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Religious and Political Discrimination and Equality of Opportunity in Northern Ireland - Report on Fair Employment
[Key_Events] [Key_Issues] [Conflict_Background] Page Compiled: Fionnuala McKenna
Religious and Political Discrimination
Report on Fair Employment
Presented to Parliament by the Secretary of State for Northern Ireland by Command of Her Majesty
Published in London by,
Cmd 237
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1.1 The Standing Advisory Commission on Human Rights (hereafter 'the Commission') was established by Parliament under section 20 of the Northern Ireland Constitution Act 1973 for the purpose of:
1.3 The Commission believed that such a review was crucial if it was properly to fulfil its statutory remit. The Commission was aware of evidence which suggested significant differences in the situations of Catholics and Protestants both in social and economic terms and believed therefore that a review was timely and relevant. 1.4 The Commission invited the Secretary of State's active and public support for the review and, because of the intended breadth and depth of the review, it sought from the Secretary of State extra resources in terms of strengthening the Secretariat of the Commission and in providing additional financial support. The Secretary of State welcomed the decision to embark on the review, drew it to the attention of Parliament and publicly confirmed his support for the review. [1] In addition, the Secretary of State pledged that his officials would facilitate the review in whatever ways they properly could and subsequently made available substantial financial support for it and agreed to the appointment of an additional research officer for the duration of the review. 1.5 In July 1985 the Government published statistics [2] showing marked differences between the characteristics of the Protestant and Catholic sections of the community in Northern Ireland. The statistics illustrated differences in such areas as employment, educational background and housing. They underlined the fact that, in spite of the institutional safeguards in place and the action taken over recent years, substantial differences between Catholics and Protestants continued to exist, notably in terms of employment and unemployment and also with regard to family size and other factors. The Commission was informed by the Secretary of State that the significance of the figures made it right that he should examine at once the scope for Government action to improve matters. In reply to a Parliamentary question, the Secretary of State said:-
'I have already welcomed the wide ranging review of anti-discrimination law which will be undertaken over the next 18 months by the Standing Advisory Commission on Human Rights. The importance of this work is underlined by the data published today. I have now also asked officials to prepare urgently proposals for discussion later this year to make our approach to full equality of opportunity in employment more comprehensive, consistent and effective.'[3] l.6 The Commission publicly announced in August 1985 its decision to undertake the review with the following terms of reference.-
1.8 Expert advice was sought from the Policy Studies Institute, a research body with proven practical experience in this field of work. The Policy Studies Institute is an independent non profit making body of international standing. Its aim is to help improve public policy by obtaining relevant facts, analysing their implications and presenting their results to policy makers and to the public. In October 1985 the Commission therefore commissioned the Policy Studies Institute to undertake a programme of research on its behalf. It was agreed that the Policy Studies Institute should concentrate its attention on the fields of employment, economic well-being and housing and that its research should seek: -
(b) to provide explanations of these differences, for example by tracing the associations between aspects of housing, employment and geography and other factors; (c) to describe policies and practices in the fields of both employment and housing, and to analyse their consequences; and
(d) to describe the perceptions and views of members in both sections
of the community.
Mr Robert Cormack (Lecturer in Sociology at the Queen's University, Belfast). Professor John Darby [4] (Professor, Department of Social Administration and Director of the Centre for Study of Conflict at the University of Ulster at Coleraine). Dr Jeremy Harbison (Director of the Policy Planning and Research Unit of the Department of Finance and Personnel). Dr Robert Osborne (Senior Lecturer in Social Policy at the University of Ulster at Jordanstown).
Dr Kevin Sweeney (Principal, Policy Planning and Research Unit
of the Department of Finance and Personnel). I. Employment and Unemployment. The first study was a far reaching analysis of the Continuous Household Survey to examine the extent and nature of social and economic differences between Protestants and Catholics in Northern Ireland. The Survey is conducted on an annual basis by the Policy Planning and Research Unit of the Department of Finance and Personnel and is based on a representative sample of households throughout Northern Ireland. The Survey is regarded as an authoritative source of information on social and economic conditions in Northern Ireland. Data from the Survey was transferred to the Policy Studies Institute for intensive analysis. In particular, the Policy Studies Institute assessed the different experiences of Protestants and Catholics in employment and unemployment, and possible explanations for these differences. II. The Workplace. The Policy Studies Institute investigated policies and practices in the workplace relevant to the provision of equality of opportunity. Research was conducted on three levels. First, a sample consisting of some 260 workplaces was surveyed. The sample for the survey included a range of occupations and organisations in the public and private sectors and was representative of all workplaces in Northern Ireland employing more than ten people. The sample included detailed information about all types of economic activity in Northern Ireland. Questionnaire design, survey procedures, and the analysis of the data collected were the responsibility of the Policy Studies Institute. However, it was decided that most of the field work should be undertaken by trained interviewers from the Policy Planning and Research Unit acting under the guidance of the Policy Studies Institute. First, extensive piloting to refine the methods used was conducted before the main survey took place. Secondly, the Policy Studies Institute conducted twelve detailed case studies embracing a range of different employers. Thirdly, interviews were conducted with the management of ten of the largest employers in Northern Ireland and with recognised trade unions representing their workforces. III. Perceptions and Views. The Policy Studies Institute researched the perceptions and views of people in Northern Ireland on such matters as inequality, segregation and discrimination, and the role of policy in these spheres. A representative sample of adults in Northern Ireland was surveyed. The sample comprised 1,600 adults drawn at random from the electoral register. The Policy Studies Institute was ultimately responsible for survey procedures, questionnaire design and analysis of the data. However, as in the case of the workplace survey, it was agreed that field work would be undertaken by trained interviewers from the Policy Planning and Research Unit acting under the guidance of the Policy Studies Institute. Again, extensive and careful piloting of the questionnaire was conducted to ensure the correctness of the wording of questions and to develop methods of approach to be adopted by interviewers.
The Commission is grateful to all who helped this research. The
Policy Planning and Research Unit of the Department of Finance
and Personnel and the Northern Ireland Housing Executive lent
valuable assistance to these parts of the Commission's review
as did a number of organisations representative of both sides
of industry which endorsed the research. IV. Housing Patterns and Policies. This work involves:-
(b) an examination of housing allocation procedures in the public sector and a study of whether procedures operate equally fairly for all sections of the community; (c) an analysis of the processes involved in determining local housing need to assess whether new building programmes are geared to satisfying need in each section of the community and to ascertain what attempts are made to ensure that the availability of new housing is adequately distributed throughout all sections of the community; and (d) an analysis of the sales of Housing Executive stock.
The European Human Rights Foundation The Sir Halley Stewart Trust The Ireland Fund
Studies of Laws and Institutions
1.3 The work of the Policy Studies Institute has provided the
Commission with an assessment of the social context in which the
law operates. However, to complement that research the Commission
considered it important to obtain a reliable assessment of the
scope and operation of the major laws and institutions aimed at
securing freedom from religious and political discrimination and
furthering equality of opportunity, most importantly the Fair
Employment (Northern Ireland) Act 1976, the Northern Ireland Constitution
Act 1973, the legislation which established the offices of the
Northern Ireland Parliamentary Commissioner for Administration
and the Northern Ireland Commissioner for Complaints, and the
legislation for the prevention of incitement to religious hatred
in Northern Ireland.
1.14 Given the extent and complexity of this further research,
the Commission appointed specialist consultants to provide it
with detailed reports on the subject areas under scrutiny:-
1.15 These reports have assisted the Commission in understanding
the technicalities of the laws and institutions under consideration,
their operation, and the most relevant issues from the point of
view of the Commission's review. 1.16 The Commission sought the views of all the public institutions and agencies involved and encouraged interested organisations, groups and individual members of the public with an interest in the legislation and its operation to submit their views to the Commission. The Commission has also sought to learn from those with practical experience of operation of the laws and institutions under review and the difficulties in providing full equality of opportunity. 1.17 Accordingly, the Commission advertised its intention to undertake the review and issued a public invitation seeking the submission of views. Individuals and bodies across a broad spectrum of opinion which might be expected to have an interest in the legislation under investigation were specifically invited to submit views. Forty seven organisations and individuals did so and the Commission appreciates the considerable efforts made by a number of individuals and organisations in this respect. An overwhelming majority of the submissions received concerned equality of opportunity in the area of employment and the operation of the fair employment legislation. A list of those individuals and bodies which submitted written evidence to the Commission is contained in Appendix A and copies of a number of the submissions received which the Commission has been given permission to reproduce are contained in Volume Ill of this Report.
1.18 Groups from both sides of industry and the major political
parties or their representatives who submitted written evidence
or who requested a meeting were also invited to present oral evidence
as were organisations with particularly relevant experience of
the operation of existing legislation or of the problems encountered
in providing equality of opportunity. A list of those individuals, organisations and Government departments who accepted our invitation
is contained in Appendix A. The Commission's review greatly benefited
from these consultations. 1.19 As noted earlier, the Commission's decision in 1985 to launch its review was followed by the subsequent announcement by the Secretary of State of a study of equality of opportunity in employment, embracing the dimensions of religion, sex and disability. In September 1986, the Department of Economic Development published a discussion document entitled 'Equality of Opportunity in Employment in Northern Ireland: Future Strategy Options'. 1.20 The Commission's review has been independent of the Government's initiative. However, the Commission has been conscious throughout of the need to direct its efforts to meet the Government's particular concern for the adequacy and effectiveness of the present fair employment legislation. Moreover, although the terms of reference of the Commission's review are broader, it has become increasingly apparent that it is right that the Commission should focus its early efforts upon this particular legislation. There are issues of considerable importance concerning equality of treatment and equality of opportunity outside the field of employment and the Commission believes it necessary to allow further time in which to consider these other aspects of the review. A further report, examining the laws and institutions securing freedom from discrimination and promoting equality of opportunity outside the field of employment is to be submitted to the Secretary of State in the near future. 1.21 In January 1987 the Commission held a two day seminar to consider the employment aspects of its review, to improve its understanding of the legislation and to examine the comparative experience of dealing with issues of race and sex related discrimination in the field of employment in Great Britain. The Commission welcomed senior officials of the Northern Ireland Office as observers at the seminar and the following individuals whose acknowledged experience and expertise in these fields proved particularly helpful:
Ms Evelyn Ellis, Lecturer in Law, University of Birmingham. Professor Bob Hepple, Professor of Law, University College London. Ms Alice Leonard, Deputy Legal Director, Equal Opportunities Commission. Mr Laurence Lustgarten, Lecturer in Law, University of Warwick. Mr David Smith, Policy Studies Institute. Mr John Whitmore, Legal Director, Commission for Racial Equality.
1.23 The form of the report is as follows. Chapter 2 considers
the historical background to the major laws and institutions under
review. Chapter 3 considers the extent of discrimination and inequality
of opportunity in Northern Ireland. Chapter 4 sets out the general
principles which inform the remainder of this report and its recommendations.
The Fair Employment (Northern Ireland) Act 1976 is described in
outline in Chapter 5. Chapter 6 assesses the meaning of discrimination
and how it should be defined in legislation. The meaning of equality
of opportunity is considered in Chapter 7. The chapter also assesses
the types of measures employers and others should be permitted
to take to promote equality of opportunity. Chapter 8 discusses
the appropriate scope and coverage of legislation. Chapter 9 proposes
practical steps which employers and others should take to promote
equality of opportunity, and the role of incentives in stimulating
good practice. Chapter 10 considers the role of strategic investigations
in promoting equality of opportunity. Chapter 11 considers the
most appropriate arrangements for dealing with individual complaints
of discrimination. Chapter 12 assesses various institutional details
concerning the new fair employment body which is proposed. Chapter
13 discusses other additional methods by which Government should
further equality of opportunity. Chapter 14 assesses the legislation
which would need to be introduced to give effect to the Commission's
recommendations, and future developments. Chapter 15 contains
a summary of the Commission's recommendations.
Notes:
In this chapter the Commission sets out a summary of its main
recommendations. The authoritative source of the formulation of
each recommendation is found in the chapter from which it is drawn.
Each recommendation should be read in the context of the discussion
which precedes it and which is equally important in any serious
examination of this Report. For ease of reference the appropriate
paragraph number of the relevant chapter follows each summary.
General Principles 15.1 Discrimination on the grounds of religious belief or political opinion (or lack of them) is generally abhorrent and should continue to be legally prohibited. 15.2 High unemployment is experienced by both sections of the community but there is a greater degree of disadvantage within the Catholic section of the community. The unemployment rate for male Catholics is two and a half times that for male Protestants. This has shown no improvement in the last decade. Research has shown there are a number of different factors which explain the relative differences between Catholics and Protestants in employment and unemployment. Age structure, family size and the geographical dispersion of each section of the community are examples of such factors. (paragraphs 4.2, 4.3 and 4.5). 15.3 The Commission considers that factors in the labour market which have contributed to the differential, such as discrimination, the chill factor, differential access to information, and the operation of kinship patterns, can and should be influenced by public policy. (paragraph 4.5). 15.4 The Commission recognises that it is easier to promote equality of opportunity where there is economic growth. Economic growth is desirable for its own sake and also because it assists the provision of equality of opportunity. Even in the absence of growth there is scope to bring about significant change. (paragraphs 4.7 and 13.3). 15.5 The substantial inequalities in the field of employment which exist between Catholics and Protestants must be tackled as a matter of urgency. The Commission recommends that it should be a major element in government policy to eliminate this inequality. Government should now establish the goal which it would wish to see achieved and in particular it should aim to achieve the substantial reduction in the differential rates of unemployment between Catholics and Protestants recommended in Chapter 4. (paragraphs 4.2, 4.3, 4.7, 4.8 and 13.3). 15.6 Employers also have a special role to play. The Commission, however, emphasises that the provision of equality of opportunity should not be seen as the responsibility of employers alone. Other groups have an important contribution to make. An important factor is the degree of support which employers receive front trade unions, schools, community groups, and those in society who are in a position to exert influence. (paragraphs 4.28 and 4.29). 15.7 The law should provide an opportunity for aggrieved individuals to seek remedies for discrimination which they have suffered. There should exist adequate, effective and readily accessible machinery which is fair (and is perceived to be fair) to both complainant and respondent to pursue complaints. (paragraph 4.16). 15.8 It is important that there should be provision for legal remedies which should be adequate to accomplish a number of functions: to reflect the seriousness of any wrong done; to provide an incentive for other victims of discrimination to seek a remedy; to re-emphasise the public policy against discrimination; to compensate the individual who has taken a case and others affected by the discrimination; to act as a general deterrent to employers and others who are discriminating or not providing equality of opportunity; and as an encouragement for them to embark on change without direct compulsion of investigation and litigation; and to enforce change directly, where other methods have not been successful. (paragraph 4.17). 15.9 It is not sufficient simply to eliminate unlawful discrimination in order to achieve equality of opportunity. Equality of opportunity is a wider goal. Equality of opportunity in employment exists when different sections of the community have similar access to facilities by which the full development of the abilities and aptitudes of the members of both sections of the community may be achieved, similar opportunities for becoming aware of employment opportunities, similar opportunities for obtaining qualifications for employment, and similar opportunities for obtaining employment, taking into account the ability and potential of candidates. (paragraphs 4.18 and 7.12). 15.10 Significant progress can be made towards equality of opportunity if affirmative action by employers and others is vigorously implemented. (paragraph 4.19). 15.11 The Commission rejects reverse discrimination which should remain unlawful. (paragraph 4.20). 15.12 There is a wide range of possible measures available to further the goal of achieving full equality of opportunity. There is a role for voluntary action, making use of government incentives, and imposing formal legal sanctions. However, voluntary action is inherently preferable to the use of legal or non-legal sanctions and should be encouraged, provided that it is shown to be effective. (paragraph 4.21). 15.13 There needs to be a clear and comprehensive legal framework to ensure that necessary action will be taken if it is not forthcoming voluntarily. (paragraph 4.23).
15.14 A powerful, respected and effective enforcement body is
necessary to achieve widespread change. (paragraph 4.25).
Meaning of Proof of Discrimination 15.15 New legislation should continue to prohibit 'direct discrimination' on religious or political grounds. It should also be made clear that such discrimination is unlawful even where a discriminator believes that it is in the individual's best interests to refuse him or her employment on religious or political grounds. (paragraph 6.15). 15.16 The evidential burden of proof in direct discrimination cases should rest with the respondent where it has been shown that there has been less favourable treatment, that the individuals concerned are of different religious beliefs or political opinions, and they are able to meet the requirements of the job. (paragraph 6.17). 15.17 A 'questionnaire procedure' should be incorporated in new legislation. Where a respondent deliberately and without reasonable excuse either omits to reply, or gives an evasive or equivocal reply, to a questionnaire there should be a duty on the adjudicating tribunal to draw the inference that it considers just. (paragraph 6.18). 15.18 Indirect discrimination in respect of religious affiliation should be expressly prohibited. Individual complainants should be granted a right to redress in respect of any indirect discrimination by an employer. (paragraph 6.36).
15.19 The statutory definition of indirect discrimination should
make unlawful any practice, policy or situation which is continued,
allowed, or introduced and which has a significant adverse impact
on a particular section of the community defined by religion and
which cannot also be demonstrated to be necessary. (paragraph
6.37).
Equality of Opportunity and Affirmative Action 15.20 There should be an express legal duty to provide equality of opportunity consisting of four elements. The first is that the employer or other body should not directly discriminate; the second is that there should be no indirect discrimination; the third is that the employer should assess, by monitoring, whether his or her practices provide equality of opportunity as defined above; and fourth, where monitoring indicates that there has been a failure to provide equality of opportunity, or that direct or indirect discrimination may be occurring, the employer should take appropriate and lawful action to further equality of opportunity, or eradicate the direct or indirect discrimination. (paragraphs 7.76 and 7.77). 15.21 New legislation should expressly permit outreach measures designed to encourage applications from and the chances of success of underrepresented sections of the community. Permissions along similar lines to those in the Race Relations Act 1976 should be included in any new legislation, but with the modifications recommended below. (paragraph 7.39). 15.22 'Training' should be specifically defined to include the provision of apprenticeships, and an employer should be permitted to give special training to persons of a particular religion, at or away from the normal place of work, and whether or not they are his employees, where there is under-representation in the workforce. (paragraph 7.40). 15.23 There should be no requirement that a body must be 'designated' by the Secretary of State as a 'training body' in order to take advantage of these provisions. (paragraph 7.41). 15.24 An employer should be able lawfully to encourage successful trainees from any outreach training scheme to apply for regular employment by taking special measures, e.g. by especially welcoming their applications. (paragraph 7.42). 15.25 Where the cost of such outreach measures can be shown to be greater than may reasonably be expected of an employer for recruitment and training, special grants should be made available from public funds. (paragraph 7.43). 15.26 It should not be lawful for an employer to seek to remedy an imbalanced workforce by selecting on the basis of religion from among candidates who meet the requirements of the job equally well (the 'tie-break'). Legislation should specifically provide that the new fair employment body (see paragraph 12.5) reconsider and report to the Secretary of State, three years after the legislation has come into force, whether there is a need for the tie break to be permitted and in what circumstances. (paragraph 7.65). 15.27 Legislation should expressly permit employers to remedy a seriously imbalanced workforce by adopting policies which do not explicitly distinguish between different sections of the community, but which in fact do so when operated, such as recruiting from the unemployed. (paragraph 7.68).
15.28 These affirmative action proposals are compatible with the
merit principle which the Commission defines as the principle
that employers should be free to select the person whom the employer
considers to meet the requirements of the job and is most appropriate
for the employer's enterprise, unless this would result in unlawful
discrimination or delay the achievement of equality of opportunity.
(paragraph 7.19). 15.29 The duty to provide equality of opportunity should apply to all employers. (paragraph 8.6). 15.30 If a practice which is directly or indirectly discriminatory is negotiated between an employer and a trade union, it should be rendered void to the extent that it is discriminatory or fails to afford equality of opportunity. (paragraph 8.15). 15.31 New legislation should clarify the legal obligations of trade unions, their officers and committees, and those who conduct affairs on behalf of a trade union. (paragraph 8.16). 15.32 Where an employer or other person is the subject of a complaint of unlawful discrimination and either the employer or the complainant claims in proceedings that the employer or other was induced to take action by pressure which a trade union or other person (such as a contractor, for example) exercised on the employer, the employer or the complainant should be able to request the tribunal to direct that the person whom he claims exercised the pressure should be joined as a party to the proceedings. An award may be made against the employer or the joined party or partly against both. (paragraph 8.18). 15.33 New legislation should place an obligation to provide equality of opportunity on training bodies, employment agencies and bodies with a power to confer qualifications. (paragraph 8.19). 15.34 In circumstances where there is underrepresentation of either Catholics or Protestants in a particular employment or occupation, training bodies should be permitted to conduct training limited to members of the underrepresented group. There should also be scope for bodies such as universities and institutions of further education to be able to operate such outreach training in the form of provision of educational programmes. (paragraph 8.19). 15.35 There should be no change in respect of the exception for employment as a clergyman or minister. (paragraph 8.21). 15.36 The exception of employment in a private household should remain broadly unchanged. New legislation should prohibit advertisements for such employment which indicate that only persons of a particular religious belief or political opinion will be considered for such employment. (paragraph 8.21). 15.37 The exception for charities should be revoked. The genuine occupational qualification exception contained in section 37(2) and (3) of the Act should remain unchanged. (paragraphs 8.23 and 8.40). 15.38 The situation in respect of equality of opportunity in employment in education should not be changed without more general consideration of the principles which should underlie the education system. It is not appropriate for the new fair employment body to keep the existing exception affecting teachers under review. Under new legislation, this should become the responsibility of the Department of Education. (paragraph 8.37).
15.39 The existing exception under section 42 of the Act in respect
of actions done to safeguard national security, or to protect
public order or public safety should remain. However, certificates
issued by the Secretary of State should not constitute conclusive
evidence that an action was done for that purpose. Any person
upon whom a section 42 certificate is served should be entitled
to complain to the Northern Ireland Parliamentary Commissioner
for Administration who would be explicitly authorised by new legislation
to investigate whether issuing the certificate constituted injustice
in consequence of maladministration. (paragraph 8.48).
Encouraging Equality of Opportunity in Practice 15.40 Government should provide incentives for action. Employers should not be expected to bear the entire burden of providing equality of opportunity. Government should assist employers by:
(b) the establishment of an Equality of Opportunity Fund. Discretionary grants might be provided for initial start-up costs associated with monitoring and other affirmative action measures; (c) the institution of arrangements by which job-centres would assist employers with outreach programmes by assisting in the establishment of links with particular schools serving the section of the community underrepresented in an employer's workforce, and encouraging applications on the employers behalf; (d) the temporary provision of government office space to allow companies to interview in areas which are less daunting to members of a section of the community underrepresented in an employer's workforce. (e) the temporary provision of government facilities in which outreach training might be conducted by the employer. (paragraph 9.7. 15.41 Monitoring should identify the particular section of the community or tradition with which an individual is most closely associated. Employers should record the perceived religious affiliation of employees and others, and not necessarily seek to ascertain their actual beliefs. (paragraph 9.13). 15.42 There are various techniques of monitoring which might be employed. Employers should adopt the method of monitoring which is best suited to their needs and circumstances. Whichever method is adopted, employers should be able to show that it is effective. (paragraph 9.15). 15.43 Employers should be encouraged to evaluate affirmative action by adopting targets and timetables. An employer wishing to implement targets and timetables may need sensitive and professional advice. The new fair employment body should be one source of this advice. There should be assistance for employers to approach specialist consultants. (paragraph 9.27).
New Declaration of Practice (This body), recognising the importance of equality of opportunity in employment as defined in [the Act] declares that it practices such equality of opportunity and further declares that it:
2. works with trade unions, and others who might assist the implementation of this policy and the achievement of its objectives; 3. welcomes, and takes positive steps to encourage applications for all vacancies from suitably qualified persons; 4. is committed to the eradication of unlawful direct and indirect discrimination in training, recruitment, selection, and promotion; 5. monitors the outcome of its training, recruitment, selection, and promotion procedures and the composition of its workforce (so far as is practicable) in terms of religious affiliation; 6. retains records on the religious affiliation of applicants and employees so far as practicable in order to establish trends in its training, recruitment, selection and promotion procedures; 7. identifies any inconsistencies between the composition of job applicants and those actually appointed, and between those eligible for promotion and those actually promoted and seeks to identify, so far as practicable, the cause of any imbalance or distortion; 8. takes whatever action is lawful and appropriate to eliminate any imbalance or distortion; this does not entail that those unsuitable or unqualified for the job should be recruited; 9. develops targets and timetables, where this will assist in assessing the success of the equal opportunity programme; 10. works co-operatively with [the new fair employment body] to promote equality of opportunity in employment; 11. seeks to create, insofar as is practicable, a working environment neutral between the two sections of the community and free from sectarian harassment and intimidation; and 12. observes the strictest confidentiality with regard to the disclosure of information from which the religion of an individual can be deduced. (paragraph 9.45).
All employers who employ fewer than 25 employees would receive a certificate on the basis of self certification, i.e. employers would be responsible for ensuring that their practices were fully consistent with the new Declaration. For a transitional period of 18 months, those employers who employ more than 25 employees would receive a certificate on the basis of self-certification. For employers who employ more than 25 employees certificates would last for a period of three years. The Secretary of State may, at a later date, specify that employers with between ten and 25 employees, will be certificated for a period of three years. Upon application for recertification an employer would be required to state that he or she continues to subscribe to the Declaration, and as evidence would provide monitoring statistics and a statement of action taken in order to promote equality of opportunity. Recertification would be for three years. The new fair employment body would have a discretion to review any employer applying for certification to establish the validity of the statistics supplied, or whether that employer was otherwise acting in a manner inconsistent with the spirit of the Declaration. The new fair employment body might refuse certification, where an employer: (a) fails to supply necessary information; (b) supplies invalid information intentionally; or (c) continues to act in a manner inconsistent with the spirit of the Declaration even after discussion with the new fair employment body. The new fair employment body may revoke a certificate where an employer: (a) is found in the course of a strategic investigation to have failed to provide equality of opportunity; and (b) continues to act in a manner inconsistent with the spirit of the Declaration even after discussion with the new fair employment body. Appeals from a decision to refuse certification, or to revoke a certificate should lie to the High Court. The new fair employment body would not be allowed to revoke a certificate pending the outcome of an appeal. (paragraphs 9.46 - 9.58). 15.47 Those drafting a revised Guide should seek wherever possible to formulate it in a way which guides both sides of industry, the new fair employment body, the courts and the industrial tribunals (see paragraph 11.52). In any proceedings under the Act before an industrial tribunal or the High Court the Guide should be admissible in evidence. If any provision appears to the tribunal or court to be relevant to any questions arising from the proceedings, the tribunal or court should take it into account in determining that question. However, failure to observe any provisions of the Guide would not of itself render that person liable in any proceedings. (paragraph 9.65) 15.48 Responsibility for producing the Guide should lie with the new fair employment body. (paragraph 9.69) 15.49 Legislation should require the new fair employment body to consult before publication with those whom it considers would have an interest in the Guide. The new body should be responsible for promoting the revised guide and its budget should allow sufficient funds so that a copy of the guide can be provided to every employer in Northern Ireland. The new fair employment body would be responsible for revising the Guide from time to time where necessary. (paragraph 9.70)
15.50 The Secretary of State should be required to approve or
disapprove the draft Guide sent to him (or approve an alternative
draft provided by the new fair employment body) within three months
of him receiving it from the new fair employment body. A draft
of the Guide should be subject to approval by the Secretary of
State, and subject to any amendments which the Secretary of State
should require. If the Secretary of State proposes amendments
to the draft Guide, the fair employment body should have the power
to withdraw the draft and resubmit another draft to the Secretary
of State. A draft approved by the Secretary of State should be
required to be laid before Parliament and be subject to the negative
resolution procedure. (paragraph 9.7 1)
Contracts and Grants 15.52 A public authority should be taken to include Government Departments falling under the jurisdiction of the Northern Ireland Parliamentary Commissioner for Administration and those bodies falling under the jurisdiction of the Northern Ireland Commissioner for Complaints. (paragraph 9.94) 15.53 Employers normally operating outside Northern Ireland but who tender for contracts which entail the employment of labour within Northern Ireland should be required to subscribe to the Declaration upon receipt of that contract and they would be granted a certificate if they did so. Certificates would have to be renewed in the ordinary way during the period in which the employer is operating in Northern Ireland. (paragraph 9.95) 15.54 There should be provision for a public authority where necessary in the public interest to award a contract or grant to an employer who does not hold a certificate. This should be upon authorisation by the Secretary of State, and clear reasons for granting that authorisation should be publicly articulated. (paragraph 9.96) 15.55 The proposals relating to contract and grant conditions outlined above should be included in new legislation. (paragraph 9.99)
15.56 International concern with inequality of opportunity in
Northern Ireland is legitimate where it is constructive and helpful
in bringing about effective change. Disinvestment from Northern
Ireland would be damaging and counterproductive. (paragraph 9.103)
General Policy 15.58 The new fair employment body should spell out in the context of a report what is its finding, and what evidence has been instrumental in arriving at that decision. It should seek to develop the meaning of equality of opportunity in its reports. (paragraph 10.72) 15.59 The new fair employment body should make full use of the remedies available to it to ensure that those found to have failed to provide equality of opportunity should in future do so. (paragraph 10.74) 15.60 The new fair employment body should be prepared to accept, on the initiative of individual employers, whether before or after the conclusion of a strategic investigation, satisfactory voluntary undertakings to take the necessary remedial action. These undertakings should be legally binding. Failure to honour an undertaking should lead to enforcement proceedings. (paragraph 10.75) 15.61 The new fair employment body should monitor the implementation of agreements and ensure that appropriate revisions are made where necessary. (paragraph 10.76) 15.62 The new fair employment body should normally publish all details of any affirmative action programme subsequently agreed or directed, and make clear its legal status. Reports should in all cases specify how a remedial programme is tailored to the problems of each individual employer. (paragraph 10.78)
Legislative Amendments 15.64 The new fair employment body would be required to accept agreements in a form which is legally enforceable. All agreements secured by way of an alternative to directions should be enforceable through the courts. (paragraph 10.89) 15.65 The broad discretion to investigate various aspects of an employer's situation permitted by the present Act should be retained. This discretion is necessary if the new fair employment body is to use its investigatory powers effectively. The present discretion over the method of conducting investigations afforded by the present Act, should in large measure be retained. (paragraph 10.92) 15.66 The new fair employment body should be given the power to conduct an investigation to establish whether monitoring is being undertaken properly. (paragraph 10.93) 15.67 The new fair employment body should be required to make a formal 'finding' of inequality of opportunity rather than, as at present, merely have to arrive at an 'opinion'. (paragraph 10.94) 15.68 There should be a requirement on the new fair employment body to publish the reports of its investigations, unless there are exceptional circumstances. (paragraph 10.95) 15.69 The new fair employment body should not be constrained from publishing reports which might indirectly disclose the religious affiliation of a person. (paragraph 10.96) 15.70 The present Act provides a considerable measure of discretion for the FEA to secure remedies where it has formed the opinion that there has been a failure to provide equality of opportunity. This should continue. (paragraph 10.97) 15.71 The new fair employment body should be able to direct the adoption of such affirmative action measures which are lawful under new legislation where it has found a failure to provide equality of opportunity. The discretion to award such remedies should be limited by a requirement that they be 'reasonable and appropriate', as is the case under present legislation. (paragraph 10.98) 15.72 New legislation should spell out, by way of example, those particular remedies including targets and timetables which the new fair employment body would be permitted to secure, where necessary, to promote equality of opportunity. The relevant provisions of the legislation should state that, for the avoidance of doubt, these measures are exempt from the prohibitions on direct and indirect discrimination contained in other parts of the legislation. (paragraphs 10.99 and 10.100) 15.73 New legislation should provide for remedies for individuals found to have been discriminated against in the course of a strategic investigation. (paragraph 10.101) 15.74 The new fair employment body, like the existing FEA, should be empowered to issue directions. (paragraph 10.102) 15.75 The new fair employment body should have a power to revise directions or require amendment to the terms of agreements. (paragraph 10. 103) 15.76 The new fair employment body should be empowered to apply to the High Court to order the implementation of its directions. The High Court should be empowered to impose an injunction where an employer has wilfully refused to implement a remedial programme directed by the new fair employment body. The High Court should also have power to issue an injunction in order to enforce the directions of the new fair employment body. (paragraph 10.104) 15.77 The new fair employment body should be empowered to secure enforceable remedies from all public bodies. In such cases where a public sector body refuses to implement remedies, and other attempts to ensure the implementation of remedies have been exhausted, the new fair employment body should be empowered to recommend to the Secretary of State that independent commissioners be appointed to administer recruitment and selection on behalf of a public body. (paragraph 10.106) 15.78 The Fair Employment Appeals Board should be abolished. An appeal from the fair employment body should lie to the High Court. The High Court should have jurisdiction to review any legal finding of the new fair employment body (including any finding of inequality of opportunity), to review whether its factual findings were supported by substantial evidence, and to review the reasonableness of any directions imposed by the fair employment body. (paragraph 10.107)
15.79 The present grounds for appeal against FEA directions are
too broad and should be amended. (paragraph 10.108) 15.80 The industrial tribunals are the most appropriate forum for dealing with individual complaints of religious or political discrimination. (paragraph 11.52) 15.81 The new fair employment body should be given power to assist complainants where cases raise issues of principle, and where it would be unrealistic for the complainant to consider proceeding without assistance. (paragraph 11.50) 15.82 Industrial tribunal procedures in respect of sex discrimination cases permit the collection of evidence by way of a pre-hearing questionnaire, and vest in the individual complainant powers of discovery. Similar procedures should operate in respect of cases of religious or political discrimination. (paragraph 11.54) 15.83 Conciliation arrangements in sex discrimination cases are available under the auspices of the Labour Relations Agency. Similar arrangements should apply under new legislation dealing with individual complaints of religious or political discrimination. (paragraph 11.56) 15.84 The existing informal specialisation within the tribunal system in respect of sex discrimination cases should apply similarly in respect of cases of religious or political discrimination. There are sufficient similarities between sex discrimination and discrimination on grounds of religion or politics to make it desirable that the same tribunal personnel should be involved in both sorts of cases. Consideration should be given to the establishment of a more formalised 'equality tier' within the existing tribunal structure. Training should be provided for tribunal personnel to maintain and improve understanding of the legislation and the difficulties thrown up by discrimination cases. (paragraph 11.58) 15.85 There should be strong provisions making harassment or victimisation actionable. Under the new arrangements there should be a guarantee of anonymity for those complainants who wish it. If necessary tribunal rules should be amended appropriately. (paragraph 11.62) 15.86 Where discrimination cases have implications for collective agreements and relations between trade unions and employers the industrial tribunal should be empowered to refer the parties to the new fair employment body or the Labour Relations Agency for their advice. (paragraph 11.64) 15.87 Trade unions should be given standing to bring claims in respect of religious or political discrimination affecting a number of workers provided that this is neither a substitute for, nor an interference with the right of an individual to bring complaints on his or her own behalf. (paragraph 11.65) 15.88 The industrial tribunals should not be constrained by a statutory maximum for the award of damages as low as that contained in the Sex Discrimination Order. New legislation in the sphere of religious or political discrimination should allow more freedom for the tribunal to relate the damages awarded to the actual loss (pecuniary or otherwise) suffered by individuals. Tribunals should therefore be empowered to award compensatory damages up to the value of the loss of salary or other benefit for the time between when the discrimination occurred and adjudication of the complaint. (paragraph 11.85) 15.89 There should be specific provision for damages for injury to feelings in respect of cases of religious or political discrimination. Such damages should be set according to an index linked scale. The minimum amount of damages awarded under this head should be £1,000. (paragraph 11.86) 15.90 New legislation should provide for the award of damages after a finding of unlawful indirect discrimination where it is proven, irrespective of whether the discrimination has been intentional or not. (paragraph 11.87) 15.91 Interim relief should be available to a complainant to preserve his or her position in a job pending a hearing, provided that the complainant takes prompt action. The remedy would be discretionary and the complainant would need to show a real likelihood that he or she will succeed at the full hearing. (paragraph 11.88) 15.92 Tribunals should be empowered to award exemplary damages when dealing with cases of religious or political discrimination in selective cases, for instance, where there is persistent discrimination. (paragraph 11.89) 15.93 It is appropriate in cases of religious or political discrimination that the tribunal be empowered to award 'orders' rather than 'recommendations'. (paragraph 11.90) 15.94 Tribunals should be permitted to order that practices be amended so as to end any discriminatory practice affecting groups of people in addition to the complainant which have been found to exist. (paragraph 11.91) 15.95 The new fair employment body should have a power to initiate a complaint in its own name to an industrial tribunal that a respondent is engaging in a discriminatory practice, including both a directly or indirectly discriminatory practice. In such circumstances the tribunal should have the power to award compensation to any person it finds to have suffered unlawful discrimination either named, or sufficiently identified, provided that any such person joins the proceedings within a specified time and seeks compensation. (paragraph 11.92) 15.96 An industrial tribunal should be empowered to order a respondent to engage in those types of affirmative action permitted by the legislation. Under new legislation the new fair employment body should be entitled to join in cases as a party so as to draw attention to the existence of inequality of opportunity although this should not be a precondition of such remedies being granted. The new fair employment body should also be empowered for up to five years to monitor the implementation of the affirmative action order and return to the tribunal to request a variation of the order in the light of the results of this monitoring. The tribunal should be empowered to vary the order after hearing the respondent. (paragraph 11.93) 15.97 Where an employer refuses to comply with a tribunal order in a case of religious or political discrimination, the tribunal should be empowered to award damages, or increase damages if it has already made an award. Damages should also be awarded on a continuing basis in certain circumstances, for instance, where a tribunal order to promote a victim of discrimination at the next opportunity is not complied with. (paragraph 11.94) 15.98 Where a tribunal order has not been implemented and the complainant is dissatisfied with any increase in damages which are awarded by the tribunal in consequence of a failure to comply, the individual should be permitted to apply to the High Court for injunctive relief, with or without the assistance of the new fair employment body. (paragraph 11.95)
15.99 The individual complainant or the new fair employment body
should have a right to apply to the High Court to ensure the implementation
of tribunal recommendations by injunctive relief where there is
continuing or persistent discrimination. The individual complainant
should be empowered to apply with or without the assistance of
the new fair employment body. (paragraph 11.96) 15.100 There should be a new fair employment body established as a successor to the FEA. (paragraph 12.5) 15.101 Legislation should provide that the information and records which are currently in the possession of the FEA should be transferred to the new body. Other transitional arrangements should be made to provide for the handling of remaining individual complaints and concluding strategic investigations. (paragraph 12.6) 15.102 The new fair employment body should be headed by an executive board. The board should be strong, committed and competent. Both sides of industry should be represented. Members should be selected on the basis that they are prepared to adopt a high profile in the organisation and are trained to understand its workings. The new fair employment body will retain an important role in respect of strategic investigations and might therefore benefit particularly from legally trained members. (paragraph 12.12) 15.103 Government should not be granted formal powers in revised legislation to direct the fair employment body. (paragraph 12.19) 15. 104 The new body should report to the Secretary of State through the Northern Ireland Office. (paragraph 12.23) 15. 105 New legislation should provide that annual reports are submitted to the Secretary of State and laid before Parliament at Westminster. (paragraph 12.24) 15.106 It is necessary at this time to retain separate legislation in the spheres of religion, sex and disability. There should be separate enforcement arrangements and distinct legislation in respect of religion, sex and disability. (paragraph 12.28) 15.107 The separate bodies operating in the areas of religion and sex should be encouraged to co-operate in certain respects. The exchange of information relevant to the activities of both institutions should be encouraged by revised legislation, taking into account proper respect for confidentiality. Where decisions of industrial tribunals have implications in respect of both sex and religious discrimination there might be co-operation in publicity and educational exercises. (paragraph 12.29) 15.108 It is inappropriate that the Northern Ireland Parliamentary Commissioner for Administration or the Northern Ireland Commissioner for Complaints should play a greatly expanded role in dealing with religious or political discrimination and inequality of opportunity in employment. (paragraph 12.39) 15.109 The Northern Ireland Parliamentary Commissioner for Administration and the Northern Ireland Commissioner for Complaints should retain the discretion which they currently possess to accept complaints of religious or political discrimination in certain limited circumstances. (paragraph 12.41) 15.110 Any person upon whom a certificate is served under the equivalent of section 42 of the Fair Employment Act should be entitled to complain to the Northern Ireland Parliamentary Commissioner for Administration who would be explicitly authorised by new legislation to investigate whether issuing the certificate constituted injustice in consequence of maladministration. (paragraph 12.42) 15.111 The Northern Ireland Parliamentary Commissioner for Administration should continue to play a role in relation to personnel matters in the Northern Ireland Civil Service and in the course of investigations he should continue to consider actively the equal opportunity dimension of the actions or practices in question. (paragraph 12.43) 15.112 The Northern Ireland Commissioner for Complaints should continue to have jurisdiction over complaints of maladministration in the award of contracts by public bodies under his purview. This will provide extra protection for those subject to the proposed scheme of contract and grant conditions. (paragraph 12.44)
15.113 The new fair employment body should not be brought within
the jurisdiction of the Northern Ireland Ombudsman. (paragraph
12.46) 15.114 Ministers should give a clear lead on the need to provide equality of opportunity to all in Northern Ireland through more frequently addressing the issue in speeches to local audiences. (paragraph 13. 1) 15.115 Government should take this equality of opportunity dimension into account when considering revisions to those schemes which address youth unemployment and provide help to the long term unemployed, and when considering fresh initiatives in respect of either group. (paragraph 13.5) 15.116 Government training programmes should take into account the need to promote equality of opportunity in Northern Ireland. Training should be channelled toward remedying existing skills deficiencies experienced by one or other section of the community. In addition, and in certain circumstances, government training for a particular section of the community should be provided where it is clear that that section of the community is underrepresented in an area of employment or industry and lacks skills which would be advantageous for obtaining employment in that area of employment or industry. (paragraph 13.7) 15.117 Government should examine more closely how existing training benefits members of the Catholic and Protestant sections of the community. Government sponsored training centres should monitor the religion of those who receive training as a first step to ensure that training enhances progress towards the goal of providing equality of opportunity. (paragraph 13.8) 15.118 The Industrial Development Board and Local Enterprise Development Unit should monitor the effects of their policies on equality of opportunity. (paragraph 13. 10)
15.119 The Government and relevant educational authorities should
take positive steps to examine the role of the curriculum in promoting
equality of opportunity and in particular assess to what extent
the grant structure in respect of schools (including capital grants)
operates as a constraint on potential curriculum development.
(paragraph 13.11) 15.120 The Bill procedure should be adopted for enactment of new fair employment legislation. (paragraph 14.2) 15.121 Such is the importance of the issue, a White Paper should be published prior to publication of the Bill setting out the Government's proposals. (paragraph 14.3) 15.122 New fair employment legislation should provide that none of the provisions in the Northern Ireland Constitution Act 1973 should prevent action taken to further equality of opportunity. (paragraph 14.9) 15.123 It is vital that steps should be taken to ensure that all government policies have full regard for the need to provide equality of opportunity. There should be established in the Northern Ireland Office a unit to take account of the equality of opportunity implications of different government policies. (paragraph 14.10)
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CAIN
contains information and source material on the conflict
and politics in Northern Ireland. CAIN is based within Ulster University. |
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