Office of Public Sector Information

Goals and timetables

36 Notices about goals and timetables

(1) The Commission may serve a notice under subsection (2) below on the person who is the employer in relation to a registered concern where—

(a) he gives an undertaking under Part I of this Act to take any action,

(b) he has been directed under that Part to take any action, or

(c) the Tribunal makes an order under section 16(3)(a) of this Act in relation to an undertaking given by, or directions given to, him to take any action,

being action appearing to the Commission to be affirmative action, and the Commission is of the opinion that, assuming the action is taken, it is practicable to determine, by reference to one or more periods, the progress towards fair participation in employment in the concern that can reasonably be expected to be made by members of a particular community.

(2) The notice (“a notice about goals and timetables”) shall specify the period or periods concerned and, in respect of any specified period, the progress that, in the opinion of the Commission, can reasonably be expected to be made towards fair participation by members of the community concerned—

(a) in employment, or any class of employment, in the concern in Northern Ireland, or

(b) among applicants to fill vacancies for such employment or any class of such employment.

(3) Where, by virtue of any undertaking given by, or directions given to, the person who is the employer in relation to a registered concern, such a notice is served on him, the notice shall cease to have effect—

(a) if the Tribunal makes an order for the purpose of giving effect to the undertaking or directions or, in the case of directions, the Tribunal or the Commission substitutes for them or any of them other directions, or

(b) in the case of directions, if they, or such of them as the notice relates to, are quashed or otherwise cease to have effect, or

(c) in the case of an undertaking, if it, or such part of it as the notice relates to, ceases to have effect,

but without prejudice, in a case within paragraph (a) above, to any power to give a new notice.

(4) Where a notice about goals and timetables has effect, the Commission may from time to time require the employer to give the Commission such information as the Commission may specify for the purpose of determining the extent to which the progress specified in the notice in respect of any period has been made on the date of the requirement.

(5) The Commission may not require an employer to give any information under this section before the expiry of the period of six months beginning with—

(a) the date of the notice about goals and timetables, or

(b) if he has previously been required to give any information under this section, the date on which he was last required to do so.

(6) A requirement under this section to give any information—

(a) shall be made by notice served on the employer, and

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

and the reference in subsections (4) and (5) above to the date of the requirement is to the date on which the notice was served.

(7) A person required to give any information under this section who fails to comply with the requirement by the specified time is guilty of an offence.

(8) A person guilty of an offence under subsection (7) above—

(a) is liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

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

(9) It is a defence for a person charged with an offence under subsection (7) above to show that he had a reasonable excuse (which may include unreasonable expense or inconvenience) for failing to comply with the requirement by the specified time and, in a case where it was reasonably practicable for him to comply with it after that time, to show that either—

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

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

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

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

37 Power to secure further undertakings or issue further directions

(1) Subsection (2) below applies where, by reason of any undertaking or directions under section 12 of this Act, any directions substituted for such directions by the Tribunal or any order made by the Tribunal for the purpose of giving effect to any such undertaking or directions, a notice has been served on any person under section 36(2) of this Act.

(2) If, while the notice has effect, the Commission forms the opinion—

(a) that the progress specified in the notice in respect of any period has not been made, and

(b) that the person concerned ought to take action for promoting equality of opportunity in addition to the action required to be taken under the existing undertaking or directions,

section 12 of this Act shall again apply in relation to the person concerned as if the Commission had conducted a fresh investigation under section 11 of this Act.

(3) Where, by virtue of this section, the Commission secures a written undertaking from the person concerned or serves a notice on him containing directions—

(a) the undertaking or directions shall have effect in place of the existing undertaking or directions, and

(b) any notice previously served on him under section 36(2) of this Act shall cease to have effect, but without prejudice to any power to give a new notice under that subsection.

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

38 Employers in default: notice stating they are not qualified

(1) For the purposes of this section and section 39 of this Act, an employer is in default in any of the following circumstances—

(a) in the case of any concern that is not a registered concern but has satisfied the condition for registration at the end of any week, the employer stands convicted of an offence under section 23(5) of this Act,

(b) in the case of a registered concern—

(i) the employer’s name is not entered in the register, and

(ii) he stands convicted of an offence under section 24(2) of this Act,

(c) the employer—

(i) has failed within the time allowed under section 27 of this Act to serve on the Commission a monitoring return for any period or has failed to serve a return for that period that complies with the requirements of that section or regulations under section 28 of this Act, and

(ii) stands convicted of an offence under section 27(5) of this Act, or regulations made by virtue of section 28(2)(f)(i) of this Act, in respect of that failure, and

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

(2) Where an employer is in default, the Commission may serve notice on him stating that he is not qualified for the purposes of sections 41 to 43 of this Act; and references in those sections to an unqualified person are to a person on whom a notice has been served under this subsection or section 39(1) of this Act which has not been cancelled.

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

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

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

(a) in the case of a notice served by virtue of subsection (1)(c) above, that he has served on it a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of section 27 of this Act and regulations under section 28 of this Act, or

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

serve notice on him cancelling the notice under subsection (2) above.

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

(a) the date of the notice under subsection (2) above, or

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

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

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

(a) in the case of a notice served by virtue of subsection (1)(c) above, that the appellant has served on the Commission a monitoring return for the period concerned that complies, so far as is reasonably practicable, with the requirements of section 27 of this Act and regulations under section 28 of this Act, or

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

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

(9) No action shall lie in respect of any loss or damage that may be suffered in consequence of a notice or purported notice under this section or section 39 of this Act or any failure to give such a notice.

39 Notice stating that connected and other persons are not qualified

(1) Where notice has been served on any employer under section 38(2) of this Act and has not been cancelled, the Commission may serve notice on any of the following persons—

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

(b) any person connected with him,

stating that the person on whom the notice is served is not qualified for the purposes of sections 41 to 43 of this Act.

(2) No notice shall be served on any person under subsection (1) above if it appears to the Commission—

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

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

(ii) falling within a class or description for the time being specified for the purposes of section 41(3) of this Act to which a public authority is a party, or

(b) that, if he executes any work or supplies any goods or services for the purposes of any such contract, it is unlikely that the employer on whom the notice was served under section 38(2) of this Act will benefit, directly or indirectly.

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

(a) if the notice served on the employer under section 38(2) of this Act is cancelled, or

(b) if it appears to the Commission, whether on an application under subsection (4) below or otherwise, that (apart from section 41(1) of this Act) subsection (2)(a) or (b) above is satisfied in his case.

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

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

(6) If, on the appeal, it appears to the Tribunal that (apart from section 41(1) of this Act) subsection (2)(a) or (b) above is satisfied in the appellant’s case, the Commission shall serve notice on him cancelling the notice under subsection (1) above.

40 Appeals against decisions of Tribunal under sections 38 and 39

(1) A person who is dissatisfied in point of law with a decision of the Tribunal on an appeal brought by him under section 38 or 39 of this Act may, according as rules of court may provide, either appeal from it to the Court of Appeal or require the Tribunal to state and sign a case for the opinion of the Court of Appeal.

(2) Rules of court may provide for authorising or requiring the Tribunal to state, in the form of a special case for the decision of the Court of Appeal, any question of law arising in the proceedings.

41 Restriction on execution of works, etc. by unqualified persons

(1) A public authority shall not enter into any contract to which subsection (2) or (3) below applies.

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

(a) by an unqualified person, and

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

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

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

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

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

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

(5) An order under subsection (3) above may frame any class or description of contract by reference to—

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

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

(c) any terms of the contract, and

(d) any surrounding circumstances,

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

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

(7) This section does not apply to the execution of any work, or the provision of any goods or services, by any person which is certified in writing to be necessary or desirable—

(a) by the Secretary of State for the purpose of safeguarding national security or protecting public safety or public order, or

(b) by the Secretary of State, by the Department or, after consultation with the Department, by any other Northern Ireland department—

(i) for the purpose of securing works, goods or services which could not otherwise be secured without disproportionate expense, or

(ii) in the public interest.

(8) This section applies to any contract, whether or not it is governed by the law of Northern Ireland.

42 Enforcement at instance of Commission and actions for breach of duty

(1) If it appears to the Commission—

(a) that any public authority has taken any action in contravention of section 41 of this Act or has, in neglecting to take any action, failed to comply with that section and that, unless an injunction is granted, the authority is likely again to contravene or fail to comply with that section, or

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

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

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

43 Denial of financial assistance to unqualified persons

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

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

General

44 Offences by bodies corporate and partnerships

(1) Where an offence under this Part of this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate is guilty of that offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by the members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3) Where a partnership is guilty of an offence under this Part of this Act, every partner, other than a partner who is proved to have been ignorant of or to have attempted to prevent the commission of the offence, shall also be guilty of that offence and be liable to be proceeded against and punished accordingly.

45 Additional powers of Commission to obtain information

(1) In connection with its functions under this Part of this Act, the Commission may require any person to give the Commission such information as it may specify for the purpose of determining—

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

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

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

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

(ii) a contract falling within a class or description for the time being specified for the purposes of section 41(3) of this Act to which a public authority is a party,

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

(2) A requirement under this section to give any information—

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

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

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

(4) A person guilty of an offence under subsection (3) above—

(a) is liable on summary conviction to a fine not exceeding level 5 on the standard scale, and

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

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

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

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

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

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

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

46 Procedure in case of default by Crown bodies

(1) This section applies where—

(a) the Commission asks a public authority acting on behalf of the Crown for an undertaking under section 33 of this Act and the undertaking is not given,

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

(c) such a public authority is, or is in the opinion of the Commission, in breach of any duty under section 27, 31, 32, 36, 41 or 45 of this Act or under regulations under section 28 or 29 of this Act,

and, accordingly, sections 33(3), 34 and 42 do not apply in relation to such a public authority.

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

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

(b) in any other case, to the head of the Northern Ireland department generally responsible for matters falling within the scope of the functions of the public authority or, if no such head stands appointed, to the Secretary of State.

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

(4) Section 41(3) of the [1954 c. 33 (N.I.).] Interpretation Act (Northern Ireland) 1954 (laying of statutory documents) shall have effect as if a report required to be laid before the Assembly were a statutory document (within the meaning of that Act) required under a Measure of the Assembly to be so laid.

47 Interpretation of Part II

(1) In this Part of this Act—

• “employee” means—

  (a)

  an individual employed under a contract of service or of apprenticeship, other than a contract which normally involves employment for less than sixteen hours weekly, or

  (b)

  an individual employed under a contract personally to execute any work or labour,

  and includes a person in the service of the Crown, but only to the extent provided by section 26 of this Act; and “employment” and “employed” shall be interpreted accordingly,

• “employer”, in relation to a concern, means the person entitled to the benefit of the contracts of those employed in the concern and includes a public authority, but only to the extent provided by section 26 of this Act,

• “register” means the register kept under section 22 of this Act,

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

• “week” means a week ending on a Saturday.

(2) The Department may by order amend the definition of “employee” in subsection (1) above by substituting for the number of hours for the time being specified in paragraph (a) such other number as is specified in the order.

(3) For the purposes of this Part of this Act—

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

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

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

(4) For the purposes of this Part of this Act—

(a) bodies corporate are associated if they are members of the same group, and for this purpose any two bodies corporate are to be treated as members of the same group if one of them is a body corporate of which the other is a subsidiary (within the meaning of Article 4 of the [S.I. 1986/1032 (N.I.6).] Companies (Northern Ireland) Order 1986) or if both of them are subsidiaries (within the meaning of that Article) of one and the same body corporate,

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

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

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

(5) In this Part of this Act the following expressions have the same meaning as in the [1976 c. 25.] Fair Employment (Northern Ireland) Act 1976—

• “contract”,

• “the Department”,

• “employment in Northern Ireland”,

• “Northern Ireland”,

• “notice”, and

• “practices”.

(6) Part I of Schedule 2 to the [S.I.1976/1043 (N.I. 16).] Industrial Relations (Northern Ireland) Order 1976 (normal working hours) shall have effect to determine the normal working hours for the purposes of the definition of employee in subsection (1) above.

(7) References in this Part of this Act to the Crown are to the Crown in right of the Government of the United Kingdom and in right of the Government of Northern Ireland.

(8) References in this Part of this Act to a person in the service of the Crown do not include the holder of any office in Schedule 2 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (Ministerial offices) as for the time being in force.

48 Index to Part II

The expressions listed in the left-hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Act listed in the right-hand column in relation to those expressions.