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Statutory Instruments 1998 No. 1265 (N.I. 8)
The Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 - continued

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Effect of arbitration agreements
     9.  - (1) In Article 77 of the Sex Discrimination (Northern Ireland) Order 1976 (paragraph (3) of which prohibits contracting out of the provisions of that Order or the Equal Pay Act (Northern Ireland) 1970, but subject to exceptions specified in paragraph (4)), after paragraph (4C) there shall be added - 

        " (4D) An agreement under which the parties agree to submit a dispute to arbitration - 

      (a) shall be regarded for the purposes of paragraph (4)(a) and (aa) as being a contract settling a complaint if - 

        (i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992; and

        (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

      (b) shall be regarded for those purposes as neither being nor including such a contract in any other case.".

    (2) In Article 146 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 (paragraph (1) of which prohibits contracting out of the provisions of that Order, but subject to exceptions specified in paragraphs (2) and (3)), after paragraph (6) there shall be added - 

        " (7) An agreement under which the parties agree to submit a dispute to arbitration - 

      (a) shall be regarded for the purposes of paragraphs (2) and (3) as being an agreement to refrain from instituting or continuing proceedings if - 

        (i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992; and

        (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

      (b) shall be regarded for those purposes as neither being nor including such an agreement in any other case.".

    (3) In section 9 of the Disability Discrimination Act 1995 (subsection (1) of which prohibits contracting out of the provisions of Part II of that Act, but subject to exceptions specified in subsection (2)), after subsection (5) there shall be added - 

        " (6) An agreement under which the parties agree to submit a dispute to arbitration - 

      (a) shall be regarded for the purposes of subsection (2) as being an agreement not to institute, or an agreement not to continue, proceedings if - 

        (i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992, and

        (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

      (b) shall be regarded as neither being nor including such an agreement in any other case.".

    (4) In Article 245 of the Employment Rights (Northern Ireland) Order 1996 (paragraph (1) of which prohibits contracting out of the provisions of that Order, but subject to exceptions specified in paragraph (2)), after paragraph (4) there shall be added - 

        " (5) An agreement under which the parties agree to submit a dispute to arbitration - 

      (a) shall be regarded for the purposes of paragraph (2)(e) and (f) as being an agreement to refrain from instituting or continuing proceedings if - 

        (i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992, and

        (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

      (b) shall be regarded as neither being nor including such an agreement in any other case.".

    (5) In Article 68 of the Race Relations (Northern Ireland) Order 1997 (paragraph (5) of which prohibits contracting out of the provisions of that Order, but subject to exceptions specified in paragraph (6)), after paragraph (9) there shall be added - 

        " (10) An agreement under which the parties agree to submit a dispute to arbitration - 

      (a) shall be regarded for the purposes of paragraph (6)(a) and

      (b) as being a contract settling a complaint if - 

        (i) the dispute is covered by a scheme having effect by virtue of an order under Article 84A of the Industrial Relations (Northern Ireland) Order 1992; and

        (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

      (b) shall be regarded for those purposes as neither being nor including such a contract in any other case.".

    Compromise agreements

Advice of non-lawyer
    
10.  - (1) In each of the provisions specified in paragraph (2) (which provide that, for a compromise agreement to be valid, independent legal advice must have been received from a qualified lawyer), for "independent legal advice from a qualified lawyer" there shall be substituted "advice from a relevant independent adviser".

    (2) The provisions referred to in paragraph (1) are - 

    (a) Article 77(4A)(c) of the Sex Discrimination (Northern Ireland) Order 1976;

    (b) Article 146(4)(c) of the Trade Union and Labour Relations (Northern Ireland) Order 1995;

    (c) section 9(3)(a) of the Disability Discrimination Act 1995;

    (d) Article 245(3)(c) of the Employment Rights (Northern Ireland) Order 1996; and

    (e) Article 68(7)(c) of the Race Relations (Northern Ireland) Order 1997.

Indemnity cover
    
11.  - (1) In each of the provisions specified in paragraph (2) (which provide that, for a compromise agreement to be valid, there must have been in force a policy of insurance covering the risk of a claim against the person who provided the advice about the agreement), for "policy of insurance" there shall be substituted "contract of insurance, or an indemnity provided for members of a profession or professional body,".

    (2) The provisions referred to in paragraph (1) are - 

    (a) Article 77(4A)(d) of the Sex Discrimination (Northern Ireland) Order 1976;

    (b) Article 146(4)(d) of the Trade Union and Labour Relations (Northern Ireland) Order 1995;

    (c) section 9(3)(b) of the Disability Discrimination Act 1995;

    (d) Article 245(3)(d) of the Employment Rights (Northern Ireland) Order 1996; and

    (e) Article 68(7)(d) of the Race Relations (Northern Ireland) Order 1997;

    Other provisions

Settlements of redundancy cases
    
12.  - (1) In Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996 (which specifies the proceedings in relation to which the provisions about conciliation apply), in sub-paragraph (c) (proceedings under the Employment Rights (Northern Ireland) Order 1996) after head (ix) there shall be inserted - 

        " (ixa) Article 170 (redundancy payment);".

    (2) In Article 201(2) of the Employment Rights (Northern Ireland) Order 1996 (which defines "employer's payment" for the purposes of the provisions requiring the Department to make a payment to an employee whose employer is liable to pay him an employer's payment), after sub-paragraph (a) there shall be inserted - 

      " (aa) a payment which his employer is liable to make to him under an agreement to refrain from instituting or continuing proceedings for a contravention or alleged contravention of Article 170 which has effect by virtue of Article 245(2)(e) or (f), or".

    (3) In Article 203(1) of that Order (which specifies the amount which the Department is required to pay in respect of an employer's payment), after sub-paragraph (a) there shall be inserted - 

      " (aa) where the employer's payment to which the employee's application under Article 201 relates is a payment which his employer is liable to make to him under an agreement having effect by virtue of Article 245(2)(e) or (f), is a sum equal to the amount of the employer's payment or of any redundancy payment which the employer would have been liable to pay to the employee but for the agreement, whichever is less, and".

Dismissal procedures agreements
    
13.  - (1) In Article 142 of the Employment Rights (Northern Ireland) Order 1996 (which provides that the statutory right not to be unfairly dismissed does not apply to employees covered by a designated dismissal procedures agreement), for paragraph (2) (which provides that the statutory right nevertheless applies in the case of dismissals specified in certain statutory provisions) there shall be substituted - 

        " (2) But if the agreement includes provision that it does not apply to dismissals of particular descriptions, paragraph (1) does not apply in relation to a dismissal of any such description.".

    (2) In paragraph (3) of that Article (which specifies the matters as to which the Department must be satisfied before designating a dismissal procedures agreement), for sub-paragraph (e) (which requires a dismissal procedures agreement to provide for arbitration or independent adjudication where a decision cannot otherwise be reached) there shall be substituted - 

      " (e) the agreement includes provision either for arbitration in every case or for - 

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

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

    (3) After paragraph (5) of that Article there shall be added - 

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

    (4) In Article 229 of the Employment Rights (Northern Ireland) Order 1996 (which specifies the debts which the Department must satisfy if an employer has become insolvent) in paragraph (1)(d) (which specifies a basic award of compensation for unfair dismissal payable by the employer), after "dismissal" there shall be inserted "or so much of an award under a designated dismissal procedures agreement as does not exceed any basic award of compensation for unfair dismissal to which the employee would be entitled but for the agreement".

    (5) The amendments made by paragraphs (1) and (2) do not affect any dismissal procedures agreement designated by the Department before those paragraphs come into operation.



PART IV

AWARDS OF COMPENSATION

Internal appeal procedures and unfair dismissal awards
    
14. After Article 162 of the Employment Rights (Northern Ireland) Order 1996 there shall be inserted - 

    " Internal appeal procedures
        
    162A.  - (1) Where in a case in which an award of compensation for unfair dismissal falls to be made under Article 146(4) or 151(3)(a) the tribunal finds that - 

      (a) the employer provided a procedure for appealing against dismissal, and

      (b) the complainant was, at the time of the dismissal or within a reasonable period afterwards, given written notice stating that the employer provided the procedure and including details of it, but

      (c) the complainant did not appeal against the dismissal under the procedure (otherwise than because the employer prevented him from doing so),

    the tribunal shall reduce the compensatory award included in the award of compensation for unfair dismissal by such amount (if any) as it considers just and equitable.

        (2) Where in a case in which an award of compensation for unfair dismissal falls to be made under Article 146(4) or 151(3)(a) the tribunal finds that - 

      (a) the employer provided a procedure for appealing against dismissal, but

      (b) the employer prevented the complainant from appealing against the dismissal under the procedure,

    the award of compensation for unfair dismissal shall include a supplementary award of such amount (if any) as the tribunal considers just and equitable.

        (3) In determining the amount of a reduction under paragraph (1) or a supplementary award under paragraph (2) the tribunal shall have regard to all the circumstances of the case, including in particular the chances that an appeal under the procedure provided by the employer would have been successful.

        (4) The amount of such a reduction or supplementary award shall not exceed the amount of two weeks' pay.".

Acts which are both unfair dismissal and disability discrimination
    
15.  - (1) In Article 151(6) of the Employment Rights (Northern Ireland) Order 1996 (which provides for a higher additional award for an unfairly dismissed employee who is not reinstated or re-engaged as ordered in a case where the dismissal is an act of discrimination within the meaning of other statutory provisions), at the end there shall be added

           " and

      (d) a dismissal which is an act of discrimination within the meaning of the Disability Discrimination Act 1995 which is unlawful by virtue of that Act.".

    (2) Article 160(1) of the Employment Rights (Northern Ireland) Order 1996 (which prohibits recovery under more than one provision in the case of an act which is both unfair dismissal and sex or race discrimination) shall be amended as follows.

    (3) For sub-paragraph (b) there shall be substituted - 

      " (b) any one or more of the Sex Discrimination (Northern Ireland) Order 1976, the Disability Discrimination Act 1995 and the Race Relations (Northern Ireland) Order 1997,".

    (4) The words "two or three" shall cease to have effect.

    (5) For the words "the other, or any of the others," there shall be substituted "any other of them".



PART V

AMENDMENTS AND REPEALS

Amendments and repeals
    
16. Schedule 1 (minor and consequential amendments) and Schedule 2 (repeals) shall have effect.


N.H. Nicholls
Clerk of the Privy Council


 
© Crown copyright 1998
Prepared 10 June 1998

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