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| Right of employee not to be unfairly dismissed: Northern Ireland. |
24. - (1) After Article 135 of the Employment Rights (Northern Ireland) Order 1996 (assertion of statutory right) there shall be inserted- "The national minimum wage.
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 | 135A. - (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that-
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(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee's to which this Article applies; or |
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(b) the employer was prosecuted for an offence under section 29 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee's to which this Article applies. |
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(2) It is immaterial for the purposes of paragraph (1)-
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(a) whether or not the employee has the right, or |
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(b) whether or not the right has been infringed; |
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but, for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
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(3) The following are the rights to which this Article applies-
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(a) any right conferred by the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal, and |
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(b) any right conferred by section 15 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration)." |
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(2) In Article 137 of that Order (redundancy as unfair dismissal) after paragraph (6) there shall be inserted-
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"(6A) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in paragraph (1) of Article 135A (read with paragraph (2) of that Article)."
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(3) In Article 140 of that Order (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period is required) after sub-paragraph (f) there shall be inserted-
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"(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,". |
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(4) In Article 141 of that Order (exclusion of right: upper age limit) in paragraph (2) (cases where upper age limit does not apply) after sub-paragraph (f) there shall be inserted-
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"(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,". |
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(5) In Article 142 of that Order (exclusion of right: dismissal procedures agreements) in paragraph (2) (cases where paragraph (1) does not apply) the word "or" at the end of sub-paragraph (b) shall be omitted and after sub-paragraph (c) there shall be added "or
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(d) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies." |
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Civil procedure, evidence and appeals |
| Tribunal hearings etc by chairman alone. |
25. - (1) In section 4 of the Employment Tribunals Act 1996 (composition of employment tribunal) in subsection (3) (which specifies proceedings to be heard by the chairman alone) after paragraph (ca) there shall be inserted-
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"(cc) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998; |
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(cd) proceedings on an appeal under section 17 or 20 of the National Minimum Wage Act 1998;". |
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(2) In Article 6 of the Industrial Tribunals (Northern Ireland) Order 1996 (composition of industrial tribunal in Northern Ireland) in paragraph (3) (which specifies proceedings to be heard by the chairman alone) after sub-paragraph (b) there shall be inserted-
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"(bb) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998; |
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(bc) proceedings on an appeal under section 17 or 20 of the National Minimum Wage Act 1998;". |
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| Reversal of burden of proof. |
26. - (1) Where in any civil proceedings any question arises as to whether an individual qualifies or qualified at any time for the national minimum wage, it shall be presumed that the individual qualifies or, as the case may be, qualified at that time for the national minimum wage unless the contrary is established.
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(2) Where-
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(i) to an employment tribunal under section 23(1)(a) of the Employment Rights Act 1996 (unauthorised deductions from wages), or
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(ii) to an industrial tribunal under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996, and
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(b) the complaint relates in whole or in part to the deduction of the amount described as additional remuneration in section 15(1) above, |
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it shall be presumed for the purposes of the complaint, so far as relating to the deduction of that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.
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(3) Where in any civil proceedings a person seeks to recover on a claim in contract the amount described as additional remuneration in section 15(1) above, it shall be presumed for the purposes of the proceedings, so far as relating to that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.
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| Appeals to the Employment Appeal Tribunal. |
27. In section 21(1) of the Employment Tribunals Act 1996 (appeal from employment tribunal to Employment Appeal Tribunal on question of law arising under or by virtue of the enactments there specified) after paragraph (f) there shall be inserted-
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"(ff) the National Minimum Wage Act 1998, or". |
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Conciliation |
| Conciliation. |
28. - (1) In section 18 of the Employment Tribunals Act 1996 (conciliation) in subsection (1) (which specifies the proceedings and claims to which the section applies) after paragraph (d) there shall be inserted-
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"(dd) under or by virtue of section 11, 16, 18(1)(a) or 22 of the National Minimum Wage Act 1998;". |
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(2) In Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation) in paragraph (1) (which specifies the proceedings and claims to which the Article applies) after sub-paragraph (c) there shall be inserted-
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"(cc) under or by virtue of section 11, 16, 18(1)(b) or 22 of the National Minimum Wage Act 1998;". |
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Offences |
| Offences. |
29. - (1) If the employer of a worker who qualifies for the national minimum wage refuses or wilfully neglects to remunerate the worker for any pay reference period at a rate which is at least equal to the national minimum wage, that employer is guilty of an offence.
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(2) If a person who is required to keep or preserve any record in accordance with regulations under section 9 above fails to do so, that person is guilty of an offence.
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(3) If a person makes, or knowingly causes or allows to be made, in a record required to be kept in accordance with regulations under section 9 above any entry which he knows to be false in a material particular, that person is guilty of an offence.
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(4) If a person, for purposes connected with the provisions of this Act, produces or furnishes, or knowingly causes or allows to be produced or furnished, any record or information which he knows to be false in a material particular, that person is guilty of an offence.
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(5) If a person-
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(a) intentionally delays or obstructs an officer acting for the purposes of this Act in the exercise of any power conferred by this Act, or |
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(b) refuses or neglects to answer any question, furnish any information or produce any document when required to do so under section 14(1) above, |
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that person is guilty of an offence.
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(6) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
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| Offences by bodies corporate etc. |
30. - (1) This section applies to any offence under this Act.
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(2) If an offence committed by a body corporate is proved-
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(a) to have been committed with the consent or connivance of an officer of the body, or |
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(b) to be attributable to any neglect on the part of such an officer, |
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the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
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(3) In subsection (2) above "officer", in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
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(4) If the affairs of a body corporate are managed by its members, subsection (2) above applies 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.
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(5) If an offence committed by a partnership in Scotland is proved-
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(a) to have been committed with the consent or connivance of a partner, or |
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(b) to be attributable to any neglect on the part of a partner, |
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the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly
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(6) In subsection (5) above, "partner" includes a person purporting to act as a partner.
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| Proceedings for offences. |
31. - (1) The persons who may conduct proceedings for an offence under this Act-
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(a) in England and Wales, before a magistrates' court, or |
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(b) in Northern Ireland, before a court of summary jurisdiction, |
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shall include any person authorised for the purpose by the Secretary of State even if that person is not a barrister or solicitor.
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(2) In England and Wales or Northern Ireland, proceedings for an offence under this Act may be begun at any time within whichever of the following periods expires the later, that is to say-
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(a) the period of 6 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to the knowledge of the Secretary of State, or |
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(b) the period of 12 months from the commission of the offence, |
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notwithstanding anything in any other enactment (including an enactment comprised in Northern Ireland legislation) or in any instrument made under an enactment.
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(3) For the purposes of subsection (2) above, a certificate purporting to be signed by or on behalf of the Secretary of State as to the date on which such evidence as is mentioned in paragraph (a) of that subsection came to the knowledge of the Secretary of State shall be conclusive evidence of that date.
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(4) In Scotland, proceedings for an offence under this Act may, notwithstanding anything in section 136 of the Criminal Procedure (Scotland) Act 1995, be commenced at any time within-
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(a) the period of 6 months from the date on which evidence, sufficient in the opinion of the procurator fiscal to justify proceedings, comes to the knowledge of the procurator fiscal, or |
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(b) the period of 12 months from the commission of the offence, |
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whichever period expires the later.
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(5) For the purposes of subsection (4) above-
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(a) a certificate purporting to be signed by or on behalf of the procurator fiscal as to the date on which such evidence as is mentioned above came to the knowledge of the procurator fiscal shall be conclusive evidence of that date; and |
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(b) subsection (3) of section 136 of the said Act of 1995 (date of commencement of proceedings) shall have effect as it has effect for the purposes of that section. |
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Special classes of person |
| Agency workers who are not otherwise "workers". |
32. - (1) This section applies in any case where an individual ("the agency worker")-
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(a) is supplied by a person ("the agent") to do work for another ("the principal") under a contract or other arrangements made between the agent and the principal; but |
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(b) is not, as respects that work, a worker, because of the absence of a worker's contract between the individual and the agent or the principal; and |
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(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual. |
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(2) In a case where this section applies, the other provisions of this Act shall have effect as if there were a worker's contract for the doing of the work by the agency worker made between the agency worker and-
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(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or |
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(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work. |
