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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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Employers in default and connected persons: restrictions on dealing with them or giving them financial assistance

Employers in default: notice stating they are not qualified
     62.  - (1) For the purposes of this Article, an employer is in default in any of the following circumstances - 

    (a) in the case of any concern that is not a registered concern but has satisfied the condition for registration at the end of any week, the employer stands convicted of an offence under Article 48(7);

    (b) in the case of a registered concern - 

      (i) the employer's name is not entered in the register; and

      (ii) he stands convicted of an offence under Article 49(2);

    (c) the employer - 

      (i) has failed within the time allowed under Article 52 to serve on the Commission a monitoring return for any period or has failed to serve a return for that period that complies with the requirements of that Article or regulations under Article 53; and

      (ii) stands convicted of an offence under Article 52(5) or regulations made by virtue of Article 53(2)(f)(i), in respect of that failure; and

    (d) the employer has failed to comply with an order of the Tribunal and a penalty has been imposed under Article 17(3)(b), or the High Court has exercised its jurisdiction by virtue of Article 17(4), in respect of that failure.

    (2) Where an employer is in default, the Commission may serve notice on him stating that he is not qualified for the purposes of Articles 64 to 66; and references in those Articles to an unqualified person are to a person on whom a notice has been served under this paragraph or Article 63(1) which has not been cancelled.

    (3) The Commission shall take all such steps as it considers reasonable to bring the fact that a person is an unqualified person, or has ceased to be an unqualified person, to the attention of public authorities and other interested persons.

    (4) Where notice has been served on a person under paragraph (2) by virtue of paragraph (1)(a) or (b) and he has ceased to be in default, the Commission shall serve notice on him cancelling the notice under paragraph (2).

    (5) Where notice has been served on a person under paragraph (2), the Commission shall, if it is at any time satisfied, whether on an application under paragraph (6) or otherwise - 

    (a) in the case of a notice served by virtue of paragraph (1)(c), that he has served on it a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of Article 52 and regulations under Article 53; or

    (b) in the case of a notice served by virtue of paragraph (1)(d), that he is complying, or has fully complied, with the order concerned,

serve notice on him cancelling the notice under paragraph (2).

    (6) An application under this paragraph may be made by the person on whom the notice under paragraph (2) was served but may not be made before the expiry of the period of 6 months beginning with - 

    (a) the date of the notice under paragraph (2); or

    (b) if he has previously applied under this paragraph, the latest date on which he so applied.

    (7) Where the Commission refuses to grant an application under paragraph (6), it shall serve notice of that fact on the applicant and the applicant may, within 21 days from the date of the notice, appeal to the Tribunal against the refusal.

    (8) If, on the appeal, the Tribunal is satisfied - 

    (a) in the case of a notice served by virtue of paragraph (1)(c), that the appellant has served on the Commission a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of Article 52 and regulations under Article 53, or

    (b) in the case of a notice served by virtue of paragraph (1)(d), that the appellant is complying, or has fully complied, with the order concerned,

the Commission shall serve on him a notice cancelling the notice under paragraph (2).

    (9) No action shall lie in respect of any loss or damage that may be suffered in consequence of a notice or purported notice under this Article or Article 63 or any failure to give such a notice.

Notice stating that connected and other persons are not qualified
     63.  - (1) Where notice has been served on any employer under Article 62(2) and has not been cancelled, the Commission may serve notice on any of the following persons - 

    (a) any body corporate controlled by him and, if he is a body corporate, any associated body corporate; and

    (b) any person connected with him,

stating that the person on whom the notice is served is not qualified for the purposes of Articles 64 to 66.

    (2) No notice shall be served on any person under paragraph (1) if it appears to the Commission - 

    (a) that it is unlikely that he will execute any work or supply any goods or services for the purposes of any contract - 

      (i) made by a public authority accepting any offer made in response to an invitation by the public authority to submit offers; or

      (ii) falling within a class or description for the time being specified for the purposes of Article 64(3) to which a public authority is a party; or

    (b) that, if he executes any work or supplies any goods or services for the purposes of any such contract, it is unlikely that the employer on whom the notice was served under Article 62(2) will benefit, directly or indirectly.

    (3) Where notice has been served on any person under paragraph (1), the Commission shall serve notice on him cancelling the notice - 

    (a) if the notice served on the employer under Article 62(2) is cancelled; or

    (b) if it appears to the Commission, whether on an application under paragraph (4) or otherwise, that (apart from Article 64(1)) paragraph (2)(a) or (b) is satisfied in his case.

    (4) An application under this paragraph may be made by the person on whom the notice under paragraph (1) was served, but if he has previously made an application under this paragraph may not be made before the expiry of the period of 6 months beginning with the latest date on which he so applied.

    (5) Where the Commission refuses to grant an application under paragraph (4), it shall serve notice of that fact on the applicant and the applicant may, within 21 days from the date of the notice, appeal to the Tribunal against the refusal.

    (6) If, on the appeal, it appears to the Tribunal that (apart from Article 64(1)) paragraph (2)(a) or (b) is satisfied in the appellant's case, the Commission shall serve notice on him cancelling the notice under paragraph (1).

Restriction on execution of works, etc. by unqualified persons
     64.  - (1) A public authority shall not enter into any contract to which paragraph (2) or (3) applies.

    (2) This paragraph applies to a contract made by the public authority accepting an offer to execute any work or supply any goods or services where the offer is made - 

    (a) by an unqualified person; and

    (b) in response to an invitation by the public authority to submit offers.

    (3) This paragraph applies to a contract falling within a class or description for the time being specified in an order made by the Department, where work is to be executed or goods or services supplied by any unqualified person.

    (4) Where a public authority enters into a contract - 

    (a) made by the public authority accepting an offer made by any person, being an offer made in response to an invitation by the public authority to submit offers; or

    (b) falling within a class or description for the time being specified for the purposes of paragraph (3),

the public authority shall take all such steps as are reasonable to secure that no work is executed or goods or services supplied for the purposes of the contract by any unqualified person.

    (5) An order under paragraph (3) may frame any class or description of contract by reference to - 

    (a) any work to be executed or goods or services to be supplied under the contract;

    (b) any amounts to be paid under or in connection with the contract;

    (c) any terms of the contract; and

    (d) any surrounding circumstances,

and by reference to such other factors as the Department thinks fit.

    (6) Nothing in this Article affects the validity of any contract.

    (7) This Article does not apply to the execution of any work, or the provision of any goods or services, by any person which is certified in writing by the Secretary of State to be necessary or desirable for the purpose of safeguarding national security or protecting public safety or public order.

Enforcement at instance of Commission and actions for breach of duty
     65.  - (1) If it appears to the Commission - 

    (a) that any public authority has taken any action in contravention of Article 64 or has, in neglecting to take any action, failed to comply with that Article and that, unless an injunction is granted, the authority is likely again to contravene or fail to comply with that Article; or

    (b) that any public authority proposes to take any action in contravention of that Article,

the Commission may apply to the High Court for an injunction restraining him from contravening that Article and, where sub-paragraph (a) applies, requiring him to comply with that Article.

    (2) Any contravention of that Article is actionable by any person who, in consequence, suffers loss or damage, but the amount recoverable in any such action shall not exceed any expenditure reasonably incurred by him before the date of the contravention in question.

Denial of financial assistance to unqualified persons
     66.  - (1) A Northern Ireland department may refuse to give to any unqualified person any financial assistance to which this Article applies or, where it has given or agreed to give such assistance to any unqualified person, refuse or cease to make any payments to him in pursuance of the assistance.

    (2) This Article applies to any financial assistance by way of grant or otherwise which may be given at the discretion of a Northern Ireland department, if the moneys required for giving the assistance are payable out of the Consolidated Fund or may be appropriated by Act of the Northern Ireland Assembly.

General

Additional powers of Commission to obtain information
     67.  - (1) In connection with its functions under this Part, the Commission may require any person to give the Commission such information as it may specify for the purpose of determining - 

    (a) whether a person is an employer or whether a concern has satisfied the condition for registration at the end of any week;

    (b) whether a body corporate is controlled by an employer or associated with him or whether any person is connected with him; and

    (c) whether a contract of either of the following kinds has been made or is likely to be made - 

      (i) a contract made by a public authority accepting an offer to execute any work or supply any goods or services where the offer is made by any person in response to an invitation by the public authority to submit offers; or

      (ii) a contract falling within a class or description for the time being specified for the purposes of Article 64(3) to which a public authority is a party,

    or whether any person has executed any work or supplied any goods or services for the purposes of any such contract, orislikely to do so.

    (2) A requirement under this Article to give any information - 

    (a) shall be made by notice served on the person concerned; and

    (b) shall specify the time by which the information is to be given.

    (3) A person required to give any information under this Article who fails to comply with the requirement by the specified time shall be guilty of an offence.

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

    (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.

    (5) It is a defence for a person charged with an offence under paragraph (3) to show that he had a reasonable excuse (which may include unreasonable expense or inconvenience) for failing to comply with the requirement by the specified time and, in a case where it was reasonably practicable for him to comply with it after that time, to show that either - 

    (a) he complied with it as soon as was reasonably practicable; or

    (b) it was not reasonably practicable for him to comply with it before the proceedings were commenced,

and for the purposes of this paragraph the making of a complaint is to be treated as the commencement of the proceedings.

    (6) A person required to give any information under this Article who knowingly gives any false or misleading information shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (7) A notice under this Article may not require any person to give any information which he could not be compelled to give in evidence in civil proceedings before the High Court.

Procedure in case of default by Crown bodies
     68.  - (1) This Article applies where - 

    (a) the Commission asks a public authority acting on behalf of the Crown for an undertaking under Article 57 and the undertaking is not given;

    (b) an undertaking is given under that Article by such a public authority, but is not complied with; or

    (c) such a public authority is, or is in the opinion of the Commission, in breach of any duty under Article 52, 55, 56, 60, 64 or 67 or under regulations under Article 53 or 54,

and, accordingly, Articles 57(3), 58 and 65 do not apply in relation to such a public authority.

    (2) The Commission shall send a report of the circumstances of the failure to comply with the Commission's request or with the undertaking or other breach of duty - 

    (a) where a Minister of the Crown is the public authority or is generally responsible for matters falling within the scope of the functions of the public authority, to the Minister; and

    (b) in any other case, to the Northern Ireland Minister generally responsible for matters falling within the scope of the functions of the public authority.

    (3) Where a report is sent to a Minister of the Crown he shall lay it before Parliament, and where a report is sent to a Northern Ireland Minister he shall lay it before the Assembly.

Interpretation of this Part
     69.  - (1) In this Part - 

    "employee" means - 

    (a) an individual employed under a contract of service or of apprenticeship; or

    (b) an individual employed under a contract personally to execute any work or labour;

and includes a person in the service of the Crown, but only to the extent provided by Article 51; and "employment" and "employed" shall be interpreted accordingly;

    "employer", in relation to a concern, means the person entitled to the benefit of the contracts of those employed in the concern and includes a public authority, but only to the extent provided by Article 51;

    "register" means the register kept under Article 47;

    "registered concern" means a concern a description of which is for the time being included in the register; but where, by reason of a disposal of a part of a registered concern, there has been a change of employer in relation to that part, that part is not to be treated as a registered concern unless registered since the disposal; and

    "week" means a week ending on a Saturday.

    (2) For the purposes of this Part - 

    (a) where people are employed by a body corporate, references to the name of the employer are to the name of the body and of its secretary and references to the address of the employer are to the address of the body's registered or principal office, or its principal office in Northern Ireland;

    (b) where people are employed by the members of a partnership, references to the employer are to the firm and references to the employer's address are to the principal office of the partnership, or its principal office in Northern Ireland, but each member of the partnership may exercise any function, under this Part, of the employer;

    (c) where people are employed by any other body, references to the employer are to the secretary or other executive officer charged with the conduct of the general affairs of the body.

    (3) For the purposes of this Part - 

    (a) bodies corporate are associated if they are members of the same group, and for this purpose any two bodies corporate are to be treated as members of the same group if one of them is a body corporate of which the other is a subsidiary (within the meaning of Article 4 of the Companies (Northern Ireland) Order 1986) or if both of them are subsidiaries (within the meaning of that Article) of one and the same body corporate;

    (b) a body corporate (call it "A") is controlled by a person (call him "B") if B has the power to secure, by means of the holding of shares or the possession of voting power in or in relation to A or any other body corporate, or by virtue of any powers conferred by the articles of association or other document regulating A or any other body corporate, that the affairs of A are conducted in accordance with the wishes of B;

    (c) a person is connected with an individual if that person is the individual's wife or husband, or is a relative, or the wife or husband of a relative, of the individual or of the individual's wife or husband, and for this purpose "relative" means brother, sister, ancestor or lineal descendant; and

    (d) a person is connected with a body corporate if he is a director or officer of that body.

    (4) References in this Part to a person in the service of the Crown do not include the holder of any office in Schedule 2 to the House of Commons Disqualification Act 1975.



PART VIII

EXCEPTIONS

Excepted employments, etc.
     70.  - (1) This Order does not apply to or in relation to - 

    (a) any employment or occupation as a clergyman or minister of a religious denomination; or

    (b) employment for the purposes of a private household.

    (2) Part VII does not apply to or in relation to any employment or occupation where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief.

    (3) So far as they relate to discrimination on the ground of religious belief, Parts III and V do not apply to or in relation to any employment or occupation where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief.

    (4) So far as they relate to discrimination on the ground of political opinion, Parts III and V do not apply to or in relation to an employment or occupation where the essential nature of the job requires it to be done by a person holding, or not holding, a particular political opinion.

    (5) Paragraphs (2) to (4) do not apply to employment mentioned in Article 71(1).

School teachers
     71.  - (1) Subject to paragraph (2), this Order does not apply to or in relation to employment as a teacher in a school.

    (2) The Commission shall keep under review the exception contained in paragraph (1) with a view to considering whether, in the opinion of the Commission, it is appropriate that any steps should be taken to further equality of opportunity in the employment of teachers in schools.

    (3) For the purpose of assisting it in the discharge of its duty under paragraph (2), the Commission may conduct investigations - 

    (a) into the composition, by reference to religious beliefs, of the staff employed as teachers, or teachers of any class, in schools generally, schools of any class or particular schools; and

    (b) into practices - 

      (i) affecting the recruitment or access to benefits of, or the terms of employment applicable to, such staff; or

      (ii) involving any detriment to such staff,

    including practices discontinued before the time of the investigation so far as relevant for explaining the composition of the staff at that time.

    (4) The Commission may, and shall whenever the Department so directs, report to the Department upon the exercise of its functions under this Article; and a report under this paragraph may make recommendations as to any action which the Commission considers ought to be taken to further equality of opportunity in the employment of teachers, or teachers of any class, in schools, or in schools of any class (including action by way of the exercise of the power conferred by paragraph (6) to remove or limit the exception contained in paragraph (1)).

    (5) Schedule 2 shall have effect with respect to the conduct of investigations under this Article.

    (6) The Department may by order provide that paragraph (1) - 

    (a) shall cease to have effect; or

    (b) shall, on and after such day or days as may be specified in the order, have effect only in relation to particular classes of teachers or particular classes of schools or for particular purposes of this Order.

Provision of training in pursuance of affirmative action
     72.  - (1) This Article applies where, in pursuance of affirmative action, persons are afforded access to facilities for training which would help to fit them for employment, for employment in a particular capacity or for a particular employment or occupation, but - 

    (a) the facilities are provided only at a particular place in Northern Ireland or the training is confined to persons of a particular class, not being a class framed by reference to religious belief or political opinion; and

    (b) by providing the facilities only there or by so confining the training, access to the facilities by persons of a particular religious belief or political opinion is excluded or restricted.

    (2) For the purpose of determining whether any act done in, or in connection with, affording those facilities is by virtue of Article 3(2) unlawful under any provision of Parts III and V, the fact that, by providing the facilities only there or by so confining the training, their access to the facilities is thereby excluded or restricted is to be disregarded.

Redundancy
     73.  - (1) This Article applies where - 

    (a) a practice relating to the selection of employees who may be dismissed as redundant is followed by an employer in pursuance of affirmative action; and

    (b) the practice does not involve the application of any condition or requirement framed by reference to religious belief or political opinion, but has or may have the effect that the proportion of employees of a particular religious belief or political opinion who are selected is smaller than the proportion of employees not of that religious belief or, as the case may be, not of that political opinion who are selected.

    (2) The dismissal of an employee in pursuance of the practice is not by virtue of Article 3(2) unlawful under any provision of Parts III and V.

Measures to encourage applications, etc. from under-represented community
     74. Nothing in Part III or V shall render unlawful any act done by - 

    (a) an employer;

    (b) an employment agency;

    (c) a vocational organisation; or

    (d) a person providing services as mentioned in Article 24(1),

in or in connection with encouraging members of the Roman Catholic, or members of the Protestant, community in Northern Ireland to consider or to apply for a particular employment or particular training or to consider a particular occupation, where the act is done in pursuance of affirmative action.

Selection of unemployed persons
     75.  - (1) The application of any requirement or condition to any person applying to fill a vacancy for employment where the requirement or condition is one that the person applying to fill the vacancy has not been in employment for a specified period of time is not by virtue of Article 3(2) unlawful under any provision of Parts III and V.

    (2) The Commission shall, on request, advise any person who proposes to apply any requirement or condition described in paragraph (1).

    (3) In paragraph (1) "specified" means specified by the person applying the requirement or condition in question.

 
  © Crown copyright 1998
Prepared 20 January 1999

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