragraph (1) is extended by regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004(37), the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (1).

(3) A county court shall not consider a claim brought under regulation 44 (jurisdiction of county courts) unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.

(4) A court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(5) For the purposes of this regulation and regulation 46 (help for persons in obtaining information etc)—

(a)when the making of a contract is, by reason of the inclusion of any term, an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b)any act extending over a period shall be treated as done at the end of that period; and

(c)a deliberate omission shall be treated as done when the person in question decided upon it,

and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this regulation to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

PART 7SUPPLEMENTAL

Validity of contracts, collective agreements and rules of undertakings

49.  Schedule 4 (validity of contracts, collective agreements and rules of undertakings) shall have effect.

Application to the Crown etc.

50.—(1) These Regulations apply—

(a)to an act done by or for the purposes of a Minister of the Crown, a Northern Ireland Minister or a government department, or

(b)to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as they apply to an act done by a private person.

(2) These Regulations apply to Crown employment as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service, and references to dismissal included references to termination of Crown employment.

(3) Paragraphs (1) and (2) have effect subject to paragraph (4) and regulations 14 (Police Service of Northern Ireland and Police Service of Northern Ireland Reserve), 15 (other police bodies) and 16 (Serious Organised Crime Agency).

(4) These Regulations do not apply to service in any of the naval, military or air forces of the Crown.

(5) Regulation 11(3) (meaning of employment and contract work at establishment in Northern Ireland) shall have effect in relation to any ship, aircraft or hovercraft belonging to or possessed by Her Majesty in right of the government of the United Kingdom as it has effect in relation to a ship, aircraft or hovercraft specified in regulation 11(3)(a) or (b).

(6) The provisions of Parts II to IV of the Crown Proceedings Act 1947(38) shall apply to proceedings against the Crown under these Regulations as they apply to proceedings in Northern Ireland which by virtue of section 23 of that Act are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown, except that in their application to proceedings under these Regulations section 20 of that Act (removal and transfer of proceedings) shall not apply.

Duty to consider working beyond retirement

51.  Schedule 5, which sets out the procedure to be followed if an employer (within the meaning of that Schedule) is to be retired, shall have effect.

Duty to consider working beyond retirement – transitional provisions

52.  Schedule 6, which sets out transitional provisions in relation to the duty to consider working beyond retirement, shall have effect.

Amendments, transitionals, repeals and revocations

53.—(1) Schedule 7, which contains amendments to legislation and related transitional provisions, shall have effect.

(2) Schedule 8, which contains repeals and revocations, shall have effect.

Sealed with the Official Seal of the Office of the First Minister and deputy First Minister on 13th June 2006

L.S.

Laurene McAlpine

A senior officer of the Office of the First Minister and deputy First Minister

Regulation 12(3)

SCHEDULE 1Pension schemes

PART 1Pension schemes - general

Interpretation

1.—(1) In this Schedule—

“the 1992 Act” means the Social Security Contributions and Benefits (Northern Ireland) Act 1992(39);

“the 1993 Act” means the Pension Schemes (Northern Ireland) Act 1993(40);

“the 1995 Order” means the Pensions (Northern Ireland) Order 1995(41);

“the 2004 Act” means the Finance Act 2004(42); and

“the 2005 Order” means the Pensions (Northern Ireland) Order 2005(43).

(2) In this Schedule, subject to sub-paragraphs (3) and (4), “occupational pension scheme” means an occupational pension scheme within the meaning of section 1(1) of the 1993 Act(44).

(3) In relation to rules, practices, actions and decisions identified at paragraph 7(a), “occupational pension scheme” means an occupational pension scheme within the meaning of section 1(1) of the 1993 Act under which only retirement benefit activities within the meaning of Article 232(4) of the 2005 Order are carried out.

(4) In relation to rules, practices, actions and decisions identified at paragraphs 12, 13 and 30, “occupational pension scheme” means an occupational pension scheme within the meaning of either section 1(1) of the 1993 Act or section 150(5) of the 2004 Act.

(5) In this Schedule, scheme means an occupational pension scheme, construed in accordance with sub-paragraphs (2) to (4).

(6) In this Schedule, in relation to a scheme—

“active member” has the meaning given by Article 121(1) of the 1995 Order, but in paragraph 13 also includes an active member within the meaning of section 151(2) of the 2004 Act;

“age related benefit” means benefit provided from a scheme to a member—

(a)

on or following his retirement (including early retirement on grounds of ill health or otherwise),

(b)

on his reaching a particular age, or

(c)

on termination of his service in an employment;

“death benefit” means benefit payable from a pension scheme, in respect of a member, in consequence of his death;

“deferred member” has the meaning given by Article 121(1) of the 1995 Order;

“defined benefits arrangement” has the meaning given by section 152(6) of the 2004 Act, but the reference in that section to an arrangement shall be read as referring to an arrangement in respect of a member under a scheme as defined in section 1(1) of the 1993 Act rather than in respect of a member under a pension scheme as defined in section 150(1) of the 2004 Act;

“dependant” means dependant as defined in the scheme rules;

“early retirement pivot age” means an age specified in the scheme rules as the earliest age at which age related benefit becomes payable without actuarial reduction (disregarding any special provision as to early payment on grounds of ill health or otherwise);

“employer” has the meaning given by Article 2(2) of the 2005 Order;

“employer contribution” means any contribution to a scheme by an employer in respect of a member;

“employment” includes any trade, business, profession, office or vocation, whether or not a person is employed in it under a contract of employment or is self-employed;

“late retirement pivot age” means an age specified in the scheme rules above which benefit becomes payable with actuarial enhancement;

“managers” has the meaning given by Article 121(1) of the 1995 Order;

“member” means any active member, deferred member or pensioner member, but in paragraph 12 includes any active, deferred or pensioner member within the meaning of section 151(2) to (4) of the 2004 Act;

“member contribution” means any contribution to a scheme by a member;

“money purchase arrangement” has the meaning given by section 152(2) of the 2004 Act, but the reference in that section to an arrangement shall be read as referring to an arrangement in respect of a member under a scheme as defined in section 1(1) of the 1993 Act rather than in respect of a member under a pension scheme as defined in section 150(1) of the 2004 Act;

“non-discrimination rule” means the rule in paragraph 2(1);

“normal pension age” has the meaning given by section 175 of the 1993 Act;

“normal retirement age”, in relation to a member, means the age at which workers in the undertaking for which the member worked at the time of his retirement, and who held the same kind of position as the member held at his retirement, were normally required to retire;

“pensionable age” has the meaning given by section 121(1) of the 1992 Act(45);

“pensionable pay” means that part of a member’s pay which counts as pensionable pay under the scheme rules;

“pensionable service” has the meaning given by Article 121(1) of the 1995 Order(46);

“pensioner member” has the meaning given by Article 121(1) of the 1995 Order(47); and

“prospective member” means any person who, under the terms of his employment or the scheme rules or both—

(a)

is able, at his own option, to become a member of the scheme,

(b)

shall become so able if he continues in the same employment for a sufficient period of time,

(c)

shall be so admitted to it automatically unless he makes an election not to become a member, or

(d)

may be admitted to it subject to the consent of any person.

(7) In their application to a scheme which is divided into two or more sections, the provisions of this Schedule shall apply as if each section of the scheme was a separate scheme.

(8) In this Schedule—

“personal pension scheme” has the meaning given by section 1(1) of the 1993 Act;

“registered pension scheme” has the meaning given by section 150(2) of the 2004 Act; and

references to contributions under a money purchase arrangement shall be construed as including amounts credited to a member’s account whether or not they reflect payments actually made under the scheme.

(9) Any term used in regulation 12 (pension schemes) shall have the same meaning in that regulation as it has in this Schedule.

Non-discrimination rule

2.—(1) Every scheme shall be treated as including a provision (“the non-discrimination rule”) containing a requirement that the trustees or managers of the scheme refrain from doing any act which is unlawful by virtue of regulation 12.

(2) The other provisions of the scheme are to have effect subject to the non-discrimination rule.

(3) The trustees or managers of a scheme may—

(a)if they do not (apart from this sub-paragraph) have power to make such alterations to the scheme as may be required to secure conformity with the non-discrimination rule, or

(b)if they have such power but the procedure for doing so—

(i)is liable to be unduly complex or protracted, or

(ii)involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty,

by resolution make such alterations to the scheme.

(4) Alterations made by a resolution such as is referred to in sub-paragraph (3)—

(a)may have effect in relation to a period before the alterations are made (but may not have effect in relation to any time before 1st October 2006), and

(b)shall be subject to the consent of any employer in relation to the scheme whose consent would be required for such a modification if it were to be made using the scheme rules.

Exception for rules, practices, actions and decisions relating to occupational pension schemes

3.  Nothing in Part 2 or 3 of these Regulations shall render it unlawful for an employer, or for trustees or managers, to maintain or use, in relation to a scheme, any of the rules, practices, actions or decisions set out in Part 2 of this Schedule.

Exception for rules, practices, actions and decisions relating to contributions by employers to personal pension schemes

4.  Nothing in Part 2 or 3 of these Regulations shall render it unlawful for an employer, in relation to the payment of contributions to any personal pension scheme in respect of a worker, to maintain or use any of the rules, practices, actions or decisions set out in Part 3 of this Schedule.

Procedure in industrial tribunals

5.  Where under regulation 41 (jurisdiction of industrial tribunals) a member or prospective member of a scheme presents to an industrial tribunal a complaint that the trustees or managers of the scheme—

(a)have committed against him an act which is unlawful by virtue of regulation 12 (pension schemes) or regulation 25 (relationships which have come to an end); or

(b)are by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against him such an act,

the employer in relation to the scheme shall, for the purposes of the rules governing procedure, be treated as a party and be entitled to appear and be heard in accordance with those rules.

Remedies in industrial tribunals

6.—(1) This paragraph applies where—

(a)under regulation 41 (jurisdiction of industrial tribunals) a member or prospective member of a scheme (“the complainant”) presents to an industrial tribunal a complaint against the trustees or managers of the scheme or an employer;

(b)the complainant is not a pensioner member of the scheme;

(c)the complaint relates to the terms on which persons become members of the scheme, or the terms on which members of the scheme are treated; and

(d)the tribunal finds the complaint to be well-founded.

(2) Where this paragraph applies, the industrial tribunal may, without prejudice to the generality of its power under regulation 43(1)(a) (power to make order declaring rights of complainant and respondent), make an order declaring that the complainant has a right—

(a)where the complaint relates to the terms on which persons become members of the scheme, to be admitted to the scheme; or

(b)where the complaint relates to the terms on which members of the scheme are treated, to membership of the scheme without discrimination.

(3) An order under sub-paragraph (2)—

(a)may be made in respect of such period as is specified in the order (but may not be made in respect of any time before 1st October 2006);

(b)may make such provision as the industrial tribunal considers appropriate as to the terms on which, or the capacity in which, the complainant is to enjoy such admission or membership.

(4) Where this paragraph applies, the industrial tribunal may not make an order for compensation under regulation 43(1)(b), whether in relation to arrears of benefits or otherwise, except—

(a)for injury to feelings;

(b)by virtue of regulation 43(3).

PART 2Excepted rules, practices, actions and decisions relating to occupational pension schemes

Admission to schemes

7.  In relation to admission to a scheme—

(a)a minimum or maximum age for admission including different ages for admission for different groups or categories of worker;

(b)a minimum level of pensionable pay for admission provided that such a minimum is not above the lower earnings limit referred to in section 5(1) of the 1992 Act(48).

The use of age criteria in actuarial calculations

8.  The use of age criteria in actuarial calculations, for example in the actuarial calculation of—

(a)any age related benefit commencing before any early retirement pivot age or enhancement of such benefit commencing after any late retirement pivot age;

(b)member or employer contributions to a scheme; or

(c)any age related benefit commuted in exchange for the payment of any lump sum.

Contributions

9.  Any difference in the rate of member or employer contributions by or in respect of different members to the extent that this is attributable to any differences in the pensionable pay of those members.

Contributions under money purchase arrangements

10.  Under a money purchase arrangement—

(a)different rates of member or employer contributions according to the age of the members by or in respect of whom contributions are made where the aim in setting the different rates is—

(i)to equalise the amount of benefit to which members of different ages who are otherwise in a comparable situation will become entitled under the arrangement, or

(ii)to make the amount of benefit to which such members will become entitled under the arrangement more nearly equal;

(b)equal rates of member or employer contributions irrespective of the age of the members by or in respect of whom contributions are made.

Contributions under defined benefits arrangements

11.  Under a defined benefits arrangement, different rates of member or employer contributions according to the age of the members by or in respect of whom contributions are made, to the extent that—

(a)each year of pensionable service entitles members in a comparable situation to accrue a right to defined benefits based on the same fraction of pensionable pay, and

(b)the aim in setting the different rates is to reflect the increasing cost of providing the defined benefits in respect of members as they get older.

Age related rules, practices, actions and decisions relating to benefit

12.  A minimum age for entitlement to or payment of any age related benefit to a member, provided that, in the case of any age related benefit paid under a defined benefits arrangement before any early retirement pivot age—

(a)such benefit is subject to actuarial reduction for early receipt, and

(b)the member is not credited with additional periods of pensionable service.

13.  In relation to workers who are active or prospective members of a scheme on 1st October 2006, a minimum age for entitlement to or payment of any age related benefit to such members under defined benefit arrangements before any early retirement pivot age, where such benefit is calculated in one or both of the following ways—

(a)it is not made subject to actuarial reduction for early receipt;

(b)it results from crediting the member with additional periods of pensionable service.

14.  An early retirement pivot age or a late retirement pivot age, including different such ages for different groups or categories of member.

15.  The enhancement of any age related benefit in the event of a member’s retirement before any early retirement pivot age on ill health grounds, where that enhancement is calculated by reference to the years of pensionable service which that member would have completed if he had continued in pensionable service up to the age specified for that purpose in the scheme rules.

16.  Any rule, practice, action or decision whereby a male member who reaches pensionable age is not entitled or is no longer entitled to any additional amount of pension which would have been payable to such a member before pensionable age in the circumstances prescribed for the purposes of Article 64(2) of the 1995 Order by regulation 13 of the Occupational Pension Schemes (Equal Treatment) Regulations (Northern Ireland) 1995(49).

17.  The reduction of any pension payable in consequence of a member’s death to any dependant of the member where that dependant is more than a specified number of years younger than the member.

18.  In relation to pensioner members who have retired on ill health grounds before any early retirement pivot age, discontinuation of any life assurance cover once any such members reach the normal retirement age which applied to them at the time they retired, or in relation to members to whom no such normal retirement age applied, once such members reach the age of 65.

Other rules, practices, actions and decisions relating to benefit

19.  Any difference in the amount of any age related benefit or death benefit payable under a defined benefits arrangement to or in respect of members with different lengths of pensionable service to the extent that the difference in amount is attributable to their differing lengths of service, provided that, for each year of pensionable service, members in a comparable situation are entitled to accrue a right to benefit based upon the same fraction of pensionable pay.

20.  Any difference in the amount of any age related benefit or death benefit payable from a scheme to or in respect of different members to the extent that the difference in amount is attributable to differences over time in the pensionable pay of those members.

21.  Any limitation of the amount of any age related benefit or death benefit payable from a scheme where the limitation results from imposing a maximum number of years of service by reference to which such benefit may be calculated.

22.  Any rule, practice, action or decision whereby any age related benefit or death benefit is only payable to or in respect of members who have completed a minimum period of service, provided that such a minimum period is not longer than 2 years qualifying service within the meaning of section 67(7) of the 1993 Act).

23.  Any limitation on the amount of any age related benefit or death benefit payable from a scheme where the limitation results from imposing a minimum level of pensionable pay by reference to which any such benefit may be calculated, provided that such a minimum is not above the lower earnings limit referred to in section 5(1) of the 1992 Act.

24.  Any limitation on the amount of any age related benefit or death benefit payable from a scheme where the limitation results from imposing a maximum level of pensionable pay by reference to which such benefit may be calculated.

Closure of schemes

25.  The closure of a scheme, from a particular date, to workers who have not already joined it.

Other rules, practices, actions and decisions

26.  Increases of pensions in payment which are made to members over 55 but not to members below that age.

27.  Any difference in the rate of increase of pensions in payment for members of different ages to the extent that the aim in setting the different rates is to maintain the relative value of members' pensions.

28.  Any difference in the rate of increase of pensions in payment for members whose pensions have been in payment for different lengths of time to the extent that the aim in setting the different rates is to maintain the relative value of members' pensions.

29.  The application of an age limit for transfer of the value of a member’s accrued rights into or out of a scheme, provided that any such age limit is not more than one year before the member’s normal pension age.

Registered pension schemes

30.—(1) Subject to sub-paragraph (2), any rules, practices, actions or decisions relating to entitlement to or payment of benefits under a registered pension scheme insofar as compliance is necessary to secure any tax relief or exemption available under Part 4 of the 2004 Act or to prevent any charge to tax arising under that Part of that Act, whoever is liable in relation to such charge.

(2) Sub-paragraph (1) does not apply to any rules, practices, actions or decisions setting a minimum age for entitlement to or payment of any age related benefit .

PART 3Excepted rules, practices, actions and decisions relating to contributions by employers to personal pension schemes

Contributions by employers

31.  Different rates of contributions by an employer according to the age of the workers in respect of whom the contributions are made where the aim in setting the different rates is—

(a)to equalise the amount of benefit to which workers of different ages who are otherwise in a comparable situation will become entitled under their personal pension schemes, or

(b)to make the amount of benefit to which such workers will become entitled under their personal pension schemes more nearly equal.

32.  Any difference in the rate of contributions by an employer in respect of different workers to the extent that this is attributable to any differences in remuneration payable to those workers.

Regulation 46(1)

SCHEDULE 2Questionnaire of person aggrieved

Regulation 46(1)

SCHEDULE 3Reply by respondent

Regulation 49

SCHEDULE 4Validity of contracts, collective agreements and rules of undertaking

PART 1Validity and revision of contracts

1.—(1) A term of a contract is void where—

(a)the making of the contract is, by reason of the inclusion of the term, unlawful by virtue of these Regulations;

(b)it is included in furtherance of an act which is unlawful by virtue of these Regulations; or

(c)it provides for the doing of an act which is unlawful by virtue of these Regulations.

(2) Sub-paragraph (1) does not apply to a term the inclusion of which constitutes, or is in furtherance of, or provides for, unlawful discrimination against, or harassment of, a party to the contract, but the term shall be unenforceable against that party.

(3) A term in a contract which purports to exclude or limit any provision of these Regulations is unenforceable by any person in whose favour the term would operate apart from this paragraph.

(4) Sub-paragraphs (1), (2) and (3) shall apply whether the contract was entered into before or after 1st October 2006; but in the case of a contract made before that date, those sub-paragraphs do not apply in relation to any period before that date.

2.—(1) Paragraph 1(3) does not apply—

(a)to a contract settling a complaint to which regulation 41(1) (jurisdiction of industrial tribunals) applies where the contract is made with the assistance of the Labour Relations Agency;

(b)to a contract settling a complaint to which regulation 41(1) applies if the conditions regulating compromise contracts under this Schedule are satisfied in relation to the contract; or

(c)to a contract settling a claim to which regulation 44 (jurisdiction of county courts) applies.

(2) The conditions regulating compromise contracts under this Schedule are that—

(a)the contract must be in writing;

(b)the contract must relate to the particular complaint;

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

(d)there must be in force, when the adviser gives the advice, a 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 contract must identify the adviser; and

(f)the contract must state that the conditions regulating compromise contracts under this Schedule are satisfied.

(3) A person is a relevant independent adviser for the purposes of sub-paragraph (2)(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; or

(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.

(4) But a person is not a relevant independent adviser for the purposes of sub-paragraph (2)(c) in relation to the complainant—

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

(b)in the case of a person within sub-paragraph (3)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party; or

(c)in the case of a person within sub-paragraph (3)(c), if the complainant makes a payment for the advice received from him.

(5) In sub-paragraph (3)(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) In sub-paragraph (3)(b) “independent trade union” has the same meaning as in the Industrial Relations (Northern Ireland) Order 1992(50).

(7) For the purposes of sub-paragraph (4)(a) 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.

(8) An agreement under which the parties agree to submit a dispute to arbitration—

(a)shall be regarded for the purposes of sub-paragraph (1)(a) and (b) as being a contract settling a complaint 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(51), and

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

(b)shall be regarded as neither being nor including such a contract in any other case.

3.—(1) On the application of a person interested in a contract to which paragraph 1(1) or (2) applies, a county court may make such order as it thinks fit for—

(a)removing or modifying any term rendered void by paragraph 1(1), or

(b)removing or modifying any term made unenforceable by paragraph 1(2);

but such an order shall not be made unless all persons affected have been given notice in writing of the application (except where under county court rules notice may be dispensed with) and have been afforded an opportunity to make representations to the court.

(2) An order under sub-paragraph (1) may include provision as respects any period before the making of the order (but after 1st October 2006).

PART 2Collective agreements and rules of undertakings

4.—(1) This Part of this Schedule applies to—

(a)any term of a collective agreement, including an agreement which was not intended, or is presumed not to have been intended, to be a legally enforceable contract;

(b)any rule made by an employer for application to all or any of the persons who are employed by him or who apply to be, or are, considered by him for employment;

(c)any rule made by a trade organisation (within the meaning of regulation 19) or a qualification body (within the meaning of regulation 20) for application to—

(i)all or any of its members or prospective members; or

(ii)all or any of the persons on whom it has conferred professional or trade qualifications (within the meaning of regulation 20) or who are seeking the professional or trade qualifications which it has power to confer.

(2) Any term or rule to which this Part of this Schedule applies is void where—

(a)the making of the collective agreement is, by reason of the inclusion of the term, unlawful by virtue of these Regulations;

(b)the term or rule is included or made in furtherance of an act which is unlawful by virtue of these Regulations; or

(c)the term or rule provides for the doing of an act which is unlawful by virtue of these Regulations.

(3) Sub-paragraph (2) shall apply whether the agreement was entered into, or the rule made, before or after 1st October 2006; but in the case of an agreement entered into, or a rule made, before 1st October 2006, that sub-paragraph does not apply in relation to any period before that date.

5.  A person to whom this paragraph applies may present a complaint to an industrial tribunal that a term or rule is void by virtue of paragraph 4 if he has reason to believe—

(a)that the term or rule may at some future time have effect in relation to him; and

(b)where he alleges that it is void by virtue of paragraph 4(2)(c), that—

(i)an act for the doing of which it provides, may at some time be done in relation to him, and

(ii)the act would be unlawful by virtue of these Regulations if done in relation to him in present circumstances.

6.  In the case of a complaint about—

(a)a term of a collective agreement made by or on behalf of—

(i)an employer,

(ii)an organisation of employers of which an employer is a member, or

(iii)an association of such organisations of one of which an employer is a member, or

(b)a rule made by an employer within the meaning of paragraph 4(1)(b),

paragraph 5 applies to any person who is, or is genuinely and actively seeking to become, one of his employees.

7.  In the case of a complaint about a rule made by an organisation or body to which paragraph 4(1)(c) applies, paragraph 5 applies to any person—

(a)who is, or is genuinely and actively seeking to become, a member of the organisation or body;

(b)on whom the organisation or body has conferred a professional or trade qualification (within the meaning of regulation 20) which the organisation or body has power to confer; or

(c)who is genuinely and actively seeking such a professional or trade qualification which the organisation or body has power to confer.

8.—(1) When an industrial tribunal finds that a complaint presented to it under paragraph 5 is well-founded the tribunal shall make an order declaring that the term or rule is void.

(2) An order under sub-paragraph (1) may include provision as respects any period before the making of the order (but after 1st October 2006).

9.  The avoidance by virtue of paragraph 4(2) of any term or rule which provides for any person to be discriminated against shall be without prejudice to the following rights (except in so far as they enable any person to require another person to be treated less favourably than himself), namely—

(a)such of the rights of the person to be discriminated against; and

(b)such of the rights of any person who will be treated more favourably in direct or indirect consequence of the discrimination,

as are conferred by or in respect of a contract made or modified wholly or partly in pursuance of, or by reference to, that term or rule.

10.  In this Schedule “collective agreement” means any agreement relating to one or more of the matters mentioned in Article 96(1) of the Industrial Relations (Northern Ireland) Order 1992(52) (meaning of trade dispute), being an agreement made by or on behalf of one or more employers or one or more organisations of employers or associations of such organisations with one or more organisations of workers or associations of such organisations.

Regulation 51

SCHEDULE 5Duty to consider working beyond retirement

Interpretation

1.—(1) In this Schedule—

“dismissal” means a dismissal within the meaning of Article 127 of the 1996 Order(53);

“employee” means a person to whom regulation 32 (exception for retirement) applies and references to “employer” shall be construed accordingly;

“intended retirement date” has the meaning given by sub-paragraph (2);

“operative date of termination” means (subject to paragraph 10(3))—

(a)

where the employer terminates the employee’s contract of employment by notice, the date on which the notice expires; or

(b)

where the employer terminates the contract of employment without notice, the date on which the termination takes effect;

“request” means a request made under paragraph 5; and

“worker” has the same meaning as in Article 3(3) of the 1996 Order.

(2) In this Schedule, “intended retirement date” means—

(a)where the employer notifies a date in accordance with paragraph 2, that date;

(b)where the employer notifies a date in accordance with paragraph 4 and either no request is made or a request is made after the notification, that date;

(c)where,

(i)the employer has not notified a date in accordance with paragraph 2,

(ii)a request is made before the employer has notified a date in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given),

(iii)the request is made by an employee who has reasonable grounds for believing that the employer intends to retire him on a certain date,

(iv)the request identifies that date, and

the date so identified;

(d)in a case to which paragraph 3 has applied, any earlier or later date that has superseded the date mentioned in head (a), (b) or (c) as the intended date of retirement by virtue of paragraph 3(3);

(e)in a case to which paragraph 10 has applied, the later date that has superseded the date mentioned in head (a), (b) or (c) as the intended date of retirement by virtue of paragraph 10(3)(b).

Duty of employer to notify employee

2.—(1) An employer who intends to retire an employee has a duty to notify the employee in writing of—

(a)the employee’s right to make a request; and

(b)the date on which he intends the employee to retire,

not more than one year and not less than six months before that date.

(2) The duty to notify applies regardless of—

(a)whether there is any term in the employee’s contract of employment indicating when his retirement is expected to take place;

(b)any other notification of, or information about, the employee’s date of retirement given to him by the employer at any time; and

(c)any other information about the employee’s right to make a request given to him by the employer at any time.

3.—(1) This paragraph applies if the employer has notified the employee in accordance with paragraph 2 or 4 or the employee has made a request before being notified in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given), and—

(a)the employer and employee agree, in accordance with paragraph 7(3)(b) or 8(5)(b), that the dismissal is to take effect on a date later than the relevant date;

(b)the employer gives notice to the employee, in accordance with paragraph 7(7)(a)(ii) or, where the employee appeals, paragraph 8(9)(a)(ii), that the dismissal is to take effect on a date later than the relevant date; or

(c)the employer and employee agree that the dismissal is to take effect on a date earlier than the relevant date.

(2) This Schedule does not require the employer to give the employee a further notification in respect of dismissal taking effect on a date—

(a)agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) that is later than the relevant date and falls six months or less after the relevant date; or

(b)agreed as mentioned in sub-paragraph (1)(c) that is earlier than the relevant date.

(3) If—

(a)a date later than the relevant date is agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) and falls six months or less after the relevant date, or

(b)a date earlier than the relevant date is agreed as mentioned in sub-paragraph (1)(c),

the earlier or later date shall supersede the relevant date as the intended date of retirement.

(4) In this paragraph, “the relevant date” means the date that is defined as the intended date of retirement in head (a), (b) or (c) of paragraph 1(2).

Continuing duty to notify employee

4.  Where the employer has failed to comply with paragraph 2, he has a continuing duty to notify the employee in writing as described in paragraph 2(1) until the fourteenth day before the operative date of termination.

Statutory right to request not to retire

5.—(1) An employee may make a request to his employer not to retire on the intended date of retirement.

(2) In his request the employee must propose that his employment should continue, following the intended date of retirement—

(a)indefinitely;

(b)for a stated period; or

(c)until a stated date,

and, if the request is made at a time when it is no longer possible for the employer to notify in accordance with paragraph 2 and the employer has not yet notified in accordance with paragraph 4, must identify the date on which he believes that the employer intends to retire him.

(3) A request must be in writing and state that it is made under this paragraph.

(4) An employee may only make one request under this paragraph in relation to any one intended date of retirement and may not make a request in relation to a date that supersedes a different date as the intended date of retirement by virtue of paragraph 3(3) or 10(3)(b).

(5) A request is only a request made under this paragraph if it is made—

(a)in a case where the employer has complied with paragraph 2, more than three months but not more than six months before the intended date of retirement; or

(b)in a case where the employer has not complied with paragraph 2, before, but not more than six months before, the intended date of retirement .

An employer’s duty to consider a request

6.  An employer to whom a request is made is under a duty to consider the request in accordance with paragraphs 7 to 9.

Meeting to consider request

7.—(1) An employer having a duty under paragraph 6 to consider a request shall hold a meeting to discuss the request with the employee within a reasonable period after receiving it.

(2) The employer and employee must take all reasonable steps to attend the meeting.

(3) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—

(a)the employer and employee agree that the employee’s employment will continue indefinitely and the employer gives notice to the employee to that effect; or

(b)the employer and employee agree that the employee’s employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.

(4) The duty to hold a meeting does not apply if—

(a)it is not practicable to hold a meeting within the period that is reasonable; and

(b)the employer complies with sub-paragraph (5).

(5) Where sub-paragraph (4)(a) applies, the employer may consider the request without holding a meeting provided he considers any representations made by the employee.

(6) The employer shall give the employee notice of his decision on the request as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (4) and (5) apply, his consideration of the request.

(7) A notice given under sub-paragraph (6) shall—

(a)where the decision is to accept the request, state that it is accepted and—

(i)where the decision is that the employee’s employment will continue indefinitely, state that fact; or

(ii)where the decision is that the employee’s employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end;

(b)where the decision is to refuse the request, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect,

and, in the case of a notice falling within head (b), and of a notice referred to in head (a) that specifies a period shorter than the period proposed by the employee in the request, shall inform the employee of his right to appeal.

(8) All notices given under this paragraph shall be in writing and be dated.

Appeals

8.—(1) An employee is entitled to appeal against—

(a)a decision of his employer to refuse the request; or

(b)a decision of his employer to accept the request where the notice given under paragraph 7(6) states as mentioned in paragraph 7(7)(a)(ii) specifies and a period shorter than the period proposed by the employee in the request,

by giving notice in accordance with sub-paragraph (2) as soon as is reasonably practicable after the date of the notice given under paragraph 7(6).

(2) A notice of appeal under sub-paragraph (1) shall set out the grounds of appeal.

(3) The employer shall hold a meeting with the employee to discuss an appeal within a reasonable period after the date of the notice of appeal.

(4) The employer and employee must take all reasonable steps to attend the meeting.

(5) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—

(a)the employer and employee agree that the employee’s employment will continue indefinitely and the employer gives notice to the employee to that effect; or

(b)the employer and employee agree that the employee’s employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.

(6) The duty to hold a meeting does not apply if—

(a)it is not practicable to hold a meeting within the period that is reasonable; and

(b)the employer complies with sub-paragraph (7).

(7) Where sub-paragraph (6)(a) applies, the employer may consider the appeal without holding a meeting provided he considers any representations made by the employee.

(8) The employer shall give the employee notice of his decision on the appeal as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (6) and (7) apply, his consideration of the appeal.

(9) A notice given under sub-paragraph (8) shall—

(a)where the decision is to accept the appeal, state that it is accepted and—

(i)where the decision is that the employee’s employment will continue indefinitely, state that fact; or

(ii)where the decision is that the employee’s employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end;

(b)where the decision is to refuse the appeal, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect.

(10) All notices given under this paragraph shall be in writing and be dated.

Right to be accompanied

9.—(1) This paragraph applies where—

(a)a meeting is held under paragraph 7 or 8; and

(b)the employee reasonably requests to be accompanied at the meeting.

(2) Where this paragraph applies, the employer must permit the employee to be accompanied at the meeting by one companion who—

(a)is chosen by the employee;

(b)is a worker employed by the same employer as the employee;

(c)is to be permitted to address the meeting (but not to answer questions on behalf of the employee); and

(d)is to be permitted to confer with the employee during the meeting.

(3) If—

(a)an employee has a right under this paragraph to be accompanied at a meeting;

(b)his chosen companion will not be available at the time proposed for the meeting by the employer; and

(c)the employee proposes an alternative time which satisfies sub-paragraph (4),

the employer must postpone the meeting to the time proposed by the employee.

(4) An alternative time must—

(a)be convenient for employer, employee and companion; and

(b)fall before the end of the period of seven days beginning with the first day after the day proposed by the employer.

(5) An employer shall permit a worker to take time off during working hours for the purpose of accompanying an employee in accordance with a request under sub-paragraph (1)(b).

(6) Articles 92(3) and (4), 93 and 95 of the 1996 Order (time off for carrying out trade union duties) shall apply in relation to sub-paragraph (5) as they apply in relation to Article 92(1) of that Order.

Dismissal before request considered

10.—(1) This paragraph applies where—

(a)by virtue of paragraph 6 an employer is under a duty to consider a request;

(b)the employer dismisses the employee;

(c)that dismissal is the contemplated dismissal to which the request relates; and

(d)the operative date of termination would, but for sub-paragraph (3), fall on or before the day on which the employer gives notice in accordance with paragraph 7(6).

(2) Subject to paragraph (4), the contract of employment shall continue in force for all purposes, including the purpose of determining for any purpose the period for which the employee has been continuously employed, until the day following that on which the notice under paragraph 7(6) is given.

(3) The day following the day on which that notice is given shall supersede—

(a)the date mentioned in sub-paragraph (1)(d) as the operative date of termination; and

(b)the date defined as the intended date of retirement in head (a), (b) or (c) of paragraph 1(2) as the intended date of retirement.

(4) Any continuation of the contract of employment under sub-paragraph (2) shall be disregarded when determining the operative date of termination for the purposes of Articles 130ZA to 130ZH of the 1996 Order(54).

Complaint to industrial tribunal: failure to comply with paragraph 2

11.—(1) An employee may present a complaint to an industrial tribunal that his employer has failed to comply with the duty to notify him in paragraph 2.

(2) A tribunal shall not consider a complaint under this paragraph unless the complaint is presented—

(a)before the end of the period of three months beginning with—

(i)the last day permitted to the employer by paragraph 2 for complying with the duty to notify; or

(ii)if the employee did not then know the date that would be the intended date of retirement, the day on which he knew or should have known that date; or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where a tribunal finds that a complaint under this paragraph is well-founded, it shall order the employer to pay compensation to the employee of such amount, not exceeding 8 weeks' pay, as the tribunal considers just and equitable in all the circumstances.

(4) Chapter IV of Part I of the 1996 Order (a week’s pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the complaint was presented or, if earlier, the operative date of termination.

(5) The limit in Article 23(1) of the 1996 Order(55) (maximum amount of a week’s pay) shall apply for the purposes of sub-paragraph (3).

Complaint to industrial tribunal: denial of right to be accompanied

12.—(1) An employee may present a complaint to an industrial tribunal that his employer has failed, or threatened to fail, to comply with paragraph 9(2) or (3).

(2) A tribunal shall not consider a complaint under this paragraph in relation to a failure or threat unless the complaint is presented—

(a)before the end of the period of three months beginning with the date of the failure or threat; or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where a tribunal finds that a complaint under this paragraph is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.

(4) Chapter IV of Part I of the 1996 Order (a week’s pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the relevant meeting took place (or was to have taken place).

(5) The limit in Article 23(1) of the 1996 Order (maximum amount of a week’s pay) shall apply for the purposes of sub-paragraph (3).

Detriment and dismissal

13.—(1) An employee has the right not to be subjected to any detriment by any act by his employer done on the ground that he exercised or sought to exercise his right to be accompanied in accordance with paragraph 9.

(2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he accompanied or sought to accompany an employee pursuant to a request under paragraph 9.

(3) Article 71 of the 1996 Order(56) (complaints to industrial tribunals) shall apply in relation to contraventions of sub-paragraph (1) or (2) as it applies in relation to contraventions of certain Articles of that Order.

(4) Sub-paragraph (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal (within the meaning of Part XI of the 1996 Order).

(5) An employee who is dismissed shall be regarded for the purposes of Part XI of the 1996 Order as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he—

(a)exercised or sought to exercise his right to be accompanied in accordance with paragraph 9; or

(b)accompanied or sought to accompany an employee pursuant to a request under that paragraph.

(6) Articles 163 to 167 of the 1996 Order (interim relief) shall apply in relation to dismissal for the reason specified in sub-paragraph (5)(a) or (b) as they apply in relation to dismissal for a reason specified in Article 163(1)(b) of that Order.

Regulation 52

SCHEDULE 6Duty to consider working beyond retirement – transitional provisions

1.  In paragraphs 2 to 6—

(a)“the expiry date” means the date on which notice of dismissal given by an employer expires; and

(b)words and expressions shall have the same meanings as they do in Schedule 5.

2.—(1) This paragraph applies in a case where—

(a)an employer has given notice of dismissal to the employee before 1st October 2006 of—

(i)at least the period required by the contract of employment; or

(ii)where the period required by the contract exceeds four weeks, at least four weeks;

(b)the expiry date falls before 1st April 2007; and

(c)the employer has made the employee aware, before 1st October 2006, that the employer considers that the employee is being retired on the expiry date.

(2) Where this paragraph applies and the employer on or as soon as is practicable after 1st October 2006 notifies the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5—

(a)the employer shall be treated as complying with the duty in paragraph 2 of Schedule 5;

(b)a request shall be treated as being a request made under paragraph 5 of Schedule 5 provided it—

(i)is made after the employer notified the employee of his right to make a request;

(ii)satisfies the requirements of sub-paragraphs (2) and (3) of paragraph 5 of Schedule 5; and

(iii)is made—

(aa)where practicable, at least four weeks before the expiry date; or

(bb)where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

(3) Where this paragraph applies and the employer does not, on or as soon as is practicable after 1st October 2006, notify the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5—

(a)the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b)the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i)the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii)the duty was one to notify at any time before the expiry date;

(c)a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i)before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii)after such notification and—

(aa)where practicable, at least four weeks before the expiry date; or

(bb)where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

3.—(1) This paragraph applies in a case where the employer has given notice of dismissal to the employee before 1st October 2006 and—

(a)the expiry date falls before 1st April 2007, but

(b)the period of notice given is shorter than the minimum period of notice required by paragraph 2(1)(a) or the employer has not complied with paragraph 2(1)(c).

(2) Where this paragraph applies—

(a)the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b)the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i)the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii)the duty was one to notify at any time before the expiry date;

(c)a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i)before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii)after such notification and—

(aa)where practicable, at least four weeks before the expiry date; or

(bb)where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

4.—(1) This paragraph applies in a case where—

(a)notice of dismissal is given on or after 1st October 2006 of at least—

(i)the period required by the contract of employment; or

(ii)if longer, the period required by Article 118 of the 1996 Order (rights of employer and employee to minimum notice); and

(b)the expiry date falls before 1st April 2007.

(2) Where this paragraph applies and the employer notifies the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5 before, or on the same day as, the day on which notice of dismissal is given—

(a)the employer shall be treated as complying with the duty in paragraph 2 of Schedule 5;

(b)a request shall be treated as being a request made under paragraph 5 of Schedule 5 provided it—

(i)is made after the employer notified the employee of his right to make a request;

(ii)satisfies the requirements of sub-paragraphs (2) and (3) of paragraph 5 of Schedule 5; and

(iii)is made—

(aa)where practicable, at least four weeks before the expiry date; or

(bb)where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

(3) Where this paragraph applies but the employer does not notify the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5 before, or on the same day as, the day on which notice of dismissal is given—

(a)the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b)the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i)the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii)the duty was one to notify at any time before the expiry date;

(c)a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i)before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii)after such notification and—

(aa)where practicable, at least four weeks before the expiry date; or

(bb)where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

5.—(1) This paragraph applies in a case where—

(a)notice of dismissal is given on or after 1st October 2006 and is for a period shorter than—

(i)the period required by the contract of employment; or

(ii)if longer, the period required by Article 118 of the 1996 Order; and

(b)the period of notice expires on a date falling before 1st April 2007.

(2) Where this paragraph applies—

(a)the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b)the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i)the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii)the duty was one to notify at any time before the expiry date;

(c)a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i)before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii)after such notification and—

(aa)where practicable, at least four weeks before the expiry date; or

(bb)where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

6.  In every case to which paragraph 2, 3, 4 or 5 applies—

(a)paragraph 10 of Schedule 5 does not apply; and

(b)the employer is under a duty to consider any request which complies with the requirements of paragraph 2(2)(b), 2(3)(c), 3(2)(c), 4(2)(b), 4(3)(c) or 5(2)(c) in accordance with paragraphs 7 to 9 of Schedule 5.

Regulation 53(1)

SCHEDULE 7Amendments to legislation and related transitional provisions

Part 1Primary legislation

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

1.—(1) The Social Security Contributions and Benefits (Northern Ireland) Act 1992(57) shall be amended in accordance with sub-paragraphs (2) to (10).

(2) In section 159(1)(58) (interpretation of Part XI and supplementary provisions)—

(a)in the definition of “employee” omit paragraph (b) and the word “and” preceding it; and

(b)for the definition of “employer” substitute the following definition—

“employer”, in relation to an employee and a contract of service of his, means a person who—

(a)

under section 6 above is liable to pay secondary Class 1 contributions in relation to any earnings of the employee under the contract; or

(b)

would be liable to pay such contributions but for—

(i)

the condition in section 6(1)(b); or

(ii)

the employee being under the age of 16;.

(3) In section 167(1)(59) (interpretation of Part XII etc.)—

(a)in the definition of “employee” omit paragraph (b) and the word “and” preceding it; and

(b)for the definition of “employer” substitute the following definition—

“employer”, in relation to a woman who is an employee, means a person who—

(a)

under section 6 above is liable to pay secondary Class 1 contributions in relation to any of her earnings; or

(b)

would be liable to pay such contributions but for—

(i)

the condition in section 6(1)(b); or

(ii)

the employee being under the age of 16;.

(4) Sub-paragraph (3) applies in relation to any case where the expected week of confinement begins on or after 14th January 2007.

(5) In section 167ZJ(60) (Part XIIZA: supplementary)—

(a)in subsection (1), for the definition of “employer” substitute the following definition—

“employer”, in relation to a person who is an employee, means a person who—

(a)

under section 6 above is liable to pay secondary Class 1 contributions in relation to any of the earnings of the person who is an employee; or

(b)

would be liable to pay such contributions but for—

(i)

the condition in section 6(1)(b); or

(ii)

the employee being under the age of 16;; and

(b)in subsection (2) omit paragraph (b) and the word “and” preceding it.

(6) Sub-paragraph (5) applies in relation to an entitlement to—

(a)statutory paternity pay (birth) in respect of children whose expected week of birth begins on or after 14th January 2007;

(b)statutory paternity pay (adoption) in respect of children—

(i)matched with a person who is notified of having been matched on or after 1st October 2006; or

(ii)placed for adoption on or after 1st October 2006.

(7) In section 167ZS(61) (Part XIIZB: supplementary)—

(a)in subsection (1), for the definition of “employer” substitute the following definition—

“employer”, in relation to a person who is an employee, means a person who—

(a)

under section 6 above is liable to pay secondary Class 1 contributions in relation to any of the earnings of the person who is an employee; or

(b)

would be liable to pay such contributions but for—

(i)

the condition in section 6(1)(b); or

(ii)

the employee being under the age of 16;; and

(b)in subsection (2) omit paragraph (b) and the word “and” preceding it.

(8) Sub-paragraph (7) applies in relation to an entitlement to statutory adoption pay in respect of children—

(a)matched with a person who is notified of having been matched on or after 1st October 2006; or

(b)placed for adoption on or after 1st October 2006.

(9) In Schedule 11 omit paragraph 2(a)(62) (period of entitlement not to arise if at the relevant date the employee is over 65).

(10) Sub-paragraph (9) applies in relation to a period of incapacity for work which—

(a)begins on or after 1st October 2006, or

(b)begins before and continues on or after 1st October 2006.

(11) But in a case falling within sub-paragraph (10)(b), sub-paragraph (9) does not affect the application of paragraph 1 of Schedule 11 to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in relation to the part of the period of incapacity for work that falls before 1st October 2006.

The Statutory Sick Pay (Northern Ireland) Order 1994

2.—(1) The Statutory Sick Pay (Northern Ireland) Order 1994(63) shall be amended in accordance with this paragraph.

(2) In Article 3(2) (restriction of employers' right of recovery) omit the words after sub-paragraph (b).

The Employment Rights (Northern Ireland) Order 1996

3.—(1) The 1996 Order(64) shall be amended in accordance with sub-paragraphs (2) to (15).

(2) In Article 7 (period of continuous employment)—

(a)in sub-paragraph (a) of paragraph (1), for “paragraphs (2) and” substitute “paragraph”; and

(b)omit paragraph (2).

(3) Article 130(65) (fairness: general) shall be amended as follows—

(a)in paragraph (2), after sub-paragraph (b) insert—

(ba)is retirement of the employee,;

(b)after paragraph (2) insert—

(2A) Paragraphs (1) and (2) are subject to Articles 130ZA to 130ZF.;

(c)after paragraph (3) insert—

(3A) In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.; and

(d)in paragraph (4), for “Where” substitute “In any other case where”.

(4) After Article 130 insert—

Retirement
No normal retirement age: dismissal before 65

130ZA.(1) This Article applies to the dismissal of an employee if—

(a)the employee has no normal retirement age, and

(b)the operative date of termination falls before the date when the employee reaches the age of 65.

(2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal.

No normal retirement age: dismissal at or after 65

130ZB.(1) This Article applies to the dismissal of an employee if—

(a)the employee has no normal retirement age, and

(b)the operative date of termination falls on or after the date when the employee reaches the age of 65.

(2) In a case where—

(a)the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and

(b)the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for dismissal by the employer and any other reason shall be disregarded.

(3) In a case where—

(a)the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, but

(b)the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(4) In a case where—

(a)the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and

(b)there is an intended date of retirement in relation to the dismissal, but

(c)the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, particular regard shall be had to the matters in Article 130ZF when determining the reason (or principal reason) for dismissal.

Normal retirement age: dismissal before retirement age

130ZC.(1) This Article applies to the dismissal of an employee if—

(a)the employee has a normal retirement age, and

(b)the operative date of termination falls before the date when the employee reaches the normal retirement age.

(2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal.

Normal retirement age 65 or higher: dismissal at or after retirement age

130ZD.(1) This Article applies to the dismissal of an employee if—

(a)the employee has a normal retirement age,

(b)the normal retirement age is 65 or higher, and

(c)the operative date of termination falls on or after the date when the employee reaches the normal retirement age.

(2) In a case where—

(a)the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and

(b)the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded.

(3) In a case where—

(a)the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, but

(b)the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(4) In a case where—

(a)the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and

(b)there is an intended date of retirement in relation to the dismissal, but

(c)the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, particular regard shall be had to the matters in Article 130ZF when determining the reason (or principal reason) for dismissal.

Normal retirement age below 65: dismissal at or after retirement age

130ZE.(1) This Article applies to the dismissal of an employee if—

(a)the employee has a normal retirement age,

(b)the normal retirement age is below 65, and

(c)the operative date of termination falls on or after the date when the employee reaches the normal retirement age.

(2) If it is unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(3) Paragraphs (4) to (7) apply if it is not unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age.

(4) In a case where—

(a)the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and

(b)the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for dismissal by the employer and any other reason shall be disregarded.

(5) In a case where—

(a)the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, but

(b)the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(6) In a case where—

(a)the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and

(b)there is an intended date of retirement in relation to the dismissal, but

(c)the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(7) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, particular regard shall be had to the matters in Article 130ZF when determining the reason (or principal reason) for dismissal.

Reason for dismissal: particular matters

130ZF.(1) These are the matters to which particular regard is to be had in accordance with Article 130ZB(5), 130ZD(5) or 130ZE(7)—

(a)whether or not the employer has notified the employee in accordance with paragraph 4 of Schedule 5 to the 2006 Regulations,

(b)if the employer has notified the employee in accordance with that paragraph, how long before the notified retirement date the notification was given,

(c)whether or not the employer has followed, or sought to follow, the procedures in paragraph 7 of Schedule 5 to the 2006 Regulations.

(2) In paragraph (1)(b), “notified retirement date” means the date notified to the employee in accordance with paragraph 4 of Schedule 5 to the 2006 Regulations as the date on which the employer intends to retire the employee.

Retirement dismissals: fairness

130ZG.(1) This Article applies if the reason (or principal reason) for a dismissal is retirement of the employee.

(2) The employee shall be regarded as unfairly dismissed if, and only if, there has been a failure on the part of the employer to comply with an obligation imposed on him by any of the following provisions of Schedule 5 to the 2006 Regulations—

(a)paragraph 4 (notification of retirement, if not already given under paragraph 2),

(b)paragraphs 6 and 7 (duty to consider employee’s request not to be retired),

(c)paragraph 8 (duty to consider appeal against decision to refuse request not to be retired).

Interpretation

130ZH.  In Articles 130ZA to 130ZG—

“the 2006 Regulations” means the Employment Equality (Age) Regulations (Northern Ireland) 2006;

“intended date of retirement” means the date which, by virtue of paragraph 1(2) of Schedule 5 to the 2006 Regulations, is the intended date of retirement in relation to a particular dismissal;

“normal retirement age”, in relation to an employee, means the age at which employees in the employer’s undertaking who hold, or have held, the same kind of position as the employee are normally required to retire;

“operative date of termination” means—

(a)

where the employer terminates the employee’s contract of employment by notice, the date on which the notice expires, or

(b)

where the employer terminates the contract of employment without notice, the date on which the termination takes effect.

Dismissals.

(5) In Article 140 (qualifying period of employment), in paragraph (3) (cases where no qualifying period of employment is required)—

(a)at the end of sub-paragraph (o)(66) omit “or”; and

(b)after sub-paragraph (p)(67) insert—

or

(q)head (a) or (b) of paragraph 13(5) of Schedule 5 to the Employment Equality (Age) Regulations (Northern Ireland) 2006 applies..

(6) Omit Article 141 (upper age limit).

(7) In Article 146(5)(a)(68) (the remedies: orders and compensation), after “Article” insert “130ZG or”.

(8) In Article 153 (basic award) omit paragraphs (4) and (5).

(9) In Article 154(1A)(a)(69) (basic award: minimum in certain cases), after “Article” insert “130ZG or”.

(10) In Article 160(1)(70) (acts which are both unfair dismissal and discrimination), for sub-paragraph (b) substitute—

(b)any one or more of the following—

(i)the Sex Discrimination (Northern Ireland) Order 1976;

(ii)the Disability Discrimination Act 1995;

(iii)the Race Relations (Northern Ireland) Order 1997;

(iv)the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003;

(v)the Employment Equality (Age) Regulations (Northern Ireland) 2006..

(11) Omit Article 191 (upper age limit).

(12) Omit Article 193 (pension rights).

(13) In Article 197 (amount of a redundancy payment)—

(a)omit paragraphs (4), (5) and (8); and

(b)in paragraph (6), for “Paragraphs (1) to (5)” substitute “Paragraphs (1) to (3)”.

(14) In relation to any case where the date that is the relevant date by virtue of Article 188 of the 1996 Order falls before 1st October 2006, sub-paragraphs (11) to (13) do not apply.

(15) In Article 250(2) (powers to amend Order) omit “141(1)”.

The Industrial Tribunals (Northern Ireland) Order 1996

4.  Article 20(1)(a) of the Industrial Tribunals (Northern Ireland) Order 1996(71) (cases where conciliation provisions apply) shall be amended as follows—

(a)at the end of head (iv), omit “or”, and

(b)after head (v), insert—

or

(vi)regulation 41 of the Employment Equality (Age) Regulations (Northern Ireland) 2006..

The Fair Employment and Treatment (Northern Ireland) Order 1998

5.—(1) The Fair Employment and Treatment (Northern Ireland) Order 1998(72) shall be amended in accordance with sub-paragraphs (2) to (4).

(2) In Article 85(1) (procedure for matters within jurisdiction of industrial tribunal)—

(a)in sub-paragraph (a), after head (v)(73) insert—

(vi)a person has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of any provision of Part 2 or 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006; or; and

(b)in sub-paragraph (b)(74) after “(Northern Ireland) 2003” insert “or the Employment Equality (Age) Regulations (Northern Ireland) 2006”.

(3) In Article 85(3)(b), after head (iv)(75), insert—

(v)regulation 41(4) of the Employment Equality (Age) Regulations (Northern Ireland) 2006,.

(4) In Schedule 2A(76)—

(a)in paragraph 1(1)—

(i)in the definition of “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers”, omit the words “as at 10th December 2003”; and

(ii)in the definition of “occupational pension scheme”, omit the words “as at 10th December 2003”; and

(b)in paragraph 1(2), omit the words “as at 10th December 2003”.

The Employment (Northern Ireland) Order 2003

6.  In the Employment (Northern Ireland) Order 2003(77) at the end of each of the following Schedules—

(a)Schedule 2 (tribunal jurisdictions to which Article 17 applies);

(b)Schedule 3 (tribunal jurisdictions to which Article 19 applies); and

(c)Schedule 4 (tribunal jurisdictions to which Article 27 applies),

insert—

PART 2Subordinate legislation

The Riding Establishments Regulations (Northern Ireland) 1980

7.  In regulation 4 of the Riding Establishments Regulations (Northern Ireland) 1980(78) (management and supervision requirements), for paragraph (1) substitute—

(1) A riding establishment shall be managed and supervised by a licence holder or a person who to the satisfaction of the Department is qualified or experienced in the management of horses and has not been convicted of any offence for which a penalty is provided under the Act..

The Statutory Sick Pay (General) Regulations (Northern Ireland) 1982

8.—(1) The Statutory Sick Pay (General) Regulations (Northern Ireland) 1982(79) shall be amended in accordance with sub-paragraphs (2) and (3).

(2) In regulation 16 (meaning of “employee”)—

(a)in paragraph (1)—

(i)at the beginning insert the words “Subject to paragraph (1ZA),”; and

(ii)omit the words “over the age of 16”; and

(b)after paragraph (1) insert—

(1ZA) Any person under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 had he been aged 16 or over, shall be treated as if he is aged 16 or over for the purposes of paragraph (1)..

(3) In regulation 17(2) (meaning of “earnings”)—

(a)at the end of sub-paragraph (a), insert “(or would have been so excluded had he not been under the age of 16)”; and

(b)at the end of sub-paragraph (b), insert “(or where such a payment or amount would have been so excluded and in consequence he would not have been entitled to statutory sick pay had he not been under the age of 16)”.

The Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987

9.—(1) The Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987(80) shall be amended in accordance with sub-paragraphs (2) to (4).

(2) In regulation 17 (meaning of “employee”)—

(a)in paragraph (1)—

(i)at the beginning insert the words “Subject to paragraph (1A),”; and

(ii)omit the words “over the age of 16”; and

(b)after paragraph (1) insert—

(1A) Any woman under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 had she been aged 16 or over, shall be treated as if she is aged 16 or over for the purposes of paragraph (1)..

(3) In regulation 20(2) (meaning of “earnings”)—

(a)at the end of sub-paragraph (a) insert “(or would have been so excluded had she not been under the age of 16)”; and

(b)at the end of sub-paragraph (b) insert “(or where such a payment or amount would have been so excluded and in consequence she would not have been entitled to statutory maternity pay had she not been under the age of 16)”.

(4) Sub-paragraph (3) applies in relation to any case where the expected week of confinement begins on or after 14th January 2007.

The Employment Protection (Continuity of Employment) Regulations (Northern Ireland) 1996

10.  Regulation 3 of the Employment Protection (Continuity of Employment) Regulations (Northern Ireland) 1996(81) shall be amended as follows—

(a)at the end of paragraph (d) omit “or”; and

(b)after paragraph (e), add—

or

(f)a decision taken arising out of the use of the statutory duty to consider procedure contained in Schedule 5 to the Employment Equality (Age) Regulations (Northern Ireland) 2006..

The Petshops Regulations (Northern Ireland) 2000

11.  In the Schedule to the Petshops Regulations (Northern Ireland) 2000(82) (conditions for keeping petshops)—

(a)omit paragraph 2; and

(b)for paragraph 3, substitute—

3.  The petshop shall be managed only by or left in the sole charge of a person who, to the satisfaction of the Department, has either sufficient experience or suitable training and qualifications to provide a reasonable level of care and supervision in respect of the number and range of species which are permitted to be kept within that petshop..

The Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations (Northern Ireland) 2002

12.—(1) The Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations (Northern Ireland) 2002(83) shall be amended in accordance with sub-paragraphs (2) and (3).

(2) In regulation 32 (treatment of persons as employees)—

(a)in paragraph (1)—

(i)at the beginning insert the words “Subject to paragraph (1A),”; and

(ii)omit the words “over the age of 16”; and

(b)after paragraph (1) insert—

(1A) Any person under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 had he been aged 16 or over, shall be treated as if he is aged 16 or over for the purposes of paragraph (1)..

(3) In regulation 39(2) (meaning of “earnings”)—

(a)at the end of sub-paragraph (a), insert “(or would have been so excluded had he not been under the age of 16)”; and

(b)at the end of sub-paragraph (b), insert “(or where such a payment or amount would have been so excluded and in consequence he would not have been entitled to statutory paternity pay or, as the case may be, statutory adoption pay had he not been under the age of 16)”.

The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003

13.—(1) Schedule 1 to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003(84) shall be amended in accordance with sub-paragraphs (2) and (3).

(2) In paragraph 1(1)—

(a)in the definition of “active member”, deferred member”, “managers”, “pensioner member” and “trustees or managers”, omit the words “as at 2nd December 2003”; and

(b)in the definition of “occupational pension scheme”, omit the words “as at 2nd December 2003”.

(3) In paragraph 1(2), omit the words “as at 2nd December 2003”.

The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004

14.—(1) The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004(85) shall be amended in accordance with sub-paragraphs (2) to (4).

(2) In regulation 4(1) (dismissals to which the dismissal and disciplinary procedures do not apply)—

(a)at the end of sub-paragraph (f) omit “or”; and

(b)after sub-paragraph (g) add—

,or

(h)the reason (or if more than one, the principal reason) for the dismissal is retirement of the employee (to be determined in accordance with Articles 130ZA to 130ZH of the 1996 Order)..

(3) In regulation 7(3) (circumstances in which parties are treated as complying with the grievance procedures) at the end add—

(4) In regulation 14(2) (questions to obtain information not to constitute statement of grievance) at the end add—

The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005

15.—(1) The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005(86) shall be amended in accordance with sub-paragraphs (2) to (4).

(2) In regulation 2(1) (interpretation), immediately after the definition of “the Sexual Orientation Regulations” there shall be inserted the following definition—

“the Age Regulations” means the Employment Equality (Age) Regulations (Northern Ireland) 2006;

(3) Rule 22 of Schedule 1 (fixed period for conciliation) shall be amended as follows—

(a)at the end of paragraph (1)(e) omit “and”; and

(b)after paragraph (1)(f), add—

and

(g)the Age Regulations, regulation 41..

(4) In rule 60(9) of Schedule 1 (notices, etc.) for “or the Sexual Orientation Regulations” there shall be substituted “, the Sexual Orientation Regulations or the Age Regulations”.

Regulation 53(2)

SCHEDULE 8Repeals and revocations

(1) Repeals
Short titleExtent of repeal
The Local Government Act (Northern Ireland) 1972 (c. 9 (N.I.))Section 44
The Weights and Measures (Northern Ireland) Order 1981 (N.I. 10)Article 40(3)
The Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7)

In section 159(1), in the definition of “employee”, paragraph (b) and the word “and” preceding it

In section 167(1), in the definition of “employee”, paragraph (b) and the word “and” preceding it

In section 167ZJ(2), paragraph (b) and the word “and” preceding it

In section 167ZS(2), paragraph (b) and the word “and” preceding it

In Schedule 11, paragraph 2(a)

The Statutory Sick Pay (Northern Ireland) Order 1994 (N.I. 5)In Article 3(2), the words after sub-paragraph (b)
The Employment Rights (Northern Ireland) Order 1996 (N.I. 16)

Article 7(2)

In Article 140(3), sub-paragraph (o), the word “or” at the end

Article 141

Article 153(4) and (5)

Article 191

Article 193

Article 197(4), (5) and (8)

In Article 250(2), the words “141(1)”

The Industrial Tribunals (Northern Ireland) Order 1996 (N.I. 18)In Article 20(1)(a)(iv), the word “or” at the end
The Social Security (Northern Ireland) Order 1998 (N.I. 10)In Schedule 6, paragraphs 55 and 56
The Fair Employment and Treatment (Northern Ireland) Order 1998 (N.I. 21)

In Schedule 2A, paragraph 1(1), in the definition of “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers” the words “as at 10th December 2003”

In Schedule 2A, paragraph 1(1), in the definition of “occupational pension scheme” the words “as at 10th December 2003”

In Schedule 2A, paragraph 1(2), the words “as at 10th December 2003”

(2) Revocations
TitleExtent of revocation
The Contracts of Employment and Redundancy Payments (Pensions) Regulations (Northern Ireland) 1965 (S.R. & O (N.I.) 1965 No 246)The whole Regulations
The Statutory Sick Pay (General) Regulations (Northern Ireland) 1982 (S.R. 1982 No. 263)In regulation 16(1), the words “over the age of 16”
The Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987 (S.R. 1987 No. 30)In regulation 17(1), the words “over the age of 16”
The Employment Protection (Continuity of Employment) Regulations (Northern Ireland) 1996 (S.R. 1996 No. 604)In regulation 3(d), the word “or” at the end
The Petshops Regulations (Northern Ireland) 2000 (S.R. 2000 No. 405)In the Schedule, paragraph 2
The Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 378)In regulation 32(1), the words “over the age of 16”
The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (S.R. 2003 No. 497)

In Schedule 1, paragraph 1(1), in the definition of “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers” the words “as at 2nd December 2003”

In Schedule 1, paragraph 1(1), in the definition of “occupational pension scheme” the words “as at 2nd December 2003”

In Schedule 1, paragraph 1(2), the words “as at 2nd December 2003”

The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (S.R. 2004 No. 521)In regulation 4(1)(f), the word “or” at the end
The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (S.R. 2005 No. 150)In Schedule 1, rule 22, paragraph (1)(e), the word “and” at the end

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2) of the European Communities Act 1972 (c. 68), implement (in Northern Ireland) Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment (OJ L 303, 2.12.2000, p.16) so far as it relates to discrimination on grounds of age. The Regulations make it unlawful to discriminate on grounds of age in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation, instructions to discriminate and harassment.

Direct discrimination, defined in regulation 3(1)(a), arises where a person is treated less favourably than another on grounds of his age or apparent age. Indirect discrimination, defined in regulation 3(1)(b), arises where a provision, criterion or practice, which is applied generally, puts persons of a particular age or age group at a disadvantage. Discrimination will occur where the difference in treatment or disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim. Victimisation, defined in regulation 4, occurs where a person receives less favourable treatment than others by reason of the fact that he has brought (or given evidence in) proceedings, made an allegation or otherwise done anything under or by virtue of the Regulations. Instructions to discriminate are dealt with in regulation 5. It is a form of discrimination to treat a person less favourably than another because he has failed to carry out an instruction to discriminate or because he has complained about receiving such an instruction. Harassment, defined in regulation 6, occurs where a person is subjected to unwanted conduct on grounds of age with the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Regulations 7 to 25 prohibit discrimination, victimisation and harassment in the fields of employment and vocational training. In particular, they protect employees (regulation 7), contract workers (regulation 10), office-holders (including police and those seconded to the Serious Organised Crime Agency (regulations 13 to 16)), and partners in firms (regulation 18). They not only prohibit discrimination etc by employers, but also by trustees and managers of occupational pension schemes (regulation 12), trade organisations (regulation 19), qualifications bodies (regulation 20), providers of vocational training (regulation 21), employment agencies (regulation 22) and institutions of further and higher education (regulation 24). By virtue of regulation 25, discrimination, victimisation or harassment occurring after the relevant relationship has ended is unlawful if it arises out of, and is closely connected to, the relationship. The Regulations also apply to Crown servants (regulation 50). Regulation 49 and Schedule 4 address the validity of discriminatory terms in contracts and collective agreements.

Not all differences of treatment on grounds of age are unlawful. There are exceptions: in regulation 28 in relation to acts done in order to comply with a statutory provision; in regulation 29 in relation to acts related to safeguarding national security or protecting public order or public safety; in regulation 30 in relation to national security certificates; in regulation 39 for positive action; in regulation 32 in relation to retirement; in regulation 33 in relation to the national minimum wage; in regulation 34 in relation to the provision of certain employment benefits based on length of service; in regulation 35 in relation to the provision of enhanced redundancy payments; and in regulation 36 in relation to the provision of life assurance cover to workers who have had to retire early on grounds of ill-health. Regulation 8 provides an exception where possessing a characteristic related to age is a genuine and determining occupational requirement for a post if it is proportionate to apply the requirement in the particular case. Schedule 1 provides exceptions for various rules, practices, actions and decisions relating to occupational pension schemes.

Regulations 37 to 39 confer powers and duties on the Equality Commission for Northern Ireland in relation to the ground of age. Regulation 37 confers a general duty of working towards the elimination of discrimination, promoting equality of opportunity between persons of different ages and keeping the Regulations under review. Regulation 38 permits the Commission to undertake research or educational activities, and regulation 39 permits it to issue codes of practice in the field of employment and vocational training.

Regulations 40 to 48 deal with enforcement and provide remedies for individuals, including compensation, by way of proceedings in industrial tribunals and in the county courts. There are special provisions about the burden of proof in those cases in regulations 42 and 45, which transfer the burden to a respondent to a case once a complainant has established facts from which a court or tribunal could conclude, in the absence of an adequate explanation, that an act of discrimination or harassment has been committed by the respondent. Regulation 46 and Schedules 2 and 3 also include a questionnaire procedure to assist complainants in obtaining information from respondents, and regulation 47 enables the Commission at its discretion to assist individuals in the preparation and presentation of their complaints under the Regulations where there is some special reason for affording assistance.

Schedule 5 establishes a new duty on employers to consider requests by employees to continue working beyond retirement. Schedule 6 contains transitional provisions in relation to that new duty.

Schedule 7 amends legislation containing age-discriminatory provisions that cannot be shown to be a proportionate means of achieving a legitimate aim. It also includes amendments to the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16)), which introduce a new potentially fair ground for dismissal of employees – dismissal on the grounds of retirement (where the duty to consider procedure in Schedule 5 has been followed).

Schedule 8 contains repeals and revocations.

A Regulatory Impact Assessment of the effect that these Regulations will have on business costs, and a Transposition Note showing how the age provisions of Council Directive 2000/78/EC have been implemented in Northern Ireland have been placed in the Library of the Northern Ireland Assembly. Copies of each may be obtained from Equality and Rights Division, Office of the First Minister and deputy First Minister, Room E.3.18, Castle Buildings, Stormont, Belfast, BT4 3SR.

(2)

See the European Communities (Designation) (No. 3) Order 2002 (S.I. 2002/1819)

(8)

Article 130ZH of the 1996 Order is inserted into that Order by regulation 53(1) of, and paragraph 3(4) of Schedule 7 to, these Regulations

(20)

1950 c. 29 (N.I.); section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I.)); see also Article 4(b) of S.R. 1999 No. 481

(22)

S.I. 1993/2810 (N.I.12); Article 30(3) was amended by Article 25 of, and Schedule 4 to, the Further Education (Northern Ireland) Order 1997 and by Article 11(2) of the Colleges of Education (Northern Ireland) Order 2005 (S.I. 2005/1963 (N.I. 13))

(24)

Articles 130ZA to 130ZH are inserted by regulation 53(1) of, and paragraph 3(4) of Schedule 7 to, these Regulations.

(25)

1998 c. 39. The hourly rate is prescribed in regulation 11 of the National Minimum Wage Regulations 1999 (S.I. 1999/584) and that rate has most recently been amended by regulation 2 of the National Minimum Wage Regulations (Amendment) Regulations 2005 (S.I. 2005/2019)

(26)

S.I. 1999/584; Regulation 12(3) was substituted by S.I. 2000/1989 and amended by S.I. 2004/1930

(27)

A person qualifies for the national minimum wage if he is a person who – (a) is a worker; (b) is working, or ordinarily work, in the United Kingdom under a contract; and (c) has ceased to be of compulsory school age; see section 1(2) of the National Minimum Wage Act 1998

(28)

S.R. 1999 No. 409: see paragraph 2 of Part I of Schedule 2

(29)

Paragraphs (4), (5) and (8) of Article 197 of the 1996 Order are repealed by regulation 53(2) of, and Schedule 8 to, these Regulations

(30)

Article 23(1) was amended by paragraph 4 of Schedule 2 to the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2)) and paragraph 2(2) of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15). The amount laid down in Article 23(1) may be increased or decreased by order made by the Department for Employment and Learning under Article 33 of the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)); see S.R. 2006 No. 75

(44)

Section 1 was amended by Article 216 of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1))

(45)

Relevant amendments have been made to section 121(1) by Article 123 of, and paragraph 9(a) of Schedule 2 to, the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22))

(46)

Relevant amendments have been made to Article 121(1) by Article 291 of, and Schedule 11 to, the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1))

(47)

Relevant amendments have been made to Article 121(1) by section 52 of, and paragraph 5(3) of Schedule 5 to, the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 c. 4 (N.I.)

(48)

Section 5 was substituted by paragraph 1 of Schedule 10 to the Welfare Reform and Pensions Act 1999 c. 30

(49)

S.R. 1995 No. 482; to which there are amendments not relevant to these Regulations

(51)

Article 84A was inserted by Article 8 of the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8))

(52)

For the purposes of the 1992 Order, the term “collective agreement” is defined in Article 2(2) of that Order

(53)

S.I. 1996/1919 (N.I. 16); Article 127 was amended by Schedule 9 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)) and regulation 11 of, and paragraph 2(7) of Schedule 2 to, S.R. 2002 No. 298

(54)

Articles 130ZA to 130ZH are inserted by regulation 53 of, and paragraph 3(4) of Schedule 7 to, these Regulations

(55)

Article 23(1) was amended by paragraph 4 of Schedule 2 to the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2)) and paragraph 2(2) of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15). The amount laid down in Article 23(1) may be increased or decreased by order made by the Department for Employment and Learning under Article 33 of the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)): see S.R. 2006 No. 75

(56)

Article 71 was amended by regulation 31(2) of S.R. 1998 No. 386; paragraph 3 of the Schedule to the Employment Rights (Time off for Study or Training) (Northern Ireland) Order 1998 (S.I. 1998/1761 (N.I. 15)); Article 6 of the Public Interest Disclosure (Northern Ireland) Order 1998 (S.I. 1998/1763 (N.I. 17)); paragraph 4 of Schedule 4 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)); paragraph 4(8) of Schedule 2 to the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2)); paragraph 2(3) of Schedule 1 to the Tax Credit Act 2002 (c. 21); paragraph 2(3) of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15)) and paragraph 20(2) of Schedule 1 to the Employment Relations (Northern Ireland) Order 2004 (S.I. 2004/3078 (N.I. 19))

(58)

The definition of “employee” was amended by paragraph 202 of Schedule 6 to the Income Tax (Earnings and Pensions) Act 2003 (C.I.). The definition of “employer” was amended by paragraph 55 of Schedule 6 to the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10))

(59)

The definition of “employee” was amended by paragraph 203 of Schedule 6 to the Income Tax (Earnings and Pensions) Act 2003 (C.I.). The definition of “employer” was amended by paragraph 56 of Schedule 6 to the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10))

(60)

Section 167ZJ was inserted by Article 5 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))

(61)

Section 167ZS was inserted by Article 6 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))

(62)

Paragraph 2(a) was amended by Article 3(2) of the Statutory Sick Pay (Northern Ireland) Order 1994 (S.I. 1994/766 (N.I. 5))

(65)

Article 130 was amended by paragraph 7 of Schedule 4 to, and Schedule 9(2) to, the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I.9)) and paragraph 2(4) of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15))

(66)

Sub-paragraph (o) was inserted by regulation 31(2)(b) of S.R. 2005 No. 47

(67)

Sub-paragraph (p) was inserted by paragraph 6(3)(b) of the Schedule to S.R. 2006 No. 48

(68)

Paragraph (5) was inserted by Article 23(3) of the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15))

(69)

Paragraph 154(1A) was inserted by Article 23(5) of the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902 (N.I. 15))

(70)

Article 160(1)(b) was substituted by Article 15(3) of the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8)), and has been amended since, but the amendments are not relevant for the purposes of these Regulations

(71)

S.I.1996/1921 (N.I. 18); Article 20(1)(a)(iv) was inserted by paragraph 10 of Schedule 2 to the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)) and Article 20(1)(a)(v) was inserted by paragraph 1 of Schedule 5 to S.R. 2003 No. 497

(73)

Head (v) was inserted by paragraph 3 of Schedule 5 to S.R. 2003 No. 497

(74)

Sub-paragraph (b) was amended by paragraph 3 of Schedule 5 to S.R. 2003 No. 497

(75)

Head (iv) was inserted by paragraph 3 of Schedule 5 to S.R. 2003 No. 497

(76)

Schedule 2A was inserted by regulation 18(4) of S.R. 2003 No. 520

(79)

S.R. 1982 No. 263; relevant amending Regulations are S.R. 1983 No. 54 and S.R. 1999 No. 117

(80)

S.R. 1987 No. 30; relevant amending Regulations are S.R. 1999 No. 117

(81)

S.R. 1996 No. 604; regulation 3(e) was inserted by regulation 17(c) of S.R. 2004 No. 521