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The Employment Equality (Age) Regulations (Northern Ireland) 2006

Type Ni-Statutory-Rule

Publication 2006-06-13

Last updated 2023-10-01

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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articles 1

Reform history JSON API

“block transfer” means a transfer in a single transaction or a series of transactions from a scheme of all the sums and assets held for the purposes of, or representing, or derived from—all accrued rights under a scheme,contracted-out rights, orrights which are not contracted-out rights,relating to a period of continuous pensionable service (or pensionable service which is treated as continuous) or one or more of a number of separate periods of such pensionable service which relate to a member and at least one other member;

“contracted-out rights” are such rights under, or derived from, an occupational pension scheme as fall within the following categories—entitlement to payment of, or accrued rights to, guaranteed minimum pensions, orsection 5(2B) rights;

“death benefit” means benefit payable from a scheme , in respect of a member, in consequence of his death;

“deferred member” has the meaning given by Article 121(1) of the 1995 Order;

“defined benefits arrangement” has the meaning given by section 152(6) of the 2004 Act, but the reference in that section to an arrangement shall be read as referring to an arrangement in respect of a member under a scheme as defined in section 1(1) of the 1993 Act rather than in respect of a member under a pension scheme as defined in section 150(1) of the 2004 Act;

“dependant” means a widow, widower or surviving civil partner or a dependant as defined in the scheme rules;

“early retirement pivot age” means, in relation to age related benefit provided under a scheme, an age specified in the scheme rules (or otherwise determined) as the earliest age at which entitlement arises—without consent (whether of an employer, the trustees or managers of the scheme or otherwise), andwithout an actuarial reduction,but disregarding any special provision as to early payment on grounds of ill health or otherwise;;

“employer” has the meaning given by Article 2(2) of the 2005 Order;

“employment” includes any trade, business, profession, office or vocation, whether or not a person is employed in it under a contract of employment or is self-employed;

“guaranteed minimum pension” has the meaning given in section 4(2) of the 1993 Act;

“late retirement pivot age” means an age specified in the scheme rules (or otherwise determined) above which benefit becomes payable with actuarial enhancement;

“lower earnings limit” means the amount specified for the tax year in question in regulations made under section 5(1)(a)(i) of the 1992 Act (earnings limits and thresholds for Class 1 contributions);

“managers” has the meaning given by Article 121(1) of the 1995 Order;

“member” means any active member, deferred member or pensioner member, but in paragraph 12 includes any active, deferred or pensioner member within the meaning of section 151(2) to (4) of the 2004 Act;

“money purchase arrangement” has the meaning given by section 152(2) of the 2004 Act, but the reference in that section to an arrangement shall be read as referring to an arrangement in respect of a member under a scheme as defined in section 1(1) of the 1993 Act rather than in respect of a member under a pension scheme as defined in section 150(1) of the 2004 Act;

“non-discrimination rule” means the rule in paragraph 2(1);

“normal pension age” has the meaning given by section 175 of the 1993 Act;

“normal retirement age”, in relation to a member, means the age at which workers in the undertaking for which the member worked at the time of his retirement, and who held the same kind of position as the member held at his retirement, were normally required to retire;

...[^f00045]

“pensionable pay” means that part of a member’s pay which counts as pensionable pay under the scheme rules;

“pensionable service” has the meaning given by Article 121(1) of the 1995 Order[^f00046];

“pensioner member” has the meaning given by Article 121(1) of the 1995 Order[^f00047]; ...

“prospective member” means any person who, under the terms of his employment or the scheme rules or both—is able, at his own option, to become a member of the scheme,shall become so able if he continues in the same employment for a sufficient period of time,shall be so admitted to it automatically unless he makes an election not to become a member, ormay be admitted to it subject to the consent of any person.

“protected rights” has the meaning given in section 6 of 1993 Act as it had effect immediately prior to the abolition date ;

“redundancy” means being dismissed by reason of redundancy for the purposes of the Employment Rights (Northern Ireland) Order 1996;

“relevant transfer” has the meaning given in—regulation 2(1) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (interpretation), or as the case may be,regulation 2(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (interpretation);

“section 5(2B) rights” are—rights to the payment of pensions and accrued rights to pensions (other than rights attributable to voluntary contributions) under a scheme contracted-out by virtue of section 5(2B) of the 1993 Act (requirements for certification of schemes: general), so far as attributable to an earner’s service in contracted-out employment on or after 6th April 1997, andwhere a transfer payment has been made to such a scheme, any rights arising under the scheme as a consequence of that payment which are derived directly or indirectly from—such rights as are referred to in paragraph (a) under another scheme contracted-out by virtue of section 5(2B) of the 1993 Act, orprotected rights under another occupational pension scheme or under a personal pension scheme attributable to payments or contributions in respect of employment on or after 6th April 1997 where the transfer took place before the abolition date ; and

“upper earnings limit” means the amount specified for the tax year in question in regulations made under section 5(1)(a)(iii) of the 1992 Act.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this Schedule—

“personal pension scheme” has the meaning given by section 1(1) of the 1993 Act;

“registered pension scheme” has the meaning given by section 150(2) of the 2004 Act; and

references to contributions under a money purchase arrangement shall be construed as including amounts credited to a member’s account whether or not they reflect payments actually made under the scheme.

(9) Any term used in regulation 12 (pension schemes) shall have the same meaning in that regulation as it has in this Schedule and “occupational pension scheme” shall mean an occupational pension scheme within the meaning of either section 1(1) of the 1993 Act or section 150(5) of the 2004 Act .

Non-discrimination rule

2

(1) Every scheme shall be treated as including a provision (“the non-discrimination rule”) containing a requirement that the trustees or managers of the scheme refrain from doing any act which is unlawful by virtue of regulation 12.

(2) The other provisions of the scheme are to have effect subject to the non-discrimination rule.

(3) The trustees or managers of a scheme may—

(a) if they do not (apart from this sub-paragraph) have power to make such alterations to the scheme as may be required to secure conformity with the non-discrimination rule, or

(b) if they have such power but the procedure for doing so—

(i) is liable to be unduly complex or protracted, or

(ii) involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty,

by resolution make such alterations to the scheme.

(4) Alterations made by a resolution such as is referred to in sub-paragraph (3)—

(a) may have effect in relation to a period before the alterations are made (but may not have effect in relation to any time before 1st December 2006 ), and

(b) shall be subject to the consent of any employer in relation to the scheme whose consent would be required for such a modification if it were to be made using the scheme rules.

Exception for rules, practices, actions and decisions relating to occupational pension schemes

3

Nothing in Part 2 or 3 of these Regulations shall render it unlawful for an employer, or for trustees or managers, to maintain or use, in relation to a scheme, any of the rules, practices, actions or decisions set out in Part 2 of this Schedule.

Exception for rules, practices, actions and decisions relating to contributions by employers to personal pension schemes

4

Nothing in Part 2 or 3 of these Regulations shall render it unlawful for an employer, in relation to the payment of contributions to any personal pension scheme in respect of a worker, to maintain or use any of the rules, practices, actions or decisions set out in Part 3 of this Schedule.

Procedure in industrial tribunals

5

Where under regulation 41 (jurisdiction of industrial tribunals) a member or prospective member of a scheme presents to an industrial tribunal a complaint that the trustees or managers of the scheme—

(a) have committed against him an act which is unlawful by virtue of regulation 12 (pension schemes) or regulation 25 (relationships which have come to an end); or

(b) are by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against him such an act,

the employer in relation to the scheme shall, for the purposes of the rules governing procedure, be treated as a party and be entitled to appear and be heard in accordance with those rules.

Remedies in industrial tribunals

6

(1) This paragraph applies where—

(a) under regulation 41 (jurisdiction of industrial tribunals) a member or prospective member of a scheme (“the complainant”) presents to an industrial tribunal a complaint against the trustees or managers of the scheme or an employer;

(b) the complainant is not a pensioner member of the scheme;

(c) the complaint relates to the terms on which persons become members of the scheme, or the terms on which members of the scheme are treated; and

(d) the tribunal finds the complaint to be well-founded.

(2) Where this paragraph applies, the industrial tribunal may, without prejudice to the generality of its power under regulation 43(1)(a) (power to make order declaring rights of complainant and respondent), make an order declaring that the complainant has a right—

(a) where the complaint relates to the terms on which persons become members of the scheme, to be admitted to the scheme; or

(b) where the complaint relates to the terms on which members of the scheme are treated, to membership of the scheme without discrimination.

(3) An order under sub-paragraph (2)—

(a) may be made in respect of such period as is specified in the order (but may not be made in respect of any time before 1st December 2006 );

(b) may make such provision as the industrial tribunal considers appropriate as to the terms on which, or the capacity in which, the complainant is to enjoy such admission or membership.

(4) Where this paragraph applies, the industrial tribunal may not make an order for compensation under regulation 43(1)(b), whether in relation to arrears of benefits or otherwise, except—

(a) for injury to feelings;

(b) by virtue of regulation 43(3).

PART 2 — Excepted rules, practices, actions and decisions relating to occupational pension schemes

Admission to schemes

7

In relation to admission to a scheme—

(a) a minimum or maximum age for admission including different ages for admission for different groups or categories of worker;

(b) a minimum level of pensionable pay for admission where that minimum—

(i) does not exceed one and a half times the lower earnings limit;

(ii) does not exceed an amount calculated by reference to the lower earnings limit where the aim is more or less to reflect the amount of the basic state retirement pension, or

(iii) does not exceed an amount calculated more or less to reflect the amount of the basic state retirement pension plus the additional state retirement pension.

; or

(iv) does not exceed an amount calculated more or less to reflect the amount of the state pension under Part 1 of the Pensions Act (Northern Ireland) 2015.

The use of age criteria in actuarial calculations

8

The use of age criteria in actuarial calculations in a scheme , for example in the actuarial calculation of—

(a) any age related benefit commencing before any early retirement pivot age or enhancement of such benefit commencing after any late retirement pivot age;

(b) member or employer contributions by or in respect of a member to a scheme; or

Contributions

9

Any difference in the rate of member or employer contributions , to a scheme, by or in respect of different members to the extent that this is attributable to any differences in the pensionable pay or, where paragraph 19A applies, different accrual rates, of those members.

Contributions under money purchase arrangements

10

Under a money purchase arrangement—

(a) different rates of member or employer contributions according to the age of the members by or in respect of whom contributions are made where the aim in setting the different rates is—

(i) to equalise the amount of age related benefit in respect of comparable aggregate periods of pensionable service to which members of different ages who are otherwise in a comparable situation will become entitled under the arrangement, or

(ii) to make more nearly equal the amount of the age related benefit, in respect of comparable aggregate periods of pensionable service, to which members of different ages who are otherwise in a comparable situation will become entitled under the arrangement;

(b) equal rates of member or employer contributions irrespective of the age of the members by or in respect of whom contributions are made.

(c) any limitation on any employer contributions in respect of a member or member contributions by reference to a maximum level of pensionable pay.

Contributions under defined benefits arrangements

11

Under a defined benefits arrangement, different rates of member or employer contributions according to the age of the members by or in respect of whom contributions are made, to the extent that—

(a) each year of pensionable service entitles members in a comparable situation to accrue a right to defined benefits based on the same fraction of pensionable pay, and

(b) the aim in setting the different rates is to reflect the increasing cost of providing the defined benefits in respect of members as they get older.

12

(1) Subject to sub-paragraph (4), a minimum age for any member of a scheme to be entitled to a particular age related benefit that is paid in accordance with sub-paragraph (2) and is paid—

(a) either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise), and

(b) before the early retirement pivot age relevant to that age related benefit.

(2) The age related benefit must—

(a) be actuarially reduced on the basis that the aim is to reflect that it is paid on a date before the applicable early retirement pivot age, and

(b) not be enhanced by crediting the member with any additional periods of pensionable service or additional benefits.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of members.

(4) Sub-paragraph (1) shall not apply to any member who retires on the grounds to which paragraph 13, 13A or 15 applies.

13

(1) A minimum age for any active or prospective members of a scheme for payment of or entitlement to a particular age related benefit before the early retirement pivot age relevant to that age related benefit where—

(a) the entitlement to the age related benefit at a minimum age applies to a member who is an active or prospective member of the scheme on 1st December 2006;

(b) the age related benefit may be paid, at a minimum age, to the active or prospective member either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise), and

(2) For the purposes of sub-paragraph (1)(c) the specified ways are the enhancement of any age related benefit payable to or in respect of the member calculated in one or more of the following ways—

(a) by reference to some or all of the years of prospective pensionable service a member would have completed if he had remained in pensionable service until normal pension age;

(b) by reference to a fixed number of years of prospective pensionable service;

(c) by making an actuarial reduction which is smaller than if early retirement had been on grounds to which paragraph 12 applies, or

(d) by not making any actuarial reduction for early retirement.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of active or prospective members.

14

An early retirement pivot age or a late retirement pivot age including—

(a) different such ages for different groups or categories of member, and

(b) any early retirement pivot age or late retirement pivot age for deferred members which is different than for active members.

15

(1) A minimum age for any member of a scheme for payment of or entitlement to a particular age related benefit on the grounds of ill health where the age related benefit is enhanced in accordance with sub-paragraph (2) and paid either with or without consent (whether of an employer, the trustees or managers of the scheme or otherwise).

(2) The enhancement of any age related benefit payable to or in respect of a member on the grounds of ill health where the enhancement is calculated in one of more of the following ways—

(a) by reference to some or all of the years of prospective pensionable service a member would have completed if he had remained in pensionable service until normal pension age;

(b) by reference to a fixed number of years of prospective pensionable service;

(c) by making an actuarial reduction which is smaller than if early retirement had been on the grounds to which paragraph 12 applied, or

(d) by not making any actuarial reduction for early retirement.

(3) Sub-paragraph (1) shall also apply to different minimum ages for different groups or categories of members.

16

(1) Any rule, practice, action or decision where—

(a) the rate of pension to which a pensioner member is entitled is reduced at any time between age 60 and that member’s state pension age (“the reduction date”), by either—

(i) an amount not exceeding the relevant state retirement pension rate at the reduction date, or

(ii) the rate of the pension in payment where on the reduction date the relevant state retirement pension rate is greater than the rate of that pension;

(b) from the date a member is entitled to present payment of a pension from a scheme he is entitled to an additional amount of pension which does not exceed the amount of the basic state retirement pension plus the additional state retirement pension or the state pension under Part 1 of the Pensions Act (Northern Ireland) 2015 that would be payable at state pension age, or

(c) a member who reaches his state pension age is not entitled to, or no longer entitled to, an additional amount of pension which does not exceed the amount of the basic state retirement pension plus the additional state retirement pension or the state pension under Part 1 of the Pensions Act (Northern Ireland) 2015 that would be payable at state pension age.

(2) For the purposes of paragraph (1)—

“relevant state retirement pension rate” has the same meaning as in regulation 4(3)(b) of the Registered Pension Schemes (Bridging Pensions) and Appointed Day Regulations 2016 (pensions bridging: pensionable age on or after 6thApril 2016) ;

“state pension age” means the pensionable age specified in the rules in paragraph 1 of Schedule 2 to the 1995 Order.

17

The actuarial reduction of any pension payable from a scheme in consequence of a member’s death to any dependant of the member where that dependant is more than a specified number of years younger than the member.

18

In relation to pensioner members who have retired from a scheme on ill health grounds ..., discontinuation of any life assurance cover once any such members reach the normal retirement age which applied to them at the time they retired, or in relation to members to whom no such normal retirement age applied, once such members reach the age of 65.

Other rules, practices, actions and decisions relating to benefit

19

Any difference in the amount of any age related benefit or death benefit payable under a scheme to or in respect of members with different lengths of pensionable service to the extent that the difference in amount is attributable to their differing lengths of service, provided that, for each year of pensionable service, members in a comparable situation are entitled to accrue a right to benefit based upon the same fraction of pensionable pay.

20

Any difference in the amount of any age related benefit or death benefit payable from a scheme to or in respect of different members to the extent that the difference in amount is attributable to differences over time in the pensionable pay of those members.

21

(1) Any limitation on the amount of any age related benefit or death benefit payable from a scheme where one or both of sub-paragraphs (2) and (3) apply.

(2) The limitation results from imposing a maximum number of years of pensionable service by reference to which the age related benefit or death benefit may be calculated.

(3) The limitation arises from imposing a maximum amount on the age related benefit or death benefit which is equal to a fraction, proportion or multiple of a member’s pensionable pay.

22

Any rule, practice, action or decision where any age related benefit or death benefit is only payable from a scheme where a member is entitled to short service benefit under section 67 of the 1993 Act (basic principles as to short service benefit).

23

When determining a member’s pensionable pay by reference to which any age related benefit or death benefit payable to or in respect of a member is calculated, to exclude from the member’s remuneration an amount which—

(a) does not exceed one and a half times the lower earnings limit;

(b) does not exceed an amount calculated by reference to the lower earnings limit where the aim is more or less to reflect the amount of the basic state retirement pension, or

(c) does not exceed an amount calculated more or less to reflect the amount of the basic state retirement pension plus the additional state retirement pension.

, or

(d) does not exceed an amount calculated more or less to reflect the amount of the state pension under Part 1 of the Pensions Act (Northern Ireland) 2015.

24

Any limitation on the amount of any age related benefit or death benefit payable from a scheme where the limitation—

(a) relates to—

(i) all members who joined, or who became eligible to join the scheme on, after or before a particular date, or

(ii) any group or category of members who joined, or who became eligible to join the scheme on, after or before a particular date, and

(b) results from imposing a maximum level of pensionable pay by reference to which the age related benefit or death benefit may be calculated.

Closure of schemes

25

The closure of a scheme, from a particular date, to workers who have not already joined it.

Other rules, practices, actions and decisions

26

Increases of pensions in payment which are made to members over 55 but not to members below that age.

27

Any difference in the rate of increase of pensions in payment for members of different ages to the extent that the aim in setting the different rates is to maintain or more nearly maintain the relative value of members' pensions.

28

Any difference in the rate of increase of pensions in payment for members whose pensions have been in payment for different lengths of time to the extent that the aim in setting the different rates is to maintain or more nearly maintain the relative value of members' pensions.

29

The application of an age limit for transfer of the value of a member’s accrued rights into or out of a scheme, provided that any such age limit is not more than one year before the member’s normal pension age.

Registered pension schemes

30

(1) ...Any rules, practices, actions or decisions relating to entitlement to or payment of benefits under a scheme which is a registered pension scheme insofar as compliance is necessary to secure any tax relief or exemption available under Part 4 of the 2004 Act or to prevent any charge to tax arising under that Part of that Act, whoever is liable in relation to such charge.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 — Excepted rules, practices, actions and decisions relating to contributions by employers to personal pension schemes

Contributions by employers

31

Different rates of contributions by an employer to a personal pension scheme according to the age of the workers in respect of whom the contributions are made where the aim in setting the different rates is—

(a) to equalise the amount of age related benefit, derived from contributions made each year by the employer, to which workers of different ages who are otherwise in a comparable situation will become entitled under their personal pension schemes, or

(b) to make more nearly equal the amount of the age related benefit, derived from contributions made each year by the employer, to which workers of different ages who are otherwise in a comparable situation will become entitled under their personal pension schemes.

32

Any difference in the rate of contributions by an employer to a personal pension scheme in respect of different workers to the extent that this is attributable to any differences in remuneration payable to those workers.

SCHEDULE 2 — Questionnaire of person aggrieved

SCHEDULE 3 — Reply by respondent

SCHEDULE 4 — Validity of contracts, collective agreements and rules of undertaking

PART 1 — Validity and revision of contracts

1

(1) A term of a contract is void where—

(a) the making of the contract is, by reason of the inclusion of the term, unlawful by virtue of these Regulations;

(b) it is included in furtherance of an act which is unlawful by virtue of these Regulations; or

(2) Sub-paragraph (1) does not apply to a term the inclusion of which constitutes, or is in furtherance of, or provides for, unlawful discrimination against, or harassment of, a party to the contract, but the term shall be unenforceable against that party.

(3) A term in a contract which purports to exclude or limit any provision of these Regulations is unenforceable by any person in whose favour the term would operate apart from this paragraph.

(4) Sub-paragraphs (1), (2) and (3) shall apply whether the contract was entered into before or after the date on which any term of the contract became unlawful by virtue of these Regulations, but in the case of a contract made before the date on which a term became unlawful, those sub-paragraphs do not apply to that term in relation to any period before that date.

2

(1) Paragraph 1(3) does not apply—

(a) to a contract settling a complaint to which regulation 41(1) (jurisdiction of industrial tribunals) applies where the contract is made with the assistance of the Labour Relations Agency;

(b) to a contract settling a complaint to which regulation 41(1) applies if the conditions regulating compromise contracts under this Schedule are satisfied in relation to the contract; or

(2) The conditions regulating compromise contracts under this Schedule are that—

(a) the contract must be in writing;

(b) the contract must relate to the particular complaint;

(c) the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed contract and in particular its effect on his ability to pursue a complaint before an industrial tribunal;

(d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

(e) the contract must identify the adviser; and

(f) the contract must state that the conditions regulating compromise contracts under this Schedule are satisfied.

(3) A person is a relevant independent adviser for the purposes of sub-paragraph (2)(c)—

(a) if he is a qualified lawyer;

(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union; or

(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.

(4) But a person is not a relevant independent adviser for the purposes of sub-paragraph (2)(c) in relation to the complainant—

(a) if he is employed by, or is acting in the matter for the other party, or is a person who is connected with the other party;

(b) in the case of a person within sub-paragraph (3)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party; or

(c) in the case of a person within sub-paragraph (3)(c), if the complainant makes a payment for the advice received from him.

(5) In sub-paragraph (3)(a) “qualified lawyer” means a barrister (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate.

(6) In sub-paragraph (3)(b) “independent trade union” has the same meaning as in the Industrial Relations (Northern Ireland) Order 1992[^f00050].

(7) For the purposes of sub-paragraph (4)(a) any two persons are to be treated as connected—

(a) if one is a company of which the other (directly or indirectly) has control; or

(b) if both are companies of which a third person (directly or indirectly) has control.

(8) An agreement under which the parties agree to submit a dispute to arbitration—

(a) shall be regarded for the purposes of sub-paragraph (1)(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[^f00051], 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 a contract in any other case.

3

(1) On the application of a person interested in a contract to which paragraph 1(1) or (2) applies, a county court may make such order as it thinks fit for—

(a) removing or modifying any term rendered void by paragraph 1(1), or

(b) removing or modifying any term made unenforceable by paragraph 1(2);

but such an order shall not be made unless all persons affected have been given notice in writing of the application (except where under county court rules notice may be dispensed with) and have been afforded an opportunity to make representations to the court.

(2) An order under sub-paragraph (1) may include provision as respects any period before the making of the order (but after the date on which the inclusion of any term which is the subject of the order becomes unlawful by virtue of these Regulations) .

PART 2 — Collective agreements and rules of undertakings

4

(1) This Part of this Schedule applies to—

(a) any term of a collective agreement, including an agreement which was not intended, or is presumed not to have been intended, to be a legally enforceable contract;

(b) any rule made by an employer for application to all or any of the persons who are employed by him or who apply to be, or are, considered by him for employment;

(c) any rule made by a trade organisation (within the meaning of regulation 19) or a qualification body (within the meaning of regulation 20) for application to—

(i) all or any of its members or prospective members; or

(ii) all or any of the persons on whom it has conferred professional or trade qualifications (within the meaning of regulation 20) or who are seeking the professional or trade qualifications which it has power to confer.

(2) Any term or rule to which this Part of this Schedule applies is void where—

(a) the making of the collective agreement is, by reason of the inclusion of the term, unlawful by virtue of these Regulations;

(b) the term or rule is included or made in furtherance of an act which is unlawful by virtue of these Regulations; or

(3) Sub-paragraph (2) shall apply whether the agreement was entered into, or the rule made, before or after the date on which any term of the agreement or rule became unlawful by virtue of these Regulations; but in the case of an agreement entered into, or a rule made, before the date on which a term, or rule, became unlawful, that sub-paragraph does not apply to that term or rule in relation to any period before that date.

5

A person to whom this paragraph applies may present a complaint to an industrial tribunal that a term or rule is void by virtue of paragraph 4 if he has reason to believe—

(a) that the term or rule may at some future time have effect in relation to him; and

(b) where he alleges that it is void by virtue of paragraph 4(2)(c), that—

(i) an act for the doing of which it provides, may at some time be done in relation to him, and

(ii) the act would be unlawful by virtue of these Regulations if done in relation to him in present circumstances.

6

In the case of a complaint about—

(a) a term of a collective agreement made by or on behalf of—

(i) an employer,

(ii) an organisation of employers of which an employer is a member, or

(iii) an association of such organisations of one of which an employer is a member, or

(b) a rule made by an employer within the meaning of paragraph 4(1)(b),

paragraph 5 applies to any person who is, or is genuinely and actively seeking to become, one of his employees.

7

In the case of a complaint about a rule made by an organisation or body to which paragraph 4(1)(c) applies, paragraph 5 applies to any person—

(a) who is, or is genuinely and actively seeking to become, a member of the organisation or body;

(b) on whom the organisation or body has conferred a professional or trade qualification (within the meaning of regulation 20) which the organisation or body has power to confer; or

(c) who is genuinely and actively seeking such a professional or trade qualification which the organisation or body has power to confer.

8

(1) When an industrial tribunal finds that a complaint presented to it under paragraph 5 is well-founded the tribunal shall make an order declaring that the term or rule is void.

(2) An order under sub-paragraph (1) may include provision as respects any period before the making of the order (but after the date on which the inclusion of the term or rule became unlawful by virtue of these Regulations) .

9

The avoidance by virtue of paragraph 4(2) of any term or rule which provides for any person to be discriminated against shall be without prejudice to the following rights (except in so far as they enable any person to require another person to be treated less favourably than himself), namely—

(a) such of the rights of the person to be discriminated against; and

(b) such of the rights of any person who will be treated more favourably in direct or indirect consequence of the discrimination,

as are conferred by or in respect of a contract made or modified wholly or partly in pursuance of, or by reference to, that term or rule.

10

In this Schedule “collective agreement” means any agreement relating to one or more of the matters mentioned in Article 96(1) of the Industrial Relations (Northern Ireland) Order 1992[^f00052] (meaning of trade dispute), being an agreement made by or on behalf of one or more employers or one or more organisations of employers or associations of such organisations with one or more organisations of workers or associations of such organisations.

SCHEDULE 5 — Duty to consider working beyond retirement

Interpretation

1

(1) In this Schedule—

“dismissal” means a dismissal within the meaning of Article 127 of the 1996 Order[^f00053];

“employee” means a person to whom regulation 32 (exception for retirement) applies and references to “employer” shall be construed accordingly;

“intended retirement date” has the meaning given by sub-paragraph (2);

“operative date of termination” means (subject to paragraph 10(3))—where the employer terminates the employee’s contract of employment by notice, the date on which the notice expires; orwhere the employer terminates the contract of employment without notice, the date on which the termination takes effect;

“request” means a request made under paragraph 5; and

“worker” has the same meaning as in Article 3(3) of the 1996 Order.

(2) In this Schedule, “intended retirement date” means—

(a) where the employer notifies a date in accordance with paragraph 2, that date;

(b) where the employer notifies a date in accordance with paragraph 4 and either no request is made or a request is made after the notification, that date;

(i) the employer has not notified a date in accordance with paragraph 2,

(ii) a request is made before the employer has notified a date in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given),

(iii) the request is made by an employee who has reasonable grounds for believing that the employer intends to retire him on a certain date,

(iv) the request identifies that date, and

the date so identified;

(d) in a case to which paragraph 3 has applied, any earlier or later date that has superseded the date mentioned in head (a), (b) or (c) as the intended date of retirement by virtue of paragraph 3(3);

(e) in a case to which paragraph 10 has applied, the later date that has superseded the date mentioned in head (a), (b) or (c) as the intended date of retirement by virtue of paragraph 10(3)(b).

Duty of employer to notify employee

2

(1) An employer who intends to retire an employee has a duty to notify the employee in writing of—

(a) the employee’s right to make a request; and

(b) the date on which he intends the employee to retire,

not more than one year and not less than six months before that date.

(2) The duty to notify applies regardless of—

(a) whether there is any term in the employee’s contract of employment indicating when his retirement is expected to take place;

(b) any other notification of, or information about, the employee’s date of retirement given to him by the employer at any time; and

3

(1) This paragraph applies if the employer has notified the employee in accordance with paragraph 2 or 4 or the employee has made a request before being notified in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given), and—

(a) the employer and employee agree, in accordance with paragraph 7(3)(b) or 8(5)(b), that the dismissal is to take effect on a date later than the relevant date;

(b) the employer gives notice to the employee, in accordance with paragraph 7(7)(a)(ii) or, where the employee appeals, paragraph 8(9)(a)(ii), that the dismissal is to take effect on a date later than the relevant date; or

(2) This Schedule does not require the employer to give the employee a further notification in respect of dismissal taking effect on a date—

(a) agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) that is later than the relevant date and falls six months or less after the relevant date; or

(b) agreed as mentioned in sub-paragraph (1)(c) that is earlier than the relevant date.

(3) If—

(a) a date later than the relevant date is agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) and falls six months or less after the relevant date, or

(b) a date earlier than the relevant date is agreed as mentioned in sub-paragraph (1)(c),

the earlier or later date shall supersede the relevant date as the intended date of retirement.

(4) In this paragraph, “the relevant date” means the date that is defined as the intended date of retirement in head (a), (b) or (c) of paragraph 1(2).

Continuing duty to notify employee

4

Where the employer has failed to comply with paragraph 2, he has a continuing duty to notify the employee in writing as described in paragraph 2(1) until the fourteenth day before the operative date of termination.

Statutory right to request not to retire

5

(1) An employee may make a request to his employer not to retire on the intended date of retirement.

(2) In his request the employee must propose that his employment should continue, following the intended date of retirement—

(a) indefinitely;

(b) for a stated period; or

and, if the request is made at a time when it is no longer possible for the employer to notify in accordance with paragraph 2 and the employer has not yet notified in accordance with paragraph 4, must identify the date on which he believes that the employer intends to retire him.

(3) A request must be in writing and state that it is made under this paragraph.

(4) An employee may only make one request under this paragraph in relation to any one intended date of retirement and may not make a request in relation to a date that supersedes a different date as the intended date of retirement by virtue of paragraph 3(3) or 10(3)(b).

(5) A request is only a request made under this paragraph if it is made—

(a) in a case where the employer has complied with paragraph 2, more than three months but not more than six months before the intended date of retirement; or

(b) in a case where the employer has not complied with paragraph 2, before, but not more than six months before, the intended date of retirement .

An employer’s duty to consider a request

6

An employer to whom a request is made is under a duty to consider the request in accordance with paragraphs 7 to 9.

Meeting to consider request

7

(1) An employer having a duty under paragraph 6 to consider a request shall hold a meeting to discuss the request with the employee within a reasonable period after receiving it.

(2) The employer and employee must take all reasonable steps to attend the meeting.

(3) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—

(a) the employer and employee agree that the employee’s employment will continue indefinitely and the employer gives notice to the employee to that effect; or

(b) the employer and employee agree that the employee’s employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.

(4) The duty to hold a meeting does not apply if—

(a) it is not practicable to hold a meeting within the period that is reasonable; and

(b) the employer complies with sub-paragraph (5).

(5) Where sub-paragraph (4)(a) applies, the employer may consider the request without holding a meeting provided he considers any representations made by the employee.

(6) The employer shall give the employee notice of his decision on the request as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (4) and (5) apply, his consideration of the request.

(7) A notice given under sub-paragraph (6) shall—

(a) where the decision is to accept the request, state that it is accepted and—

(i) where the decision is that the employee’s employment will continue indefinitely, state that fact; or

(ii) where the decision is that the employee’s employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end;

(b) where the decision is to refuse the request, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect,

and, in the case of a notice falling within head (b), and of a notice referred to in head (a) that specifies a period shorter than the period proposed by the employee in the request, shall inform the employee of his right to appeal.

(8) All notices given under this paragraph shall be in writing and be dated.

Appeals

8

(1) An employee is entitled to appeal against—

(a) a decision of his employer to refuse the request; or

(b) a decision of his employer to accept the request where the notice given under paragraph 7(6) states as mentioned in paragraph 7(7)(a)(ii) specifies and a period shorter than the period proposed by the employee in the request,

by giving notice in accordance with sub-paragraph (2) as soon as is reasonably practicable after the date of the notice given under paragraph 7(6).

(2) A notice of appeal under sub-paragraph (1) shall set out the grounds of appeal.

(3) The employer shall hold a meeting with the employee to discuss an appeal within a reasonable period after the date of the notice of appeal.

(4) The employer and employee must take all reasonable steps to attend the meeting.

(5) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—

(a) the employer and employee agree that the employee’s employment will continue indefinitely and the employer gives notice to the employee to that effect; or

(b) the employer and employee agree that the employee’s employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.

(6) The duty to hold a meeting does not apply if—

(a) it is not practicable to hold a meeting within the period that is reasonable; and

(b) the employer complies with sub-paragraph (7).

(7) Where sub-paragraph (6)(a) applies, the employer may consider the appeal without holding a meeting provided he considers any representations made by the employee.

(8) The employer shall give the employee notice of his decision on the appeal as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (6) and (7) apply, his consideration of the appeal.

(9) A notice given under sub-paragraph (8) shall—

(a) where the decision is to accept the appeal, state that it is accepted and—

(i) where the decision is that the employee’s employment will continue indefinitely, state that fact; or

(ii) where the decision is that the employee’s employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end;

(b) where the decision is to refuse the appeal, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect.

(10) All notices given under this paragraph shall be in writing and be dated.

Right to be accompanied

9

(1) This paragraph applies where—

(a) a meeting is held under paragraph 7 or 8; and

(b) the employee reasonably requests to be accompanied at the meeting.

(2) Where this paragraph applies, the employer must permit the employee to be accompanied at the meeting by one companion who—

(a) is chosen by the employee;

(b) is a worker employed by the same employer as the employee;

(d) is to be permitted to confer with the employee during the meeting.

(3) If—

(a) an employee has a right under this paragraph to be accompanied at a meeting;

(b) his chosen companion will not be available at the time proposed for the meeting by the employer; and

the employer must postpone the meeting to the time proposed by the employee.

(4) An alternative time must—

(a) be convenient for employer, employee and companion; and

(b) fall before the end of the period of seven days beginning with the first day after the day proposed by the employer.

(5) An employer shall permit a worker to take time off during working hours for the purpose of accompanying an employee in accordance with a request under sub-paragraph (1)(b).

(6) Articles 92(3) and (4), 93 and 95 of the 1996 Order (time off for carrying out trade union duties) shall apply in relation to sub-paragraph (5) as they apply in relation to Article 92(1) of that Order.

Dismissal before request considered

10

(1) This paragraph applies where—

(a) by virtue of paragraph 6 an employer is under a duty to consider a request;

(b) the employer dismisses the employee;

(d) the operative date of termination would, but for sub-paragraph (3), fall on or before the day on which the employer gives notice in accordance with paragraph 7(6).

(2) Subject to paragraph (4), the contract of employment shall continue in force for all purposes, including the purpose of determining for any purpose the period for which the employee has been continuously employed, until the day following that on which the notice under paragraph 7(6) is given.

(3) The day following the day on which that notice is given shall supersede—

(a) the date mentioned in sub-paragraph (1)(d) as the operative date of termination; and

(b) the date defined as the intended date of retirement in head (a), (b) or (c) of paragraph 1(2) as the intended date of retirement.

(4) Any continuation of the contract of employment under sub-paragraph (2) shall be disregarded when determining the operative date of termination for the purposes of Articles 130ZA to 130ZH of the 1996 Order[^f00054].

Complaint to industrial tribunal: failure to comply with paragraph 2

11

(1) An employee may present a complaint to an industrial tribunal that his employer has failed to comply with the duty to notify him in paragraph 2.

(2) A tribunal shall not consider a complaint under this paragraph unless the complaint is presented—

(a) before the end of the period of three months beginning with—

(i) the last day permitted to the employer by paragraph 2 for complying with the duty to notify; or

(ii) if the employee did not then know the date that would be the intended date of retirement, the day on which he knew or should have known that date; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where a tribunal finds that a complaint under this paragraph is well-founded, it shall order the employer to pay compensation to the employee of such amount, not exceeding 8 weeks' pay, as the tribunal considers just and equitable in all the circumstances.

(4) Chapter IV of Part I of the 1996 Order (a week’s pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the complaint was presented or, if earlier, the operative date of termination.

(5) The limit in Article 23(1) of the 1996 Order[^f00055] (maximum amount of a week’s pay) shall apply for the purposes of sub-paragraph (3).

Complaint to industrial tribunal: denial of right to be accompanied

12

(1) An employee may present a complaint to an industrial tribunal that his employer has failed, or threatened to fail, to comply with paragraph 9(2) or (3).

(2) A tribunal shall not consider a complaint under this paragraph in relation to a failure or threat unless the complaint is presented—

(a) before the end of the period of three months beginning with the date of the failure or threat; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where a tribunal finds that a complaint under this paragraph is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.

(4) Chapter IV of Part I of the 1996 Order (a week’s pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the relevant meeting took place (or was to have taken place).

(5) The limit in Article 23(1) of the 1996 Order (maximum amount of a week’s pay) shall apply for the purposes of sub-paragraph (3).

Detriment and dismissal

13

(1) An employee has the right not to be subjected to any detriment by any act by his employer done on the ground that he exercised or sought to exercise his right to be accompanied in accordance with paragraph 9.

(2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he accompanied or sought to accompany an employee pursuant to a request under paragraph 9.

(3) Article 71 of the 1996 Order[^f00056] (complaints to industrial tribunals) shall apply in relation to contraventions of sub-paragraph (1) or (2) as it applies in relation to contraventions of certain Articles of that Order.

(4) Sub-paragraph (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal (within the meaning of Part XI of the 1996 Order).

(5) An employee who is dismissed shall be regarded for the purposes of Part XI of the 1996 Order as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he—

(a) exercised or sought to exercise his right to be accompanied in accordance with paragraph 9; or

(b) accompanied or sought to accompany an employee pursuant to a request under that paragraph.

(6) Articles 163 to 167 of the 1996 Order (interim relief) shall apply in relation to dismissal for the reason specified in sub-paragraph (5)(a) or (b) as they apply in relation to dismissal for a reason specified in Article 163(1)(b) of that Order.

SCHEDULE 6 — Duty to consider working beyond retirement – transitional provisions

1

In paragraphs 2 to 6—

(a) “the expiry date” means the date on which notice of dismissal given by an employer expires; and

(b) words and expressions shall have the same meanings as they do in Schedule 5.

2

(1) This paragraph applies in a case where—

(a) an employer has given notice of dismissal to the employee before 1st October 2006 of—

(i) at least the period required by the contract of employment; or

(ii) where the period required by the contract exceeds four weeks, at least four weeks;

(b) the expiry date falls before 1st April 2007; and

(c) the employer has made the employee aware, before 1st October 2006, that the employer considers that the employee is being retired on the expiry date.

(2) Where this paragraph applies and the employer on or as soon as is practicable after 1st October 2006 notifies the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5—

(a) the employer shall be treated as complying with the duty in paragraph 2 of Schedule 5;

(b) a request shall be treated as being a request made under paragraph 5 of Schedule 5 provided it—

(i) is made after the employer notified the employee of his right to make a request;

(ii) satisfies the requirements of sub-paragraphs (2) and (3) of paragraph 5 of Schedule 5; and

(iii) is made—

(aa) where practicable, at least four weeks before the expiry date; or

(bb) where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

(3) Where this paragraph applies and the employer does not, on or as soon as is practicable after 1st October 2006, notify the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5—

(a) the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b) the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i) the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii) the duty was one to notify at any time before the expiry date;

(c) a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i) before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii) after such notification and—

(aa) where practicable, at least four weeks before the expiry date; or

(bb) where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

3

(1) This paragraph applies in a case where the employer has given notice of dismissal to the employee before 1st October 2006 and—

(a) the expiry date falls before 1st April 2007, but

(b) the period of notice given is shorter than the minimum period of notice required by paragraph 2(1)(a) or the employer has not complied with paragraph 2(1)(c).

(2) Where this paragraph applies—

(a) the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b) the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i) the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii) the duty was one to notify at any time before the expiry date;

(c) a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i) before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii) after such notification and—

(aa) where practicable, at least four weeks before the expiry date; or

(bb) where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

4

(1) This paragraph applies in a case where—

(a) notice of dismissal is given on or after 1st October 2006 of at least—

(i) the period required by the contract of employment; or

(ii) if longer, the period required by Article 118 of the 1996 Order (rights of employer and employee to minimum notice); and

(b) the expiry date falls before 1st April 2007.

(2) Where this paragraph applies and the employer notifies the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5 before, or on the same day as, the day on which notice of dismissal is given—

(a) the employer shall be treated as complying with the duty in paragraph 2 of Schedule 5;

(b) a request shall be treated as being a request made under paragraph 5 of Schedule 5 provided it—

(i) is made after the employer notified the employee of his right to make a request;

(ii) satisfies the requirements of sub-paragraphs (2) and (3) of paragraph 5 of Schedule 5; and

(iii) is made—

(aa) where practicable, at least four weeks before the expiry date; or

(bb) where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

(3) Where this paragraph applies but the employer does not notify the employee in writing of the employee’s right to make a request under paragraph 5 of Schedule 5 before, or on the same day as, the day on which notice of dismissal is given—

(a) the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b) the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i) the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii) the duty was one to notify at any time before the expiry date;

(c) a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i) before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii) after such notification and—

(aa) where practicable, at least four weeks before the expiry date; or

(bb) where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

5

(1) This paragraph applies in a case where—

(a) notice of dismissal is given on or after 1st October 2006 and is for a period shorter than—

(i) the period required by the contract of employment; or

(ii) if longer, the period required by Article 118 of the 1996 Order; and

(b) the period of notice expires on a date falling before 1st April 2007.

(2) Where this paragraph applies—

(a) the duty to notify in accordance with paragraph 2 of Schedule 5 does not apply;

(b) the duty to notify in accordance with paragraph 4 of Schedule 5 applies as if—

(i) the employer had failed to notify in accordance with paragraph 2 of that Schedule; and

(ii) the duty was one to notify at any time before the expiry date;

(c) a request shall be treated as being a request made under paragraph 5 of Schedule 5 if it satisfies the requirements of sub-paragraphs (2) and (3) of that paragraph and is made—

(i) before any notification given in accordance with paragraph 4 of Schedule 5; or

(ii) after such notification and—

(aa) where practicable, at least four weeks before the expiry date; or

(bb) where that is not practicable, as soon as reasonably practicable (whether before or after the expiry date) after the employer notified the employee of his right to make a request, but not more than four weeks after the expiry date.

6

In every case to which paragraph 2, 3, 4 or 5 applies—

(a) paragraph 10 of Schedule 5 does not apply; and

(b) the employer is under a duty to consider any request which complies with the requirements of paragraph 2(2)(b), 2(3)(c), 3(2)(c), 4(2)(b), 4(3)(c) or 5(2)(c) in accordance with paragraphs 7 to 9 of Schedule 5.

Part 1 — Primary legislation

1

(1) The Social Security Contributions and Benefits (Northern Ireland) Act 1992[^f00057] shall be amended in accordance with sub-paragraphs (2) to (10).

(2) In section 159(1)[^f00058] (interpretation of Part XI and supplementary provisions)—

(a) in the definition of “employee” omit paragraph (b) and the word “and” preceding it; and

(b) for the definition of “employer” substitute the following definition—

“employer”, in relation to an employee and a contract of service of his, means a person who—under section 6 above is liable to pay secondary Class 1 contributions in relation to any earnings of the employee under the contract; orwould be liable to pay such contributions but for—the condition in section 6(1)(b); orthe employee being under the age of 16;

(3) In section 167(1)[^f00059] (interpretation of Part XII etc.)—

(a) in the definition of “employee” omit paragraph (b) and the word “and” preceding it; and

(b) for the definition of “employer” substitute the following definition—

“employer”, in relation to a woman who is an employee, means a person who—under section 6 above is liable to pay secondary Class 1 contributions in relation to any of her earnings; orwould be liable to pay such contributions but for—the condition in section 6(1)(b); orthe employee being under the age of 16;

(4) Sub-paragraph (3) applies in relation to any case where the expected week of confinement begins on or after 14th January 2007.

(5) In section 167ZJ[^f00060] (Part XIIZA: supplementary)—

(a) in subsection (1), for the definition of “employer” substitute the following definition—

“employer”, in relation to a person who is an employee, means a person who—under section 6 above is liable to pay secondary Class 1 contributions in relation to any of the earnings of the person who is an employee; orwould be liable to pay such contributions but for—the condition in section 6(1)(b); orthe employee being under the age of 16;

; and

(b) in subsection (2) omit paragraph (b) and the word “and” preceding it.

(6) Sub-paragraph (5) applies in relation to an entitlement to—

(a) statutory paternity pay (birth) in respect of children whose expected week of birth begins on or after 14th January 2007;

(b) statutory paternity pay (adoption) in respect of children—

(i) matched with a person who is notified of having been matched on or after 1st October 2006; or

(ii) placed for adoption on or after 1st October 2006.

(7) In section 167ZS[^f00061] (Part XIIZB: supplementary)—

(a) in subsection (1), for the definition of “employer” substitute the following definition—

“employer”, in relation to a person who is an employee, means a person who—under section 6 above is liable to pay secondary Class 1 contributions in relation to any of the earnings of the person who is an employee; orwould be liable to pay such contributions but for—the condition in section 6(1)(b); orthe employee being under the age of 16;

; and

(b) in subsection (2) omit paragraph (b) and the word “and” preceding it.

(8) Sub-paragraph (7) applies in relation to an entitlement to statutory adoption pay in respect of children—

(a) matched with a person who is notified of having been matched on or after 1st October 2006; or

(b) placed for adoption on or after 1st October 2006.

(9) In Schedule 11 omit paragraph 2(a)[^f00062] (period of entitlement not to arise if at the relevant date the employee is over 65).

(10) Sub-paragraph (9) applies in relation to a period of incapacity for work which—

(a) begins on or after 1st October 2006, or

(b) begins before and continues on or after 1st October 2006.

(11) But in a case falling within sub-paragraph (10)(b), sub-paragraph (9) does not affect the application of paragraph 1 of Schedule 11 to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in relation to the part of the period of incapacity for work that falls before 1st October 2006.

The Statutory Sick Pay (Northern Ireland) Order 1994

2

(1) The Statutory Sick Pay (Northern Ireland) Order 1994[^f00063] shall be amended in accordance with this paragraph.

(2) In Article 3(2) (restriction of employers' right of recovery) omit the words after sub-paragraph (b).

The Employment Rights (Northern Ireland) Order 1996

3

(1) The 1996 Order[^f00064] shall be amended in accordance with sub-paragraphs (2) to (15).

(2) In Article 7 (period of continuous employment)—

(a) in sub-paragraph (a) of paragraph (1), for “paragraphs (2) and” substitute “paragraph”; and

(b) omit paragraph (2).

(3) Article 130[^f00065] (fairness: general) shall be amended as follows—

(a) in paragraph (2), after sub-paragraph (b) insert—

(ba) is retirement of the employee,

(b) after paragraph (2) insert—

(2A) Paragraphs (1) and (2) are subject to Articles 130ZA to 130ZF.

(3A) In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.

; and

(d) in paragraph (4), for “Where” substitute “In any other case where”.

(4) After Article 130 insert—

(130ZA) (1) This Article applies to the dismissal of an employee if— (a) the employee has no normal retirement age, and (b) the operative date of termination falls before the date when the employee reaches the age of 65. (2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal. (130ZB) (1) This Article applies to the dismissal of an employee if— (a) the employee has no normal retirement age, and (b) the operative date of termination falls on or after the date when the employee reaches the age of 65. (2) In a case where— (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and (b) the contract of employment terminates on the intended date of retirement, retirement of the employee shall be taken to be the only reason for dismissal by the employer and any other reason shall be disregarded. (3) In a case where— (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, but (b) the contract of employment terminates before the intended date of retirement, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (4) In a case where— (a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and (b) there is an intended date of retirement in relation to the dismissal, but (c) the contract of employment terminates before the intended date of retirement, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, particular regard shall be had to the matters in Article 130ZF when determining the reason (or principal reason) for dismissal. (130ZC) (1) This Article applies to the dismissal of an employee if— (a) the employee has a normal retirement age, and (b) the operative date of termination falls before the date when the employee reaches the normal retirement age. (2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal. (130ZD) (1) This Article applies to the dismissal of an employee if— (a) the employee has a normal retirement age, (b) the normal retirement age is 65 or higher, and (c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age. (2) In a case where— (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and (b) the contract of employment terminates on the intended date of retirement, retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded. (3) In a case where— (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, but (b) the contract of employment terminates before the intended date of retirement, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (4) In a case where— (a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and (b) there is an intended date of retirement in relation to the dismissal, but (c) the contract of employment terminates before the intended date of retirement, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, particular regard shall be had to the matters in Article 130ZF when determining the reason (or principal reason) for dismissal. (130ZE) (1) This Article applies to the dismissal of an employee if— (a) the employee has a normal retirement age, (b) the normal retirement age is below 65, and (c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age. (2) If it is unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (3) Paragraphs (4) to (7) apply if it is not unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age. (4) In a case where— (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and (b) the contract of employment terminates on the intended date of retirement, retirement of the employee shall be taken to be the only reason for dismissal by the employer and any other reason shall be disregarded. (5) In a case where— (a) the employer has notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, but (b) the contract of employment terminates before the intended date of retirement, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (6) In a case where— (a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, and (b) there is an intended date of retirement in relation to the dismissal, but (c) the contract of employment terminates before the intended date of retirement, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal. (7) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 5 to the 2006 Regulations, particular regard shall be had to the matters in Article 130ZF when determining the reason (or principal reason) for dismissal. (130ZF) (1) These are the matters to which particular regard is to be had in accordance with Article 130ZB(5), 130ZD(5) or 130ZE(7)— (a) whether or not the employer has notified the employee in accordance with paragraph 4 of Schedule 5 to the 2006 Regulations, (b) if the employer has notified the employee in accordance with that paragraph, how long before the notified retirement date the notification was given, (c) whether or not the employer has followed, or sought to follow, the procedures in paragraph 7 of Schedule 5 to the 2006 Regulations. (2) In paragraph (1)(b), “notified retirement date” means the date notified to the employee in accordance with paragraph 4 of Schedule 5 to the 2006 Regulations as the date on which the employer intends to retire the employee. (130ZG) (1) This Article applies if the reason (or principal reason) for a dismissal is retirement of the employee. (2) The employee shall be regarded as unfairly dismissed if, and only if, there has been a failure on the part of the employer to comply with an obligation imposed on him by any of the following provisions of Schedule 5 to the 2006 Regulations— (a) paragraph 4 (notification of retirement, if not already given under paragraph 2), (b) paragraphs 6 and 7 (duty to consider employee’s request not to be retired), (c) paragraph 8 (duty to consider appeal against decision to refuse request not to be retired). (130ZH) In Articles 130ZA to 130ZG— - “the 2006 Regulations” means the Employment Equality (Age) Regulations (Northern Ireland) 2006; - “intended date of retirement” means the date which, by virtue of paragraph 1(2) of Schedule 5 to the 2006 Regulations, is the intended date of retirement in relation to a particular dismissal; - “normal retirement age”, in relation to an employee, means the age at which employees in the employer’s undertaking who hold, or have held, the same kind of position as the employee are normally required to retire; - “operative date of termination” means—where the employer terminates the employee’s contract of employment by notice, the date on which the notice expires, orwhere the employer terminates the contract of employment without notice, the date on which the termination takes effect.

(5) In Article 140 (qualifying period of employment), in paragraph (3) (cases where no qualifying period of employment is required)—

(a) at the end of sub-paragraph (o)[^f00066] omit “or”; and

(b) after sub-paragraph (p)[^f00067] insert—

or (q) head (a) or (b) of paragraph 13(5) of Schedule 5 to the Employment Equality (Age) Regulations (Northern Ireland) 2006 applies.

(6) Omit Article 141 (upper age limit).

(7) In Article 146(5)(a)[^f00068] (the remedies: orders and compensation), after “Article” insert “130ZG or”.

(8) In Article 153 (basic award) omit paragraphs (4) and (5).

(9) In Article 154(1A)(a)[^f00069] (basic award: minimum in certain cases), after “Article” insert “130ZG or”.

(10) In Article 160(1)[^f00070] (acts which are both unfair dismissal and discrimination), for sub-paragraph (b) substitute—

(b) any one or more of the following— (i) the Sex Discrimination (Northern Ireland) Order 1976; (ii) the Disability Discrimination Act 1995; (iii) the Race Relations (Northern Ireland) Order 1997; (iv) the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003; (v) the Employment Equality (Age) Regulations (Northern Ireland) 2006.

(11) Omit Article 191 (upper age limit).

(12) Omit Article 193 (pension rights).

(13) In Article 197 (amount of a redundancy payment)—

(a) omit paragraphs (4), (5) and (8); and

(b) in paragraph (6), for “Paragraphs (1) to (5)” substitute “Paragraphs (1) to (3)”.

(14) In relation to any case where the date that is the relevant date by virtue of Article 188 of the 1996 Order falls before 1st October 2006, sub-paragraphs (11) to (13) do not apply.

(15) In Article 250(2) (powers to amend Order) omit “141(1)”.

The Industrial Tribunals (Northern Ireland) Order 1996

4

Article 20 (1)(a) of the Industrial Tribunals (Northern Ireland) Order 1996[^f00071] (cases where conciliation provisions apply) shall be amended as follows—

(a) at the end of head (iv), omit “or”, and

(b) after head (v), insert—

or (vi) regulation 41 of the Employment Equality (Age) Regulations (Northern Ireland) 2006.

The Fair Employment and Treatment (Northern Ireland) Order 1998

5

(1) The Fair Employment and Treatment (Northern Ireland) Order 1998[^f00072] shall be amended in accordance with sub-paragraphs (2) to (4).

(2) In Article 85(1) (procedure for matters within jurisdiction of industrial tribunal)—

(a) in sub-paragraph (a), after head (v)[^f00073] insert—

(vi) a person has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of any provision of Part 2 or 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006; or

; and

(b) in sub-paragraph (b)[^f00074] after “(Northern Ireland) 2003” insert “or the Employment Equality (Age) Regulations (Northern Ireland) 2006”.

(3) In Article 85(3)(b), after head (iv)[^f00075], insert—

(v) regulation 41(4) of the Employment Equality (Age) Regulations (Northern Ireland) 2006,

(4) In Schedule 2A[^f00076]—

(a) in paragraph 1(1)—

(i) in the definition of “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers”, omit the words “as at 10th December 2003”; and

(ii) in the definition of “occupational pension scheme”, omit the words “as at 10th December 2003”; and

(b) in paragraph 1(2), omit the words “as at 10th December 2003”.

The Employment (Northern Ireland) Order 2003

6

In the Employment (Northern Ireland) Order 2003[^f00077] at the end of each of the following Schedules—

(a) Schedule 2 (tribunal jurisdictions to which Article 17 applies);

(b) Schedule 3 (tribunal jurisdictions to which Article 19 applies); and

insert—

Regulation 41 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (discrimination in the employment field)

PART 2 — Subordinate legislation

The Riding Establishments Regulations (Northern Ireland) 1980

7

In regulation 4 of the Riding Establishments Regulations (Northern Ireland) 1980[^f00078] (management and supervision requirements), for paragraph (1) substitute—

(1) A riding establishment shall be managed and supervised by a licence holder or a person who to the satisfaction of the Department is qualified or experienced in the management of horses and has not been convicted of any offence for which a penalty is provided under the Act.

The Statutory Sick Pay (General) Regulations (Northern Ireland) 1982

8

(1) The Statutory Sick Pay (General) Regulations (Northern Ireland) 1982[^f00079] shall be amended in accordance with sub-paragraphs (2) and (3).

(2) In regulation 16 (meaning of “employee”)—

(a) in paragraph (1)—

(i) at the beginning insert the words “Subject to paragraph (1ZA),”; and

(ii) omit the words “over the age of 16”; and

(b) after paragraph (1) insert—

(1ZA) Any person under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 had he been aged 16 or over, shall be treated as if he is aged 16 or over for the purposes of paragraph (1).

(3) In regulation 17(2) (meaning of “earnings”)—

(a) at the end of sub-paragraph (a), insert “(or would have been so excluded had he not been under the age of 16)”; and

(b) at the end of sub-paragraph (b), insert “(or where such a payment or amount would have been so excluded and in consequence he would not have been entitled to statutory sick pay had he not been under the age of 16)”.

The Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987

9

(1) The Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987[^f00080] shall be amended in accordance with sub-paragraphs (2) to (4).

(2) In regulation 17 (meaning of “employee”)—

(a) in paragraph (1)—

(i) at the beginning insert the words “Subject to paragraph (1A),”; and

(ii) omit the words “over the age of 16”; and

(b) after paragraph (1) insert—

(1A) Any woman under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 had she been aged 16 or over, shall be treated as if she is aged 16 or over for the purposes of paragraph (1).

(3) In regulation 20(2) (meaning of “earnings”)—

(a) at the end of sub-paragraph (a) insert “(or would have been so excluded had she not been under the age of 16)”; and

(b) at the end of sub-paragraph (b) insert “(or where such a payment or amount would have been so excluded and in consequence she would not have been entitled to statutory maternity pay had she not been under the age of 16)”.

(4) Sub-paragraph (3) applies in relation to any case where the expected week of confinement begins on or after 14th January 2007.

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The Employment Equality (Age) Regulations (Northern Ireland) 2006

Non-discrimination rule

2

Exception for rules, practices, actions and decisions relating to occupational pension schemes

3

Exception for rules, practices, actions and decisions relating to contributions by employers to personal pension schemes

4

Procedure in industrial tribunals

5

Remedies in industrial tribunals

6

PART 2 — Excepted rules, practices, actions and decisions relating to occupational pension schemes

Admission to schemes

7

The use of age criteria in actuarial calculations

8

Contributions

9

Contributions under money purchase arrangements

10

Contributions under defined benefits arrangements

11

Age related rules, practices, actions and decisions relating to benefit

12

13

14

15

16

17

18

Other rules, practices, actions and decisions relating to benefit

19

20

21

22

23

24

Closure of schemes

25

Other rules, practices, actions and decisions

26

27

28

29

Registered pension schemes

30

PART 3 — Excepted rules, practices, actions and decisions relating to contributions by employers to personal pension schemes

Contributions by employers

31

32

SCHEDULE 2 — Questionnaire of person aggrieved

SCHEDULE 3 — Reply by respondent

SCHEDULE 4 — Validity of contracts, collective agreements and rules of undertaking

PART 1 — Validity and revision of contracts

1

2

3

PART 2 — Collective agreements and rules of undertakings

4

5

6

7

8

9

10

SCHEDULE 5 — Duty to consider working beyond retirement

Interpretation

1

Duty of employer to notify employee

2

3

Continuing duty to notify employee

4

Statutory right to request not to retire

5

An employer’s duty to consider a request

6

Meeting to consider request

7

Appeals