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PART XIN.I.UNFAIR DISMISSAL

Modifications etc. (not altering text)

C5Pt. 11 (arts. 126-169A) modified (1.10.2009) by European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402), reg. 29 (with reg. 39)

CHAPTER IN.I.RIGHT NOT TO BE UNFAIRLY DISMISSED

Exclusion of rightN.I.

Qualifying period of employmentN.I.

140.—(1) Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than[F1 one year] ending with the effective date of termination.

(2) If an employee is dismissed by reason of any such requirement or recommendation as is referred to in Article 96(2), paragraph (1) has effect in relation to that dismissal as if for the words[F1 one year] there were substituted the words “one month”.

(3) Paragraph (1) does not apply if—

Sub‐para. (a) rep. by 1999 NI 9

[F2(aa)paragraph (1) of Article 130B (read with paragraph (2) of that Article) applies,]

[F2(b)paragraph (1) of Article 131 (read with any regulations made under that Article) applies,]

(c)paragraph (1) of Article 132 (read with paragraphs (2) and (3) of that Article) applies,

[F3(cc)Article 132A applies,]

(d)Article 133 applies,

(e)Article 134 applies,

[F4(ee)Article 134A applies,]

(f)paragraph (1) of Article 135 (read with paragraphs (2) and (3) of that Article) applies,

[F5(ff)paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,]

F6[F7(fg)paragraph (1) of Article 135B (read with paragraph (2) of that Article) applies,]

[F8(fh)Article 135C applies;]

[F9(fi)paragraph (1) of Article 135D (read with paragraph (2) of that Article) applies,]

[F10(fk)paragraph (1) of Article 135F (read with paragraph (2) of that Article) applies,]

(g)Article 136 applies, or

(h)Article 137 appliesF11. . .

[F12(j)Article 144A appliesF13. . . ]

[F14(k)paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (read with paragraphs (4) and (7) of that regulations) appliesF15. . . ]

[F13(l)paragraph (1) of regulation 7 of the Part‐time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 applies.F16. . . ]

[F15(m)paragraph (1) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 applies.F17. . . ]

[F16(n)paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations (Northern Ireland) 2004 applies.F18. . . ]

F19[F17(o)paragraph (3) or (6) of regulation 30 of the Information and Consultation of Employees Regulations (Northern Ireland) 2005 (read with paragraphs (4) and (7) of that regulation) applies.]F20[F21. . .

(p)paragraph (3) or (6) of regulation 31 of the European Cooperative Society (Involvement of Employees) Regulations 2006 applies][F22, or

(p)paragraph 5(3) or (5) of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers) Regulations (Northern Ireland) 2006 (read with paragraph 5(6) of that Schedule) applies.][F23 or

(q)F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F25(q)regulation 46 or 47 of the Companies (Cross-Border Mergers) Regulations 2007 applies][F26, F27. . .

(r)paragraph (1)(a) or (b) of regulation 29 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I.2009/2402) applies,][F28 or

(s)paragraph (1) of regulation 17 of the Agency Workers Regulations (Northern Ireland) 2011 applies.]

F1SR 1999/277

F3SR 1998/386

F6Art. 140(3)(fg) insertion continued (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 4(4); S.I. 2002/1727, art. 2

F11SI 1999/3323

F13SR 2000/219

F14SI 1999/2232

F15SR 2002/298

F16SR 2004/417

F17SR 2005/47

F19By Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), regs. 22(3), 48(2)(a), Sch. 2 para. 8 it is provided (15.12.2007) that in art. 140(3)(o) omit the word "or"

F21Art. 140(3)(p) and preceding word inserted (18.8.2006) by virtue of European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), regs. 2(2), 32(2)(b) (in their application in relation to Northern Ireland subject to the modifications in {Sch. 3 para. 11})

F25Art. 140(3)(q) and preceding word inserted (15.12.2007) by virtue of Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), regs. 22(3), 48(2)(b), Sch. 2 para. 8

F26Art. 140(3)(r) and preceding words inserted (1.10.2009) by European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402), reg. 30(3) (with reg. 39)

F28Art. 140(3)(s) and preceding word inserted (5.12.2011) by Agency Workers Regulations (Northern Ireland) 2011 (S.R. 2011/350), Sch. 2 para. 15

Upper age limitN.I.

141.  F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dismissal procedures agreementsN.I.

142.—(1) Where a dismissal procedures agreement is designated by an order under paragraph (3) which is for the time being in force—

(a)the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under Article 126, and

(b)accordingly, Article 126 does not apply to the dismissal of an employee from any employment if it is employment to which, and he is an employee to whom, those provisions of the agreement apply.

[F30(2) But if the agreement includes provision that it does not apply to dismissals of particular descrtptions, pargraph (1) does not apply in relation to a dismissal of any such description.]

(3) An order designating a dismissal procedures agreement may be made by the Department, on an application being made to it jointly by all the parties to the agreement, if it is satisfied that—

(a)every trade union which is a party to the agreement is an independent trade union,

(b)the agreement provides for procedures to be followed in cases where an employee claims that he has been, or is in the course of being, unfairly dismissed,

(c)those procedures are available without discrimination to all employees falling within any description to which the agreement applies,

(d)the remedies provided by the agreement in respect of unfair dismissal are on the whole as beneficial as (but not necessarily identical with) those provided in respect of unfair dismissal by this Part,

[F30(e)the agreement includes provision either for arbitration in every case or for—

(i)arbitration where (by reason of equality of votes or for any other reason) a decision under the agreement cannot otherwise be reached, and

(ii)a right to submit to arbitration any question of law arising out of such a decision, and]

(f)the provisions of the agreement are such that it can be determined with reasonable certainty whether or not a particular employee is one to whom the agreement applies.

F31(4) If at any time when an order under paragraph (3) is in force in relation to a dismissal procedures agreement the Department is satisfied, whether on an application made to it by any of the parties to the agreement or otherwise, either—

(a)that it is the desire of all the parties to the agreement that the order should be revoked, or

(b)that the agreement no longer satisfies all the conditions specified in paragraph (3),

the Department shall revoke the order by an order under this paragraph.

(5) The transitional provisions which may be made in an order under paragraph (4) include, in particular, provisions directing—

(a)that an employee—

(i)shall not be excluded from his right under Article 126 where the effective date of termination falls within a transitional period which ends with the date on which the order takes effect and which is specified in the order, and

(ii)shall have an extended time for presenting a complaint under Article 145 in respect of a dismissal where the effective date of termination falls within that period, and

(b)that, where the effective date of termination falls within such a transitional period, an industrial tribunal shall, in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, have regard to such considerations as are specified in the order (in addition to those specified in this Part and Article 12(4) and (5) of the Industrial Tribunals (Northern Ireland) Order 1996).

[F30(6) Where an award is made under a designed dismissal procedures agreement it may be enforced, by leave of a county court, in the same manner as a judgement of the court to the same effect and, where leave is given, judgement may be entered in terms of the award.]

F31prosp. insertion by 2003 NI 15

Dismissal of those taking part in unofficial industrial actionN.I.

143.—(1) Article 126 does not apply to the dismissal of an employee if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(2) Paragraph (1) does not apply if—

[F32(aa)paragraph (1) of Article 130B (read with paragraph (2) of that Article) applies;]

[F33(a)Article 131 applies;]

(b)paragraph (1) of Article 132 (read with paragraphs (2) and (3) of that Article) applies,

[F34(bb)Article 132A(d) applies,]

(c)Article 134 applies,

[F35(cc)Article 134A applies;]

[F33(ccc)Article 135 applies in relation to time off under Article 85A;]

Sub‐para. (d) rep. by 1999 NI 9

[F32(d)Article 135C applies;]

[F36(dd)Article 135D applies,]

(e)Article 137(1) and (3) applies, or

(f)Article 137(1) and (5) applies.

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

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

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

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

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

(5) The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal; but where an act is repudiated as mentioned in Article 21A of the 1992 Order, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place.

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

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

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

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

and a “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the [1971 c. 80.] Banking and Financial Dealings Act 1971.

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

F34SR 1998/386

Dismissals in connection with other industrial actionN.I.

144.—(1) This Article applies in relation to an employee who has a right to complain of unfair dismissal (the “complainant”) and who claims to have been unfairly dismissed, where at the date of the dismissal—

(a)the employer was conducting or instituting a lock-out, or

(b)the complainant was taking part in a strike or other industrial action.

(2) This Article does not apply if—

[F37(aa)paragraph (1) of Article 130B (read with paragraph (2) of that Article) applies;]

[F38(a)Article 131 applies;]

(b)paragraph (1) of Article 132 (read with paragraphs (2) and (3) of that Article) applies,

[F39(bb)Article 132A(d) applies,]

(c)Article 134 applies,

[F38(cc)Article 135 applies in relation to time off under Article 85A;]

[F37(d)Article 135C applies;]

[F40(dd)Article 135D applies;]

(e)Article 137(1) and (3) applies, or

(f)Article 137(1) and (5) applies.

[F38(2A) This Article does not apply in relation to an employee who is regarded as unfairly dismissed by virtue of Article 144A.]

(3) In a case where this Article applies an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—

(a)that one or more relevant employees of the same employer have not been dismissed, or

(b)that a relevant employee has before the expiry of the period of three months beginning with the date of his dismissal been offered re-engagement and that the complainant has not been offered re-engagement.

(4) For this purpose “relevant employees” means—

(a)in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred, and

(b)in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of his dismissal were taking part in the action.

(5) Nothing in Article 143 affects the question who are relevant employees for the purposes of this Article.

(6) An offer of re-engagement means an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.

(7) In this Article “date of dismissal” means—

(a)where the employee's contract of employment was terminated by notice, the date on which the employer's notice was given, and

(b)in any other case, the effective date of termination.

(8) Article 145(2) does not apply in relation to a complaint to which this Article[F38 or Article 144A] applies, but an industrial tribunal shall not consider such a complaint unless it is presented—

(a)before the end of the period of six months beginning with the date of the complainant's dismissal; 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 six months.

(9) Where it is shown that the condition referred to in paragraph (3)(b) is fulfilled the references in Articles 130 to 138 to the reason or principal reason for which the complainant was dismissed shall be read as references to the reason or principal reason he has not been offered re-engagement.

F39SR 1998/386

[F41Participation in official industrial actionN.I.

144A.—(1) For the purposes of this Article an employee takes protected industrial action if he commits an act which, or a series of acts each of which, he is induced to commit by an act which by virtue of Article 97 of the Trade Union and Labour Relations Order is not actionable in tort.

(2) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a)the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action, and

(b)paragraph (3), (4) or (5) applies to the dismissal.

(3) This paragraph applies to a dismissal if[F42 the date of the dismissal is][F42 within the protected period.]

(4) This paragraph applies to a dismissal if—

(a)[F42the date of the dismissal is] after the end of that period, and

(b)the employee had stopped taking protected industrial action before the end of that period.

(5) This paragraph applies to a dismissal if—

(a)[F42the date of the dismissal is] after the end of that period,

(b)the employee had not stopped taking protected industrial action before the end of that period, and

(c)the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates.

(6) In determining whether an employer has taken those steps regard shall be had, in particular, to—

(a)whether the employer or a union had complied with procedures established by any applicable collective or other agreement;

(b)whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action;

(c)whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used;

(d)whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.

[F42(e)where there was agreement to use either of the services mentioned in sub-paragraphs (c) and (d), the matters specified in Article 144B.]

(7) In determining whether an employer has taken those steps no regard shall be had to the merits of the dispute.

[F42(7A) For the purposes of this Article “the protected period”, in relation to the dismissal of an employee, is the sum of the basic period and any extension period in relation to that employee.

(7B) The basic period is 12 weeks beginning with the first day of protected industrial action.

(7C) An extension period in relation to an employee is a period equal to the number of days falling on or after the first day of protected industrial action (but before the protected period ends) during the whole or any part of which the employee is locked out by his employer.

(7D) In paragraphs (7B) and (7C), the “first day of protected industrial action” means the day on which the employee starts to take protected industrial action (even if on that day he is locked out by his employer).]

(8) For the purposes of this Article no account shall be taken of the repudiation of any act by a trade union as mentioned in Article 21A of the Industrial Relations (Northern Ireland) Order 1992 in relation to anything which occurs before the end of the next working day (within the meaning of Article 143) after the day on which the repudiation takes place.

(9) In relation to a complaint under Article 145 that a dismissal was unfair by virtue of this Article—

(a)no order shall be made under Article 147 (reinstatement or re-engagement) until after the conclusion of protected industrial action by any employee in relation to the relevant dispute,

(b)regulations under Article 9 of the Industrial Tribunals (Northern Ireland) Order 1996 may make provision about the adjournment and renewal of applications (including provision requiring adjournment in specified circumstances), and

(c)regulations under Article 11 of that Order may require a pre-hearing review to be carried out in specified circumstances.

[F43(10) In this Article “date of dismissal” has the meaning given by Article 144(7).]]

[F44Conciliation and mediation: supplementary provisionsN.I.

144B.—(1) The matters referred to in paragraph (6)(e) of Article 144A are those specified in paragraphs (2) to (5); and references in this Article to “the service provider” are to any person who provided a service mentioned in paragraph (6)(c) or (d) of that Article.

(2) The first matter is: whether, at meetings arranged by the service provider, the employer or, as the case may be, a union was represented by an appropriate person.

(3) The second matter is: whether the employer or a union, so far as requested to do so, co-operated in the making of arrangements for meetings to be held with the service provider.

(4) The third matter is: whether the employer or a union fulfilled any commitment given by it during the provision of the service to take particular action.

(5) The fourth matter is: whether, at meetings arranged by the service provider between the parties making use of the service, the representatives of the employer or a union answered any reasonable question put to them concerning the matter subject to conciliation or mediation.

(6) For the purposes of paragraph (2) an “appropriate person” is—

(a)in relation to the employer—

(i)a person with the authority to settle the matter subject to conciliation or mediation on behalf of the employer, or

(ii)a person authorised by a person of that type to make recommendations to him with regard to the settlement of that matter, and

(b)in relation to a union, a person who is responsible for handling on the union's behalf the matter subject to conciliation or mediation.

(7) For the purposes of paragraph (4) regard may be had to any timetable which was agreed for the taking of the action in question or, if no timetable was agreed, to how long it was before the action was taken.

(8) In any proceedings in which regard must be had to the matters referred to in Article 144A(6)(e)—

(a)notes taken by or on behalf of the service provider shall not be admissible in evidence;

(b)the service provider must refuse to give evidence as to anything communicated to him in connection with the performance of his functions as a conciliator or mediator if, in his opinion, to give the evidence would involve his making a damaging disclosure; and

(c)the service provider may refuse to give evidence as to whether, for the purposes of paragraph (5), a particular question was or was not a reasonable one.

(9) For the purposes of paragraph (8)(b) a “damaging disclosure” is—

(a)a disclosure of information which is commercially sensitive, or

(b)a disclosure of information that has not previously been disclosed which relates to a position taken by a party using the conciliation or mediation service on the settlement of the matter subject to conciliation or mediation,

to which the person who communicated the information to the service provider has not consented.]