40. (1) Subject to subsection (2), the Minister may appoint—

(a) such and so many of the members of the staff of the Commission, and

(b) such and so many other persons,

as he or she considers appropriate to be an adjudication officer or adjudication officers for the purposes of this Act.

F15[(1A) A person shall not be eligible for appointment under subsection (1) to be an adjudication officer where one or more of subparagraphs (i) to (iv) of subsection (6)(d) apply to the person.]

(2) Subject to subsection (4) a person shall not be appointed under subsection (1)(b) to be an adjudication officer unless that person has been selected for the purpose of his or her being the subject of such an appointment following a competition conducted for that purpose.

(3) (a) Any person who, immediately before the commencement of this Part, was a rights commissioner appointed under subsection (1) of section 13 of the Act of 1969 shall, upon and from such commencement, stand appointed to be an adjudication officer for the purposes of this Act.

(b) Any person who, immediately before the commencement of this Part, was an equality officer appointed under subsection (4) (inserted by section 30(d) of the Equality Act 2004) of section 75 of the Act of 1998 shall, upon and from such commencement, stand appointed to be an adjudication officer for the purposes of this Act.

(4) Subsection (2) shall not apply in respect of the reappointment to be an adjudication officer of a person—

(a) appointed to be an adjudication officer in accordance with paragraph (b) of subsection (1) for a fixed term, or

(b) who, upon the commencement of this Part, stood appointed to be an adjudication officer for the purposes of this Act.

(5) An appointment under subsection (1) shall cease—

(a) F16[if the Government] revokes the appointment in accordance with this section,

(b) in the case of a person appointed to be an adjudication officer who is a member of the staff of the Commission, if the person concerned ceases to be a member of the F16[staff of the Commission,]

(c) in the case of an appointment that is for a fixed period, on the F16[expiry of that period, or]

F17[(d) if the adjudication officer concerned—

(i) is convicted on indictment of an offence,

(ii) is convicted of an offence involving fraud or dishonesty,

(iii) has a declaration made against him or her under section 819 of the Companies Act 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or

(iv) is subject to, or is deemed to be subject to, a disqualification order within the meaning of Chapter 4 of Part 14 of the Companies Act 2014 whether by virtue of that Chapter or of any other provision of that Act.]

(6) An appointment under subsection (3) shall cease—

(a) F16[if the Government] revokes the appointment in accordance with this section,

(b) in the case of a person standing appointed to be an adjudication officer who is a member of the staff of the Commission, if the person concerned ceases to be a member of the staff of the Commission,

(c) in the case of a person who, immediately before the commencement of this Part was—

(i) a rights commissioner appointed for a fixed period, or

(ii) an equality officer appointed for a fixed period,

on the day on which the person’s appointment as rights commissioner or equality officer, as the case may be, would, but for this Part, F16[have ceased, or]

F17[(d) if the adjudication officer concerned—

(i) is convicted on indictment of an offence,

(ii) is convicted of an offence involving fraud or dishonesty,

(iii) has a declaration made against him or her under section 819 of the Companies Act 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or

(iv) is subject to, or is deemed to be subject to, a disqualification order within the meaning of Chapter 4 of Part 14 of the Companies Act 2014 whether by virtue of that Chapter or of any other provision of that Act.]

F16[(7) (a) The Government may revoke an appointment under this section if the Government is satisfied that one or more of the grounds specified in paragraph (b) apply to the adjudication officer.

(b) The grounds referred to in paragraph (a) are as follows, namely that an adjudication officer:

(i) has become incapable through ill-health of performing his or her functions;

(ii) has engaged in serious misconduct;

(iii) has failed without reasonable cause, in the opinion of the Government, to perform his or her functions for a continuous period of at least 3 months beginning not earlier than 6 months before the date of the giving of the notice under paragraph (c);

(iv) has contravened to a material extent a provision of the Ethics in Public Office Acts 1995 and 2001 that, by virtue of a regulation under section 3 of the Ethics in Public Office Act 1995 , applies to him or her.

(c) Where the Government proposes to revoke the appointment of an adjudication officer under paragraph (a), they shall give notice in writing to the adjudication officer concerned of the proposal.

(d) A notice under paragraph (c) shall include a statement—

(i) of the reasons for the proposed revocation of appointment,

(ii) that the adjudication officer may, within a period of 30 working days from the giving of the notice or such longer period as the Government may, having regard to the requirements of natural justice, specify in the notice, make representations to the Government in such form and manner as may be specified by the Government, as to why the adjudication officer should not have his or her appointment revoked, and

(iii) that where no representations are received within the period referred to in subparagraph (ii) or the period specified in the notice, as the case may be, the Government shall, without further notice to the adjudication officer, proceed with the revocation of the appointment of the adjudication officer in accordance with this subsection.

(e) In considering whether to revoke the appointment of an adjudication officer under paragraph (a), the Government shall take into account—

(i) any representations made by the adjudication officer under paragraph (d)(ii) within the period referred to in that paragraph or the period specified in the notice, as the case may be, and

(ii) any other matter the Government considers relevant for the purpose of their decision.

(f) Where, having taken into account the matters referred to in paragraph (e), the Government decide to revoke the appointment of an adjudication officer, they shall give notice in writing to the adjudication officer of the decision and the reasons for that decision.]

(8) An adjudication officer shall be independent in the performance of his or her functions.

(9) A reference in any enactment to a rights commissioner shall be construed as including a reference to an adjudication officer.

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