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Fair Employment in Northern Ireland



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Text: NIO Page Compiled: Fionnuala McKenna

Fair Employment in Northern Ireland

Presented to Parliament by the Secretary of State for Northern Ireland by Command of Her Majesty
May 1988

Published in London by,
HER MAJESTY'S STATIONERY OFFICE, 1988

Cmd 380
ISBN 0 10 103802 X

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Contents

PREFACE
FOREWORD
CHAPTER 1:INTRODUCTION AND GENERAL PRINCIPLES
Introduction
The Social and Economic Scene
Aims of Policy
Basic Principles
CHAPTER II:INSTITUTIONAL CHANGES
Introduction
The Existing System and the Need for Change
The Future Role of the FEA
Individual Cases of Discrimination
Appeals
Conclusion
CHAPTER III:THE RESPONSIBILITIES OF EMPLOYERS
A Wider Concept of Equality of Opportunity
Monitoring: The Need for Information
Monitoring and Affirmative Action
Conclusion
CHAPTER IV:CODE OF PRACTICE
The Role of the Code
Legal Status of the Code
Authorship of the Code
Scope and Content of the Code
CHAPTER V:MONITORING, REGISTRATION AND CERTIFICATION
Introduction
Mechanisms for Monitoring
Relationships with the Commission
CHAPTER VI:ENFORCEMENT, SANCTIONS AND EVALUATION
Introduction
Sanctions for Breaches of Duty
Policy Evaluation


Chapter I Introduction and General Principles


INTRODUCTION

1.1 There are clear and long-standing differences between the employment experiences of the Catholic and the Protestant sections of the community in Northern Ireland. In particular, unemployment rates are significantly higher among Catholics and they hold relatively fewer senior positions.

1.2 There are many reasons for these differentials which arise from a range of social, geographical and historical influences. phenomenon of a cycle of disadvantage is an experience common to parts of every industrial society and Northern Ireland is by no means unique in demonstrating that such a cycle can be very difficult to break.

1.3 No society can afford the waste of talent or the sense of unfairness that such persistent disadvantage entails. In Northern Ireland social and economic influences have interacted with political and security issues to produce the intractable and well-known problems which have caused so much suffering in recent years. This makes it all the more important that no aspect of this whole complex of problems should be neglected.


THE SOCIAL AND ECONOMIC SCENE

1.4 The specific problem of the Catholic/Protestant differential in employment experience needs to be seen in the context of the overall economic situation in Northern Ireland. The scale of the current economic difficulties is well known. The unemployment rate in Northern Ireland is almost double that in Great Britain, with a much higher incidence of long term unemployment. This is reflected in output in Northern Ireland per head of population which is around two-thirds that in Great Britain. For those in work earnings tend to be lower. Higher levels of unemployment are reflected in higher dependency on social security benefits (23.8% of the population of Northern Ireland compared with 15% in Great Britain).

1.5 Unemployment and disadvantage affect Protestants as well as Catholics. For example 1 in 5 Protestant families depends on supplementary benefit and over a quarter are in receipt of housing benefit. However, the most severe disadvantage is undoubtedly concentrated among Catholics. Of Catholic families more than 1 in 3 depends on supplementary benefit and over 2 in 5 receive housing benefit.

Religion and disadvantage

1.6 Discrimination - in the sense of adverse treatment on grounds of religion - is undoubtedly one element which contributes to the relatively high disadvantage in employment which affects many Catholics. But while it is very difficult to quantify its impact, it is clear that it is by no means the sole nor even the main explanation. The situation is much more complex. The SACHR in its Report on Fair Employment issued in 1987, looked at ten possible factors - other than religion - which might be felt to influence the differential 'employment experience of Catholics and Protestants. These included demography, educational attainment and a range of social and economic factors. The report found some evidence for the view that each of these factors contributed to the greater disadvantage experienced by Catholics; but found that it was impossible to quantify the overall importance of these various factors with any confidence. They concluded:

    "it is reasonable to suppose that religion is the most likely explanatory factor which accounts for at least some if not most of the residual element"
(i.e., religion is)
    "a residual factor which may account for some or all of the overall difference ... in so far as it cannot be explained by other factors".
1.7 While allegations of discrimination against Protestants are less frequently heard, it would be wrong to imagine that it is something which affects only the Catholic section of the community, as a number of cases determined by the Agency indicates. Legal protection against discrimination is, of course, already available to Protestants in exactly the same way as to Catholics: discrimination is unlawful and intolerable no matter where it arises in Northern Ireland.

1.8 It is also important to recognise that discrimination, in the sense of the creation of disadvantage, is very often unintentional. It is quite possible for employment practices and policies to produce a differential impact in practice even though they are not designed with any discriminatory intent. Indeed such unconscious discrimination can be particularly difficult to eliminate precisely because an employer may not be aware of what is happening. In tackling disadvantage the best starting point is therefore to establish what is happening on the ground. If this shows an unjustifiable adverse impact on a particular group, the factors which are producing that impact can be identified and tackled. In one sense it does not matter whether the effect is intended or not: the important thing is to put it right. It is one of the chief aims of the new legislation which the Government is now proposing that effective methods be available for tackling unintentional discrimination as well as deliberate discrimination.


AIMS OF POLICY

1.9 The overall objective of the Government's policy in this field is therefore:
to have equality of opportunity in employment for all sections of the community.

The means by which this is to be achieved is:
promoting the use of good employment practices, designed to ensure that no unnecessary obstacles are placed in the way of any individual from any section of the community in gaining access to employment opportunities.

Fair employment policy is one of the most important components of the Government's overall approach to tackling the problems of disadvantage - an approach which extends across a broad range of educational, economic and social policies.


The importance of fair employment

1.10 The Government attaches particular importance to fair employment for five main reasons:

    (a) It is wrong in itself that anyone's employment prospects should suffer on account of their religious background
    Where this is the result of deliberate prejudice, redress and protection must continue to be available to any individual who is harmed. Where it results from unthinking or ill-informed action, educational measures must be available to correct the situation.

    (b) Fair employment has a part to play in building a more united community
    Discrimination and disadvantage foster a sense of grievance. They are destructive of good community relations. Fair employment gives more people a stake in society and is a stabilising influence.

    (c) Fair employment will make best use of our human resources
    It is an integral part of good personnel management practice and will help to ensure the best person for the job.

    (d) Fair employment will help to broaden employment opportunities for people in areas of high unemployment
    Unemployment in Northern Ireland is not only high in overall terms but is unequal in its geographical distribution. Some areas (e.g. Strabane) suffer rates of male unemployment as high as 40%. Efforts to promote employment in such areas will continue to be vigorously supported by the Government, but unemployment problems as severe as those found in some particularly disadvantaged areas will not necessarily, in the short term at any rate, be solved purely by employment based in the immediate locality. It is therefore important that people living in these areas should have a full opportunity to apply and be considered on fair and equal terms for employment outside their immediate locality, and that they should not be hindered - or feel themselves inhibited or discriminated against - in doing so.

    (e) Fair employment will help to encourage inward investment
    Northern Ireland competes for inward investment with many other areas of Europe and more widely. It will not be assisted in this if it has the reputation and image - whether deserved or not - of being an area where sectarian discrimination is practised or tolerated.

Equality of opportunity in employment is something which needs to be provided both for the sake of any individuals directly concerned and for the benefit of the wider community as a whole. It can and will be promoted irrespective of the particular level of economic activity which may prevail from time to time. But there is no doubt that it will be more readily and more rapidly achieved and disadvantage reduced if unemployment continues to fall. The drive to promote more investment and jobs in Northern Ireland and thus to reduce disadvantage wherever it may lie, is a vital complement to the drive to eliminate discrimination.


BASIC PRINCIPLES

1.11 In pursuing its objectives, the Government regards it as axiomatic that:

    (a) Fairness in employment should be pursued through methods which are themselves fair to all
    It would be unacceptable if the effect of action in this field were to be simply to transfer disadvantage from one group to another. Measures to promote fairness must themselves give fair treatment to all who are affected by them, or else they will fail by their own test.

    (b) Policy and practice must be forward-looking: they must be capable of sustaining their own momentum
    The aim must be to create procedures and foster attitudes which pre-empt any unfairness and which make equality of opportunity a natural outcome.

    (c) Fair employment should contribute to the healing of divisions in the community
    One of the causes of discrimination is discord in the community and the feelings of insecurity that this engenders. Fair employment is more likely to be achieved in practice if it is pursued in ways which tend to unite the community rather than to divide it along sectarian lines.



Appointment on merit

1.12 The Government believes that it is the direct corollary of these basic principles that appointment to jobs should always be solely on merit, without regard to religious affiliation or belief and in accordance with the obligation not to discriminate.

1.13 This is the premise upon which successive Governments have built their approach to fair employment in Northern Ireland. It is also fundamental to anti-discriminatory legislation in cognate fields throughout the United Kingdom. To set merit aside and to make appointments or promotions on the basis of favouring one religious group over another would be grossly unfair to the individuals thus excluded. It would also institutionalise bad practice rather than good and it would tend to exacerbate sectarian divisions rather than heal them. The fact that some would see it as being done from a good motive, e.g. to counter-balance historical disadvantage, would make it no less inequitable or unsatisfactory.

1.14 The Government is therefore convinced that appointment on merit is the only basis on which fair employment can properly be promoted. But it is a necessary corollary that this must be done in the context of a genuine determination to promote equality of opportunity, in which case appointments on merit will contribute to this outcome and will advance the cause of fair employment. In practice this means that in selecting the best person for the job or for promotion, employers must be careful to assess merit according to:

    (a) the actual requirements of the job - not irrelevant ones

    (b) structured and job-related personnel criteria - not subjective and random ones

    (c) potential ability -as well as past experience.

It also requires the development of a wider framework of employment practices which give every individual a genuinely equal opportunity to apply and compete for employment. In other words, appointment on merit must operate in the context of an overall programme of affirmative action; it must not be used as a rationale for a sectarian personnel policy, or as a cloak behind which unfair practice can be hidden.

1.15 The meaning and content of affirmative action programmes is considered further in Chapters Ill to V. These explain the details of the new statutory duties which will be placed on employers, and set out how they will work in practice and the guidance and help that will be available to employers in discharging their responsibilities. Chapter 11 deals first with the institutional changes that are proposed, and sets out the role and structure of the new Fair Employment Commission and of the new Fair Employment Tribunal.




Chapter VI Enforcement, Sanctions and Evaluation

INTRODUCTION

6.1 The main thrust of the Government's policy initiative on fair employment is to improve employment practices and to change attitudes. It is designed to help employers and others concerned become more aware of what is happening to the composition of their workforce and the factors that are producting that result; to heap them assess whether that result is satisfactory in terms of affording equality of opportunity; and to heap them in deciding what changes it may be necessary to make in their employment practices so as better to afford equality of opportunity.

6.2 This is essentially an educational process and this is one reason why particular emphasis has been placed on the Commission's educational and promotional role. The Government is confident that the vast majority of employers will respond positively to the new policy and will welcome the assistance which the Commission will be able to give them. In a very real sense it would be a sign of failure of the educational aspect of the initiative if, in any particular case, it were necessary to resort to enforcement of change by means of due process of law or by the application of sanctions. Nevertheless, it is clearly right that there should be an enforcement mechanism built into the new legislation so that its aims may not be frustrated by either lack of energy or lack of goodwill on the part of any particular employer.


SANCTIONS FOR BREACHES OF DUTY

6.3 The sanctions that will be available under the new legislation will fall into three main categories:

    (a) Specific penalties for breach of certain specific duties.

    (b) Enforcement of Directions issued by the Commission in pattern and practice cases.

    (c) Exclusion from a range of Government grants and from public sector tenders of employers who are in serious breach of their duties under the Act.

These sanctions relate to the enforcement of the duties to be imposed on employers in respect of registration and monitoring and to practise equality of opportunity. As such, they will be additional to the penalties that will apply in respect of individual cases of discrimination. The redress to individuals who are found to have suffered from unlawful discrimination will continue to be by way of monetary awards of compensation.


Specific duties

6.4 Under the new legislation a number of specific duties will be imposed on employers. The most important of such duties will be:

    (a) To register with the Commission (see para 5.12).

    (b) To monitor the workforce (see paras 3.12 and para 5.13 (b)).

    (c). To submit annual monitoring returns to the Commission (see para 3.12 and para 5.13(c)).

    (d) To surrender a Certificate if it is withdrawn (see para 5.17).

Failure to comply with any of these specific duties will be a summary criminal offence which may be prosecuted by the Commission in the magistrates' courts and could lead to an initial scale 5 fine (current maximum £2,000) with a power for the magistrates to impose a per diem fine for each further day during which the employer is in breach of his statutory obligations. The offences of falsification of returns and falsely claiming to be a holder of a valid certificate are not of a continuing nature and greater discretion may be required by magistrates in order to make the penalty commensurate with the offence. An exceptional discretionary fine up to a maximum of £10,000 would enable magistrates to distinguish between employers with workforces of greatly differing size, and to match the penalty to the offender's ability to pay.


Enforcement of Directions

6.5 A Direction issued by the Commission will be binding on the employer concerned. If a Direction is not complied with, the Commission will be able to apply to the Tribunal for an Order of Compliance and the Tribunal will have power to make such an Order in the terms applied for by the Commission or in different terms. If the Order is not complied with to the satisfaction of the Commission, then (the Commission) will be able to apply to the High Court for the exercise of its contempt jurisdiction.

6.6 The Tribunal's Order of Compliance will represent the final decision as to the precise steps which the employer must take. If the Order is disobeyed, the Commission may refer the matter to the High Court where the Commission will need only to demonstrate that the Order has not been complied with. If the High Court is satisfied that the employer has disobeyed the Order of Compliance it may punish the employer as if the Order was an Order of the High Court. As this will involve the contempt jurisdiction of the High Court, the employer would be liable to unlimited fines or to committal or both, at the discretion of the High Court. The onus would then be on the employer to purge his contempt by discharging his obligations under the Order.


Public sector

6.7 The specific and general duties imposed by the new legislation will apply as much to the public sector as to the private sector. The consequences for breach of these duties will also apply to both the public and private sectors, with whatever modifications of detail may be appropriate to reflect the different circumstances and responsibilities which prevail in each case.


Grants and tenders

6.8 The Government's aim is to use the force of public expenditure on goods and services and the availability of Government grants as:

    (a) a further inducement and encouragement to employers to comply with their statutory obligations;

    (b) conversely, to use the exclusion from grants and tenders of offending employers as a mark of the Government's disfavour.

6.9 At present tenders for significant items or works are not accepted by government departments unless the contractor has signed the Declaration of Principle and Intent. This policy applies only to main contractors. It is operated by all government departments but only a limited number of public bodies. And it is linked to the Declaration of Principle and Intent, which has been criticised as ineffectual. For the future the Government intends to base this policy on the statutory obligations that suppliers and contractors will have by linking it to Certification. Suppliers and contractors who are in breach of these obligations will not normally be eligible to tender for any significant government business (although occasional exceptions may be necessary on grounds of security or public interest, or where the work or goods could not otherwise be secured without disproportionate expense). The Government will also consider further the extent to which this policy should be applied to sub-contractors and to the wider public sector.

6.10 Eligibility for Government grants will also be linked to Certification and to the discharge of statutory obligations. The precise range of grants which it would be appropriate to attach in this way is for consideration, but the Government intends that as a minimum grants linked to the creation or maintenance of employment will be denied to employers who are in breach of their statutory obligations.


Security considerations

6.11 In the light of the continuing threat from terrorism in Northern Ireland, it is vitally important that the present safeguards for national security should continue to be available in the new legislation. Section 42 of the 1976 Act provides that the legislation shall not apply to actions done for the purpose of safeguarding national security or protecting public safety or public order. There is provision for the Secretary of State to issue a certificate which is then conclusive evidence that an act was done for that purpose. The Agency is therefore precluded from pursuing an investigation into a complaint in respect of which such b certificate has been issued. The Government considers that it would be irresponsible to dispense with this provision. Regrettably, terrorist violence still plagues Northern Ireland and the Government has a paramount duty to protect national security, public safety and public order. The Government notes that the SACHR was also satisfied that a national security exception should remain. The Government is therefore convinced that section 42 must remain in force, and that it should apply to the provisions of the new legislation.


POLICY EVALUATION

6.12 Policy measures on fair employment need to be evaluated periodically to assess whether they are achieving their original objectives. Such evaluation is a standard procedure in all new policy initiatives. The Government intends that there will be a formal review of the effectiveness of the new legislation after five years, but evaluation of the effects of the new legislation will be a continuous process.

6.13 It is important that evaluation should focus on those matters that are directly affected by the policy measures in question. In the case of fair employment policy, the aim is to achieve a fair distribution of jobs throughout the community, and this will be done by measures which impact on the recruitment of people into employment and on promotions within employment. To assess the effectiveness of these measures, information will be needed on:

    (a) patterns and trends in the employed workforce;

    (b) improvements in employment and recruitment practices;

    (c) better opportunities for under-represented groups to have access to employment opportunities.

6.14 The Government intends that the Commission should be fully involved with it in the evaluation of this policy initiative. The Government will also liaise with and have regard to the views of SACHR on such evaluation, reflecting the SACHR's statutory duty to advise on the effectiveness of the law in preventing discrimination. The Government will consult with the Commission as to the specific indicators and criteria which should be used, but believes that on any reckoning the following indicators will be relevant:
    (a) Current employment situation: The database that will be built up through the annual submission of monitoring returns to the Commission will in itself be a major source of information. It will give - for the first time - a reliable and comprehensive indication of the patterns of representation and under-representation in the workforces of all sizeable employers.

    (b) Trends in employment: Over time, comparison of successive monitoring returns will indicate the trends which are taking place in these patterns of representation and under-representation and in the flows into and through the workforce. Because the overall picture will be composed of returns from a large number of individual employers, the total will be capable of being accurately broken down by business sector. It will therefore be possible to assess the effects of shifts in the level of economic activity in different sectors on the differential employment experience of different groups in the community.

    (c) Geographical and economic factors: The precise importance of geographical factors as well as of economic factors for differential employment experience should also be more clearly revealed.

    (d) Commission's experience: The experience of the Commission in conducting pattern and practice cases will give information on changes in the overall standard of employment practices in individual firms or sectors.

    (e) Trends in applications: Where affirmative action programmes involve the systematic monitoring of applications as well as employment, it will be possible to derive information about the extent to which applications from under-represented groups are being increased.

    (f) Public sector experience: The practice and experience of the public sector, which accounts for over 40% of the employed workforce, will be monitored carefully.

6.15 The main focus of all of the above indicators - which are intended to be illustrative rather than comprehensive - is on patterns and experience in employment and in the movement of people into employment. Fair employment is essentially about giving all sections of the community fair and equal access to the jobs that are available. Its impact will therefore best be measured by assessing the changes that take place in the future experience of under-represented groups in gaining access to employment.

6.16 The database on employment experience that will be derived from the annual monitoring returns to the Commission and from associated activities will be a most valuable research base for a whole range of labour market studies. It will itself be a major aid to the Government in assessing the effectiveness of its policy. The Government therefore intends to give careful consideration to the arrangements that can best be made for the storage, processing and publication of aspects of this database and its availability to those with a genuine professional interest in its contents. Any such arrangement would of course have to protect the confidentiality of any individuals concerned, but they could properly and usefully cast light on trends in a wide range of employment-related issues.

6.17 To the extent that the study of the database so built up suggests that other social and geographical factors - outside the direct scope of the fair employment initiative - have a significant impact on the differential employment experience of the two main sectors of the community, more research studies may need to be undertaken. These would follow on from and develop the studies commissioned by SACHR for the purposes of their 1987 Report on Fair Employment.


Employment and unemployment

6.18 The Government believes that criteria and indicators of the sort set out above provide a more reliable basis for evaluating the effectiveness of fair employment policy than would the SACHR's recommendation, that a target should be set in terms of a reduction in the differential between the rates of male unemployment among Catholics and among Protestants. To set a target in terms of levels of unemployment would be to ignore the importance of the many variable and unpredictable factors which determine the overall level of unemployment in the community. In addition, it would leave out of the reckoning the fact that the unemployment differential between Catholics and Protestants will be at least as strongly influenced by social, geographical and economic factors as by fair employment policies. The latter have a vital role to play in ensuring fair and equal access for all to the employment opportunities which exist at any given time; but the former - coupled with the overall level of economic activity - will have a major bearing on the way in which employment and unemployment is actually distributed in the community.

6.19 This is why the Government has always insisted that there must be realism as well as determination in the application and development of fair employment policies. These are a fundamental and necessary part of the drive for a fairer society in Northern Ireland, but by themselves they are not and cannot be a sufficient guarantee of a prosperous economic future for all sections of the community. That will only be achieved if we are also successful in the promotion of overall economic development. The Government therefore continues to emphasise that the drive to promote more investment and more jobs in Northern Ireland is an essential complement to the drive to promote fair employment. All who are genuinely interested in employment equality should also support the promotion of more jobs in Northern Ireland. The more healthy the economy the better the prospects for promoting fair employment.


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