Chapter 5:
Fair Employment Law in Northern Ireland

5.1 The Fair Employment (Northern Ireland) Acts have given legal protection against discrimination to Catholics and Protestants. Members of both communities have been assisted by the Fair Employment Commission (FEC) and have sought redress before the Fair Employment Tribunal (FET). Despite periods of sectarian tension in the community as a whole, workplaces in Northern Ireland have become less, rather than more, segregated in the past two decades. This can be largely attributed to the legislation and the institutions which it created. They have played a significant part in maintaining the bonds of civil society, in protecting the economy from the ravages of sectarian division, and in reassuring inward investors about the fairness of the labour market. Most important of all, they have provided a legal framework for promoting equality of opportunity in the workplace which has created a broader spectrum of stakeholders in the economy.

5.2 In considering SACHR's recommendations on the FEC, FET, the responsibilities of employers and the scope of the law, the Government has sought to acknowledge the contribution of Fair Employment legislation to these positive developments, particularly since 1989. Where necessary, the law and its institutions will be re-enforced. At the same time, the Government is conscious of the risk of imposing additional burdens on employers, if these are not strictly necessary. This could be counterproductive, by creating disincentives to job creation and business expansion.

The Fair Employment Commission

5.3 The previous chapter proposed, subject to consultation, that the FEC and the other statutory anti-discrimination Commissions should be merged as a unified Equality Commission, with an expanded remit involving close collaboration with the public sector in the promotion of equality of opportunity. Though the following paragraphs respond to SACHR's proposals on changes to the status and powers of the FEC in its current form, they should be read in the light of a possible future amalgamation of the anti-discrimination Commissions.

5.4 In other parts of this White Paper, proposals are made for two significant additional responsibilities for the FEC - an advisory role in respect of unemployment (para 2.12) and changes to the Commission's remit, consequent on the Government's recommendations on discrimination in the provision of goods, facilities and services (see para 5.47 below).

5.5 The Government accepts SACHR's proposal that the FEC should have a statutory duty to keep under review the working of Fair Employment legislation and to make proposals for amendment [1]. This would bring the Commission into line with the Equal Opportunities Commission for Northern Ireland and the Commission for Racial Equality for Northern Ireland which already have these statutory powers in respect of sex discrimination and race relations legislation. SACHR also draws attention to the issue of inconsistencies between Fair Employment, sex discrimination and race relations legislation [2]. The Department of Economic Development monitors the various anti-discrimination laws in terms of their workability, appropriateness and effectiveness. However, policies towards different types of discrimination may vary, and consistency of gender and race relations law throughout the United Kingdom is an important consideration. There is, however. undoubted value in greater consistency between the various Codes of Practice issued by the anti-discrimination Commissions. This will be of considerable assistance to employers. The FEC, EOC(NI) and CRE(NI) are being asked to secure greater consistency in their Codes without the necessity for a formal statutory obligation. This would be greatly facilitated, should a new unified Equality Commission be established. The Government agrees with SACHR that the Fair Employment Code of Practice should be taken into account by any Tribunal or Court hearing relevant proceedings and the legislation should be amended to this effect.

5.6 The FEC is a non-departmental public body, wholly funded by the Department of Economic Development. The relationship between the Commission and the Department has worked effectively. DED keeps under review the funding made available to the FEC, bearing in mind the resources which it requires to fulfil its statutory remit, while also encouraging the Commission to conduct its business in the most cost effective and efficient way. Section 19(5) of the Fair Employment (NI) Act 1989 requires the FEC to supply the DED with any information in its possession which the Department requests. The Government agrees with SACHR's recommendation that this provision should be amended so that DED would be empowered only to request such information which is justified and essential to enable the Department to carry out its responsibilities [3].

5.7 The Government commends to the FEC SACHR's proposal of a Charter of Rights for Complainants and Employers [4]. This could provide clarification of the Commission's dual role in enforcing the Fair Employment legislation and advising employers.

5.8 It remains a valid principle that information collected by employers on a basis of confidence should not be disclosed so as to identify the religion of an individual. It is therefore not proposed to amend Section 19 of the 1989 Act in this respect.

5.9 SACHR has recommended that the FEC should have a right to become involved as "friend of the court" in FET or Court proceedings [5]. There is no evidence of a need for legislation in this respect and the Government does not support the proposal. It is, however, accepted that the FEC should have power to apply to the Fair Employment Tribunal for a decision on whether there has been a contravention of Section 33 of the Fair Employment (NI) Act 1976 which relates to unlawful advertisements. It is not proposed to give the FEC an additional power to require from newspapers and other media the identity of persons who may have committed an unlawful act under Section 33, in addition to the extensive enforcement powers available under that provision.

5.10 The Fair Employment legislation should be brought into line with that on gender and race discrimination by giving the FEC powers to seek an injunction in a case of persistent discrimination, as recommended by SACHR [6].

Workforce monitoring

5.11 One of the innovations of the 1989 Act was the introduction of extensive workforce monitoring by employers with a view to confirming that fair participation was being achieved and, if necessary, to point to the need for affirmative action. All private sector employers with more than ten employees must register with the FEC. All public sector employers are deemed to be registered, whatever the number of their employees. An employee is defined as a person who works for sixteen hours or more each week. There are two basic monitoring requirements imposed on registered employers. First, they are required to provide an annual return to the FEC, giving details of the composition of their workforce in terms of community background. All public sector employers, and private sector employers with more than 250 employees, are also required to monitor and report on the composition of those who apply to fill job vacancies and those who are appointed. Second, all registered employers must review, at least once every three years, their employment composition and practices relating to recruitment, training and promotion. This is known as a "Section 31 review" and its purpose is to determine whether members of both communities are enjoying fair participation in employment and whether an affirmative action programme is necessary. The review is internal to the employing concern and there is no general requirement to submit it to the FEC. The FEC does, however, have a statutory power to ask for details of the review.

5.12 A broad consensus between the FEC and employers on the value of Fair Employment legislation and its requirements has been a key factor in the successful operation of the 1989 Act. In considering SACHR's proposals for changes to monitoring arrangements, the Government seeks to preserve, as far as possible, the present ethos of co-operation. It is important that the monitoring burdens on employers should not be increased, unless there is a demonstrable need for it. A desire for a more comprehensive statistical database is not, in itself, sufficient justification. Unnecessary monitoring requirements could create a more adversarial relationship between employers and the FEC, which would be in the interests of neither side. They also run the risk of diverting management resources from more productive activities.

5.13 The Government agrees with SACHR that annual monitoring returns should in future include employees who work for less than sixteen hours per week [7]. Over 47,000 people (8.6% of the workforce) fall into this category - mainly in the health, catering and cleaning sectors. Changing work patterns mean that it is no longer justifiable to distinguish between full-time and part-time workers and it is not proposed to collect separate monitoring returns for part-time workers. To ensure statistical continuity, for a period statistics should be collected on the current basis, alongside data on all employees in registered concerns.

5.14 Other changes should be made to the arrangements for annual monitoring returns. Experience has shown that there is less sensitivity about obtaining directly from employees details of their community background. This should become the main means of determining community background. The attribution of religion/community background on the basis of schools attended should be relegated to a residual method, with the FEC remaining the main source of advice to employers on schools. Changes in the pattern of school attendance, including growth of the integrated sector, has made this method of attribution increasingly less reliable.

5.15 Currently public authorities and employers with more than 250 employees must include information on applicants and appointees in their annual returns. The legislation provides for this threshold to be varied by regulation, in consultation with the FEC. The Government accepts that the time is now appropriate to remove this threshold, so that all registered employers will be required to include details of applicants and appointments. The Fair Employment Monitoring Regulations (Northern Ireland) 1989 should also be amended to provide clarification on the treatment of internal applicants.

5.16 SACHR has recommended that the 1989 Act and the monitoring regulations should be amended to require information in the annual returns on promotions, redundancies and other leavers [8]. There is a risk that this could be unnecessarily burdensome on smaller employers and the Government proposes that this requirement should be restricted to the public sector and private sector concerns with more than 250 employees.

5.17 These proposals constitute significant extensions of the annual monitoring system. Some of SACHR's other proposals have not been accepted by the Government. It is not proposed that details of the employment status of applicants and appointees should be collected [9]. Statistical information on flows from unemployment to employment is already collected by the Government and there would be little added value in having data relating to individual companies collected by FEC. The Government also considers that employers should be allowed to justify missing a deadline for making a monitoring return on the grounds of reasonable excuse. SACHR has also proposed that the FEC should have access to all documentation used in preparation of a monitoring return [10]. There is no evidence that the FEC has ever experienced difficulty with the present process of requesting information, and therefore no change is proposed. However, it is agreed that the FEC should have, on request, information in relation to those categories where monitoring requirements are to be extended, ie promotions, redundancies and other leavers from the public sector and concerns with more than 250 employees, and applicants/appointees from registered employers with 250 or fewer employees.

5.18 The Government is not persuaded that substantial changes are also needed to the arrangements for triennial Section 31 reviews. SACHR has recommended that the submission of Section 31 reviews to the FEC should be compulsory, with sanctions against defaulting employers, that Regulations should set out the substance of these reviews, and that the FEC should be obliged to acknowledge the adequacy or otherwise of a review [11]. Employers themselves evaluate their personnel practices and are legally obliged to have regard to the FEC Code of Practice, which contains detailed advice on reviews, in carrying them out. The SACHR proposal could lead to greater interference by the FEC in those practices. Further regulations, additional to the existing guidelines, seem unnecessary. The Government also does not accept that the legal status of FEC recommendations arising from Section 31 reviews needs to be clarified and strengthened. The legislation is already considered to be clear on this point, and a move to legally enforceable recommendations arising from Section 31 reviews would be inappropriate, as an employer's own review would not necessarily give sufficient information upon which to base a direction.

5.19 SACHR has recommended that employees and recognised trade unions should have the right to be consulted in the production of Section 31 reviews and to see them and comment on them to the FEC [12]. The FEC Code of Practice currently refers to consultation with recognised trade union or employee representatives who should have an opportunity to put forward their views. Good communication between employers and employees facilitates an effective Section 31 review. Given the opportunity offered by the Code of Practice for employees' representatives to input to a review, the Government is not fully convinced that there is a need for a statutory right of consultation. It would welcome the views of employees, trade unions and employers to determine whether the existing arrangements have, in practice, proved inadequate. Opinions expressed will be taken into account in the preparation of future legislative amendments.

Affirmative action

5.20 One of the guiding principles behind the 1989 Act was that fairness in employment should be pursued through methods which are themselves fair to all [13]. That is why the idea of workplace quotas for different sections of the community has consistently been rejected by Government. At the point of recruitment, an individual should have a fair chance of competing for a job on the basis of defined criteria, without special advantage because of his or her community background; this is sometimes known as the "merit principle". The present Government endorses this approach to recruitment.

5.21 However, the 1989 legislation recognised that, without contravening this basic principle of recruitment, special measures might be taken to promote a more representative distribution of employment in the workforce and which would give all sections of the community equal access to employment opportunities. These measures were known as "affirmative action" and may take the form of active encouragement of applications from under-represented communities, special procedures for redundancies, provision of pre-employment training facilities in particular areas, and changes to the working environment which would make employees from all community backgrounds feel more at ease. There should be no inconsistency between affirmative action, as defined by the Fair Employment legislation, and the basic recruitment principle. The statistical evidence of fairness in recruitment in recent years indicates that affirmative action is achieving its objectives, without compromising the recruitment principle. The Government therefore proposes to maintain the current statutory definition of affirmative action, while clarifying that, for larger employers, fair participation applies to all levels of the workforce, as well as the workforce as a whole. The Government also commends to the FEC the proposal that their Code of Practice should be amended to reflect the need for affirmative action to be broad in scope and to include access to workplace benefits and a neutral environment [14].

5.22Certain trades and occupations have disproportionate community representations. In some cases, this reflects an unbalanced distribution of specific skills within the community. The 1989 Act provided for limited affirmative action measures which could address this, notably training in specific areas. Legislation on sex and race discrimination permits training directly targeted at people of a particular gender or ethnic minority background. The Government believes that it is now appropriate to permit similar training facilities specifically for people of Protestant or Catholic community background in Northern Ireland. The purpose of this would be to address skills imbalances, thus creating wider applicant pools for recruitment. Provision of religion specific training should be dependent on express confirmation from the FEC that there is serious under-representation of a particular religious group among those doing a specific type of work in Northern Ireland or in a more limited area. The facility to provide religion specific training would be permissive and no employer should be compelled to provide the facility. There is a risk that religion specific training for employees could damage community relations within a firm. Thus, it is proposed that the right to provide religion specific training should be confined to a training body or an employer providing training for people who are not currently employees.

5.23This proposal for religion specific training will make it particularly important to maintain the distinction between trainees and employees. Accordingly, it is proposed to retain the current definition of training in the Fair Employment legislation and not to accept SACHR's recommendation that it should be amended to include apprenticeships [15]. Otherwise, employers would be enabled to recruit apprentices on a religion specific basis, creating a significant inroad into the recruitment principle.

5.24 Similarly, the concept of recruiting people from a specific geographic area to help redress workforce imbalances is not accepted. Given the extent of residential segregation in Northern Ireland, establishing such a criterion would, in most instances, amount to indirect discrimination in recruitment. As such, it would mark a clear departure from the type of affirmative action measures which are envisaged by the current Fair Employment legislation.

5.25 SACHR has proposed that public sector economic power should be brought to bear to encourage affirmative action by employers [16]. It is suggested that, before awarding contracts, public bodies should obtain information on tenderers' policies, procedures and practices in relation to Fair Employment and equal opportunities. Contracts might also specify terms to be met by the contractor. Using public sector contracts to achieve particular social policy objectives is generally known as "contract compliance". It runs counter to the spirit of market liberalisation in public procurement which has been promoted by the European Union and the UK Government. The Government's policy has been that value for money is central to public sector procurement policy and that the savings delivered through the application of this policy are retained and used to maintain, improve and extend delivery of services to the public. European Union law provides some limited leeway for the inclusion of social clauses, but the assessment of the compatibility of contract conditions with EU law requires a case-by-case analysis.

5.26 The current Fair Employment legislation includes a form of contract compliance. Sections 38-43 of the 1989 Act employs the concept of "unqualified person". Non-qualification is incurred by an employer failing to meet a range of statutory obligations on registration and monitoring under the Act or failing to comply with an order of the Fair Employment Tribunal. The potential sanctions against an unqualified person are considerable. He may be barred from public authority contracts and may be refused financial assistance by a Northern Ireland Department. Only limited use has had to be made of these provisions to date. They do, though, stand as a significant modification of general Government policy on contract compliance and an acknowledgement that the particular circumstances of Fair Employment in Northern Ireland might warrant sanctions of a different magnitude from those applying to other types of discrimination.

5.27 One advantage of the current legislation on unqualified persons is its clarity. The FEC serves notice on a firm that it is unqualified. Thereafter, public authorities have very little discretion to award contracts to that company. The workability of SACHR's proposals is questionable. They would expand the scope for litigation by a disappointed tenderer. The requirement on public bodies to satisfy themselves about a potential contractor's policies, procedures and practices offers immense scope for subjective assessment and could put a considerable burden of judgement on medium ranking officials in a wide range of public bodies who would be required to appraise a potential contractor's Fair Employment status. For these reasons, the Government does not propose to extend contract compliance to achieve Fair Employment objectives. The existing provisions on unqualified persons should continue to apply, though the exemption from their application to contracts on grounds of disproportionate expense or public interest should be repealed.

5.28 The Fair Employment legislation allows scope for using redundancy procedures to achieve affirmative action objectives. When enacted, this required an agreed procedure to conform with the industrial relations legislation then current. It is now proposed to repeal this requirement. Furthermore, it is suggested that all registered employers should include a review of redundancy procedures and their outcomes in their triennial Section 31 reviews.

5.29 In summary, the Government is not proposing radical changes in the scope of affirmative action as currently understood. It is also necessary to distinguish between affirmative action and new measures to encourage recruitment of the long-term unemployed, notably clarification on direct recruitment from those not in employment (para 2.12) and greater use of contract clauses requiring recruitment of the long-term unemployed (para 2.13). These latter measures are designed to deal with a social policy issue separate from fair participation in individual firms. It is important, especially as the FEC will have a new advisory role on unemployment issues, that the scope for confusion between affirmative action and measures to assist recruitment of the unemployed is minimised.

The Fair Employment Tribunal

5.30 The Fair Employment Tribunal was established by the 1989 Act and is based on the same principles as the long established industrial tribunal system. It shares premises with the Office of Industrial Tribunals and its chief judicial officer is the President of the Industrial Tribunals and the Fair Employment Tribunal. There is also a Vice President, two full time Chairpersons and a number of part-time Chairpersons. All complainants under Fair Employment legislation must register their complaint with the FET within a specified period of three months. There is no legal aid available to support a complainant, but the FEC is empowered to help complainants and does so in just over half of all cases. Each party must bear its own costs.

5.31In considering SACHR's recommendations on the FET, the Government has taken into account their contribution to the furtherance of employment equality, whether they would increase or reduce delays in proceedings, whether they would lead to a formalisation of the Tribunal system or a difference in rules between the Industrial Tribunals and the FET, and whether they would change the ethos of conciliation and persuasion which underlies the legislation.

5.32 The Government accepts in principle SACHR's recommendations on conciliation by the Labour Relations Agency prior to an FET hearing, and consideration will be given as to how this might be facilitated [17]. A legislative amendment might also permit settlements to be reached without Labour Relations Agency involvement, if the parties have legal representation. These proposals could speed up the resolution of complaints and help reduce the backlog of FET cases.

5.33 SACHR's recommendations on time limits for certain FET procedures are also accepted [18]. Thus the time limit for lodging a complaint of discrimination would remain three months, that for respondents to lodge a Notice of Appearance should be increased to three weeks, and an applicant should be entitled to seek leave from the FET to extend the time for serving a questionnaire. The FET should be enabled to require any party to give another party a written answer to any question. There is no facility in the Industrial Tribunal rules of procedure for the exchange of interrogatories and such a procedure could add significantly to the administrative and judicial workload prior to the hearing. Similarly, SACHR's proposal for reference of a question to the FET for a preliminary ruling could create additional delays. It would also lead to confusion, particularly in joint Industrial Tribunal/FET complaints, as it would create a new disparity with the Industrial Tribunals procedures. These two SACHR proposals on pre-hearing questions are therefore not accepted [19].

5.34 SACHR has recommended that legal aid should be made available for FET proceedings, along with proceedings in other courts and tribunals under the Fair Employment legislation [20]. The FET is intended to provide an informal method of resolving disputes. In practice, however, few complainants or defendants appear without legal representation. Present arrangements require the FEC to give advice to all prospective complainants, unless their request is frivolous, and permit the FEC to assist selected complainants. The Labour Relations Agency also facilitates conciliation. The Government does not propose to extend legal aid to FET proceedings. There is no evidence that complainants are deterred by the present arrangements.

5.35 The Government endorses SACHR's comments on the publicity surrounding some FET cases[21]. It accepts the principle of giving the FET powers to make a restricted reporting order, similar to existing provisions under the Industrial Tribunal rules of procedure. The Government also agrees with SACHR that continuing efforts should be made to find ways of shortening FET proceedings, such as tape recording and greater use of prepared witness statements[22].

5.36 The FET has the power to award compensation for discrimination. Since the passing of the 1989 Act, the financial ceiling on levels of compensation has been removed. SACHR makes a number of recommendations on compensation awards [23]. The Government does not accept that there is a need to give the FET scope to award continuing financial payments. Compensation awards can currently take account of future loss. The concept of exemplary damages would also mark a shift in the ethos of the legislation away from compensation of the complainant (which can include aggravated damages) towards punishment of the respondent. Accordingly, SACHR's proposal in this respect is not accepted. However, the Government agrees that the FET should have the power to award compensation in cases of unintentional indirect discrimination, insofar as it is just and equitable to do so. A complainant who has suffered a detriment should be entitled to recompense, whether the discrimination which caused it was intentional or unintentional.

5.37 SACHR has proposed that the FET should have the power to recommend that an employer's practices and procedures should be amended to end any discriminatory impact identified during the hearing of a complaint [24]. This recommendation is accepted, as is the associated recommendation that the FET should be empowered to require an employer to liaise with the FEC in these circumstances. It is also agreed in principle that Section 26(1)(c) of the 1976 Act should be amended so that the power of the FET to obviate or reduce the effect of unlawful discrimination is not restricted to the effect on the complainant alone. Other people in the employ of the respondent might also be affected by the discrimination. However, the Government does not accept SACHR's recommendation that the FET should have power to issue a "not qualified notice" in the course of proceedings[25]. The potential effects of such a notice on a respondent, in terms of access to public sector contracts and grants, are very serious. In view of this, the Government does not consider the safeguards built into the legislation to be excessive.

5.38 At present, the only appeal from the FET is to the Court of Appeal on a point of law. In Great Britain an Employment Appeal Tribunal is the first recourse for appeal on points of law and, in practice, wider issues, though it does not rehear cases. The Government agrees with SACHR that an Employment Appeal Tribunal in Northern Ireland would add to costs and delays, without significant benefit. There are, accordingly, no plans for the establishment of such a tribunal.

5.39 Arrangements for disseminating information about FET decisions could be improved. It is proposed to study further ways of effecting such an improvement, possibly through the libraries network or the Internet. Subject to the outcome of this study, the Government is not presently inclined to establish a new resource centre which could incur significant costs [26].

5.40In addition, the Government intends to examine the Fair Employment Tribunal rules of procedure with a view to aligning them more closely, as far as is practicable, with those rules governing procedures of the Industrial Tribunals. These changes will assist the FET in the execution of its duties and remove a number of anomalies which have developed between the two sets of rules since 1989. The implications of the forthcoming Dispute Resolution Order for Industrial Tribunals rules of procedure will also be considered in this context.

Scope of the legislation

5.41The European Union Treaty of Amsterdam of 1997, though subject to ratification by Member States, contains an Article providing a legal basis for future EU legislation on religious and other forms of discrimination. It will subsequently be for the European Commission to decide whether to make specific proposals for such legislation. These will be considered carefully by the Government.

5.42The existing Fair Employment legislation is confined to the field of employment discrimination. Comparable legislation on gender and race relations also includes within its scope the provision to the public, or part of the public, of goods, facilities and services, and the disposal or management of premises. This is a much wider area of social interaction and SACHR has recommended that the Fair Employment legislation should be extended in the same way, with cases arising to be heard by the FET [27]. This is a subject on which there has been little public debate in Northern Ireland, despite the extensive rights which it would establish. The equivalent provisions in sex and race discrimination legislation contain a common set of examples of the type of facilities and services which are intended to be covered:

  • access to, and use of any place which members of the public or a section of the public are permitted to enter;

  • accommodation in a hotel, boarding house or other similar establishment;

  • facilities by way of banking or insurance for grants, loans, credit or finance;

  • facilities for education;

  • facilities for entertainment, recreation or refreshment;

  • facilities for transport or travel;

  • the services of any profession or trade, or any local or other public authority.
5.43 Though some might argue that similar legislation covering religious discrimination would intrude into sensitive spheres of social life in Northern Ireland, the Government believes that sectarian discrimination is inherently as unjust as sex or race discrimination. Accordingly, it proposes to extend the Fair Employment legislation into the fields of goods, facilities and services, and the disposal or management of premises.

5.44 Such legislation will undoubtedly include exemptions, as does the legislation on gender and race relations. Some exemptions are common to the sex discrimination and race relations laws, such as the letting of small premises. But there are also exceptions which take account of specific social conditions relating to gender and race. For instance, in the sex discrimination legislation, there is an exception for single-sex educational establishments; and in the race relations legislation there is an exception for associations which have a main objective of providing benefits to people of a particular racial group, provided that it is not defined by colour. In Northern Ireland it will be necessary to define appropriate exceptions. One issue will be to determine whether the legislation should apply to discrimination both on grounds of religion and of political opinion. This would then determine whether an exemption was required for political parties. Churches and associations which ostensibly claim to have a main religious objective would also require exemptions for at least some purposes. In several other areas, it may be difficult to identify appropriate exceptions. Examples are:

  • housing and land;

  • clubs, societies, sporting associations, charities;

  • education (where there is already an exemption in the law on employment discrimination, and where both Church and integrated schools may feel that they need special treatment);

  • security issues (where there may be a need to provide a legal defence of threat to life and limb for reasons connected with terrorism or sectarian violence).
5.45 In the absence of previous public discussion of these issues, the Government invites views from interested individuals and organisations on what exceptions and exemptions may be required to new legislation on goods, facilities, services and premises. It will take into account the outcome of this consultation in the drafting of extended legislation.

5.46 The Government does not accept that discrimination on the basis of religion or political opinion is sufficiently distinct from that on grounds of sex or race to justify special arrangements for the hearing of cases concerning goods, facilities, services and premises. Accordingly, it is proposed that such cases be heard as civil actions in the Courts, rather than the Fair Employment Tribunal.

5.47 The FEC already publishes a Code of Practice in relation to employment matters. The Commission for Racial Equality for Northern Ireland has the power to publish Codes of Practice in the areas of employment and housing. The Equal Opportunities Commission for Northern Ireland has no statutory power to publish Codes of Practice other than in the field of employment. It is implicit in the concept of a Code of Practice that it is directed to a specific audience, such as employers or landlords. The views of interested individuals and organisations are invited on those specific areas where statutory Codes of Practice might be appropriate in relation to discrimination in the fields of goods, facilities, services and premises. The FEC (or a future unified Equality Commission) would have the responsibility for their preparation, if any are required.

5.48 There is a common definition of indirect discrimination in the Fair Employment, sex discrimination and race relations legislation. SACHR has noted decisions of the European Court of Justice that have resulted in the sex discrimination provisions being more broadly interpreted than their equivalents in the other legislation [28]. The Government will continue to monitor developments, including obligations arising from the European Union Treaty of Amsterdam, and will consider further the potential implications for Fair Employment legislation in Northern Ireland.

5.49 Sections 17 and 19 of the Northern Ireland Constitution Act 1973 prohibit the making of Northern Ireland legislation and the doing of any act by Ministers of the Crown, Government Departments and other public bodies which discriminates directly against any person or class of persons on the ground of religious belief or political opinion. SACHR recommends that these provisions be extended to apply also to indirect discrimination[29]. It is considered that to apply the concept of indirect discrimination to legislation and to the exercise of public functions (other than those which would fall within the ambit of goods and services under an amendment to Fair Employment legislation) would, because of uncertainties about what would constitute justification of the requirement or condition which resulted in disproportionate impact, have unforeseeable consequences for the law, the legislature and the executive. Accordingly, the Government does not propose to amend the Constitution Act in this way. However, the proposed extension of Fair Employment law to the fields of goods, facilities, services and premises will greatly extend the public sector's obligation to avoid indirect discrimination. The proposals in Chapter 4 on the promotion of equality of opportunity should also increase the public sector commitment to avoid indirect discrimination. Taken together, these proposals should achieve many of the objectives of SACHR's recommendation on including indirect discrimination within the scope of the Constitution Act.

5.50 The Government would intend that any necessary future exemptions to Section 19 of the Constitution Act (which deals with direct discrimination on the grounds of religion or political opinion), consequent on affirmative action provisions, should be clearly specified in the appropriate legislation, explicitly amending the Constitution Act when necessary. This is the approach which has been established by the Fair Employment legislation in relation to affirmative action. Creating a general exemption to Section 19 on the basis of affirmative action could create new uncertainties in this already complex legal field.

5.51 The Government is of the view that there is merit in continuing to have special procedures for cases where a Department or public body does not give an undertaking, consequent on an FEC investigation under Section 11 of the 1989 Act. These procedures carry the sanction of a report laid before Parliament, whereas a public sector employer in similar circumstances would be subject to formal directions or could have the undertaking enforced by the FET. It is arguable that the sanction of a report laid before Parliament is at least as strong as those to which a private sector employer would be liable. It should be noted that the FEC has never had recourse to taking these steps against a public sector employer for failing to meet obligations under the legislation.

5.52 The SACHR report considered Section 42 of the 1976 Act which exempts from the scope of the legislation an act done for the purpose of safeguarding national security or of protecting public safety or public order [30]. SACHR accepted the principle of an exemption for national security, but recommended that there should be effective judicial scrutiny of whether an act was in fact done for the purposes set out in statute. It also recommended effective independent judicial scrutiny of a decision to withhold information under Section 52 of the 1976 Act which provides for certification that the disclosure of information would be prejudicial to national safety or otherwise not in the public interest [31]. Provision of a Section 52 certificate does not necessarily block further hearing of a case (as a Section 42 would), but it could inhibit that hearing depending on the relevance of the documents or information withheld. There are provisions similar to Sections 42 and 52 in other legislation, both in Northern Ireland and Great Britain. SACHR's detailed recommendations on introducing an element of judicial scrutiny into these procedures are fully noted. It would not be appropriate to give a response at this time, as two cases which bear on these issues are pending before the European Court of Human Rights.

5.53 SACHR has recommended that the definition of victimisation at Section 16(3) of the 1976 Act should be extended to afford protection to a person linked by perceived relationship or friendship to someone already protected by the current definition[32]. The definition in Fair Employment legislation is similar to those in sex and race discrimination legislation. SACHR's proposal presents difficulties of interpretation, in terms of defining a perceived relationship. Accordingly, the Government proposes to maintain the current definition of victimisation. There are also potential problems of interpretation with SACHR's recommendation of protection for employers against claims of discrimination when they have taken action to make reasonable accommodation for the religious beliefs of employees. The Government would hope that the religious beliefs of individuals could be accommodated in the workplace in a spirit of co-operation and respect between all parties, without recourse to legislation.

5.54In addition to the SACHR recommendations on extending the scope of the legislation, the Government wishes to bring forward changes in two specific areas. The first relates to a new provision outlawing discrimination by, or in relation to, barristers. This provision would reflect that already contained in the Race Relations (NI) Order 1997, whereby it is unlawful for a barrister to discriminate in the arrangements he makes in taking a pupil, or in the terms, opportunities, benefits etc afforded to any such pupil. The provision also outlaws discriminatory practice in the giving, witholding or acceptance of instructions to a barrister.

5.55 The second area relates to discrimination in relation to partnerships. This new provision, again along the lines of that in the Race Relations Order, would make it unlawful to discriminate in the arrangements made to offer a person a position as a partner in a firm, or to discriminate against existing partners in relation to access to benefits, expulsion, etc. It is intended that this provision would apply only to firms consisting of six or more partners, but the Government would welcome views from interested parties on the appropriateness of a limit and the level at which this might be set.

5.56 Finally, SACHR has recommended the codification of all Fair Employment law as a single statute[33]. This has intrinsic merit, and the Government will give consideration to it in the light of the procedures necessary to give effect to legislative amendments arising from this White Paper and taking account also of the considerable pressures on legislative time.

Return to Publication Contents

[1]SACHR - Employment Equality: Building for the Future (HMSO. cm 3684, June 1997). p81
[2]SACHR. p80
[3] SACHR, p82
[4] SACHR, p82
[5] SACHR, p81
[6] SACHR, p83
[7] SACHR. p93
[8] SACHR. p93
[9] SACHR. pp93-94
[10] SACHR, p94
[11] SACHR, pp92-93
[12] SACHR, p93
[13] Fair Employment in Northern Ireland (HMSO, cm 380. May 1988)
[14] SACHR, p90
[15] SACHR. p90
[16] SACHR. pp90-91
[17] SACHR, p94
[18] SACHR, p83
[19] SACHR, p84
[20] SACHR. pp8l-82
[21] SACHR, p84
[22] SACHR, p85
[23] SACHR. pp85-86
[24] SACHR, p86
[25] SACHR, p91
[26] SACHR, p88
[27] SACHR, pp80-81
[28] SACHR. pp84-85
[29] SACHR. p95
[30] SACHR, pp87-88
[31] SACHR, p94
[32] SACHR. p85
[33] SACHR. p95

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