The Employment Rights (Northern Ireland) Order 1996

CHAPTER II OTHER MISCELLANEOUS MATTERS

Restrictions on disclosure of information

National security etc.

244.—(1) Where in the opinion of the Secretary of State the disclosure of any information would be contrary to the interests of national security or would endanger public safety or public order—

(a) nothing in any of the provisions to which this Article applies requires any person to disclose the information, and

(b) no person shall disclose the information in any proceedings in any court or tribunal relating to any of those provisions.

(2) This Article applies to—

(a) Part III, so far as it relates to employment particulars,

(b) in Part VI, Articles 68 and 70, and Articles 71 and 72 so far as relating to those Articles,

(c) in Part VII, Articles 83 to 85 and 89 to 91,

(d) in Part VIII, Articles 98 to 100, and Articles 101 and 102 so far as relating to those Articles,

(e) Part IX,

(f) in Part X, Articles 124 and 125 where they apply by virtue of Article 124(4),

(g) Part XI so far as relating to a dismissal which is treated as unfair—

(i) by Article 131(1) to (3), 132 or 134, or

(ii) by paragraph (1) of Article 137 by reason of the application of paragraph (2), (3) or (5) of that Article, and

(i) Part I, this Part and Part XVI (so far as relating to any of the provisions in sub-paragraphs (a) to (g)).

Contracting out etc. and remedies

Restrictions on contracting out

245.—(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a) to exclude or limit the operation of any provision of this Order, or

(b) to preclude a person from bringing any proceedings under this Order before an industrial tribunal.

(2) Paragraph (1)—

(a) does not apply to any provision in a collective agreement excluding rights under Article 60 if an order under Article 67 is for the time being in force in respect of it,

(b) does not apply to any provision in a dismissal procedures agreement excluding the right under Article 126 if that provision is not to have effect unless an order under Article 142 is for the time being in force in respect of it,

(c) does not apply to any provision in an agreement if an order under Article 192 is for the time being in force in respect of it,

(d) does not apply to any provision of an agreement relating to dismissal from employment such as is mentioned in Article 240(1) or (3),

(e) does not apply to any agreement to refrain from instituting or continuing proceedings where the Agency has taken action under Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996, and

(f) does not apply to any agreement to refrain from instituting or continuing before an industrial tribunal any proceedings within Article 20(1)(c) (proceedings under this Order where conciliation available) of the Industrial Tribunals (Northern Ireland) Order 1996 if the conditions regulating compromise agreements under this Order are satisfied in relation to the agreement, and

(g) does not apply to any provision of a collective agreement excluding rights under Part XIII if an order under Article 226 is in force in respect of it.

(3) For the purposes of paragraph (2)(f) the conditions regulating compromise agreements under this Order are that—

(a) the agreement must be in writing,

(b) the agreement must relate to the particular complaint,

(c) the employee or worker must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an industrial tribunal.

(d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e) the agreement must identify the adviser, and

(f) the agreement must state that the conditions regulating compromise agreements under this Order are satisfied.

(4) In paragraph (3)—

• “independent”, in relation to legal advice received by an employee or worker, means that the advice is given by a lawyer who is not acting in the matter for the employer or an associated employer, and

• “qualified lawyer” means a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

Law governing employment

246.—(1) For the purposes of this Order it is immaterial whether the law which (apart from this Order) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

(2) Paragraph (1) is subject to Article 239(1)(b).

Remedy for infringement of certain rights

247.—(1) The remedy of an employee for infringement of any of the rights conferred by Article 40, Parts V to IX, Article 124, Part XI, Part XIII and Part XIV is, where provision is made for a complaint or the reference of a question to an industrial tribunal, by way of such a complaint or reference and not otherwise.

(2) The remedy of a worker in respect of any contravention of Article 45, 47, 50(1) or 53(1) is by way of a complaint under Article 55 and not otherwise.

(3) The remedy of a person for conduct which is unlawful by virtue of Part II is by way of a complaint to an industrial tribunal in accordance with that Part, and not otherwise.

• No other legal liability arises by reason that conduct is unlawful by virtue of that Part.

General provisions about death of employer or employee

Institution or continuance of tribunal proceedings

248.—(1) Where an employer has died, any tribunal proceedings arising under any of the provisions of this Order to which this Article applies may be defended by a personal representative of the deceased employer.

(2) This Article and Article 249 apply to—

(a) Part III, so far as it relates to itemised pay statements,

(b) Part V,

(c) Part VI,

(d) Part VII, apart from Articles 86 to 88,

(e) Parts VIII and IX,

(f) in Part X, Articles 124 and 125, and

(g) Parts XI to XIV.

(3) Where an employee has died, any tribunal proceedings arising under any of the provisions of this Order to which this Article applies may be instituted or continued by a personal representative of the deceased employee.

(4) If there is no personal representative of a deceased employee, any tribunal proceedings arising under any of the provisions of this Order to which this Article applies may be instituted or continued on behalf of the estate of the deceased employee by any appropriate person appointed by the industrial tribunal.

(5) In paragraph (4) “appropriate person” means a person who is—

(a) authorised by the employee before his death to act in connection with the proceedings, or

(b) the widow or widower, child, parent or brother or sister of the deceased employee;

and in Part XII and the following provisions of this Article and Article 249 references to a personal representative include a person appointed under paragraph (4).

(6) In a case where proceedings are instituted or continued by virtue of paragraph (4), any award made by the industrial tribunal shall be—

(a) made in such terms, and

(b) enforceable in such manner,

as the Department may by regulations provide.

(7) Any reference in the provisions of this Order to which this Article applies to the doing of anything by or in relation to an employer or employee includes a reference to the doing of the thing by or in relation to a personal representative of the deceased employer or employee.

(8) Any reference in the provisions of this Order to which this Article applies to a thing required or authorised to be done by or in relation to an employer or employee includes a reference to a thing required or authorised to be done by or in relation to a personal representative of the deceased employer or employee,

(9) Paragraphs (7) and (8) do not prevent a reference to a successor of an employer including a personal representative of a deceased employer.

Rights and liabilities accruing after death

249.—(1) Any right arising under any of the provisions of this Order to which this Article applies which accrues after the death of an employee devolves as if it had accrued before his death.

(2) Where an industrial tribunal determines under any provision of Part XII that an employer is liable to pay to a personal representative of a deceased employee—

(a) the whole of a redundancy payment to which he would have been entitled but for some provision of Part XII or Article 248, or

(b) such part of such a redundancy payment as the tribunal thinks fit,

the reference in paragraph (1) to a right includes any right to receive it.

(3) Where—

(a) by virtue of any of the provisions to which this Article applies a personal representative is liable to pay any amount, and

(b) the liability has not accrued before the death of the employer,

it shall be treated as a liability of the deceased employer which had accrued immediately before his death.

Modifications of Order

Powers to amend Order

250.—(1) The Department may by order—

(a) provide that any provision of this Order which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order,

(b) provide that any provision of this Order shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed, or

(c) vary, or exclude the operation of, any of the provisions to which this sub-paragraph applies.

(2) Paragraph (1)(c) applies to Articles 61(2), 97(2), 118(5), 124(3), 140(1), 141(1), 194, 195(1), 239(2), (3) and (5), Article 241(2) and 242(1), (2), (4) and (5).

(3) The Department may by order amend any of—

(a) Articles 116, 117, 129(6), 130(5) and 131(4),

(b) Articles 140(3), 141(2) and 142(2) so far as relating to Article 116, and

(c) Articles 22(3)(a) and (5)(a), 23(4)(a), 148(5), 149(4), 153(6), 162, 172(2), 180(7), 181(3), 191(2), 192(6), 197(7), 239(4) and 242(3),

or modify the application of any of those provisions to any description of case.

(4) The Department may by order provide that, subject to any such modifications and exceptions as may be prescribed in the order, Article 68, and any other provisions of this Order so far as relating to that Article, shall apply to such descriptions of persons other than employees as may be so prescribed as to employees (but as if references to their employer were to such person as may be so prescribed).

(5) The provisions of this Article are without prejudice to any other power of the Department to amend, vary or repeal any provision of this Order or to extend or restrict its operation in relation to any person or employment.