Chwilio Deddfwriaeth

The Employment Rights (Northern Ireland) Order 1996

Status:

Dyma’r fersiwn wreiddiol (fel y’i gwnaed yn wreiddiol).

PART VIPROTECTION FROM SUFFERING DETRIMENT ETC. IN EMPLOYMENT

CHAPTER IRIGHTS NOT TO SUFFER DETRIMENT

Health and safety cases

68.—(1) An employee 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—

(a)having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b)being a representative of workers on matters of health and safety at work or member of a safety committee—

(i)in accordance with arrangements established under or by virtue of any statutory provision, or

(ii)by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(c)being an employee at a place where—

(i)there was no such representative or safety committee, or

(ii)there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or

(e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of paragraph (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in paragraph (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4) Except where an employee is dismissed in circumstances in which, by virtue of Article 240, Part XI does not apply to the dismissal, this Article does not apply where the detriment in question amounts to dismissal (within the meaning of that Part).

Trustees of occupational pension schemes

69.—(1) An employee 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, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

(2) Except where an employee is dismissed in circumstances in which, by virtue of Article 240, Part XI does not apply to the dismissal, this Article does not apply where the detriment in question amounts to dismissal (within the meaning of that Part).

(3) In this Article “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the [1993 c. 49.] Pension Schemes (Northern Ireland) Act 1993) established under a trust.

Employee representatives

70.—(1) An employee 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, being—

(a)an employee representative for the purposes of Part XIII of this Order or Regulations 10 and 11 of the [S.I. 1981/1794.] Transfer of Undertakings (Protection of Employment) Regulations 1981, or

(b)a candidate in an election in which any person elected will, on being elected, be such an employee representative,

he performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

(2) Except where an employee is dismissed in circumstances in which, by virtue of Article 240, Part XI does not apply to the dismissal, this Article does not apply where the detriment in question amounts to a dismissal (within the meaning of that Part).

Complaints to industrial tribunals

71.—(1) An employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 68,69 or 70.

(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3) An industrial tribunal shall not consider a complaint under this Article unless it is presented—

(a)before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, 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.

(4) For the purposes of paragraph (3)—

(a)where an act extends over a period, the “date of the act” means the last day of that period, and

(b)a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed 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 failed act if it was to be done.

Remedies

72.—(1) Where an industrial tribunal finds a complaint under Article 71 well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement to which the complaint relates, and

(b)any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3) The loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and

(b)loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.

(4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

(5) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. CHAPTER II

CHAPTER IIACTION SHORT OF DISMISSAL

Action short of dismissal on grounds related to union membership or activities

73.—(1) An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of—

(a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.

(b)preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or

(c)compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In paragraph (1)(b) “an appropriate time” means—

(a)a time outside the employee’s working hours, or

(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union;

and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3) An employee also has the right not to have action short of dismissal taken against him for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(4) For the purposes of paragraph (3) any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as action short of dismissal taken against him for the purpose of enforcing a requirement of a kind mentioned in that paragraph.

(5) References in this Chapter to being or becoming a member of a trade union include references to being or becoming a member of a particular branch or section of that union and to being or becoming a member of one of a number of particular branches or sections of that union; and references to taking part in the activities of a trade union shall be similarly construed.

Complaints to industrial tribunal

74.—(1) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of Article 73.

(2) An industrial tribunal shall not consider a complaint under this Article unless it is presented—

(a)before the end of the period of three months beginning with the date of the action to which the complaint relates or, where that action is part of a series of similar actions, the last of those actions, 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.

Consideration of complaint

75.—(1) On a complaint under Article 74 it shall be for the employer to show the purpose for which action was taken against the complainant.

(2) In determining any question whether action was taken by the employer or the purpose for which it was taken, no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

(3) In determining what was the purpose for which action was taken by the employer against the complainant in a case where—

(a)there is evidence that the employer’s purpose was to further a change in his relationship with all or any class of his employees, and

(b)there is also evidence that his purpose was one falling within Article 73,

the tribunal shall regard the purpose mentioned in sub-paragraph (a) (and not the purpose mentioned in sub-paragraph (b)) as the purpose for which the employer took the action, unless it considers that the action was such as no reasonable employer would take having regard to the purpose mentioned in sub-paragraph (a).

(4) Where the action which the tribunal determines to have been the action taken against the complainant was action taken in consequence of previous action by the employer sub-paragraph (a) of paragraph (3) is satisfied if the purpose mentioned in that sub-paragraph was the purpose of the previous action.

(5) In paragraph (3) “class”, in relation to an employer and his employees, means those employed at a particular place of work, those employees of a particular grade, category or description or those of a particular grade, category or description employed at a particular place of work.

Remedies

76.—(1) Where the industrial tribunal finds that a complaint under Article 74 is well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the complainant in respect of the action complained of.

(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement complained of; and

(b)any loss sustained by the complainant which is attributable to the action which infringed his right.

(3) The loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the action complained of, and

(b)loss of any benefit which he might reasonably be expected to have had but for that action.

(4) In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

(5) In determining the amount of compensation to be awarded no account shall be taken of any pressure which was exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised.

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

Awards against third parties

77.—(1) If in proceedings on a complaint under Article 74—

(a)the complaint is made on the ground that action has been taken against the complainant by his employer for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and

(b)either the complainant or the employer claims in proceedings before the tribunal that the employer was induced to take the action complained of by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so,

the complainant or the employer may request the tribunal to direct that the person who he claims exercised the pressure be joined as a party to the proceedings.

(2) The request shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration that the complaint is well-founded.

(3) Where a person has been so joined as a party to proceedings and the tribunal—

(a)makes an award of compensation, and

(b)finds that the claim mentioned in paragraph (1)(b) is well-founded,

it may order that the compensation shall be paid by the person joined instead of by the employer, or partly by that person and partly by the employer, as the tribunal may consider just and equitable in the circumstances.

Yn ôl i’r brig

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