Equality
by Christopher McCrudden
In some respects, the requirements of the legislation were far-reaching and certainly ahead of their time in comparison with the rest of the United Kingdom. The main features of the legislation, until substantially amended in 1998 (see below) were that individual complaints of religious and political discrimination in employment were made to the Fair Employment Tribunal, a specialised wing of the industrial (now employment) tribunal system in Northern Ireland. Unlawful discrimination was defined to include both direct and indirect discrimination. The Fair Employment Commission (FEC) might assist complainants in taking such complaints. Remedies included damages (except for unintentional indirect discrimination) and recommendations for action by the employer for reducing the adverse effect on the complainant of any unlawful discrimination.
There were several exceptions to the general prohibition of employment discrimination, including exceptions for various types of affirmative action: training to remedy under-representation; encouraging applications from an under-represented community; and agreed redundancy schemes to preserve progress made under affirmative action measures. Another important exception provided that discrimination which was necessary for safeguarding national security or for protecting public safety or public order was not unlawful. The Act provided that the Secretary of State's certificate was conclusive evidence that an act was done for these purposes.
In addition to providing a means of resolving complaints of unlawful discrimination, the legislation established a detailed regulatory structure to ensure that employers took action without the need for a complaint to trigger action. Many private sector employers (those specified in delegated legislation) were required to register with the Fair Employment Commission. Public sector employers were deemed to be automatically registered with the Commission. Registered employers were required to monitor the religious composition of their full-time workforce. Larger employers (those with more than 250 employees) and all public sector employers were required to monitor the religious composition of applications for employment. A monitoring return had to be completed yearly. Employers had to classify existing (and where relevant, prospective) employees by sex, religion and occupation. Religion might be determined either by reference to the school(s) attended or by directly asking the employee or applicant, or by using other specified methods. This monitoring return must be submitted to the Fair Employment Commission. Although not provided for by the Act, the Fair Employment Commission decided soon after the Act came into force to publish regularly an overview of the results of monitoring.
Employers were also under a duty periodically (every three years) to review their employment practices (excluding redundancy) for the purpose of determining whether members of each community were enjoying, and were likely to continue to enjoy, fair participation in employment in the concern. Where fair employment was not evident, employers were required to engage in affirmative action. Affirmative action was also enforceable by the Commission, as was the setting of goals and timetables against which to measure progress. Government contracts and grants might be withdrawn in cases of persistent and recalcitrant behaviour.
The FEC had the power to review patterns and practices in employment and where necessary to issue directions which were enforceable on employers. Appeals against such directions were heard by the Fair Employment Tribunal. The Commission was also able to accept binding agreements from employers which were enforceable if not complied with. The Commission was able to revise the Code of Practice, the first version of which was produced by the Department of Economic Development.
This basic structure remained substantially unchanged between 1990 and 1998. However, several changes of detail were introduced. In particular, in 1991, the 1989 Act was amended to introduce a revised approach to the confidentiality of monitoring information. The revised approach generally preserved the confidentiality of monitoring information, but permitted the disclosure of this otherwise confidential information to several statutory bodies (including the FEC), and the Fair Employment Tribunal. The legislation was also amended in 1994 to remove the limit on compensation which might be awarded by the Fair Employment Tribunal.
Aside from these provisions regarding discrimination and employment equality
between the two religio-political communities, from 1976 Northern Ireland
adopted equivalent measures to those dealing with sex discrimination and
equal pay as those adopted in the rest of the United Kingdom. Provisions
dealing with discrimination on the basis of race were much longer delayed.
Although the main legislation addressing racial discrimination in the rest
of the United Kingdom had been passed in 1976, it was not until 1997 that
the equivalent legislation was enacted for Northern Ireland. |
