The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Statutory Instruments

2019 No. 537

Exiting The European Union, Northern Ireland

Terms And Conditions Of Employment, Northern Ireland

The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Made

4th March 2019

Coming into force in accordance with regulation 1

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 M1 in relation to measures relating to employment rights and duties M2 and measures relating to the organisation of working time M3 .

In accordance with paragraph 1(3) of Schedule 7 to the European Union (Withdrawal) Act 2018 M4 , and paragraph 2(2) of Schedule 2, to the European Communities Act 1972 a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

The Secretary of State makes these Regulations in exercise of the powers conferred by section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018, and section 2(2) of, and paragraph 1A of Schedule 2, to the European Communities Act 1972, and it appears to the Secretary of State that it is expedient for certain references to provisions of EU instruments to be construed as references to those provisions as amended from time to time.

Marginal Citations

M1 1972 c. 68; section 2(2) has been amended by the Legislative and Regulatory Reform Act 2006 (c. 51), section 27(1) and by the European Union (Amendment) Act 2008 (c. 7), section 3 and the Schedule.

M2 S.I. 2000/738.

M3 S.I. 1997/1174.

M4 2018 c. 16.

Citation, commencement and extent N.I.

1.—(1) These Regulations may be cited as the Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019, and come into force on exit day, subject to paragraph (2).

(2) The following provisions of these Regulations come into force the day after the day on which these Regulations are made—

(a) this regulation;

(b) in the Schedule—

(i) paragraph 5(2)(c), and

(ii) paragraph 8(2)(c);

and regulation 2, as it relates to those provisions.

(3) These Regulations extend to Northern Ireland only.

Commencement Information

I1 Reg. 1 in force at 5.3.2019, see reg. 1(2)(a)

Amendments to employment rights legislation extending to Northern Ireland N.I.

2.  The Schedule (which amends employment rights legislation extending to Northern Ireland, and contains a saving provision) has effect.

Commencement Information

I2 Reg. 2 in force at 5.3.2019 for specified purposes, see reg. 1(2)(b)

I3 Reg. 2 in force at 31.12.2020 in force in so far as not already in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Kelly Tolhurst

Minister for Small Business, Consumers and Corporate Responsibility

Department for Business, Energy and Industrial Strategy

Regulation 2

SCHEDULE N.I. AMENDMENTS TO EMPLOYMENT RIGHTS LEGISLATION EXTENDING TO NORTHERN IRELAND

PART 1 N.I. PRIMARY LEGISLATION

The Employment Rights (Northern Ireland) Order 1996 N.I.

1.  In Article 111 M5 (entitlement to parental leave – supplemental) of the Employment Rights (Northern Ireland) Order 1996 M6 , omit paragraph (3).

Commencement Information

I4 Sch. para. 1 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M5 Article 111 was substituted by Article 9 of, and Part 1 of Schedule 4 to, the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)).

M6 S.I. 1996/1919 (N.I. 16).

The Employment Relations (Northern Ireland) Order 1999 N.I.

2.  In Article 21 (part-time work: discrimination) of the Employment Relations (Northern Ireland) Order 1999 M7 , omit paragraph (4).

Commencement Information

I5 Sch. para. 2 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M7 S.I. 1999/2790 (N.I. 9).

Employment Act 2002 N.I.

3.  In section 46 (fixed-term work: Northern Ireland) of the Employment Act 2002 M8 , omit subsection (4).

Commencement Information

I6 Sch. para. 3 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M8 2002 c. 22.

Employment Relations Act 2004 N.I.

4.—(1) Section 43 (information and consultation: Northern Ireland) of the Employment Relations Act 2004 M9 is amended as follows.

(2) Omit subsection (5).

(3) In subsection (6), for “(2) to (5)” substitute “ (2) to (4) ”.

Commencement Information

I7 Sch. para. 4 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M9 2004 c. 24

PART 2 N.I. SECONDARY LEGISLATION

Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations (Northern Ireland) 2002 N.I.

5.—(1) The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations (Northern Ireland) 2002 M10 are amended as follows.

(2) In regulation 3 (treatment of persons in other EEA States as employees)—

(a) in the heading omit “other”;

(b) in sub-paragraph (a) omit the words “other than the United Kingdom”;

(c) in sub-paragraph (b) after “1408/71” insert “ as amended from time to time or Regulation (EC) No 883/2004 M11 of the European Parliament and of the Council of 29 April 2004 as amended from time to time on the coordination of social security systems ”.

(3) In regulation 5 (entitlement to statutory paternity pay where person has worked in an EEA State)—

(a) in paragraph (1)—

(i) in sub-paragraph (b) for “another” substitute “ an ”;

(ii) after sub-paragraph (b) for “the other EEA” substitute “ the EEA ”;

(b) in paragraph (2)—

(i) in sub-paragraph (b) for “another” substitute “ an ”;

(ii) after sub-paragraph (b) for “the other EEA” substitute “ the EEA ”.

(4) In regulation 6 (entitlement to statutory adoption pay where person has worked in an EEA State)—

(a) in sub-paragraph (b) for “another” substitute “ an ”;

(b) after sub-paragraph (b) for “the other EEA” substitute “ the EEA ”.

Commencement Information

I8 Sch. para. 5(2)(c) in force at 5.3.2019, see reg. 1(2)(b)(i)

I9 Sch. paras. 5(1)(2)(a)(2)(b)(3)(4) in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M10 S.R.(N.I.) 2002 No. 382; relevant amendments are S.R.(N.I.) 2010 No. 306 and S.R.(N.I.) 2015 No. 146.

M11 Regulation (EC) 883/2004, of 29 April 2004, of the European Parliament and of the Council on the coordination of social security systems O.J. No. L166, 30.4.04, p.1-123.

Prospective

The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 N.I.

F1 6.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Sch. Pt. 2 para. 6 revoked (27.1.2020) by The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 (S.R. 2020/3), reg. 1(2), Sch. 4 Pt. 1 (with reg. 18)

Prospective

The Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 N.I.

F2 7.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 Sch. Pt. 2 para. 7 revoked (27.1.2020) by The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 (S.R. 2020/3), reg. 1(2), Sch. 4 Pt. 1 (with reg. 18)

The Statutory Shared Parental Pay (Persons Abroad and Mariners) Regulations (Northern Ireland) 2015 N.I.

8.—(1) The Statutory Shared Parental Pay (Persons Abroad and Mariners) Regulations (Northern Ireland) 2015 M12 are amended as follows.

(2) In regulation 5 (treatment of persons in other EEA States as employees)—

(a) in the heading omit “other”;

(b) in sub-paragraph (a) omit “other than the United Kingdom”;

(c) in sub-paragraph (b) after “1408/71” insert “ as amended from time to time or Regulation (EC) 883/2004 of the European Parliament and of the Council of 29 April 2004 as amended from time to time on the coordination of social security systems ”.

(3) In regulation 7 (entitlement to statutory shared parental pay where person has worked in an EEA State)—

(a) in paragraph (1)—

(i) in sub-paragraph (c) for “another” substitute “ an ”;

(ii) after sub-paragraph (c) for “the other EEA” substitute “ the EEA ”;

(b) in paragraph (2)—

(i) in sub-paragraph (c) for “another” substitute “ an ”;

(ii) after sub-paragraph (c) for “the other EEA” substitute “ the EEA ”.

(4) In Schedule 2 (adoptions from overseas) in paragraph 6(1), in the modified version of regulation 7(2)—

(a) in sub-paragraph (c) for “another” substitute “ an ”;

(b) after sub-paragraph (c) for “the other EEA” substitute “ the EEA ”.

Commencement Information

I10 Sch. para. 8(2)(c) in force at 5.3.2019, see reg. 1(2)(b)(ii)

I11 Sch. paras. 8(1)(2)(a)(2)(b)(3)(4) in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M12 S.R.(N.I.) 2015 No. 103.

The Working Time Regulations (Northern Ireland) 2016 N.I.

9.—(1) The Working Time Regulations (Northern Ireland) 2016 M13 are amended as follows.

(2) Regulation 22 (excluded sectors) is amended as follows—

(a) in paragraph (2) for sub-paragraph (b) substitute—

“(b) to workers to whom the Civil Aviation (Working Time) Regulations 2004 M14 apply.”;

(b) in paragraph (3) for the words from “Directive 2002/15/EC” to the end substitute “ the Road Transport (Working Time) Regulations (Northern Ireland) 2005 M15 apply ”.

Commencement Information

I12 Sch. para. 9 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M13 S.R.(N.I.) 2016 No. 49.

M14 S.I. 2004/756.

M15 S.R.(N.I.) 2005 No. 241; amended by S.R.(N.I.) 2007 No. 323 and S.R.(N.I.) 2012 No. 169.

The Posted Workers (Enforcement of Employment Rights) Regulations (Northern Ireland) 2016 N.I.

10.—(1) The Posted Workers (Enforcement of Employment Rights) Regulations (Northern Ireland) 2016 M16 are amended as follows.

(2) In regulation 3 (scope of application of Part 2)—

(a) in paragraph (2)—

(i) for the definition of “employer” substitute—

““employer” means a service provider established in the United Kingdom or a Member State which posts or hires out workers in a manner described by paragraph 3 of Article 1 of Directive 96/71/EC M17 ;”;

(ii) in the definition of “posted worker in the construction sector”, in sub-paragraph (a), omit “other than the United Kingdom”.

(b) after paragraph (2) insert—

“(3) For the purposes of the definition of “employer” in paragraph (2), paragraph 3 of Article 1 of Directive 96/71/EC is to be read as if—

(a) in point (a)—

(i) after “post workers to” there were inserted “ the United Kingdom or ”;

(ii) after “operating in” there were inserted “ the United Kingdom or ”;

(b) in point (b), after “by the group in” there were inserted “ the United Kingdom or ”;

(c) in point (c), after “operating in” there were inserted “ the United Kingdom or ”.”

(3) In regulation 8 (cross-border enforcement of financial administrative penalties and fines) omit “other than the United Kingdom” in each place it occurs.

Commencement Information

I13 Sch. para. 10 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Marginal Citations

M16 S.R.(N.I.) 2016 No. 242.

M17 O.J. No. L18, 21.1.1997, p.1.

[F3 The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 N.I.

10A.   In Schedule 1 (Industrial Tribunals and Fair Employment Tribunal Rules of Procedure 2020) to the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 omit rule 97 (references to the Court of Justice of the European Union).]

Textual Amendments

F3 Sch. Pt. 2 para. 10A inserted (27.1.2020) by The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 (S.R. 2020/3), reg. 1(2), Sch. 4 Pt. 2 para. 13 (with reg. 18)

PART 3 N.I. SAVING PROVISION

11.  The amendments made by Part 1 of this Schedule do not affect the validity of any regulations that came into force before exit day and were made under any of the Acts or Orders amended by that Part. N.I.

Commencement Information

I14 Sch. para. 11 in force at 31.12.2020 in force on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1)

Explanatory Note

(This note is not part of the Regulations)

These Regulations are made in exercise of the powers conferred by section 8(1) of, and Schedule 7 to the European Union (Withdrawal) Act 2018 (c. 16) in order to address failures of retained European Union (EU) law to operate effectively and other deficiencies (in particular under paragraphs (a), (d), (e) and (g) of section 8(2) of that Act) arising from the withdrawal of the United Kingdom (UK) from the EU. The powers in section 2(2) of the European Communities Act 1972 are relied upon to make amendments to correct existing technical inaccuracies in the current legislation (these amendments are made by paragraphs 5(2)(c) and 8(2)(c) of the Schedule).

These Regulations make amendments to legislation in the field of employment rights.

The Schedule contains amendments to primary and secondary legislation extending to Northern Ireland. The amendments to primary legislation include the repeal of existing powers to make regulations to implement or deal with matters arising out of or related to the UK's obligations under certain EU Directives (which concern provision for parental leave, part time workers, fixed term work and information and consultation). Amendments are also made to secondary legislation to amend or remove references that relate to the UK's membership of the EU. The saving provision in Part 3 of the Schedule, ensures that these amendments do not affect the validity of any regulations, that came into force before exit day and were made under those Acts or Orders amended by Part 1.

A full impact assessment has not been produced for this instrument as no, or no significant impact on the private, voluntary or public sector is foreseen.