Fair Employment (Northern Ireland) Act 1989

38Employers 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.