Employment Introductory provisions Citation and commencement 1 These Regulations may be cited as the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 and shall come into operation on 6th April 2014. Interpretation 2 1 In these Regulations— “ employment agency ” means a person who, for profit or not, provides services for the purposes of finding employment for workers or supplying employers with workers, and does not include a trade union by reason only of the services a trade union provides only for and in relation to its members; “ office ”, in relation to a trade union, means any position— by virtue of which the holder is an official of the trade union, or to which Part 3 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 (duty to hold elections) applies, and “ official ” has the meaning given by Article 2(2) of that Order; “ prohibited list ” has the meaning given by regulation 3(2); “ services ”, in relation to an employment agency, means services for the purposes of finding employment for workers or supplying employers with workers; “ use ”, in relation to a prohibited list, includes use of information contained in the list. 2 References in these Regulations to information supplied by a person who contravenes regulation 3 include information supplied by a person who would contravene that regulation if that person's actions took place in Northern Ireland. General prohibition General prohibition 3 1 Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list. 2 A “prohibited list” is a list which— a contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and b is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers. 3 “ Discrimination ” means treating a person less favourably than another on grounds of trade union membership or trade union activities. 4 In these Regulations references to membership of a trade union include references to— a membership of a particular branch or section of a trade union, and b membership of one of a number of particular branches or sections of a trade union; and references to taking part in the activities of a trade union have a corresponding meaning. Exceptions to general prohibition 4 1 A person does not contravene regulation 3 in the following cases. 2 The first case is where a person supplies a prohibited list, but— a does not know they are supplying a prohibited list, and b could not reasonably be expected to know they are supplying a prohibited list. 3 The second case is where a person compiles, uses or supplies a prohibited list, but— a in doing so, that person's sole or principal purpose is to make known a contravention of regulation 3 or the possibility of such a contravention, b no information in relation to a person whose details are included in the prohibited list is published without the consent of that person, and c in all the circumstances compiling, using or supplying the prohibited list is justified in the public interest. 4 The third case is where a person compiles, uses, sells or supplies a prohibited list, but in doing so that person's sole or principal purpose is to apply a requirement either— a that a person may not be considered for appointment to an office or for employment unless that person has experience or knowledge of trade union matters, and in all the circumstances it is reasonable to apply such a requirement, or b that 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. 5 The fourth case is where a person compiles, uses, sells or supplies a prohibited list, but the compilation, use, sale or supply of the prohibited list is required or authorised— a under a statutory provision, b by any rule of law, or c by an order of the court. 6 The fifth case is where a person uses or supplies a prohibited list— a for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), or b for the purpose of giving or obtaining legal advice, where the use or supply is necessary in order to determine whether these Regulations have been, are being or will be complied with. Refusal of employment or employment agency services Refusal of employment 5 1 A person (P) has a right of complaint to an industrial tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either— a R contravenes regulation 3 in relation to that list, or b R— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. 2 R shall be taken to refuse to employ P if P seeks employment of any description with R and R— a refuses or deliberately omits to entertain and process P's application or enquiry; b causes P to withdraw or cease to pursue P's application or enquiry; c refuses or deliberately omits to offer P employment of that description; d makes P 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 P an offer of such employment but withdraws it or causes P not to accept it. 3 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not. Refusal of employment agency services 6 1 A person (P) has a right of complaint to an industrial tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either— a E contravenes regulation 3 in relation to that list, or b E— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that information relied on is supplied in contravention of that regulation. 2 E shall be taken to refuse P a service if P seeks to make use of the service and E— a refuses or deliberately omits to make the service available to P; b causes P not to make use of the service or to cease to make use of it; or c does not provide P the same service, on the same terms, as is provided to others. 3 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that E contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless E shows that it did not. Time limit for proceedings under regulation 5 or 6 7 1 Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 5 or 6 unless it is presented to the tribunal before the end of the period of three months beginning with the date of the conduct to which the complaint relates. 1A Regulation 18 (extension of time limit to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (1). 2 An industrial tribunal may consider a complaint under regulation 5 or 6 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 3 The date of the conduct to which a complaint under regulation 5 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 P's application or enquiry, or ii to offer employment, the end of the period within which it was reasonable to expect R to act; c in the case of conduct causing P to withdraw or cease to pursue P's application or enquiry, the date of that conduct; d in a case where R made but withdrew an offer, the date R withdrew the offer; e in any other case where R made an offer which was not accepted, the date on which R made the offer. 4 The date of the conduct to which a complaint under regulation 6 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 E to act; c in the case of conduct causing P not to make use of a service, or to cease to make use 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 was provided. Remedies in proceedings under regulation 5 or 6 8 1 Where an industrial tribunal finds that a complaint under regulation 5 or 6 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; 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 Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraph (4), (5) or (6) shall not be less than £5,700. 4 If the respondent fails without reasonable justification to comply with a recommendation under paragraph (1)(b), the tribunal may increase its award of compensation or, if it has not made such an award, make one. 5 Where the tribunal considers that any conduct of the complainant before the refusal to which the complaint under regulation 5 or 6 relates was such that it would be just and equitable to reduce the award of compensation, the tribunal shall reduce that amount accordingly. 6 The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 29 of the Employment Rights (Northern Ireland) Order 1996 in respect of the same refusal. 7 The total amount of compensation shall not exceed £76,600. Detriment Detriment 9 1 A person (P) has a right of complaint to an industrial tribunal against P's employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either— a D contravenes regulation 3 in relation to that list, or b D— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that information relied on is supplied in contravention of that regulation. 2 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that D contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless D shows that it did not. 3 This regulation does not apply where the detriment in question amounts to the dismissal of an employee within the meaning in Part 11 of the Employment Rights (Northern Ireland) Order 1996. Time limit for proceedings under regulation 9 10 1 Subject to paragraph (2), an industrial tribunal shall not consider a complaint under regulation 9 unless it is presented 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. 1A Regulation 18 (extension of time limit to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (1). 2 An industrial tribunal may consider a complaint under regulation 9 that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 3 For the purposes of paragraph (1)— a where an act extends over a period, the reference to the date of the act is a reference to the last day of the 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 D shall be taken to decide on a failure to act— a when D does an act which is inconsistent with doing the failed act, or b if D has done no such inconsistent act, when the period expires within which D might reasonably have been expected to do the failed act if it was done. Remedies in proceedings under regulation 9 11 1 Where the industrial tribunal finds that a complaint under regulation 9 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by D to P in respect of the act or failure complained of. 2 Subject to the following paragraphs, the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the act or failure complained of and to any loss sustained by P which is attributable to D's act or failure. 3 The loss shall be taken to include— a any expenses P reasonably incurred in consequence of the act or failure complained of; and b loss of any benefit which P 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 Where an award of compensation is made, the amount of compensation before any increase or reduction is made under paragraphs (6), (7) and (8) of this regulation and Article 90AA of the Industrial Relations (Northern Ireland) Order 1992 or Article 17 of the Employment (Northern Ireland) Order 2003 shall not be less than £5,700. 6 Where the conduct of P before the act or failure complained of was such that it would be just and equitable to reduce the amount of compensation, the tribunal shall reduce that amount accordingly. 7 Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of P, it shall reduce or further reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. 8 The amount of compensation shall be reduced or further reduced by the amount of any compensation awarded by the tribunal under Article 76 of the Employment Rights (Northern Ireland) Order 1996 in respect of the same act or failure. 9 In determining the amount of compensation to be awarded no account shall be taken of any pressure exercised on D 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. 10 Where P is a worker and the detriment to which P is subjected is the termination of P's contract, and that contract is not a contract of employment, the compensation awarded to P under this regulation shall not exceed £76,600. Unfair dismissal Unfair dismissal 12 1 Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) is amended as follows. 2 After Article 135E insert— Blacklists 135F 1 An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either— a the employer contravenes regulation 3 of the 2014 Regulations in relation to that prohibited list, or b the employer— i relies on information supplied by a person who contravenes that regulation in relation to that list, and ii knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. 2 If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer— a contravened regulation 3 of the 2014 Regulations, or b relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not. 3 In this Article— “ the 2014 Regulations ” means the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014; and “ prohibited list ” has the meaning given in those Regulations (see regulation 3(2)). . 3 In Article 137 (selection for redundancy)— a in paragraph (1)(c) for “(7L)” substitute “ (7M) ” ; b after paragraph (7L) insert— 7M This paragraph applies if— a the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1), and b the condition in sub-paragraph (a) or (b) of that paragraph was met. . 4 In Article 140(3) (qualifying period of employment: cases where no qualifying period required), after sub-paragraph (fj) insert— fk paragraph (1) of Article 135F (read with paragraph (2) of that Article) applies, . 5 In Article 145 (complaint to industrial tribunal)— a in paragraph (2) (general requirement to present complaint within three months beginning with effective date of termination), for “Subject to paragraph (3)” substitute “ Subject to the following provisions of this Article ” ; and b after paragraph (4) add— 5 Where the dismissal is alleged to be unfair by virtue of Article 135F (blacklists)— a paragraph (2)(b) does not apply, and b an industrial tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. . 6 In Article 154 (minimum basic award in certain cases), after paragraph (1B) insert— 1C Where an employee is regarded as unfairly dismissed by virtue of Article 135F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of the basic award of compensation (before any reduction is made under Article 156) shall not be less than £5,700. . 7 In Article 156 (reduction of basic award), after paragraph (4) add— 5 Where a dismissal is regarded as unfair by virtue of Article 135F (blacklists), the amount of the basic award shall be reduced or further reduced by the amount of any basic award under Article 154(1) in respect of the same dismissal under Article 136(1) (dismissal on grounds related to trade union membership or activities) or Article 137(1) and (7) (selection for redundancy on grounds related to trade union membership or activities). . 8 In Article 158 (limit of compensatory award etc.)— a in paragraph (1A) after “134A,” insert “ 135F, ” ; and b after paragraph (1A) insert— 1B Where an employee is regarded as unfairly dismissed by virtue of Article 135F (blacklists) (whether or not the dismissal is unfair or regarded as unfair for any other reason), the amount of award of compensation shall not exceed £76,600. . 9 In Article 163 (interim relief pending determination of complaint), for paragraph (1) substitute— 1 An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed and— a that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in— i Article 132(1)(a) and (b), 132A(1)(d), 133(1), 134, 134A or 136(1), or ii paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order, or b that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1) and the condition in sub-paragraph (a) or (b) of that paragraph was met, may apply to the tribunal for interim relief. . 10 In Article 164 (procedure on hearing of application for interim relief), for paragraph (1) substitute— 1 This Article applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— a that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in— i Article 132(1)(a) and (b), 132A(1)(d), 133(1), 134, 134A or 136(1), or ii paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order, or b that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of Article 135F(1) and the condition in sub-paragraph (a) or (b) of that paragraph was met. . Action for breach of statutory duty Action for breach of statutory duty 13 1 A contravention of regulation 3 is actionable as a breach of statutory duty. 2 If there are facts from which the court could conclude, in the absence of any other explanation, that the defendant has contravened, or is likely to contravene, regulation 3, the court must find that such a contravention occurred, or is likely to occur, unless the defendant shows that it did not, or is not likely to, occur. 3 In proceedings brought by virtue of this regulation, the court may (without prejudice to any of its other powers)— a make such order as it considers appropriate for the purpose of restraining or preventing the defendant from contravening regulation 3; and b award damages, which may include compensation for injured feelings. 4 A person may complain to an industrial tribunal under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as it applies by virtue of these Regulations and bring an action for breach of statutory duty in respect of the same conduct for the purpose of restraining or preventing the defendant from contravening regulation 3. 5 Except as mentioned in paragraph (4), a person may not bring an action for breach of statutory duty and complain to an industrial tribunal under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as it applies by virtue of these Regulations, in respect of the same conduct. Supplementary provisions Complaint against employer and employment agency 14 1 Where P has a right of complaint under regulation 5 or 6 against R and E arising out of the same facts, P may present a complaint against either R or E or against R and E jointly. 2 If P presents a complaint against only one party, that party or P 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 P brings a complaint against R and E jointly, or where P brings a complaint against one of them and the other is joined as a party to the proceedings, and the tribunal— a finds that the complaint is well-founded as against R and E, and b awards compensation, the tribunal may order that the compensation shall be paid by R, by E, or partly by R and partly by E, as the tribunal may consider just and equitable in all the circumstances. Awards against third parties in tribunal proceedings 15 1 If in proceedings on a complaint under regulation 5, 6 or 9, or under Part 11 of the Employment Rights (Northern Ireland) Order 1996 as it applies by virtue of these Regulations, either the respondent or complainant claims that another person contravened regulation 3 in respect of the prohibited list to which the complaint relates, the complainant or respondent may request the tribunal to direct that other person 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 if it is made after the tribunal has made a 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 awards compensation, and c finds the claim in paragraph (1) is well-founded, the tribunal shall make a declaration to that effect and may award such of the remedies mentioned in paragraph (4) as it considers just and equitable. 4 The remedies the tribunal may award are— a an order that compensation shall be paid by the person joined instead of by the respondent, or partly by that person and partly by the respondent; b a recommendation that within a specified period the person joined takes 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. 5 If the person joined 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. 6 Where by virtue of regulation 14 (complaint against employer and employment agency) there is more than one respondent, the above provisions apply to either or both of them. Restrictions on contracting out 16 Article 245 of the Employment Rights (Northern Ireland) Order 1996 (restrictions on contracting out) applies in relation to regulations 5, 6 and 9 as if they were contained in that Order. Consequential amendments 17 1 The Industrial Tribunals (Northern Ireland) Order 1996 is amended as follows. 2 In Article 12(1) (dismissal of complaint where action taken for purpose of safeguarding national security) after sub-paragraph (b) insert— , or c regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (detriment connected with prohibited list). . 3 In Article 18(1) (recoupment of benefits: payments in relation to which power exercisable)— a omit the word “or” at the end of sub-paragraph (b); and b after sub-paragraph (c) insert— or d payments by employers to employees under regulation 5, 6 or 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014, . 4 In Article 20(1) (conciliation: proceedings and claims to which Article applies)— a omit the word “or” at the end of sub-paragraph (t); b after sub-paragraph (u) insert— , or v under regulation 5, 6 or 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014. . 5 In the list in Schedule 4A to the Industrial Relations (Northern Ireland) Order 1992 (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of failure to comply with code of practice), after the entry relating to regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 insert— Regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (S.R. 2014 No. 88) (detriment connected with prohibited list). 6 In the list in Schedule 2 to the Employment (Northern Ireland) Order 2003 (tribunal jurisdictions to which provisions apply requiring adjustment of award in case of non-completion of statutory dispute resolution procedure), after the entry relating to regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008 insert— Regulation 9 of the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 (detriment connected with prohibited list). Extension of time limit to facilitate conciliation before institution of proceedings 18 1 This regulation applies where these Regulations provide for it to apply for the purposes of a provision of these Regulations (“a relevant provision”). 2 In this regulation— a Day A is the day on which the worker concerned complies with the requirement in paragraph (1) of Article 20A of the Industrial Tribunals (Northern Ireland) Order 1996 (requirement to contact Labour Relations Agency before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and b Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under paragraph (11) of that Article) the certificate issued under paragraph (4) of that Article. 3 In working out when the time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. 4 If the time limit set by a relevant provision would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. 5 Where an industrial tribunal has power under these Regulations to extend the time limit set by a relevant provision, the power is exercisable in relation to that time limit as extended by this regulation. Sealed with the Official Seal of the Department for Employment and Learning on 19th March 2014. Dr Stephen Farry Minister for Employment and Learning