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Statutory Instruments 1998 No. 3162 (N.I. 21)
The Fair Employment and Treatment (Northern Ireland) Order 1998 - continued

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Enforcement of Part IV

Claims under Part IV
     40.  - (1) A claim by any person ("the claimant") that another person ("the respondent") - 

    (a) has committed an act of discrimination against the claimant which is unlawful by virtue of any provision of Part IV; or

    (b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination against the claimant,

may be made the subject of civil proceedings in like manner as any other claim in tort for breach of statutory duty.

    (2) Proceedings under paragraph (1) shall be brought only in a county court; but all such remedies shall be obtainable in such proceedings as, apart from this paragraph and Article 37, would be obtainable in the High Court.

    (3) As respects an act of unlawful discrimination falling within Article 3(2)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on the ground of religious belief or political opinion.

    (4) Damages in respect of an act of unlawful discrimination may include compensation for injury to feelings whether or not they include compensation under any other head.

    (5) Civil proceedings in respect of a claim by any person that he has been discriminated against in contravention of Article 27 by a governing body of an establishment falling within paragraph (2)(b) of that Article, shall not be instituted unless the claimant has given notice of the claim to the Department of Education.

    (6) Nothing in paragraph (5) applies to a counterclaim.

    (7) For the purposes of proceedings under paragraph (1) - 

    (a) Article 33(1) (power of judge to appoint assessors) of the County Courts (Northern Ireland) Order 1980 shall apply with the omission of the words "on the application of any party", and

    (b) the remuneration of assessors appointed under that Article shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and may be defrayed as part of the expenses of the Lord Chancellor.

    (8) A county court shall have jurisdiction to entertain proceedings under paragraph (1) with respect to an act done on a ship, aircraft or hovercraft outside its division, including such an act done outside Northern Ireland.

Other enforcement by Commission

Persistent discrimination
     41.  - (1) If, during the period of 5 years beginning on the date on which a finding by the Tribunal or a court under Article 38 or 40 that he has committed an act of unlawful discrimination becomes final in respect of any person, it appears to the Commission that unless restrained that person is likely to commit one or more such acts the Commission may apply to a county court for an injunction restraining him from doing so; and the court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

    (2) For the purposes of this Article and Article 42 a finding by a court or the Tribunal becomes final when - 

    (a) an appeal against the finding is abandoned or determined; or

    (b) the time for appealing expires without an appeal having been brought.

Enforcement of Article 34
     42.  - (1) Proceedings in respect of a contravention of Article 34 shall be brought only by the Commission in accordance with the following provisions of this Article.

    (2) The proceedings shall be - 

    (a) an application for a decision whether the alleged contravention occurred; or

    (b) an application under paragraph (4), or both.

    (3) An application under paragraph (2)(a) shall be made - 

    (a) in a case based on any provision of Part III, to the Tribunal; and

    (b) in any other case, to a county court.

    (4) If it appears to the Commission - 

    (a) that a person has done an act which by virtue of Article 34 was unlawful; and

    (b) that unless restrained he is likely to do further acts which by virtue of that Article are unlawful,

the Commission may apply to a county court for an injunction restraining him from doing such acts; and the court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

    (5) In proceedings under paragraph (4) the Commission shall not allege that the person to whom the proceedings relate has done an act which is unlawful by virtue of Article 34 and within the jurisdiction of the Tribunal unless a finding by the Tribunal under paragraph (3)(a) that he did that act has become final.

    (6) In paragraph (5), the acts "within the jurisdiction of the Tribunal" are those in respect of which such jurisdiction is conferred by Article 38.

Undertakings by persons contravening Part IV
     43.  - (1) This Article applies to an act contravening any provision of Part IV and so applies whether or not proceedings have been brought in respect of the act.

    (2) If the Commission is satisfied that a person is committing or has committed any such act the Commission may, for the purpose of preventing the commission by that person of any further such act, seek to obtain from that person an undertaking - 

    (a) that he will do, or refrain from doing, certain acts specified in the undertaking;

    (b) that he will institute certain practices so specified; or

    (c) that he will change his existing practices in a manner so specified.

    (3) An undertaking given by any person under this Article shall - 

    (a) be in writing;

    (b) be in such terms as may be agreed between that person and the Commission;

    (c) contain such terms as appear to the Commission to be necessary or appropriate for the purpose mentioned in paragraph (2); and

    (d) have effect for such period as may be specified therein.

    (4) If it appears to the Commission that a person who has given an undertaking under this Article has, at any time within the period specified therein by virtue of paragraph (3)(d), failed to comply with the undertaking, the Commission may apply to the county court for a decision as to whether that person has failed to comply with the undertaking.

Help for persons suffering discrimination

Help for aggrieved persons in obtaining information, etc.
     44.  - (1) With a view to helping a person ("the person aggrieved") who considers that another person may have unlawfully discriminated against him to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Department shall by regulations prescribe - 

    (a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and

    (b) forms by which the respondent may if he so wishes reply to any questions.

    (2) Where the person aggrieved questions the respondent (whether in accordance with regulations under paragraph (1) or not) - 

    (a) the question, and any reply by the respondent (whether in accordance with the regulations or not) shall, subject to the following provisions of this Article, be admissible as evidence in the proceedings; and

    (b) if it appears to the court or the Tribunal that the respondent deliberately and without reasonable cause omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or the Tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act.

    (3) The Department may by regulations - 

    (a) prescribe the period within which questions must be duly served in order to be admissible under paragraph (2)(a); and

    (b) prescribe the manner in which a question, and any reply by the respondent, may be duly served.

    (4) County court rules may enable the court entertaining a claim under Article 40 to determine, before the date fixed for the hearing of the claim, whether a question or reply is admissible under this Article or not.

    (5) This Article is without prejudice to any other statutory provision or rule of law regulating interlocutory and preliminary matters in proceedings before a county court or the Tribunal, and has effect subject to any statutory provision or rule of law regulating the admissibility of evidence in such proceedings.

    (6) In this Article "respondent" includes a prospective respondent.

Advice and assistance from Commission
     45.  - (1) Where a prospective complainant or claimant requests the Commission in writing for advice in relation to prospective proceedings under this Part, the Commission shall give him such advice unless it considers that the request is frivolous.

    (2) Where, in relation to proceedings or prospective proceedings under this Part, an individual who is an actual or prospective complainant or claimant applies to the Commission for assistance under this paragraph, the Commission shall consider the application and may grant it if it thinks fit to do so - 

    (a) on the ground that the case raises a question of principle; or

    (b) on the ground that it is unreasonable, having regard to the complexity of the case or the applicant's position in relation to the respondent, or another person involved, or to any other matter to expect the applicant to deal with the case unaided; or

    (c) by reason of any other special consideration.

    (3) Assistance given by the Commission under paragraph (2) may include - 

    (a) giving advice;

    (b) procuring or attempting to procure the settlement of any matter in dispute;

    (c) arranging for the giving of advice or assistance by a solicitor or barrister;

    (d) arranging for representation by any person including all such assistance as is usually given by a solicitor or barrister in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings; and

    (e) any other form of assistance which the Commission may consider appropriate,

but sub-paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend, and address the court in, any proceedings.

Period within which proceedings must be brought

Period within which proceedings must be brought
     46.  - (1) Subject to paragraph (5), the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of - 

    (a) the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

    (b) the end of the period of 6 months beginning with the day on which the act was done.

    (2) Subject to paragraph (5), a county court shall not consider a claim under Article 40 unless proceedings in respect of the claim are instituted before the end of the period of 6 months beginning with the day on which the act complained of was done.

    (3) Subject to paragraph (5), the Tribunal or county court shall not consider an application under Article 42(2)(a) unless it is made before the end of the period of 6 months beginning with the day on which the act to which it relates was done; and a county court shall not consider an application under Article 42(4) unless it is made before the end of the period of 5 years so beginning.

    (4) Subject to paragraph (5), a county court shall not consider an application under Article 43(4) in relation to an undertaking under that Article unless it is made before the end of the period specified in the undertaking by virtue of paragraph (3)(d) of that Article.

    (5) A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

    (6) For the purposes of this Article - 

    (a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

    (b) any act extending over a period shall be treated as done at the end of that period; and

    (c) a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted 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 omitted act if it were to be done.



PART VII

DUTIES OF EMPLOYERS IN RESPECT OF THEIR WORKFORCES

Registration

The register of concerns in which people are employed
     47.  - (1) The Commission shall keep, in such form as the Commission may determine, a register of trades, businesses and other activities (whether carried on for profit or not) in which people are employed.

    (2) References in this Part to a concern are to any such trade, business or other activity and include any activity in the service of the Crown, but only to the extent provided by Article 51.

    (3) The Commission shall, on an application under Article 48, enter in the register the description of the concern given in the application, the name and address of the employer so given and the date of entry in the register and serve on the applicant notice of the contents and date of the entry.

    (4) The Commission shall provide facilities for making the information contained in the entries in the register available for inspection (in visible and legible form) by members of the public during normal office hours free of charge and any person shall be entitled to obtain from the Commission a copy of the information contained in all or any of the entries in the register upon payment of such reasonable fee as the Commission may fix.

Employers to apply for registration
     48.  - (1) Where a concern, other than a registered concern, satisfies the condition for registration at the end of any week, the employer shall apply under this Article for the concern to be registered.

    (2) For the purposes of this Part a concern satisfies the condition for registration at the end of any week if in that week more than 10 employees have been employed in Northern Ireland.

    (3) In paragraph (2), the reference to employees does not include a reference to an individual employed under a contract of service or apprenticeship which normally involves employment for less than 16 hours weekly.

    (4) Article 5 of the Employment Rights (Northern Ireland) Order 1996 (normal working hours) shall have effect to determine the normal working hours for the purposes of paragraph (3).

    (5) The Department may by order substitute for the number of hours for the time being specified in paragraph (3) such other number as is specified in the order.

    (6) An application under this Article shall - 

    (a) describe the concern in general terms;

    (b) give the name and address of the employer; and

    (c) give the number of employees employed in Northern Ireland.

    (7) If an employer fails to make an application under this Article within the period of one month after the time when the concern first satisfies the condition for registration (or in the case of a concern the entry for which has been removed from the register, first satisfies that condition since the removal), he shall be guilty of an offence.

    (8) A person guilty of an offence under paragraph (7) - 

    (a) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale; and

    (b) if the failure continues after conviction, shall be liable on a second or subsequent summary conviction to a fine not exceeding one-tenth of level 5 on the standard scale for each day on which the failure continues.

    (9) It is a defence for a person charged with an offence under paragraph (7) to show that he had a reasonable excuse for failing to make an application under this Article within the period allowed and that he made such an application as soon as it was reasonably practicable for him to do so.

    (10) In determining for any of the purposes of this Part whether a concern satisfies the condition for registration, references to the employees of any person (referred to in this paragraph as "the employer") shall, if regulations made by the Department under this Article so provide or in such circumstances as may be specified in the regulations, include a reference to the employees of - 

    (a) any body corporate controlled by the employer and, if the employer is a body corporate, any associated body corporate; and

    (b) any person connected with the employer,

and references to the employer's concern shall be interpreted accordingly.

    (11) This Article does not apply to any person who is a public authority for the purposes of Articles 52 to 61 or to any person falling within Article 50(3)(a) or (b).

Rectification of the register
     49.  - (1) Where a person becomes an employer in relation to a concern that is already a registered concern, he shall, within the period of one month beginning with his becoming such an employer, apply to the Commission for his name and address to be entered in the register and the Commission shall include in the entry in the register the name and address given in the application.

    (2) If an employer who is required so to apply fails to do so within that period, he shall be guilty of an offence.

    (3) A person guilty of an offence under paragraph (2) - 

    (a) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale; and

    (b) if the failure continues after conviction, shall be liable on a second or subsequent summary conviction to a fine not exceeding one-tenth of level 5 on the standard scale for each day on which the failure continues.

    (4) It is a defence for a person charged with an offence under paragraph (2) to show that he had a reasonable excuse for failing to make an application under this Article within the period allowed and that he made such an application as soon as it was reasonably practicable for him to do so.

    (5) The Commission may, on an application by a registered employer, rectify the description in the register of the registered concern.

    (6) The Commission shall remove from the register any entry in respect of a person who becomes a public authority for the purposes of Articles 52 to 61.

    (7) The Commission - 

    (a) may remove from the register, in respect of any concern, the name of any person who appears to the Commission to have ceased to be an employer; and

    (b) may remove from the register the entry for any registered concern which appears to the Commission to have ceased to exist.

    (8) The power conferred by paragraph (7) is exercisable by the Commission of its own motion or on the application of any person.

    (9) If a registered employer applies to the Commission to remove from the register the entry for the registered concern and the concern has been registered throughout the year ending on the date of the application, the Commission shall remove the entry if it is of the opinion that the concern did not, at the end of any of the weeks in the period of 26 weeks preceding the application, satisfy the condition for registration.

    (10) If the Commission exercises its powers under paragraph (7) or (9), it shall serve notice of its action on any person whose name is removed from the register.

    (11) A person who knowingly makes a false statement in connection with an application under paragraph (8) or (9) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (12) In this Article, "registered employer", in relation to a registered concern, means the person whose name and address is for the time being included in the entry for that concern in the register.

Public authorities

Power to specify public authorities by order
     50.  - (1) In this Part "public authority" means a person specified in an order made by the Department.

    (2) The order may provide for a person to be a public authority for all or any of the purposes of this Part.

    (3) The Department shall not exercise the power conferred by this Article so that a person becomes a public authority for any of the purposes of this Part unless the person is - 

    (a) a Minister of the Crown or a Northern Ireland Minister;

    (b) a statutory body or the holder of a statutory office; or

    (c) a person appearing to the Department to exercise functions of a public nature.

Certain public authorities to be treated as employers
     51.  - (1) For the purposes of Articles 52 to 61, any reference to an employer includes any person who is a public authority for the purposes of those Articles.

    (2) For the purposes of those Articles, in relation to any such authority - 

    (a) "employee" includes any person in the service of the Crown for the purposes of the functions of the authority, but an order under Article 50 may specify the persons who are to be treated for the purposes of those Articles as the employees of that authority; and

    (b) "concern" means the activities of those who are the employees of the authority for the purposes of those Articles.

    (3) Those Articles shall apply in relation to a person who becomes an employer for the purposes of those Articles by virtue of an order under Article 50 as if his concern were a registered concern and the description of his concern had been entered in the register on the coming into operation of the order (without prejudice to the effect of any previous order).

    (4) The Department shall not exercise the power conferred by Article 50 so that a person becomes an employer for the purposes of those Articles unless it appears to the Department that any of the people - 

    (a) who are employed by that person or are in the service of the Crown for the purposes of the functions of that person; or

    (b) who are to be treated by virtue of the order as so employed or as in such service,

are employed or serve in Northern Ireland.

Monitoring the workforce

Monitoring returns
     52.  - (1) For the purpose of enabling the composition of - 

    (a) those employed in a registered concern in Northern Ireland; and

    (b) those applying to fill vacancies for employment in Northern Ireland in such a concern,

to be ascertained, the employer shall prepare for each year and serve on the Commission a return (in this Part referred to as a "monitoring return") in a form provided by or on behalf of the Department.

    (2) A monitoring return shall contain such information about the employees of the employer and those applying for employment in the concern as may be prescribed.

    (3) For the purpose of enabling the composition of those ceasing to be employed in any concern of a person who is a public authority for the purposes of this Article to be ascertained, the employer shall include in a monitoring return such information as may be prescribed.

    (4) For the purpose of enabling the composition of those ceasing to be employed in any other registered concern in which more than 250 employees are employed to be ascertained, the employer shall include in a monitoring return such information as may be prescribed; and for the purposes of this paragraph where, at the beginning of or at any subsequent time in any prescribed period, more than 250 employees are employed in the concern, that condition is to be treated as satisfied for the whole or, as the case may be, the remainder of that period.

    (5) If no monitoring return for a year in respect of any registered concern is served on the Commission before the time for serving the return expires, the employer shall be guilty of an offence.

    (6) A person guilty of an offence under paragraph (5) - 

    (a) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale; and

    (b) if the failure to submit the monitoring return continues after conviction, shall be liable on a second or subsequent summary conviction to a fine not exceeding one-tenth of level 5 on the standard scale for each day on which the failure continues.

    (7) It is a defence for a person charged with an offence under paragraph (5) to show that he had a reasonable excuse for failing to serve on the Commission a monitoring return for that year before the time for serving the return expired and that he served such a return for that year on the Commission as soon as it was reasonably practicable to do so.

    (8) For the purpose of this Article the time for serving a monitoring return expires in the case of each year at the end of the first 4 months of the year.

    (9) In this Article "year", in relation to a registered concern, means any period of 12 months beginning with - 

    (a) the date on which the description of the concern is entered, or treated by virtue of Article 51 as entered, in the register; or

    (b) the anniversary of that date.

    (10) In this Article and Article 53 "prescribed" means prescribed by regulations under Article 53.

    (11) In this Part - 

    "community" means the Protestant community, or the Roman Catholic community, in Northern Ireland; and

    "composition" in relation to those employed or, as the case may be, applying for employment in or ceasing to be employed in, a registered concern means the number who are to be treated for the purposes of monitoring as belonging to each community.

 
  © Crown copyright 1998
Prepared 20 January 1999

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