Fair Employment in Northern Ireland[Key_Events] [Key_Issues] [Conflict_Background] Government Reports and Acts
Fair Employment in Northern Ireland
Presented to Parliament by the Secretary of State for Northern Ireland by Command of Her Majesty
Published in London by,
Cmd 380
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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. 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:
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.
1.9 The overall objective of the Government's policy in
this field is therefore:
The means by which this is to be achieved is:
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.
1.10 The Government attaches particular importance to fair employment for five main reasons:
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
(c) Fair employment will make best use of our human resources
(d) Fair employment will help to broaden employment opportunities
for people in areas of high unemployment
(e) Fair employment will help to encourage inward investment
BASIC PRINCIPLES 1.11 In pursuing its objectives, the Government regards it as axiomatic that:
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
(c) Fair employment should contribute to the healing of divisions
in the community 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:
(b) structured and job-related personnel criteria - not subjective and random ones (c) potential ability -as well as past experience.
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. 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. 6.3 The sanctions that will be available under the new legislation will fall into three main categories:
(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. 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:
(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). 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.
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.
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:
(b) conversely, to use the exclusion from grants and tenders of offending employers as a mark of the Government's disfavour.
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.
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. 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:
(b) improvements in employment and recruitment practices; (c) better opportunities for under-represented groups to have access to employment opportunities.
(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. 6.16 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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