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INDUSTRIAL RELATIONS (NORTHERN IRELAND) ORDER 1976 - SECT 22



22.(1) In determining for the purposes of this Order whether the dismissal of
an employee was fair or unfair, it shall be for the employer to show

(a)what was the reason (or, if there was more than one, the principal reason)
for the dismissal, and

(b) that it was a reason falling within paragraph (2), or some other
substantial reason of a kind such as to justify the dismissal of an employee
holding the position which that employee held.

(2) In paragraph (1)(b) the reference to a reason falling within this
paragraph is a reference to a reason which

(a)related to the capability or qualifications of the employee for performing
work of the kind which he was employed by the employer to do, or

(b)related to the conduct of the employee, or

(c)was that the employee was redundant, or

(d)was that the employee could not continue to work in the position which he
held without contravention (either on his part or on that of his employer) of
a duty or restriction imposed by or under a statutory provision.

(3) Where the employer has fulfilled the requirements of paragraph (1), then,
subject to Article 23, the question whether the dismissal was fair or unfair
shall be determined in accordance with the following provisions of this
Article.

(4) For the purposes of this Order the dismissal of an employee by an employer
shall be regarded as having been unfair if the reason for it (or, if more than
one, the principal reason) was that the employee

(a)was, or proposed to become, a member of an independent trade union;

(b)had taken, or proposed to take, part at any appropriate time in the
activities of an independent trade union; or

(c)had refused, or proposed to refuse, to become or remain a member of a trade
union which was not an independent trade union.

(5) In paragraph (4), "appropriate time" in relation to an employee taking
part in the activities of a trade union, means time which either

(a)is outside his working hours, or

(b)is 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 those activities;

(6) Dismissal of an employee by an employer shall be regarded as fair for the
purposes of this Order if

(a)it is the practice, in accordance with a union membership agreement for
employees for the time being of the same class as the dismissed employee to
belong to a specified independent trade union, or to one of a number of
specified independent trade unions; and

(b)the reason for the dismissal was that the employee was not a member of the
specified union or one of the specified unions, or had refused or proposed to
refuse to become or remain a member of that union or one of those unions;

(7) For the purposes of paragraph (6) a union shall be treated as specified
for the purposes of or in relation to a union membership agreement (in a case
where it would not otherwise be so treated) if

(a)the Agency has made a recommendation under Article 7(1) for recognition of
that union covering the employee in question; or

(b)the Agency is exercising, or has been requested to exercise, its powers
under Article 7 in relation to a dispute relating to or connected with
recognition of that union covering that employee and the dispute has not been
settled or otherwise disposed of by the Agency under that Article.

(8) Any reason by virtue of which a dismissal is to be regarded as unfair in
consequence of paragraph (4) or (6) is hereafter in this Order referred to as
an inadmissible reason.

(9) Where the reason or principal reason for the dismissal of an employee was
that he was redundant, but it is shown that the circumstances constituting the
redundancy applied equally to one or more other employees in the same
undertaking who held positions similar to that held by him and who have not
been dismissed by the employer, and either

(a)that the reason (or, if more than one, the principal reason) for which he
was selected for dismissal was an inadmissible reason; or

(b)that he was selected for dismissal in contravention of a customary
arrangement or agreed procedure relating to redundancy and there were no
special reasons justifying a departure from that arrangement or procedure in
his case,

(10) Subject to paragraphs (4) to (9), the determination of the question
whether the dismissal was fair or unfair, having regard to the reason shown by
the employer, shall depend on whether the employer can satisfy the tribunal
that in the circumstances (having regard to equity and the substantial merits
of the case) he acted reasonably in treating it as a sufficient reason for
dismissing the employee.

(11) In this Article, references to a trade union include references to a
branch or section of a trade union, and, in relation to an employee

(a)"capability" means capability assessed by reference to skill, aptitude,
health and any other physical or mental quality;

(b)"qualifications" means any degree, diploma or other academic, technical or
professional qualification relevant to the position which the employee held.



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