1996 No. 1919 (N.I. 16)

The Employment Rights (Northern Ireland) Order 1996 ^C1^C2^C3^C4^F361^C68^C92^C94^C96^C96^C97^C100

23rd July 1996

PART I INTRODUCTORY AND INTERPRETATION¶

CHAPTER I CITATION AND COMMENCEMENT¶

1 Citation and commencement¶

1 This Order may be cited as the Employment Rights (Northern Ireland) Order 1996.

2 This Order shall come into operation on the expiration of 2 months from the day on which it is made.

CHAPTER II INTERPRETATION – GENERAL¶

2 Interpretation – general¶

1 Subject to paragraph (2), the ^M1 Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

2 For the purposes of this Order, section 20(2) of the Interpretation Act (Northern Ireland) 1954 applies with the omission of the words “the liability of whose members is limited” and, where the affairs of a body corporate are managed by its members, applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

3 In this Order—

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly,
“the Agency” means the Labour Relations Agency,
“basic award of compensation for unfair dismissal” shall be construed in accordance with Article 152,
“business” includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated),
“childbirth” means the birth of a living child or the birth of a child whether living or dead after twenty-four weeks of pregnancy,
“collective agreement” has the meaning given by Article 2(2) of the 1992 Order,
“the Contributions and Benefits Act 1992” means the Social Security Contributions and Benefits (Northern Ireland) Act 1992,
“the Department” means the Department of Economic Development,
“dismissal procedures agreement” means an agreement in writing with respect to procedures relating to dismissal made by or on behalf of one or more independent trade unions and one or more employers or employers' associations,
“employers' association” has the meaning given by Article 4(1) and (2) of the 1992 Order,
“expected week of childbirth” means the week, beginning with midnight between Saturday and Sunday, in which it is expected that childbirth will occur,
“guarantee payment” has the meaning given by Article 60,
“independent trade union” means a trade union which—
1. is not under the domination or control of an employer or a group of employers or of one or more employers' associations, and
2. is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatever) tending towards such control,
“job”, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed,
“limited-term contract” means a contract of employment whereby—
1. the employment under the contract is not intended to be permanent, and
2. provision is accordingly made in the contract for it to terminate by virtue of a limiting event.
“limiting event”, in relation to a contract of employment means—
1. in the case of a contract for a fixed-term, the expiry of the term,
2. in the case of a contract made in contemplation of the performance of a specific task, the performance of the task, and
3. in the case of a contract which provides for its termination on the occurrence of an event (or the failure of an event to occur), the occurrence of the event (or the failure of the event to occur).
Definitions rep. by 1999 NI 9
“officer” and “official”, in relation to a trade union, have the same meaning as in the Trade Union and Labour Relations Order,
“parental bereavement leave” means leave under Article 112EA,
“paternity leave” means leave under Article 112A or 112B,
“position”, in relation to an employee, means the following matters taken as a whole—
1. his status as an employee,
2. the nature of his work, and
3. his terms and conditions of employment,
“protected disclosure” has the meaning given by Article 67A,
“recognised”, in relation to a trade union, has the same meaning as in Part V of the 1992 Order,
“redundancy payment” has the meaning given by Part XII,
“relevant date” has the meaning given by Articles 180 and 188,
“renewal” includes extension, and any reference to renewing a contract or a fixed term shall be construed accordingly,
"shared parental leave” means leave under Article 107E or 107G,
“statutory provision” has the meaning given by section 1(f) of the ^M2 Interpretation Act (Northern Ireland) 1954,
“successor”, in relation to the employer of an employee, means (subject to paragraph (4)) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of the part of the undertaking, for the purposes of which the employee was employed, has become the owner of the undertaking or part,
“trade union” has the meaning given by Article 3(1) of the 1992 Order,
“the Trade Union and Labour Relations Order” means the ^M3 Trade Union and Labour Relations (Northern Ireland) Order 1995,
“the 1992 Order” means the ^M4 Industrial Relations (Northern Ireland) Order 1992,
“week”
1. in Chapter III of this Part means a week ending with Saturday, and
2. otherwise, except in Articles 107F, 107I, 112A, 112B , 112EA and 118, means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other employee, a week ending with Saturday.

4 The definition of “successor” in paragraph (3) has effect (subject to the necessary modifications) in relation to a case where—

a the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

b the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as it has effect where the previous owner and the new owner are wholly different persons.

5 References in this Order (except Part XIII) to redundancy, dismissal by reason of redundancy and similar expressions shall be construed in accordance with Article 174.

6 In Articles 12(3), 171(2) and 189 “lock-out” means—

a the closing of a place of employment,

b the suspension of work, or

c the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute,

done with a view to compelling persons employed by the employer, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment. n

7 In Articles 12(1) and (2), 123(2), 175(2) and (3), 178(1), 179(2) and (3) and 189 “strike” means—

a the cessation of work by a body of employed persons acting in combination, or

b a concerted refusal, or a refusal under a common understanding, of any number of employed persons to continue to work for an employer in consequence of a dispute,

done as a means of compelling their employer or any employed person or body of employed persons, or to aid other employees in compelling their employer or any employed person or body of employed persons, to accept or not to accept terms or conditions of or affecting employment.

3 Employees, workers¶

1 In this Order “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

2 In this Order “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

3 In this Order “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

a a contract of employment, or

b any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker's contract shall be construed accordingly.

4 In this Order “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

5 In this Order “employment”

a in relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

b in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

6 This Article has effect subject to Articles 67K and 70B(3); and for the purposes of Part XV so far as relating to Part VA or Article 70B, “worker”, “worker's contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by Article 67K.

7 This Article has effect subject to Article 107M(3) and (5).

4 Associated employers¶

For the purposes of this Order any two employers shall be treated as associated if—

a one is a company of which the other (directly or indirectly) has control, or

b both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

5 Normal working hours¶

1 Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Order normal working hours in his case.

2 Subject to paragraph (3), the normal working hours in such a case are the fixed number of hours.

3 Where in such a case—

a the contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

b that number or minimum number of hours exceeds the number of hours without overtime,

the normal working hours are that number or minimum number of hours (and not the number of hours without overtime).

CHAPTER III CONTINUOUS EMPLOYMENT¶

6 Introductory¶

1 References in any provision of this Order to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter.

2 In computing an employee's period of continuous employment for the purposes of any provision of this Order, any question—

a whether the employee's employment is of a kind counting towards a period of continuous employment, or

b whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,

shall be determined week by week; but where it is necessary to compute the length of an employee's period of employment it shall be computed in months and years of twelve months in accordance with Article 7.

3 Subject to Articles 11 to 13, a week which does not count in computing the length of a period of continuous employment breaks continuity of employment.

4 A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous.

7 Period of continuous employment¶

1 An employee's period of continuous employment for the purposes of any provision of this Order—

a (subject to paragraph (3)) begins with the day on which the employee starts work, and

b ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision.

2 ^F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 If an employee's period of continuous employment includes one or more periods which (by virtue of Article 11, 12 or 13) while not counting in computing the length of the period do not break continuity of employment, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period, or the aggregate number of days falling within those periods, calculated in accordance with the Article in question.

8 Weeks counting in computing period¶

1 Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment.

Para. (2) rep. by 1999 NI 9

3 Subject to paragraph (4), any week (not within paragraph (1)) during the whole or part of which an employee is—

a incapable of work in consequence of sickness or injury,

b absent from work on account of a temporary cessation of work, or

c absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose,^F7. . .

Sub‐para. (d) rep. by 1999 NI 9

counts in computing the employee's period of employment.

4 Not more than twenty-six weeks count under paragraph (3)(a)^F7. . . between any periods falling under paragraph (1).

9 Intervals in employment¶

1 Where in the case of an employee a date later than the date which would be the effective date of termination by virtue of paragraph (1) of Article 129 is treated for certain purposes as the effective date of termination by virtue of paragraph (2) or (4) of that Article the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of Article 140(1) or 153(1) the period for which the employee has been continuously employed.

2 Where an employee is by virtue of Article 173(1) regarded for the purposes of Part XII as not having been dismissed by reason of a renewal or re-engagement taking effect after an interval, the period of the interval counts as a period of employment in ascertaining for the purposes of Article 190 or 197(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under Article 10 or 11).

3 Where in the case of an employee a date later than the date which would be the relevant date by virtue of paragraphs (2) to (4) of Article 180 is treated for certain purposes as the relevant date by virtue of paragraph (5) of that Article, the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of Article 190 or 197(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under Article 10 or 11).

10 Special provisions for redundancy payments¶

1 This Article applies where a period of continuous employment has to be determined in relation to an employee for the purposes of the application of Article 190 or 197(1).

2 The continuity of a period of employment is broken where—

a a redundancy payment has previously been paid to the employee (whether in respect of dismissal or in respect of lay-off or short-time), and

b the contract of employment under which the employee was employed was renewed (whether by the same or another employer) or the employee was re-engaged under a new contract of employment (whether by the same or another employer).

3 The continuity of a period of employment is also broken where—

a a payment has been made to the employee (whether in respect of the termination of his employment or lay-off or short-time) in accordance with a scheme under Article 3 of the ^M5 Superannuation (Northern Ireland) Order 1972 or arrangements falling within Article 212(3) or (4), and

b he commenced new, or renewed, employment.

4 The date on which the person's continuity of employment is broken by virtue of this Article—

a if the employment was under a contract of employment, is the date which was the relevant date in relation to the payment mentioned in paragraph (2)(a) or (3)(a), and

b if the employment was otherwise than under a contract of employment, is the date which would have been the relevant date in relation to the payment mentioned in paragraph (2)(a) or (3)(a) had the employment been under a contract of employment.

5 For the purposes of this Article a redundancy payment shall be treated as having been paid if—

a the whole of the payment has been paid to the employee by the employer,

b a tribunal has determined liability and found that the employer must pay part (but not all) of the redundancy payment and the employer has paid that part, or

c the Department has paid a sum to the employee in respect of the redundancy payment under Article 202.

11 Employment abroad etc.¶

1 This Chapter applies to a period of employment—

a (subject to the following provisions of this Article) even where during the period the employee was engaged in work wholly or mainly outside Northern Ireland, and

b even where the employee was excluded by or under this Order from any right conferred by this Order.

2 For the purposes of Articles 190 and 197(1) a week of employment does not count in computing a period of employment if the employee—

a was employed outside Northern Ireland during the whole or part of the week, and

b was not during that week an employed earner for the purposes of the ^M6 Social Security Contributions and Benefits (Northern Ireland) Act 1992 in respect of whom a secondary Class 1 contribution was payable under that Act (whether or not the contribution was in fact paid).

3 Where by virtue of paragraph (2) a week of employment does not count in computing a period of employment, the continuity of the period is not broken by reason only that the week does not count in computing the period; and the number of days which, for the purposes of Article 7(3), fall within the intervening period is seven for each week within this paragraph.

4 Any question arising under paragraph (2) whether—

a a person was an employed earner for the purposes of the ^M7 Social Security Contributions and Benefits (Northern Ireland) Act 1992, or

b if so, whether a secondary Class 1 contribution was payable in respect of him under that Act,

shall be determined by an officer of the Commissioners of Inland Revenue.

5 Part III of the Social Security Contributions (Transfer of Functions etc.) (Northern Ireland) Order 1999 (decisions and appeals) shall apply in relation to the determination of any issue by the Commissioners of Inland Revenue under paragraph (4) as if it were a decision falling within Article 7(1) of that Order.

6 Paragraph (2) does not apply in relation to a person who is—

a employed as a master or seaman in a British ship, and

b ordinarily resident in Northern Ireland.

12 Industrial disputes¶

1 A week does not count under Article 8 if during the week, or any part of the week, the employee takes part in a strike.

2 The continuity of an employee's period of employment is not broken by a week which does not count under this Chapter (whether or not by virtue only of paragraph (1)) if during the week, or any part of the week, the employee takes part in a strike; and the number of days which, for the purposes of Article 7(3), fall within the intervening period is the number of days between the last working day before the strike and the day on which work was resumed.

3 The continuity of an employee's period of employment is not broken by a week if during the week, or any part of the week, the employee is absent from work because of a lock-out by the employer; and the number of days which, for the purposes of Article 7(3), fall within the intervening period is the number of days between the last working day before the lock-out and the day on which work was resumed.

13 Reinstatement after military service¶

1 If a person who is entitled to apply to his former employer under the ^M8 Reserve Forces (Safeguard of Employment) Act 1985 enters the employment of the employer not later than the end of the six month period mentioned in section 1(4)(b) of that Act, his period of service in the armed forces of the Crown in the circumstances specified in section 1(1) of that Act does not break his continuity of employment,

2 In the case of such a person the number of days which, for the purposes of Article 7(3), fall within the intervening period is the number of days between the last day of his previous period of employment with the employer (or, if there was more than one such period, the last of them) and the first day of the period of employment beginning in the six month period.

14 Change of employer¶

1 Subject to the provisions of this Article, this Chapter relates only to employment by the one employer.

2 If a trade or business, or an undertaking (whether or not established by or under a statutory provision), is transferred from one person to another—

a the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the transferee, and

b the transfer does not break the continuity of the period of employment.

3 If by or under any statutory provision a contract of employment between any body corporate and an employee is modified and some other body corporate is substituted as the employer—

a the employee's period of employment at the time when the modification takes effect counts as a period of employment with the second body corporate, and

b the change of employer does not break the continuity of the period of employment.

4 If on the death of an employer the employee is taken into the employment of the personal representatives or trustees of the deceased—

a the employee's period of employment at the time of the death counts as a period of employment with the employer's personal representatives or trustees, and

b the death does not break the continuity of the period of employment.

5 If there is a change in the partners, personal representatives or trustees who employ any person—

a the employee's period of employment at the time of the change counts as a period of employment with the partners, personal representatives or trustees after the change, and

b the change does not break the continuity of the period of employment.

6 If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters the second employer's employment, is an associated employer of the first employer—

a the employee's period of employment at that time counts as a period of employment with the second employer, and

b the change of employer does not break the continuity of the period of employment.

7 If a person employed in relevant employment by a health service employer is taken into relevant employment by another such employer, his period of employment at the time of the change of employer counts as a period of employment with the second employer and the change does not break the continuity of the period of employment.

8 For the purposes of paragraph (7) employment is relevant employment if it is employment of a description—

a in which persons are engaged while undergoing professional training which involves their being employed successively by a number of different health service employers, and

b which is specified in an order made by the Department.

9 The following are health service employers for the purposes of paragraphs (7) and (8)—

a Health and Social Services Boards;

b Special Health and Social Services Agencies;

c Health and Social Care Trusts.

d the Regional Health and Social Care Board;

e the Regional Agency for Public Health and Social Well-being;

f the Regional Business Services Organisation.

15 Reinstatement or re-engagement of dismissed employee¶

1 Regulations made by the Department may make provision—

a for preserving the continuity of a person's period of employment for the purposes of this Chapter or for the purposes of this Chapter as applied by or under any other statutory provision specified in the regulations, or

b for modifying or excluding the operation of Article 10 subject to the recovery of any such payment as is mentioned in that Article,

in cases where^F10. . . a dismissed employee is reinstated, re‐engaged or otherwise re‐employed by his employer or by a successor or associated employer of that employer in any circumstances prescribed by the regulations.

Paras. (2)‐(4) rep. by 1998 NI 8

^C25^C26^C27^C28^C29^C30 CHAPTER IV A WEEK'S PAY¶

Introductory¶

^C5^C616 Introductory¶

The amount of a week's pay of an employee shall be calculated for the purposes of this Order in accordance with this Chapter.

Employments with normal working hours¶

^F11^C7^C8^C78^C7917 General¶

1 This Article and Articles 18 and 19 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

2 Subject to Article 18, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

3 Subject to Article 18, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week's pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—

a where the calculation date is the last day of a week, with that week, and

b otherwise, with the last complete week before the calculation date.

4 In this Article references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount.

5 This Article is subject to Articles 23 and 24.

^F12^C9^C10^C78^C7918 Remuneration varying according to time of work¶

1 This Article applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

2 The amount of a week's pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

3 For the purposes of paragraph (2)—

a the average number of weekly hours is calculated by dividing by twelve the total number of the employee's normal working hours during the relevant period of twelve weeks, and

b the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.

4 In paragraph (3) “the relevant period of twelve weeks” means the period of twelve weeks ending—

a where the calculation date is the last day of a week, with that week, and

b otherwise, with the last complete week before the calculation date.

5 This Article is subject to Articles 23 and 24.

^F13^C11^C12^C78^C7919 Supplementary¶

1 For the purposes of Articles 17 and 18, in arriving at the average hourly rate of remuneration, only—

a the hours when the employee was working, and

b the remuneration payable for, or apportionable to, those hours,

shall be brought in.

2 If for any of the twelve weeks mentioned in Articles 17 and 18 no remuneration within paragraph (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

3 Where—

a in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours, and

b the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within Article 1(3), in normal working hours falling within the number of hours without overtime),

account shall be taken of that remuneration as if the work had been done in such hours and the amount of that remuneration had been reduced accordingly.

Employments with no normal working hours¶

^F14^C13^C14^C78^C7920 Employments with no normal working hours¶

1 This Article applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

2 The amount of a week's pay is the amount of the employee's average weekly remuneration in the period of twelve weeks ending—

a where the calculation date is the last day of a week, with that week, and

b otherwise, with the last complete week before the calculation date.

3 In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.

4 This Article is subject to Articles 23 and 24.

The calculation date¶

^C15^C1621 Rights during employment¶

1 Where the calculation is for the purposes of Article 62, the calculation date is—

a where the employee's contract has been varied, or a new contract entered into, in connection with a period of short-time working, the last day on which the original contract was in force, and

b otherwise, the day in respect of which the guarantee payment is payable.

2 Where the calculation is for the purposes of Article 81 or 82, the calculation date is the day on which the employer's notice was given.

3 Where the calculation is for the purposes of Article 84, the calculation date is the day of the appointment.

3A Where the calculation is for the purposes of Article 85ZF, the calculation date is the day of the appointment.

3B Where the calculation is for the purposes of Article 85ZK or 85ZM, the calculation date is the day of the appointment.

4 Where the calculation is for the purposes of Article 90, the calculation date is the day on which the time off was taken or on which it is alleged the time off should have been permitted.

4A Where the calculation is for the purposes of Article 91B, the calculation date is the day on which the time off was taken or on which it is alleged the time off should have been permitted.

5 Where the calculation is for the purposes of Article 101—

a in the case of an employee suspended on medical grounds, the calculation date is the day before that on which the suspension begins, and

b in the case of an employee suspended on maternity grounds, the calculation date is—

i where the day before that on which the suspension begins falls during a period of ordinary or additional maternity leave, the day before the beginning of that period, and

ii otherwise, the day before that on which the suspension begins.

6 Where the calculation is for the purposes of Article 112I, the calculation date is the day on which the application under Article 112F was made.

^C17^C1822 Rights on termination¶

1 Where the calculation is for the purposes of Article 120 or 121, the calculation date is the day immediately preceding the first day of the period of notice required by Article 118(1) or (2).

2 Where the calculation is for the purposes of Article 125, 151 or 159, the calculation date is—

a if the dismissal was with notice, the date on which the employer's notice was given, and

b otherwise, the effective date of termination.

3 Where the calculation is for the purposes of Article 146, 153, 154 or 155 the calculation date is—

Sub‐para. (a) rep. by 1999 NI 9

b if by virtue of paragraph (2) or (4) of Article 129 a date later than the effective date of termination as defined in paragraph (1) of that Article is to be treated for certain purposes as the effective date of termination, the effective date of termination as so defined, and

c otherwise, the date specified in paragraph (6).

4 Where the calculation is for the purposes of Article 182(2), the calculation date is the day immediately preceding the first of the four, or six, weeks referred to in Article 183(2).

5 Where the calculation is for the purposes of Article 197, the calculation date is—

Sub‐para. (a) rep. by 1999 NI 9

b if by virtue of paragraph (5) of Article 180 a date is to be treated for certain purposes as the relevant date which is later than the relevant date as defined by the previous provisions of that Article, the relevant date as so defined, and

c otherwise, the date specified in paragraph (6).

6 The date referred to in paragraphs (3)(c) and (5)(c) is the date on which notice would have been given had—

a the contract been terminable by notice and been terminated by the employer giving such notice as is required by Article 118 to terminate the contract, and

b the notice expired on the effective date of termination, or the relevant date,

(whether or not those conditions were in fact fulfilled).

7 Where the calculation is for the purposes of Article 218, the calculation date is the date on which the protective award was made or, in the case of an employee who was dismissed before the date on which the protective award was made, the date which by virtue of paragraph (5) is the calculation date for the purpose of computing the amount of a redundancy payment in relation to that dismissal (whether or not the employee concerned is entitled to any such payment).

Maximum amount of week's pay¶

^C19^C2023 Maximum amount¶

^C21^C221 For the purpose of calculating—

za an award of compensation under Article 112I(1)(b),

a a basic award of compensation for unfair dismissal,

b an additional award of compensation for unfair dismissal,

ba an award under Article 146(5); or

c a redundancy payment,

the amount of a week's pay shall not exceed £783.

Paras. (2)‐(4) rep. by 1999 NI 9

Miscellaneous¶

^C23^C2424 New employments and other special cases¶

1 In any case in which the employee has not been employed for a sufficient period to enable a calculation to be made under the preceding provisions of this Chapter, the amount of a week's pay is the amount which fairly represents a week's pay.

2 In determining that amount the industrial tribunal—

a shall apply as nearly as may be such of the preceding provisions of this Chapter as it considers appropriate, and

b may have regard to such of the considerations specified in paragraph (3) as it thinks fit.

3 The considerations referred to in paragraph (2)(b) are—

a any remuneration received by the employee in respect of the employment in question,

b the amount offered to the employee as remuneration in respect of the employment in question,

c the remuneration received by other persons engaged in relevant comparable employment with the same employer, and

d the remuneration received by other persons engaged in relevant comparable employment with other employers.

4 The Department may by regulations provide that in cases prescribed by the regulations the amount of a week's pay shall be calculated in such manner as may be so prescribed.

25 Supplementary¶

1 In arriving at—

a an average hourly rate of remuneration, or

b average weekly remuneration,

under this Chapter, account shall be taken of work for a former employer within the period for which the average is to be taken if, by virtue of Chapter III of this Part, a period of employment with the former employer counts as part of the employee's continuous period of employment.

2 Where under this Chapter account is to be taken of remuneration or other payments for a period which does not coincide with the periods for which the remuneration or other payments are calculated, the remuneration or other payments shall be apportioned in such manner as may be just.

PART II ACCESS TO EMPLOYMENT¶

26 Refusal of employment on grounds related to union membership¶

1 It is unlawful to refuse a person employment—

a because he is, or is not, a member of a trade union, or

b because he is unwilling to accept a requirement—

i to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

ii to make payments or suffer deductions in the event of his not being a member of a trade union.

2 Where an advertisement is published which indicates, or might reasonably be understood as indicating—

a that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or

b that any such requirement as is mentioned in paragraph (1)(b) will be imposed in relation to employment to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.

3 Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.

4 A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—

a refuses or deliberately omits to entertain and process his application or enquiry, or

b causes him to withdraw or cease to pursue his application or enquiry, or

c refuses or deliberately omits to offer him employment of that description, or

d makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or

e makes him an offer of such employment but withdraws it or causes him not to accept it.

5 Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in paragraph (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.

6 Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in this Article applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union.

For this purpose an ““office” means any position—

by virtue of which the holder is an official of the union, or
to which Part III of the Trade Union and Labour Relations Order applies (duty to hold elections).

7 The provisions of this Article apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

27 Refusal of service of employment agency on grounds related to union membership¶

1 It is unlawful for an employment agency to refuse a person any of its services—

a because he is, or is not, a member of a trade union, or

b because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.

2 Where an advertisement is published which indicates, or might reasonably be understood as indicating—

a that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or

b that any such requirement as is mentioned in paragraph (1)(b) will be imposed in relation to a service to which the advertisement relates,

a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.

3 A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—

a refuses or deliberately omits to make the service available to him, or

b causes him not to avail himself of the service or to cease to avail himself of it, or

c does not provide the same service, on the same terms, as is provided to others.

4 Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in paragraph (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

28 Complaints to industrial tribunal¶

1 A person may present a complaint to an industrial tribunal—

a that he has been unlawfully refused employment in contravention of Article 26(1); or

b that he has been unlawfully refused any service of an employment agency in contravention of Article 27(1).

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

a before the end of the period of three months beginning with the date of the conduct to which the complaint relates, 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 The date of the conduct to which a complaint under paragraph (1)(a) relates shall be taken to be—

a in the case of an actual refusal, the date of the refusal;

b in the case of a deliberate omission—

i to entertain and process the complainant's application or enquiry, or

ii to offer employment, the end of the period within which it was reasonable to expect the employer to act;

c in the case of conduct causing the complainant to withdraw or cease to pursue his application or enquiry, the date of that conduct;

d in a case where an offer was made but withdrawn, the date when it was withdrawn;

e in any other case where an offer was made but not accepted, the date on which it was made.

4 The date of the conduct to which a complaint under paragraph (1)(b) relates shall be taken to be—

a in the case of an actual refusal, the date of the refusal;

b in the case of a deliberate omission to make a service available, the end of the period within which it was reasonable to expect the employment agency to act;

c in the case of conduct causing the complainant not to avail himself of a service or to cease to avail himself of it, the date of that conduct;

d in the case of failure to provide the same service, on the same terms, as is provided to others, the date or last date on which the service in fact provided was provided.

5 Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

29 Determination of complaints¶

1 Where the industrial tribunal finds that a complaint under Article 28 is well-founded, it shall make a declaration to that effect and may make such of the following as it considers just and equitable—

a an order requiring the respondent to pay compensation to the complainant of such amount as the tribunal may determine;

b 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 conduct to which the complaint relates.

2 Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings.

3 If the respondent fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation or, if it has not made such an award, make one.

4 The total amount of compensation shall not exceed the limit for the time being imposed by Article 158(1).

30 Complaint against employer and employment agency¶

1 Where a person has a right of complaint against a prospective employer and against an employment agency arising out of the same facts, he may present a complaint against either of them or against them jointly.

2 If a complaint is brought against one only, he or the complainant may request the tribunal to join the other as a party to the proceedings.

3 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 its decision as to whether the complaint is well-founded.

4 Where a complaint is brought against an employer and an employment agency jointly, or where it is brought against one and the other is joined as a party to the proceedings, and the tribunal—

a finds that the complaint is well-founded as against the employer and the agency, and

b makes an award of compensation,

it may order that the compensation shall be paid by the one or the other, or partly by one and partly by the other, as the tribunal may consider just and equitable in the circumstances.

31 Awards against third parties¶

1 If in proceedings on a complaint under Article 28 either the complainant or the respondent claims that the respondent was induced to act in the manner 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 respondent may request the industrial 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 its decision as to whether the complaint is well-founded.

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

a finds that the complaint is well-founded,

b makes an award of compensation, and

c also finds that the claim in paragraph (1) is well-founded,

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

4 Where by virtue of Article 30 there is more than one respondent, the above provisions apply to either or both of them.

32 Interpretation and other supplementary provisions¶

1 In this Part—

““advertisement” includes every form of advertisement or notice, whether to the public or not, and references to publishing an advertisement shall be construed accordingly:
““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 subject to paragraph (2).

2 For the purposes of this Part as it applies to employment agencies—

a services other than those mentioned in the definition of ““employment agency” above shall be disregarded, and

b a trade union shall not be regarded as an employment agency by reason of services provided by it only for, or in relation to, its members.

3 References in this Part to being or not being a member of a trade union are to being or not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.

Any such reference includes a reference to being or not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.

PART III EMPLOYMENT PARTICULARS¶

Right to statements of employment particulars¶

33 Statement of initial employment particulars¶

1 Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

2 The statement may (subject to Article 34(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.

3 The statement shall contain particulars of—

a the names of the employer and employee,

b the date when the employment began, and

c the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

4 The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment containing them) is given, of—

a the scale or rate of remuneration or the method of calculating remuneration,

b the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

c any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

d any terms and conditions relating to any of the following—

i entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

ii incapacity for work due to sickness or injury, including any provision for sick pay, and

iii pensions and pension schemes,

e the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

f the title of the job which the employee is employed to do or a brief description of the work for which he is employed,

g where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

h either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

j any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and

k where the employee is required to work outside the United Kingdom for a period of more than one month—

i the period for which he is to work outside the United Kingdom,

ii the currency in which remuneration is to be paid while he is working outside the United Kingdom,

iii any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

iv any terms and conditions relating to his return to the United Kingdom.

5 Paragraph (4)(d)(iii) does not apply to an employee of a body or authority if—

a the employee's pension rights depend on the terms of a pension scheme established under any statutory provision, and

b any such provision requires the body or authority to give to a new employee information concerning the employee's pension rights or the determination of questions affecting those rights.

34 Statement of initial particulars: supplementary¶

1 If, in the case of a statement under Article 33, there are no particulars to be entered under any of the heads of sub-paragraph (d) or (k) of paragraph (4) of that Article, or under any of the other sub-paragraphs of paragraph (3) or (4) of that Article, that fact shall be stated.

2 A statement under Article 33 may refer the employee for particulars of any of the matters specified in paragraph (4)(d)(ii) and (iii) of that Article to the provisions of some other document which is reasonably accessible to the employee.

3 A statement under Article 33 may refer the employee for particulars of either of the matters specified in paragraph (4)(e) of that Article to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

4 The particulars required by Article 33(3) and (4)(a) to (c), (d)(i), (f) and (h) shall be included in a single document.

5 Where before the end of the period of two months after the beginning of an employee's employment the employee is to begin to work outside the United Kingdom for a period of more than one month, the statement under Article 33 shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

6 A statement shall be given to a person under Article 33 even if his employment ends before the end of the period within which the statement is required to be given.

35 Note about disciplinary procedures and pensions¶

1 A statement under Article 33 shall include a note—

a specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee,

aa specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee,

b specifying (by description or otherwise)—

i a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him or any decision to dismiss him, and

ii a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment,

and the manner in which any such application should be made, and

c where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document explaining them which is reasonably accessible to the employee.

2 Paragraph (1) does not apply to rules, disciplinary decisions, decisions to dismiss grievances or procedures relating to health or safety at work.

Paras.(3)‐(4) rep. by 2003 NI 15

^F4885 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36 Statement of changes¶

1 If, after the material date, there is a change in any of the matters particulars of which are required by Articles 33 to 35 to be included or referred to in a statement under Article 33, the employer shall give to the employee a written statement containing particulars of the change.

2 For the purposes of paragraph (1)—

a in relation to a matter particulars of which are included or referred to in a statement given under Article 33 otherwise than in instalments, the material date is the date to which the statement relates,

b in relation to a matter particulars of which—

i are included or referred to in an instalment of a statement given under Article 33, or

ii are required by Article 34(4) to be included in a single document but are not included in an instalment of a statement given under Article 33 which does include other particulars to which that provision applies,

the material date is the date to which the instalment relates, and

c in relation to any other matter, the material date is the date by which a statement under Article 33 is required to be given.

3 A statement under paragraph (1) shall be given at the earliest opportunity and, in any event, not later than—

a one month after the change in question, or

b where that change results from the employee being required to work outside the United Kingdom for a period of more than one month, the time when he leaves the United Kingdom in order to begin so to work, if that is earlier.

4 A statement under paragraph (1) may refer the employee to the provisions of some other document which is reasonably accessible to the employee for a change in any of the matters specified in Articles 33(4)(d)(ii) and (iii) and 35(1)(a) and (c).

5 A statement under paragraph (1) may refer the employee for a change in either of the matters specified in Article 33(4)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

6 Where, after an employer has given to an employee a statement under Article 33, either—

a the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

b the identity of the employer is changed in circumstances in which the continuity of the employee's period of employment is not broken,

and paragraph (7) applies in relation to the change, the person who is the employer immediately after the change is not required to give to the employee a statement under Article 33; but the change shall be treated as a change falling within paragraph (1) of this Article.

7 This paragraph applies in relation to a change if it does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by Articles 33 to 35 to be included or referred to in the statement under Article 33.

8 A statement under paragraph (1) which informs an employee of a change such as is referred to in paragraph (6)(b) shall specify the date on which the employee's period of continuous employment began.

37 Exclusion from rights to statements¶

1 Articles 33 to 36 apply to an employee who at any time comes or ceases to come within the exceptions from those Articles provided by Articles 239 and 242, and under Article 250, as if his employment with his employer terminated or began at that time.

2 The fact that Article 33 is directed by paragraph (1) to apply to an employee as if his employment began on his ceasing to come within the exceptions referred to in that paragraph does not affect the obligation under Article 33(3)(b) to specify the date on which his employment actually began.

38 Reasonably accessible document or collective agreement¶

In Articles 34 to 36 references to a document or collective agreement which is reasonably accessible to an employee are references to a document or collective agreement which—

a the employee has reasonable opportunities of reading in the course of his employment, or

b is made reasonably accessible to the employee in some other way.

39 Power of Department to require particulars of further matters¶

The Department may by order provide that Article 33 shall have effect as if particulars of such further matters as may be specified in the order were included in the particulars required by that Article; and, for that purpose, the order may include such provisions amending that Article as appear to the Department to be expedient.

39A Use of alternative documents to give particulars¶

1 Paragraphs (2) and (3) apply where—

a an employer gives an employee a document in writing in the form of a contract of employment or letter of engagement,

b the document contains information which, were the document in the form of a statement under Article 33, would meet the employer's obligation under that Article in relation to the matters mentioned in paragraphs (3) and (4)(a) to (c), (d)(i), (f) and (h) of that Article, and

c the document is given after the beginning of the employment and before the end of the period for giving a statement under that Article.

2 The employer's duty under Article 33 in relation to any matter shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under that Article, would meet the employer's obligation under that Article in relation to that matter.

3 The employer's duty under Article 35 shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under Article 33 and the information included in the form of a note, would meet the employer's obligation under Article 35.

4 For the purposes of this Article a document to which paragraph (1)(a) applies shall be treated, in relation to information in respect of any of the matters mentioned in Article 33(4), as specifying the date on which the document is given to the employee as the date as at which the information applies.

5 Where paragraph (2) applies in relation to any matter, the date on which the document by virtue of which that paragraph applies is given to the employee shall be the material date in relation to that matter for the purposes of Article 36(1).

6 Where paragraph (3) applies, the date on which the document by virtue of which that paragraph applies is given to the employee shall be the material date for the purposes of Article 36(1) in relation to the matters of which particulars are required to be given under Article 35.

7 The reference in Article 36(6) to an employer having given a statement under Article 33 shall be treated as including his having given a document by virtue of which his duty to give such a statement is treated as met.

39B Giving of alternative documents before start of employment¶

A document in the form of a contract of employment or letter of engagement given by an employer to an employee before the beginning of the employee's employment with the employer shall, when the employment begins, be treated for the purposes of Article 39A as having been given at that time.

Right to itemised pay statement¶

40 Itemised pay statement¶

1 An employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.

2 The statement shall contain particulars of—

a the gross amount of the wages or salary,

b the amounts of any variable, and (subject to Article (1) any fixed, deductions from that gross amount and the purposes for which they are made,

c the net amount of wages or salary payable, and

d where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

41 Standing statement of fixed deductions¶

1 A pay statement given in accordance with Article 40 need not contain separate particulars of a fixed deduction if—

a it contains instead an aggregate amount of fixed deductions, including that deduction, and

b the employer has given to the employee, at or before the time at which the pay statement is given, a standing statement of fixed deductions which satisfies paragraph (2).

2 A standing statement of fixed deductions satisfies this paragraph if—

a it is in writing,

b it contains, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

i the amount of the deduction,

ii the intervals at which the deduction is to be made, and

iii the purpose for which it is made, and

c it is (in accordance with paragraph (5)) effective at the date on which the pay statement is given.

3 A standing statement of fixed deductions may be amended, whether by—

a addition of a new deduction,

b a change in the particulars, or

c cancellation of an existing deduction,

by notice in writing, containing particulars of the amendment, given by the employer to the employee.

4 An employer who has given to an employee a standing statement of fixed deductions shall—

a within the period of twelve months beginning with the date on which the first standing statement was given, and

b at intervals of not more than twelve months afterwards,

re-issue it in a consolidated form incorporating any amendments notified in accordance with paragraph (3).

5 For the purposes of paragraph (2)(c) a standing statement of fixed deductions—

a becomes effective on the date on which it is given to the employee, and

b ceases to be effective at the end of the period of twelve months beginning with that date or, where it is re-issued in accordance with paragraph (4), with the end of the period of twelve months beginning with the date of the last re-issue.

42 Power to amend provisions about pay and standing statements¶

The Department may by order—

a vary the provisions of Articles 40 and 41 as to the particulars which must be included in a pay statement or a standing statement of fixed deductions by adding items to, or removing items from, the particulars listed in those Articles or by amending any such particulars, and

b vary the provisions of paragraphs (4) and (5) of Article 41 so as to shorten or extend the periods of twelve months referred to in those paragraphs, or those periods as varied from time to time under this Article.

Enforcement¶

43 References to industrial tribunals¶

1 Where an employer does not give an employee a statement as required by Article 33, 36 or 40 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.

2 Where—

a a statement purporting to be a statement under Article 33 or 36, or a pay statement or a standing statement of fixed deductions purporting to comply with Article 40 or 41, has been given to an employee, and

b a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,

either the employer or the employee may require the question to be referred to and determined by an industrial tribunal.

3 For the purposes of this Article—

^F489a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b a question as to the particulars which ought to have been included in a pay statement or standing statement of fixed deductions does not include a question solely as to the accuracy of an amount stated in any such particulars.

4 An industrial tribunal shall not consider a reference under this Article in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made—

a before the end of the period of three months beginning with the date on which the employment ceased, 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 application to be made before the end of that period of three months.

5 Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (4)(a).

44 Determination of references¶

1 Where, on a reference under Article 43(1), an industrial tribunal determines particulars as being those which ought to have been included or referred to in a statement given under Article 33 or 36, the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.

2 On determining a reference under Article 43(2) relating to a m statement purporting to be a statement under Article 33 or 36, an industrial tribunal may—

a confirm the particulars as included or referred to in the statement given by the employer,

b amend those particulars, or

c substitute other particulars for them,

as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the tribunal.

3 Where on a reference under Article 43 an industrial tribunal finds—

a that an employer has failed to give an employee any pay statement in accordance with Article 40, or

b that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that Article or Article 41,

the tribunal shall make a declaration to that effect.

4 Where on a reference in the case of which paragraph (3) applies the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.

5 For the purposes of paragraph (4) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by Article 40 or 41.

PART IV PROTECTION OF WAGES¶

Deductions by employer¶

45 Right not to suffer unauthorised deductions¶

1 An employer shall not make a deduction from wages of a worker employed by him unless—

a the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

b the worker has previously signified in writing his agreement or consent to the making of the deduction.

2 In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

a in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

b in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

3 Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

4 Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

5 For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

6 For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

7 This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

46 Excepted deductions¶

1 Article 45 does not apply to a deduction from a worker's wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

a an overpayment of wages, or

b an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

2 Article 45 does not apply to a deduction from a worker's wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

3 Article 45 does not apply to a deduction from a worker's wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

4 Article 45 does not apply to a deduction from a worker's wages made by his employer in pursuance of any arrangements which have been established—

a in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

b otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

5 Article 45 does not apply to a deduction from a worker's wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker's having taken part in that strike or other action.

6 Article 45 does not apply to a deduction from a worker's wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer:

Payments to employer¶

47 Right not to have to make payments to employer¶

1 An employer shall not receive a payment from a worker employed by him unless—

a the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

b the worker has previously signified in writing his agreement or consent to the making of the payment.

2 In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

a in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

3 For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

4 For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

5 Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker's employer.

48 Excepted payments¶

1 Article 47 does not apply to a payment received from a worker by his employer where the purpose of the payment is the reimbursement of the employer in respect of—

a an overpayment of wages, or

b an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

2 Article 47 does not apply to a payment received from a worker by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

3 Article 47 does not apply to a payment received from a worker by his employer where the worker has taken part in a strike or other industrial action and the payment has been required by the employer on account of the worker's having taken part in that strike or other action.

4 Article 47 does not apply to a payment received from a worker by his employer where the purpose of the payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Cash shortages and stock deficiencies in retail employment¶

49 Introductory¶

1 In the following provisions of this Part—

“cash shortage” means a deficit arising in relation to amounts received in connection with retail transactions, and
“stock deficiency” means a stock deficiency arising in the course of retail transactions.

2 In the following provisions of this Part “retail employment”, in relation to a worker, means employment involving (whether or not on a regular basis)—

a the carrying out by the worker of retail transactions directly with members of the public or with fellow workers or other individuals in their personal capacities, or

b the collection by the worker of amounts payable in connection with retail transactions carried out by other persons directly with members of the public or with fellow workers or other individuals in their personal capacities.

3 References in this Article to a “retail transaction” are to the sale or supply of goods or the supply of services (including financial services).

4 References in the following provisions of this Part to a deduction made from wages of a worker in retail employment, or to a payment received from such a worker by his employer, on account of a cash shortage or stock deficiency include references to a deduction or payment so made or received on account of—

a any dishonesty or other conduct on the part of the worker which resulted in any such shortage or deficiency, or

b any other event in respect of which he (whether or not together with any other workers) has any contractual liability and which so resulted,

in each case whether or not the amount of the deduction or payment is designed to reflect the exact amount of the shortage or deficiency.

5 References in the following provisions of this Part to the recovery from a worker of an amount in respect of a cash shortage or stock deficiency accordingly include references to the recovery from him of an amount in respect of any such conduct or event as is mentioned in paragraph (4)(a) or (b).

6 In the following provisions of this Part “pay day”, in relation to a worker, means a day on which wages are payable to the worker.

50 Limits on amount and time of deductions¶

1 Where (in accordance with Article 45) the employer of a worker in retail employment makes, on account of one or more cash shortages or stock deficiencies, a deduction or deductions from wages payable to the worker on a pay day, the amount or aggregate amount of the deduction or deductions shall not exceed one-tenth of the gross amount of the wages payable to the worker on that day.

2 Where the employer of a worker in retail employment makes a deduction from the worker's wages on account of a cash shortage or stock deficiency, the employer shall not be treated as making the deduction in accordance with Article 45 unless (in addition to the requirements of that Article being satisfied with respect to the deduction)—

a the deduction is made, or

b in the case of a deduction which is one of a series of deductions relating to the shortage or deficiency, the first deduction in the series was made,

not later than the end of the relevant period.

3 In paragraph (2) “the relevant period” means the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

51 Wages determined by reference to shortages etc.¶

1 This Article applies where—

a by virtue of an agreement between a worker in retail employment and his employer, the amount of the worker's wages or any part of them is or may be determined by reference to the incidence of cash shortages or stock deficiencies, and

b the gross amount of the wages payable to the worker on any pay day is, on account of any such shortages or deficiencies, less than the gross amount of the wages that would have been payable to him on that day if there had been no such shortages or deficiencies.

2 The amount representing the difference between the two amounts referred to in paragraph (1)(b) shall be treated for the purposes of this Part as a deduction from the wages payable to the worker on that day made by the employer on account of the cash shortages or stock deficiencies in question.

3 The second of the amounts referred to in paragraph (1)(b) shall be treated for the purposes of this Part (except paragraph (1)) as the gross amount of the wages payable to him on that day.

4 Accordingly—

a Article 45, and

b if the requirements of Article 45 and paragraph (2) of Article 50 are satisfied, paragraph (1) of Article 50,

have effect in relation to the amount referred to in paragraph (2) of this Article.

52 Limits on method and timing of payments¶

1 Where the employer of a worker in retail employment receives from the worker a payment on account of a cash shortage or stock deficiency, the employer shall not be treated as receiving the payment in accordance with Article 47 unless (in addition to the requirements of that Article being satisfied with respect to the payment) he has previously—

a notified the worker in writing of the worker's total liability to him in respect of that shortage or deficiency, and

b required the worker to make the payment by means of a demand for payment made in accordance with the following provisions of this Article.

2 A demand for payment made by the employer of a worker in retail employment in respect of a cash shortage or stock deficiency—

a shall be made in writing, and

b shall be made on one of the worker's pay days.

3 A demand for payment in respect of a particular cash shortage or stock deficiency, or (in the case of a series of such demands) the first such demand, shall not be made—

a earlier than the first pay day of the worker following the date when he is notified of his total liability in respect of the shortage or deficiency in pursuance of paragraph (1)(a) or, where he is so notified on a pay day, earlier than that day, or

b later than the end of the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

4 For the purposes of this Part a demand for payment shall be treated as made by the employer on one of a worker's pay days if it is given to the worker or posted to, or left at, his last known address—

a on that pay day, or

b in the case of a pay day which is not a working day of the employer's business, on the first such working day following that pay day.

5 Legal proceedings by the employer of a worker in retail employment for the recovery from the worker of an amount in respect of a cash shortage or stock deficiency shall not be instituted by the employer after the end of the period referred to in paragraph (3)(b) unless the employer has within that period made a demand for payment in respect of that amount in accordance with this Article.

53 Limit on amount of payments¶

1 Where the employer of a worker in retail employment makes on any pay day one or more demands for payment in accordance with Article 52, the amount or aggregate amount required to be paid by the worker in pursuance of the demand or demands shall not exceed—

a one-tenth of the gross amount of the wages payable to the worker on that day, or

b where one or more deductions falling within Article 50(1) are made by the employer from those wages, such amount as represents the balance of that one-tenth after subtracting the amount or aggregate amount of the deduction or deductions.

2 Once an amount has been required to be paid by means of a demand for payment made in accordance with Article 52 on any pay day, that amount shall not be taken into account under paragraph (1) as it applies to any subsequent pay day, even though the employer is obliged to make further requests for it to be paid.

3 Where in any legal proceedings the court finds that the employer of a worker in retail employment is (in accordance with Article 47 as it applies apart from Article 52(1)) entitled to recover an amount from the worker in respect of a cash shortage or stock deficiency, the court shall, in ordering the payment by the worker to the employer of that amount, make such provision as appears to the court to be necessary to ensure that it is paid by the worker at a rate not exceeding that at which it could be recovered from him by the employer in accordance with this Article.

54 Final instalments of wages¶

1 In this Article “final instalment of wages”, in relation to a worker, means—

a the amount of wages payable to the worker which consists of or includes an amount payable by way of contractual remuneration in respect of the last of the periods for which he is employed under his contract prior to its termination for any reason (but excluding any wages referable to any earlier such period), or

b where an amount in lieu of notice is paid to the worker later than the amount referred to in sub-paragraph (a), the amount so paid,

in each case whether the amount in question is paid before or after the termination of the worker's contract.

2 Article 50(1) does not operate to restrict the amount of any deductions which may (in accordance with Article 45(1)) be made by the employer of a worker in retail employment from the worker's final instalment of wages.

3 Nothing in Article 52 or 53 applies to a payment falling within Article 52(1) which is made on or after the day on which any such worker's final instalment of wages is paid; but (even if the requirements of Article 47 would otherwise be satisfied with respect to it) his employer shall not be treated as receiving any such payment in accordance with that Article if the payment was first required to be made after the end of the period referred to in Article 52(3)(b).

4 Article 53(3) does not apply to an amount which is to be paid by a worker on or after the day on which his final instalment of wages is paid.

Enforcement¶

55 Complaints to industrial tribunals¶

1 A worker may present a complaint to an industrial tribunal—

a that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50( 2)),

b that his employer has received from him a payment in contravention of Article 47 (including a payment received in contravention of that Article as it applies by virtue of Article 52(1)),

c that his employer has recovered from his wages by means of one or more deductions falling within Article 50(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

d that his employer has received from him in pursuance of one or more demands for payment made (in accordance with Article 52) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under Article 53(1).

2 Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with—

a in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

b in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2).

3 Where a complaint is brought under this Article in respect of — —

a a series of deductions or payments, or

b a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

4 Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

5 No complaint shall be presented under this Article in respect of any deduction made in contravention of Article 60 of the Trade Union and Labour Relations Order (wrongful deduction of political fund contribution).

56 Determination of complaints¶

1 Where a tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shah order the employer—

a in the case of a complaint under Article 55(1)(a), to pay to the worker the amount of any deduction made in contravention of Article 45,

b in the case of a complaint under Article 55(1)(b), to repay to the worker the amount of any payment received in contravention of Article 47,

c in the case of a complaint under Article 55(1)(c), to pay to the worker any amount recovered from him in excess of the limit mentioned in that provision, and

d in the case of a complaint under Article 55(1)(d), to repay to the worker any amount received from him in excess of the limit mentioned in that provision.

2 Where a tribunal makes a declaration under paragraph (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that paragraph) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.

57 Determinations: supplementary¶

1 Where, in the case of any complaint under Article 55(1)(a), a tribunal finds that, although neither of the conditions set out in Article 45(1)(a) and (b) was satisfied with respect to the whole amount of the deduction, one of those conditions was satisfied with respect to any lesser amount, the amount of the deduction shall for the purposes of Article 56(a) be treated as reduced by the amount with respect to which that condition was satisfied.

2 Where, in the case of any complaint under Article 55(1)(b), a tribunal finds that, although neither of the conditions set out in Article 47(1)(a) and (b) was satisfied with respect to the whole amount of the payment, one of those conditions was satisfied with respect to any lesser amount, the amount of the payment shall for the purposes of Article 56(b) be treated as reduced by the amount with respect to which that condition was satisfied.

3 An employer shall not under Article 56 be ordered by a tribunal to pay or repay to a worker any amount in respect of a deduction or payment, or in respect of any combination of deductions or payments, in so far as it appears to the tribunal that he has already paid or repaid any such amount to the worker.

4 Where a tribunal has under Article 56 ordered an employer to pay or repay to a worker any amount in respect of a particular deduction or payment falling within Article 55(1)(a) to (d), the amount which the employer is entitled to recover (by whatever means) in respect of the matter in relation to which the deduction or payment was originally made or received shall be treated as reduced by that amount.

5 Where a tribunal has under Article 56 ordered an employer to pay or repay to a worker any amount in respect of any combination of deductions or payments falling within Article 55(1)(c) or (d), the aggregate amount which the employer is entitled to recover (by whatever means) in respect of the cash shortages or stock deficiencies in relation to which the deductions or payments were originally made or required to be made shall be treated as reduced by that amount.

58 Complaints and other remedies¶

Article 55 does not affect the jurisdiction of an industrial tribunal to consider a reference under Article 43 in relation to any deduction from the wages of a worker; but the aggregate of any amounts ordered by an industrial tribunal to be paid under Article 44(4) and under Article 56 (whether on the same or different occasions) in respect of a particular deduction shall not exceed the amount of the deduction.

Supplementary¶

59 Meaning of “wages” etc.¶

1 In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including—

a any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise,

b statutory sick pay under Part XI of the ^M9 Social Security Contributions and Benefits (Northern Ireland) Act 1992,

c statutory maternity pay under Part XII of that Act,

ca statutory paternity pay under Part XllZA of that Act,

cb statutory adoption pay under Part XllZB of that Act,

cc statutory shared parental pay under Part 12ZC of that Act,

cd statutory parental bereavement pay under Part 12ZD of that Act,

d a guarantee payment under Article 60,

e any payment for time off under Part VII,

f remuneration on suspension on medical grounds under Article 96 and remuneration on suspension on maternity grounds under Article 100,

fa remuneration on ending the supply of an agency worker on maternity grounds under Article 68C of this Order.

g any sum payable in pursuance of an order for reinstatement or re-engagement under Article 147,

h any sum payable in pursuance of an order for the continuation of a contract of employment under Article 165, and

j remuneration under a protective award made under Article 217,

but excluding any payments within paragraph (2).

2 Those payments are—

a any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of Article 45 to any deduction made from the worker's wages in respect of any such advance),

b any payment in respect of expenses incurred by the worker in carrying out his employment,

c any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office,

d any payment referable to the worker's redundancy, and

e any payment to the worker otherwise than in his capacity as a worker.

3 Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part—

a be treated as wages of the worker, and

b be treated as payable to him as such on the day on which the payment is made.

4 In this Part “gross amount”, in relation to any wages payable to a worker, means the total amount of those wages before deductions of whatever nature.

5 For the purposes of this Part any monetary value attaching to any payment or benefit in kind furnished to a worker by his employer shall not be treated as wages of the worker except in the case of any voucher, stamp or similar document which is—

a of a fixed value expressed in monetary terms, and

b capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).

PART IVA ZERO HOURS WORKERS¶

59A Zero hours workers¶

1 The Department may by regulations make such provision as the Department considers appropriate for the purpose of preventing abuses arising out of or in connection with the use of—

a zero hours contracts;

b non-contractual zero hours arrangements; or

c worker's contracts of a kind specified by the regulations.

2 In this Article—

“non-contractual zero hours arrangement” means an arrangement other than a worker's contract under which—
1. an employer and an individual agree terms on which the individual will do any work where the employer makes it available to the individual and the individual agrees to do it, but
2. the employer is not required to make any work available to the individual, nor the individual required to accept it;
and in this Article “employer”, in relation to a non-contractual zero hours arrangement, is to be read accordingly;
“zero hours contract” means a contract of employment or other worker's contract under which—
1. the undertaking to do or perform work is an undertaking to do so conditionally on the employer making work available to the worker; and
2. there is no certainty that any such work will be made available to the worker.

3 For the purposes of this Article—

a an employer makes work available to a worker if the employer requests or requires the worker to do the work; and

b references to work and doing work include references to services and performing them.

4 The worker's contracts which may be specified under paragraph (1)(c) are those in relation to which the Department considers it appropriate for provision made by the regulations to apply, having regard, in particular, to provision made by the worker's contracts as to income, rate of pay or working hours.

5 Regulations under this Article may amend or repeal any statutory provision (including paragraphs (2) to (4)).

PART V GUARANTEE PAYMENTS¶

60 Right to guarantee payment¶

1 Where throughout a day during any part of which an employee would normally be required to work in accordance with his contract of employment the employee is not provided with work by his employer by reason of—

a a diminution in the requirements of the employer's business for work of the kind which the employee is employed to do, or

b any other occurrence affecting the normal working of the employer's business in relation to work of the kind which the employee is employed to do,

the employee is entitled to be paid by his employer an amount in respect of that day.

2 In this Order a payment to which an employee is entitled under paragraph (1) is referred to as a guarantee payment.

3 In this Part—

a a day falling within paragraph (1) is referred to as a “workless day”, and

b “workless period” has a corresponding meaning.

4 In this Part “day” means the period of twenty-four hours from midnight to midnight.

5 Where a period of employment begun on any day extends, or would normally extend, over midnight into the following day—

a if the employment before midnight is, or would normally be, of longer duration than that after midnight, the period of employment shall be treated as falling wholly on the first day, and

b in any other case, the period of employment shall be treated as falling wholly on the second day.

61 Exclusions from right to guarantee payment¶

1 An employee is not entitled to a guarantee payment unless he has been continuously employed for a period of not less than one month ending with the day before that in respect of which the guarantee payment is claimed.

Para. (2) rep. by SR 2002/298

3 An employee is not entitled to a guarantee payment in respect of a workless day if the failure to provide him with work for that day occurs in consequence of a strike, lock-out or other industrial action involving any employee of his employer or of an associated employer.

4 An employee is not entitled to a guarantee payment in respect of a workless day if—

a his employer has offered to provide alternative work for that day which is suitable in all the circumstances (whether or not it is work which the employee is under his contract employed to perform), and

b the employee has unreasonably refused that offer.

5 An employee is not entitled to a guarantee payment if he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

62 Calculation of guarantee payment¶

1 Subject to Article 63, the amount of a guarantee payment payable to an employee in respect of any day is the sum produced by multiplying the number of normal working hours on the day by the guaranteed hourly rate; and, accordingly, no guarantee payment is payable to an employee in whose case there are no normal working hours on the day in question.

2 The guaranteed hourly rate, in relation to an employee, is the amount of one week's pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day in respect of which the guarantee payment is payable.

3 But where the number of normal working hours differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by—

a the average number of normal working hours calculated by dividing by twelve the total number of the employee's normal working hours during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is payable, or

b where the employee has not been employed for a sufficient period to enable the calculation to be made under sub-paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in paragraph (4) as are appropriate in the circumstances.

4 The considerations referred to in paragraph (3)(b) are—

a the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract, and

b the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

5 If in any case an employee's contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, paragraphs (2) and (3) have effect as if for the references to the day in respect of which the guarantee payment is payable there were substituted references to the last day on which the original contract was in force.

63 Limits on amount of and entitlement to guarantee payment¶

1 The amount of a guarantee payment payable to an employee in respect of any day shall not exceed £41.

2 An employee is not entitled to guarantee payments in respect of more than the specified number of days in any period of three months.

3 The specified number of days for the purposes of paragraph (2) is the number of days, not exceeding five, on which the employee normally works in a week under the contract of employment in force on the day in respect of which the guarantee payment is claimed.

4 But where that number of days varies from week to week or over a longer period, the specified number of days is instead—

a the average number of such days, not exceeding five, calculated by dividing by twelve the total number of such days during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is claimed, and rounding up the resulting figure to the next whole number, or

b where the employee has not been employed for a sufficient period to enable the calculation to be made under sub-paragraph (a), a number which fairly represents the number of the employee's normal working days in a week, not exceeding five, having regard to such of the considerations specified in paragraph (5) as are appropriate in the circumstances.

5 The considerations referred to in paragraph (4)(b) are—

a the average number of normal working days in a week which the employee could expect in accordance with the terms of his contract, and

b the average number of such days of other employees engaged in relevant comparable employment with the same employer.

6 If in any case an employee's contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, paragraphs (3) and (4) have effect as if for the references to the day in respect of which the guarantee payment is claimed there were substituted references to the last day on which the original contract was in force.

7 The Department may by order vary—

a the length of the period specified in paragraph (2);

b a limit specified in paragraph (3) or (4).

64 Contractual remuneration¶

1 A right to a guarantee payment does not affect any right of an employee in relation to remuneration under his contract of employment ( “contractual remuneration”).

2 Any contractual remuneration paid to an employee in respect of a workless day goes towards discharging any liability of the employer to pay a guarantee payment in respect of that day; and, conversely, any guarantee payment paid in respect of a day goes towards discharging any liability of the employer to pay contractual remuneration in respect of that day.

3 For the purposes of paragraph (2), contractual remuneration shall be treated as paid in respect of a workless day—

a where it is expressed to be calculated or payable by reference to that day or any part of that day, to the extent that it is so expressed, and

b in any other case, to the extent that it represents guaranteed remuneration, rather than remuneration for work actually done, and is referable to that day when apportioned rateably between that day and any other workless period falling within the period in respect of which the remuneration is paid.

65 Power to modify provisions about guarantee payments¶

The Department may by order provide that in relation to any description of employees the provisions of—

a Articles 60(4) and (5), 62, 63(3) to (5) (as originally enacted or as varied under Article 63(7)) and 64, and

b so far as they apply for the purposes of those provisions, Article 5 and Chapter IV of Part I,

shall have effect subject to such modifications and adaptations as may be prescribed by the order.

66 Complaints to industrial tribunals¶

1 An employee may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of a guarantee payment to which the employee is entitled.

2 An industrial tribunal shall not consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal—

a before the end of the period of three months beginning with that day, or

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

3 Where an industrial tribunal finds a complaint under this Article well-founded, the tribunal shall order the employer to pay to the employee the amount of guarantee payment which it finds is due to him.

67 Exemption orders¶

1 Where—

a at any time there is in force a collective agreement, or an agricultural wages order, under which employees to whom the agreement or order relates have a right to guaranteed remuneration, and

b on the application of all the parties to the agreement, or of the Agricultural Wages Board for Northern Ireland, the appropriate Department (having regard to the provisions of the agreement or order) is satisfied that Article 60 should not apply to those employees,

it may make an order under this Article excluding those employees from the operation of that Article.

2 In this Article “agricultural wages order” means an order made under Article 4 of the ^M10 Agricultural Wages (Northern Ireland) Order 1977.

3 In paragraph (1) “the appropriate Department” means—

a in relation to a collective agreement, the Department, and

b in relation to an agricultural wages order, the Department of Agriculture.

4 The Department shall not make an order under this Article in respect of an agreement unless—

a the agreement provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee claims that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement and those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached, or

b the agreement indicates that an employee to whom the agreement relates may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement.

5 Where an order under this Article is in force in respect of an agreement indicating as described in sub-paragraph (b) of paragraph (4) an industrial tribunal shall have jurisdiction over a complaint such as is mentioned in that sub-paragraph as if it were a complaint falling within Article 66.

6 An order varying or revoking an earlier order under this Article may be made in pursuance of an application by all or any of the parties to the agreement in question, or the Agricultural Wages Board for Northern Ireland, or in the absence of such an application.

PART VA PROTECTED DISCLOSURES¶

67A Meaning of “protected disclosure”¶

In this Order a “protected disclosure” means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.

67B Disclosures qualifying for protection¶

1 In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

a that a criminal offence has been committed, is being committed or is likely to be committed,

b that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

c that a miscarriage of justice has occurred, is occurring or is likely to occur,

d that the health or safety of any individual has been, is being or is likely to be endangered,

e that the environment has been, is being or is likely to be damaged, or

f that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.

2 For the purposes of paragraph (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

3 A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

4 A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

5 In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within sub-paragraphs (a) to (f) of paragraph (1).

67C Disclosure to employer or other responsible person¶

1 A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure ^F492...—

a to his employer, or

b where the worker reasonably believes that the relevant failure relates solely or mainly to—

i the conduct of a person other than his employer, or

ii any other matter for which a person other than his employer has legal responsibility, to that other person.

2 A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

67D Disclosure to legal adviser¶

A qualifying disclosure is made in accordance with this Article if it is made in the course of obtaining legal advice.

67E Disclosure to Minister of the Crown or a Northern Ireland department¶

A qualifying disclosure is made in accordance with this Article if—

a the worker's employer is—

i an individual appointed under any statutory provision by a Minister of the Crown or a Northern Ireland department, or

ii a body any of whose members are so appointed, and

b the disclosure is made ^F493... to a Minister of the Crown or a Northern Ireland department.

67F Disclosure to prescribed person¶

1 A qualifying disclosure is made in accordance with this Article if the worker—

a makes the disclosure ^F494... to a person prescribed by an order made by the Department for the purposes of this Article, and

b reasonably believes—

i that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

ii that the information disclosed, and any allegation contained in it, are substantially true.

2 An order prescribing persons for the purposes of this Article may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.

67FA Prescribed persons: duty to report on disclosure of information¶

1 The Department may make regulations requiring a person prescribed for the purposes of Article 67F to produce an annual report on disclosures of information made to the person by workers.

2 The regulations must set out the matters that are to be covered in a report, but must not require a report to provide detail that would enable either of the following to be identified—

a a worker who has made a disclosure;

b an employer or other person in respect of whom a disclosure has been made.

3 The regulations must make provision about the publication of a report, and such provision may include (but is not limited to) any of the following requirements—

a to send the report to the Department for laying before the Assembly or to the Secretary of State for laying before both Houses of Parliament;

b to include the report in another report or in information required to be published by the prescribed person;

c to publish the report on a website.

4 The regulations may make provision about the time period within which a report must be produced and published.

67G Disclosure in other cases¶

1 A qualifying disclosure is made in accordance with this Article if—

^F495a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

c he does not make the disclosure for purposes of personal gain,

d any of the conditions in paragraph (2) is met, and

e in all the circumstances of the case, it is reasonable for him to make the disclosure.

2 The conditions referred to in paragraph (1)(d) are—

a that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with Article 67F,

b that, in a case where no person is prescribed for the purposes of Article 67F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

c that the worker has previously made a disclosure of substantially the same information—

i to his employer, or

ii in accordance with Article 67F.

3 In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

a the identity of the person to whom the disclosure is made,

b the seriousness of the relevant failure,

c whether the relevant failure is continuing or is likely to occur in the future,

d whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

e in a case falling within paragraph (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with Article 67F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

f in a case falling within paragraph (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

4 For the purposes of this Article a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in paragraph (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

67H Disclosure of exceptionally serious failure¶

1 A qualifying disclosure is made in accordance with this Article if—

^F497a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

c he does not make the disclosure for purposes of personal gain,

d the relevant failure is of an exceptionally serious nature, and

e in all the circumstances of the case, it is reasonable for him to make the disclosure.

2 In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

67J Contractual duties of confidentiality¶

1 Any provision in an agreement to which this Article applies is void in so far as it purports to preclude the worker from making a protected disclosure.

2 This Article applies to any agreement between a worker and his employer (whether a worker's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Order or any proceedings for breach of contract.

67K Extension of meaning of “worker” etc. for Part VA¶

1 For the purposes of this Part “worker” includes an individual who is not a worker as defined by Article 3(3) but who—

a works or worked for a person in circumstances in which—

i he is or was introduced or supplied to do that work by a third person, and

ii the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked,by thethird person orby both ofthem,

b contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within Article 3(3)(b) if for “personally” in that provision there were substituted “ (whether personally or otherwise) ”,

ba works or worked as a person performing services under a contract entered into by him with the Department of Health under Article 57 of the Health and Personal Social Services (Northern Ireland) Order 1972,

c works or worked as a person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made by the Department of Health under Article 56, 61, 62 or 63 of the Health and Personal Social Services (Northern Ireland) Order 1972, ^F499...

ca is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with Article 15(6)(a) of the Nursing and Midwifery Order 2001 (S.I. 2002/253); or

d is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

i under a contract of employment, or

ii by an educational establishment on a course run by that establishment;

and any reference to a worker's contract, to employment or to a worker being “employed” shall be construed accordingly.

2 For the purposes of this Part “employer” includes—

a in relation to a worker falling within sub-paragraph (a) of paragraph (1), the person who substantially determines or determined the terms on which he is or was engaged,

aa in relation to a worker falling within sub-paragraph (ba) of that paragraph, the Department of Health ;

b in relation to a worker falling within sub-paragraph (c) of that paragraph, the Department of Health , and

c in relation to a worker falling within sub-paragraph (ca) or (d) of that paragraph, the person providing the work experience or training.

3 In this Article “educational establishment” includes any university, college, school or other educational establishment.

4 The Department may by order make amendments to this Article as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in Article 3(3)).

5 An order under paragraph (4) may not make an amendment that has the effect of removing a category of individual unless the Department is satisfied that there are no longer any individuals in that category.

67KA Application of Part VA and related provisions to police¶

1 Paragraph (2) applies for the purposes of—

a this Part,

b Article 70B and Articles 71 and 72 so far as relating to that Article, and

c Article 134A and the other provisions of Part XI so far as they relate to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 134A.

2 A person who holds, otherwise than under a contract of employment, the office of constable shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being “employed” and to his “employer” shall be construed accordingly.

3 In this Article “the relevant officer”

a in relation to a police officer, means the Chief Constable;

b ^F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c in relation to any other person holding the office of constable, means the person who has the direction and control of the body of constables in question.

67L Other interpretative provisions¶

1 In this Part—

“Northern Ireland department” includes the head of a Northern Ireland department;
“qualifying disclosure” has the meaning given by Article 67B;
“the relevant failure”, in relation to a qualifying disclosure, has the meaning given by Article 67B(5).

2 In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any statutory provision.

3 Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.

PART VI PROTECTION FROM SUFFERING DETRIMENT ETC. IN EMPLOYMENT¶

CHAPTER I RIGHTS NOT TO SUFFER DETRIMENT¶

67M Jury service¶

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 on the ground that the employee—

a has been summoned under the Juries (Northern Ireland) Order 1996 (NI 6) or the Coroners (Northern Ireland) Act 1959 (c.15) to attend for service as a juror, or

b has been absent from work because he attended at any place in pursuance of being so summoned.

2 This Article does not apply where the detriment in question amounts to dismissal within the meaning of Part XI.

3 For the purposes of this Article, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration.

4 In paragraph (3) “a relevant period” means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in paragraph (1)(a).

68 Health and safety cases¶

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,

ba the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations (Northern Ireland) 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),

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,

^F579d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F580e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1A A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the worker’s employer done on the ground that—

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

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

2 For the purposes of paragraph (1A)(b) whether steps which a worker 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 A worker is not to be regarded as having been subjected to any detriment on the ground specified in paragraph (1A)(b) if the employer shows that it was (or would have been) so negligent for the worker to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

4 ^F36. . . this Article does not apply where the worker is an employee and the detriment in question amounts to dismissal (within the meaning of Part XI).

68A Working time cases¶

1 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 the worker-

a refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations (Northern Ireland) 2016 ,

b refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

c failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations,

d being—

i a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or

ii a candidate in an election in which any person elected will, on being elected, be such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate,

e brought proceedings against the employer to enforce a right conferred on him by those Regulations, or

f alleged that the employer had infringed such a right.

2 It is immaterial for the purposes of paragraph (1)(e) or (f)—

a whether or not the worker has the right, or

b whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.

3 It is sufficient for paragraph (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

4 This Article does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part XI^F38. . . .

5 A reference in this Article to the Working Time Regulations (Northern Ireland) 2016 includes a reference to

a the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

b the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 ; ^F369...

c the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008; and

d the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018.

69 Trustees of occupational pension schemes¶

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 ^F42. . . this Article does not apply where the detriment in question amounts to dismissal (within the meaning of Part XI).

2A This Article applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).

3 In this Article “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the ^M11 Pension Schemes (Northern Ireland) Act 1993) established under a trust.

70 Employee representatives¶

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 orregulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 or regulations 9, 13 and 15 of the Service Provision Change (Protection of Employment) Regulations 2006, 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.

1A An employee has the right not to be subjected to any detriment by any act, or by any deliberate failure to act, by his employer done on the ground of his participation in an election of employee representatives for the purposes of Part XIII of this Order or regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006or regulations 9, 13 and 15 of the Service Provision Change (Protection of Employment) Regulations 2006 .

2 ^F49. . . this Article does not apply where the detriment in question amounts to a dismissal (within the meaning of Part XI).

70A Employees exercising right to time off work for study or training¶

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 or the principal (within the meaning of Article 91A(3)) done on the ground that, being a person entitled to—

a time off under Article 91A(1) or (3), and

b remuneration under Article 91B(1) in respect of that time taken off,

the employee exercised (or proposed to exercise) that right or received (or sought to receive) such remuneration.

2 ^F51. . . this Article does not apply where the detriment in question amounts to dismissal (within the meaning of Part XI).

70B Protected disclosures¶

1 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 the worker has made a protected disclosure.

1A A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—

a by another worker of W's employer in the course of that other worker's employment, or

b by an agent of W's employer with the employer's authority,

on the ground that W has made a protected disclosure.

1B Where a worker is subjected to detriment by anything done as mentioned in paragraph (1A), that thing is treated as also done by the worker's employer.

1C For the purposes of paragraph (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.

1D In proceedings against W's employer in respect of anything alleged to have been done as mentioned in paragraph (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker—

a from doing that thing, or

b from doing anything of that description.

1E A worker or agent of W's employer is not liable by reason of paragraph (1A) for doing something that subjects W to detriment if—

a the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Order, and

b it is reasonable for the worker or agent to rely on the statement.

But this does not prevent the employer from being liable by reason of paragraph (1B).

2 ^F53. . . this Article does not apply where—

a the worker is an employee, and

b the detriment in question amounts to dismissal (within the meaning of Part XI).

3 For the purposes of this Article, and of Articles 71 and 72 so far as relating to this Article, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by Article 67K.

70C Leave for family and domestic reasons¶

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 for a prescribed reason.

2 A prescribed reason is one which is prescribed by regulations made by the Department and which relates to—

a pregnancy, childbirth or maternity,

aa time off under Article 85ZE,

ab time off under Article 85ZJ or 85ZL,

b ordinary, compulsory or additional maternity leave,

ba ordinary or additional adoption leave,

bb shared parental leave,

c parental leave,

ca paternity leave,

cb parental bereavement leave, or

d time off under Article 85A.

3 A reason prescribed under this Article in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement.

4 An agency worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the temporary work agency or the hirer done on the ground that—

a being a person entitled to the following time off or remuneration, the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration—

i time off under Article 85ZA, and

ii remuneration under Article 85ZB in respect of that time off,

b being a person entitled to time off under Article 85ZG, the agency worker exercised (or proposed to exercise) that right,

c being a person entitled to the following time off or remuneration, the agency worker exercised (or proposed to exercise) that right or received (or sought to receive) that remuneration—

i time off under Article 85ZN, and

ii remuneration under Article 85ZO in respect of that time off, or

d being a person entitled to time off under Article 85ZP, the agency worker exercised (or proposed to exercise) that right.

5 Paragraph (4) does not apply where the agency worker is an employee.

6 In this Article, the following have the same meaning as in the Agency Workers Regulations (Northern Ireland) 2011 (see regulations 2(2), 3 and 4 of the regulations)—

“agency worker”,
“hirer”,
“temporary work agency”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F56¶

70E Flexible working¶

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 the employee—

a made (or proposed to make) an application under Article 112F,

b exercised (or proposed to exercise) a right conferred on him under Article 112G,

c brought proceedings against the employer under Article 112H, or

d alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

2 This Article does not apply where the detriment in question amounts to dismissal within the meaning of Part XI.

^C3171 Complaints to industrial tribunals¶

1 An employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 67M, 68(1), 69, 70,70A, 70C(1) or 70E.

1YA A worker may present a complaint to an industrial tribunal that the worker has been subjected to a detriment in contravention of Article 68(1A).

1ZA A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 68A.

1A A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B.

1AA An agency worker may present a complaint to an industrial tribunal that the agency worker has been subjected to a detriment in contravention of Article 70C(4) by the temporary work agency or the hirer.

1B A person may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70D.

^C32^C33^C34^C662 On a complaint under paragraph (1), (1YA), (1ZA), (1A) or (1B) it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

2A On a complaint under paragraph (1AA) it is for the temporary work agency or (as the case may be) the hirer to show the ground on which any act, or deliberate failure to act, was done.

^C32^C33^C34^C663 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

3A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (3)(a).

^C32^C33^C34^C664 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 , a temporary work agency or a hirer 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.

^C335 In this Article and Article 72 any reference to the employer includes—

a where a person complains that he has been subjected to a dertiment in contravention of Article 70A, the principal (within the meaning of Article 91A(3)).

b in the case of proceedings against a worker or agent under Article 70B(1A), the worker or agent.

6 In—

a this Article, “agency worker”, and

b this Article and Article 72, “hirer” and “temporary work agency”,

have the same meaning as in the Agency Workers Regulations (Northern Ireland) 2011.

^C35^C6772 Remedies¶

^C36^C37^C381 Where an industrial tribunal finds a complaint under Article 71(1), (1YA), (1ZA), (1A) or (1B) 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.

1A Where an industrial tribunal finds a complaint under Article 71(1AA) 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 temporary work agency or (as the case may be) the hirer to the complainant in respect of the act or failure to act to which the complaint relates.

^C36^C37^C382 Subject to paragraphs (5ZA), (5A) and (6), 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.

^C36^C37^C383 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.

^C36^C37^C384 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.

^C36^C37^C385 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.

5ZA Where—

a the complaint is made under Article 71(1YA),

b the detriment to which the worker is subjected is the termination of the worker’s contract, and

c that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 11 if the worker had been an employee and had been dismissed for the reason specified in Article 132.

5A Where—

a the complaint is made under Article 71(1ZA),

b the detriment to which the worker is subjected is the termination of his worker's contract, and

c that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part XI if the worker had been an employee and had been dismissed for the reason specified in Article 132A.

6 Where—

a the complaint is made under Article 71(1A),

b the detriment to which the worker is subject is the termination of his worker's contract, and

c that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part XI if the worker had been an employee and had been dismissed for the reason specified in Article 134A.

6A Where—

a the complaint is made under Article 71(1A), and

b it appears to the tribunal that the protected disclosure was not made in good faith,

the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%.

7 Where—

a the complaint is made under Article 71(1B) by a person who is not an employee, and

b the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002,

any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 11 if the complainant had been an employee and had been dismissed for the reason specified in Article 135B.

72A Application to police of Article 68 and related provisions¶

1 For the purposes of Article 68, and of Articles 71 and 72 so far as relating to that Article, the holding, otherwise than under a contract of employment, of the office of constable -shall be treated as employment by the relevant officer under a contract of employment.

2 In this Article “the relevant officer”, in relation to a person holding the office of constable, means the person who under Article 47A of the Health and Safety at Work (Northern Ireland) Order 1978 is to be treated as his employer for the purposes of Part II of that Order.

CHAPTER II DETRIMENT¶

73 Detriment on grounds related to union membership or activities¶

1 A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main 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,^F72. . .

ba preventing or deterring him from making use of trade union services 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) “an appropriate time” means—

a a time outside the worker'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 or (as the case may be) make use of trade union services;

and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.

2A In this Article—

a “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and

b references to a worker's “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

2B If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in paragraph (1)(ba).

2C A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker's failure to accept an offer made in contravention of Article 77A or 77B.

2D For the purposes of paragraph (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).

3 A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of enforcing a requirement (whether or not imposed by a 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 a worker 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 a detriment to which he has been subjected as an individual by an act of his employer taking place for the sole or main 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^F72. . . .

5A References in this Chapter—

a to taking part in the activities of a trade union, and

b to services made available by a trade union by virtue of membership of the union,

shall be construed in accordance with paragraph (5).

6 This Article does not apply where—

a the worker is an employee; and

b the detriment in question amounts to dismissal.

7 In this Chapter—

“worker” means an individual who works, or normally works as mentioned in paragraphs (a) to (c) of the definition of “worker” in Article 2(2) of the 1995 Order; and
“employer” means—
1. in relation to a worker, the person for whom he works;
2. in relation to a former worker, the person for whom he worked.

74 Complaints to industrial tribunal¶

1 A worker or former worker may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment 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 act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them, or

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

3 For the purposes of paragraph (2)—

a where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

b a failure to act shall be treated as done when it was decided on.

4 For the purposes of paragraph (3), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—

a when he does an act inconsistent with doing the failed act; or

b 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.

75 Consideration of complaint¶

1 On a complaint under Article 74 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act.

2 In determining any question whether the employer acted or failed to act, or the purpose for which he did so, 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.

Paras. (3)-(5) rep. by 2004 NI 19

76 Remedies¶

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 act of failure 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 act or failure which infringed his right.

3 The loss shall be taken to include—

a any expenses reasonably incurred by the complainant in consequence of the act or failure complained of, and

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

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 act or failure 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.

77 Awards against third parties¶

1 If in proceedings on a complaint under Article 74—

a the complaint is made on the ground that the complainant has been subjected to detriment by an act or failure by his employer taking place for the sole or main 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 act or fail to act in the way 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.

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.

CHAPTER III INDUCEMENTS¶

77A Inducements relating to union membership or activities¶

1 A worker has the right not to have an offer made to him by his employer for the sole or main purpose of inducing the worker—

a not to be or seek to become a member of an independent trade union,

b not to take part, at an appropriate time, in the activities of an independent trade union,

c not to make use, at an appropriate time, of trade union services, or

d 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) “an appropriate time” means—

a a time outside the worker's working hours, or

3 In paragraph (2) “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.

4 In paragraphs (1) and (2)—

a “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and

b references to a worker's “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.

5 A worker or former worker may present a complaint to an industrial tribunal on the ground that his employer has made him an offer in contravention of this Article.

77B Inducements relating to collective bargaining¶

1 A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—

a acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and

b the employer's sole or main purpose in making the offers is to achieve that result.

2 The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.

3 It is immaterial for the purposes of paragraph (1) whether the offers are made to the workers simultaneously.

4 Having terms of employment determined by collective agreement shall not be regarded for the purposes of Article 77A (or Article 73 or 136) as making use of a trade union service.

5 A worker of former worker may present a complaint to an industrial tribunal on the ground that his employer has made him an offer in contravention of this Article.

77C Time limit for proceedings¶

1 An industrial tribunal shall not consider a complaint under Article 77A or 77B unless it is presented—

a before the end of the period of three months beginning with the date when the offer was made or, where the offer is part of a series of similar offers to the complainant, the date when the last of them was made, or

b where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.

2 Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (1)(a).

77D Consideration of complaint¶

1 On a complaint under Article 77A it shall be for the employer to show what was his sole or main purpose in making the offer.

2 On a complaint under Article 77B it shall be for the employer to show what was his sole or main purpose in making the offers.

3 On a complaint under Article 77A or 77B, in determining any question whether the employer made the offer (or offers) or the purpose for which he did so, 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.

4 In determining whether an employer's sole or main purpose in making offers was the purpose mentioned in Article 77B(1), the matters taken into account must include any evidence—

a that when the offers were made the employer had recently changed or sought to change, or did not wish to use, arrangements agreed with the union for collective bargaining,

b that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining, or

c that the offers were made only to particular workers, and were made with the sole or main purpose of rewarding those particular workers for their high level of performance or of retaining them because of their special value to the employer.

77E Remedies¶

1 Paragraphs (2) and (3) apply where the industrial tribunal finds that a complaint under Article 77A or 77B is well‐founded.

2 The tribunal—

a shall make a declaration to that effect, and

b shall make an award to be paid by the employer to the complainant in respect of the offer complained of.

3 The amount of the award shall be £6,290 (subject to any adjustment of the award that may fall to be made under Part IV of the Employment (Northern Ireland) Order 2003).

4 Where an offer made in contravention of Article 77A or 77B is accepted—

a if the acceptance results in the worker's agreeing to vary his terms of employment, the employer cannot enforce the agreement to vary, or recover any sum paid or other asset transferred by him under the agreement to vary;

b if as a result of the acceptance the worker's terms of employment are varied, nothing in Article 77A or 77B makes the variation unenforceable by either party.

5 Nothing in this Article or Articles 77A and 77B prejudices any right conferred by Article 73 or 76.

6 In ascertaining any amount of compensation under Article 76, no reduction shall be made on the ground—

a that the complainant caused or contributed to his loss, or to the act or failure complained of, by accepting or not accepting an offer made in contravention of Article 77A or 77B, or

b that the complainant has received or is entitled to an award under this Article.

77F Interpretation and other supplementary provisions¶

1 References in Articles 77A to 77E to being or becoming a member of a trade union include references—

a to being or becoming a member of a particular branch or section of that union, and

b to being or becoming a member of one of a number of particular branches or sections of that union.

2 References in those Articles—

a to taking part in the activities of a trade union, and

b to services made available by a trade union by virtue of membership of the union,

shall be construed in accordance with paragraph (1).

3 In Articles 77A to 77E—

“worker” means an individual who works, or normally works as mentioned in paragraphs (a) to (c) of the definition of “worker” in Article 2(2) of the 1995 Order; and
“employer” means—
1. in relation to a worker, the person for whom he works;
2. in relation to a former worker, the person for whom he worked.

PART VII TIME OFF WORK¶

Public duties¶

78 Right to time off for public duties¶

1 An employer shall permit an employee of his who is a justice of the peace to take time off during the employee's working hours for the purpose of performing any of the duties of his office.

2 An employer shall permit an employee of his who is a member of—

a a district council,

aa the Northern Ireland Library Authority;

b a statutory tribunal,

c an independent monitoring board appointed under section 10 of the Prison Act (Northern Ireland) 1953;

d a relevant health body,^F85. . .

e a relevant education body,[^F85 or

f a policing and community safety partnership or a district policing and community partnership,]

to take time off during the employee's working hours for the purposes specified in paragraph (3).

3 The purposes referred to in paragraph (2) are—

a attendance at a meeting of the body or any of its committees or sub-committees, and

b the doing of any other thing approved by the body, or anything of a class so approved, for the purpose of the discharge of the functions of the body or of any of its committees or sub-committees.

4 The amount of time off which an employee is to be permitted to take under this Article, and the occasions on which and any conditions subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard, in particular,

a how much time off is required for the performance of the duties of the office or as a member of the body in question, and how much time off is required for the performance of the particular duty,

b how much time off the employee has already been permitted under this Article or Article 92 or 94, and

c the circumstances of the employer's business and the effect of the employee's absence on the running of that business.

Para. (5) rep. by 2005 NI 15

6 In paragraph (2)(d) “a relevant health body” means—

^F622a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b a Health and Social Care Trust.

7 In paragraph (2)(e) “a relevant education body” means—

a the Education Authority;

b the Council for Catholic Maintained Schools;

c the Northern Ireland Council for the Curriculum, Examinations and Assessment,

cc the General Teaching Council for Northern Ireland;

d the Board of Governors of a grant-aided school,

e the governing body of an institution of further education, or

f the managers of a college of education.

^F3637A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 The Department may by order—

a modify the provisions of paragraphs (1) and (2) and (5) to (7) by adding any office or body, removing any office or body or altering the description of any office or body, or

b modify the provisions of paragraph (3).

9 For the purposes of this Article the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

79 Complaints to industrial tribunals¶

1 An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by Article 78.

2 An industrial tribunal shall not consider a complaint under this Article that an employer has failed to permit an employee to take time off unless it is presented—

a before the end of the period of three months beginning with the date on which the failure occurred, or

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

3 Where an industrial tribunal finds a complaint under this Article 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 employee.

4 The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard

a the employer's default in failing to permit time off to be taken by the employee, and

b any loss sustained by the employee which is attributable to the matters to which the complaint relates.

Looking for work and making arrangements for training¶

80 Right to time off to look for work or arrange training¶

1 An employee who is given notice of dismissal by reason of redundancy is entitled to be permitted by his employer to take reasonable time off during the employee's working hours before the end of his notice in order to—

a look for new employment, or

b make arrangements for training for future employment.

2 An employee is not entitled to take time off under this Article unless, on whichever is the later of—

a the date on which the notice is due to expire, and

b the date on which it would expire were it the notice required to T be given by Article 118(1),

he will have been (or would have been) continuously employed for a period of two years or more.

3 For the purposes of this Article the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

81 Right to remuneration for time off under Article 80¶

1 An employee who is permitted to take time off under Article 80 is entitled to be paid remuneration by his employer for the period of absence at the appropriate hourly rate.

2 The appropriate hourly rate, in relation to an employee, is the amount of one week's pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the notice of dismissal was given.

3 But where the number of normal working hours differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the employee's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the notice was given.

4 If an employer unreasonably refuses to permit an employee to take time off from work as required by Article 80, the employee is entitled to be paid an amount equal to the remuneration to which he would have been entitled under paragraph (1) if he had been permitted to take the time off.

5 The amount of an employer's liability to pay remuneration under paragraph (1) shall not exceed, in respect of the notice period of any employee, forty per cent. of a week's pay of that employee.

6 A right to any amount under paragraph (1) or (4) does not affect any right of an employee in relation to remuneration under his contract of employment (( “contractual remuneration”).

7 Any contractual remuneration paid to an employee in respect of a period of time off under Article 80 goes towards discharging any liability of the employer to pay remuneration under paragraph (1) in respect of that period; and, conversely, any payment of remuneration under paragraph (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

82 Complaints to industrial tribunals¶

1 An employee may present a complaint to an industrial tribunal that his employer—

a has unreasonably refused to permit him to take time off as required by Article 80, or

b has failed to pay the whole or any part of any amount to which the employee is entitled under Article 81(1) or (4).

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 on which it is alleged that the time off should have been permitted, or

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

3 Where an industrial tribunal finds a complaint under this Article well-founded, the tribunal shall—

a make a declaration to that effect, and

b order the employer to pay to the employee the amount which it finds due to him.

4 The amount which may be ordered by a tribunal to be paid by an employer under paragraph (3) (or, where the employer is liable to pay remuneration under Article 81, the aggregate of that amount and the amount of that liability) shall not exceed, in respect of the notice period of any employee, forty per cent. of a week's pay of that employee.

Ante-natal care¶

83 Right to time off for ante-natal care¶

1 An employee who—

a is pregnant, and

b has, on the advice of a registered medical practitioner, registered midwife or registered health visitor, made an appointment to attend at any place for the purpose of receiving ante-natal care,

is entitled to be permitted by her employer to take time off during the employee's working hours in order to enable her to keep the appointment.

2 An employee is not entitled to take time off under this Article to keep an appointment unless, if her employer requests her to do so, she produces for his inspection—

a a certificate from a registered medical practitioner, registered midwife or registered health visitor stating that the employee is pregnant, and

b an appointment card or some other document showing that the appointment has been made.

3 Paragraph (2) does not apply where the employee's appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with paragraph (1).

4 For the purposes of this Article the working hours of an employee shall be taken to be any time when, in accordance with her contract of employment, the employee is required to be at work.

84 Right to remuneration for time off under Article 83¶

1 An employee who is permitted to Article 83 is entitled to be paid remuneration by period of absence at the appropriate hourly rate. take time off under her employer for the

3 But where the number of normal working hours differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by—

4 The considerations referred to in paragraph (3)(b) are—

a the average number of normal working hours in a week which the employee could expect in accordance with the terms of her contract, and

b the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

5 A right to any amount under paragraph (1) does not affect any right of an employee in relation to remuneration under her contract of employment ( “contractual remuneration”).

6 Any contractual remuneration paid to an employee in respect of a period of time off under Article 83 goes towards discharging any liability of the employer to pay remuneration under paragraph (1) in respect of that period; and, conversely, any payment of remuneration under paragraph (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

85 Complaints to industrial tribunals¶

1 An employee may present a complaint to an industrial tribunal that her employer—

a has unreasonably refused to permit her to take time off as required by Article 83, or

b has failed to pay the whole or any part of any amount to which the employee is entitled under Article 84.

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 appointment concerned, or

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

3 Where an industrial tribunal finds a complaint under this Article well-founded, the tribunal shall make a declaration to that effect.

4 If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount that is twice the amount of the remuneration to which she would have been entitled under Article 84 if the employer had not refused.

5 If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which she is entitled under Article 84, the tribunal shall also order the employer to pay to the employee the amount which it finds due to her.

Ante-natal care: agency workers¶

85ZA Right to time off for ante-natal care (agency workers)¶

1 An agency worker who—

a is pregnant, and

b has, on the advice of a registered medical practitioner, registered midwife or registered health visitor, made an appointment to attend at any place for the purpose of receiving ante-natal care,

is entitled to be permitted, by the temporary work agency and the hirer, to take time off during the agency worker's working hours in order to enable her to keep the appointment.

2 An agency worker is not entitled to be permitted by either of those persons to take time off under this Article to keep an appointment unless, if that person requests her to do so, she produces for that person's inspection—

a a certificate from a registered medical practitioner, registered midwife or registered health visitor stating that the agency worker is pregnant, and

b an appointment card or some other document showing that the appointment has been made.

3 Paragraph (2) does not apply where the agency worker's appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with paragraph (1).

4 For the purposes of this Article the working hours of an agency worker shall be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work.

5 In this Article references to a registered health visitor have the same meaning as in Article 83(1)(b).

85ZB Right to remuneration for time off under Article 85ZA¶

1 An agency worker who is permitted to take time off under Article 85ZA is entitled to be paid remuneration by the temporary work agency for the period of absence at the appropriate hourly rate.

2 The appropriate hourly rate, in relation to an agency worker, is the amount of one week's pay divided by the number of normal working hours in a week for that agency worker in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer that are in force on the day when the time off is taken.

3 But where the number of normal working hours during the assignment differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the agency worker's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken.

4 A right to any amount under paragraph (1) does not affect any right of an agency worker in relation to remuneration under her contract with the temporary work agency (““contractual remuneration””).

5 Any contractual remuneration paid to an agency worker in respect of a period of time off under Article 85ZA goes towards discharging any liability of the temporary work agency to pay remuneration under paragraph (1) in respect of that period; and, conversely, any payment of remuneration under paragraph (1) in respect of a period goes towards discharging any liability of the temporary work agency to pay contractual remuneration in respect of that period.

85ZC Complaints to industrial tribunals: agency workers¶

1 An agency worker may present a complaint to an industrial tribunal that the temporary work agency—

a has unreasonably refused to permit her to take time off as required by Article 85ZA, or

b has failed to pay the whole or any part of any amount to which she is entitled under Article 85ZB.

2 An agency worker may present a complaint to an industrial tribunal that the hirer has unreasonably refused to permit her to take time off as required by Article 85ZA.

3 An industrial tribunal shall not consider a complaint under paragraph (1) or (2) unless it is presented—

a before the end of the period of three months beginning with the date of the appointment concerned, or

3A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (3).

4 Where an industrial tribunal finds a complaint under this Article well-founded, the tribunal shall make a declaration to that effect.

5 If the complaint is that the temporary work agency or hirer has unreasonably refused to permit the agency worker to take time off, the tribunal shall also order payment to the agency worker of an amount that is twice the amount of the remuneration to which she would have been entitled under Article 85ZB if she had not been refused the time off.

6 Where the tribunal orders payment under paragraph (5), the amount payable by each party shall be such as may be found by the tribunal to be just and equitable having regard to the extent of each respondent's responsibility for the infringement to which the complaint relates.

7 If the complaint is that the temporary work agency has failed to pay the agency worker the whole or part of any amount to which she is entitled under Article 85ZB, the tribunal shall also order the temporary work agency to pay to the agency worker the amount which it finds due to her.

85ZD Agency workers: supplementary¶

1 Without prejudice to any other duties of the hirer or temporary work agency under any statutory provision or rule of law Articles 85ZA to 85ZC do not apply where the agency worker—

a has not completed the qualifying period, or

b is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations (Northern Ireland) 2011 pursuant to regulation 8(a) or (b) of those Regulations.

2 Nothing in those Articles imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer.

3 Those Articles do not apply where Articles 85 to 87 apply.

4 In this Article and Articles 85ZA to 85ZC the following have the same meaning as in the Agency Workers Regulations (Northern Ireland) 2011—

““agency worker””;
““assignment””;
““hirer””;
““qualifying period””;
““temporary work agency””.

Accompanying to ante-natal appointments¶

85ZE Right to time off to accompany to ante-natal appointments¶

1 An employee who has a qualifying relationship with a pregnant woman or her expected child is entitled to be permitted by his or her employer to take time off during the employee's working hours in order that he or she may accompany the woman when she attends by appointment at any place for the purpose of receiving ante-natal care.

2 In relation to any particular pregnancy, an employee is not entitled to take time off for the purpose specified in paragraph (1) on more than two occasions.

3 On each of those occasions, the maximum time off during working hours to which the employee is entitled is six and a half hours.

4 An employee is not entitled to take time off for the purpose specified in paragraph (1) unless the appointment is made on the advice of a registered medical practitioner, registered midwife or registered health visitor.

5 Where the employer requests the employee to give the employer a declaration signed by the employee, the employee is not entitled to take time off for the purpose specified in paragraph (1) unless the employee gives that declaration (which may be given in electronic form).

6 The employee must state in the declaration—

a that the employee has a qualifying relationship with a pregnant woman or her expected child,

b that the employee's purpose in taking time off is the purpose specified in paragraph (1),

c that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered health visitor, and

d the date and time of the appointment.

7 A person has a qualifying relationship with a pregnant woman or her expected child if—

a the person is the spouse or civil partner of the pregnant woman,

b the person, being of a different sex or the same sex, lives with the woman in an enduring family relationship but is not a relative of the woman,

c the person is the father of the expected child,

d the person is a parent of the expected child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, ^F512...

e the person is a potential applicant for a parental order under section 54 of that Act in respect of the expected child, or

f the person is a potential applicant for a parental order under section 54A of that Act in respect of the expected child.

8 For the purposes of paragraph (7), a relative of a person is the person's parent, grandparent, sister, brother, aunt or uncle.

9 The references to relationships in paragraph (8)—

a are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption, and

b include the relationship of a child with the child's adoptive, or former adoptive, parents,

but do not include any other adoptive relationships.

10 For the purposes of paragraph (7)(e), a person (“A”) is a potential applicant for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of an expected child only if—

a A intends to apply, jointly with another person (“B”), for such an order in respect of the expected child within the time allowed by subsection (3) of that section,

b the expected child is being carried by the pregnant woman as a result of such procedure as is described in subsection (1)(a) of that section,

c the requirement in subsection (1)(b) of that section is satisfied by reference to A or B,

d A and B would satisfy subsection (2) of that section if they made an application under that section at the time that A seeks to exercise the right under this Article, and

e A expects that A and B will satisfy the conditions in subsections (2), (4), (5) and (8) of that section as regards the intended application.

10A For the purposes of paragraph (7)(f) a person is a potential applicant for a parental order under section 54A of the Human Fertilisation and Embryology Act 2008 in respect of an expected child only if—

a the person intends to apply for such an order in respect of the expected child within the time allowed by subsection (2) of that section,

b the expected child is being carried by the pregnant woman as a result of such procedure as is described in subsection (1)(a) of that section,

c the requirement in subsection (1)(b) of that section is satisfied by reference to the person, and

d the person expects that he or she will satisfy the conditions in subsections (3), (4) and (7) of that section as regards the intended application.

11 For the purposes of this Article, the working hours of an employee are to be taken to be any time when, in accordance with the employee's contract of employment, the employee is required to be at work.

85ZF Complaint to industrial tribunal¶

1 An employee may present a complaint to an industrial tribunal that his or her employer has unreasonably refused to let him or her take time off as required by Article 85ZE.

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

a before the end of the period of three months beginning with the day of the appointment in question, or

2A Article 249B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2)(a).

3 Where an industrial tribunal finds a complaint under paragraph (1) well-founded, it—

a must make a declaration to that effect, and

b must order the employer to pay to the employee an amount determined in accordance with paragraph (4).

4 The amount payable to the employee is—

A \times B \times 2

where—

A is the appropriate hourly rate for the employee, and
B is the number of working hours for which the employee would have been entitled under Article 85ZE to be absent if the time off had not been refused.

5 The appropriate hourly rate, in relation to an employee, is the amount of one week's pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off would have been taken.

6 But where the number of normal working hours differs from week to week or over a longer period, the amount of one week's pay is to be divided instead by—

a the average number of normal working hours, calculated by dividing by twelve the total number of the employee's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off would have been taken, or

7 The considerations referred to in paragraph (6)(b) are—

a the average number of normal working hours in a week which the employee could expect in accordance with the terms of the employee's contract, and

b the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

Accompanying to ante-natal appointments: agency workers¶

85ZG Right to time off to accompany to ante-natal appointments: agency workers¶

1 An agency worker who has a qualifying relationship with a pregnant woman or her expected child is entitled to be permitted, by the temporary work agency and the hirer, to take time off during the agency worker's working hours in order that he or she may accompany the woman when she attends by appointment at any place for the purpose of receiving ante-natal care.when she attends by appointment at any place for the purpose of receiving ante-natal care.

2 In relation to any particular pregnancy, an agency worker is not entitled to take time off for the purpose specified in paragraph (1) on more than two occasions.

3 On each of those occasions, the maximum time off during working hours to which the agency worker is entitled is six and a half hours.

4 An agency worker is not entitled to take time off for the purpose specified in paragraph (1) unless the appointment is made on the advice of a registered medical practitioner, registered midwife or registered health visitor.

5 Where the temporary work agency or the hirer requests the agency worker to give that person a declaration signed by the agency worker, the agency worker is not entitled to take time off for the purpose specified in paragraph (1) unless the agency worker gives that declaration (which may be given in electronic form).

6 The agency worker must state in the declaration—

a that the agency worker has a qualifying relationship with a pregnant woman or her expected child,

b that the agency worker's purpose in taking time off is the purpose specified in paragraph (1),

c that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered health visitor, and

d the date and time of the appointment.

7 A person has a qualifying relationship with a pregnant woman or her expected child if—

a the person is the spouse or civil partner of the pregnant woman,

b the person, being of a different sex or the same sex, lives with the woman in an enduring family relationship but is not a relative of the woman,

c the person is the father of the expected child,

d the person is a parent of the expected child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, ^F515...