Equality Enforcement

The Northern Ireland Act, which has an effect on the Constitution of Northern Ireland, establishes the Equality Commission for Northern Ireland. It consists of between 14 and 20 commissioners appointed by the Secretary of State. It assumes the functions of the Fair Employment Commission, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland, and the Northern Ireland Disability Council.

Section 75 of the Northern Ireland Act places a duty on public authorities, when carrying out functions in Northern Ireland, to have regard to the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status, and sexual orientation, as well as between men and women generally, and between persons with disabilities and persons without dependants.

In addition, public authorities mostly carrying out their functions in relation to Northern Ireland have regard to the desirability of promoting good relations between persons of different political and religious opinions and racial groups.

Public authorities apply to most governmental, local governmental, quasi-governmental bodies, and agencies. There is power to extend designation and entities subject to the obligation that may be exercised by the Secretary of State.

The equality obligation applies to UK departments and authorities when they carry out functions in respect of Northern Ireland. Bodies must take into account the need to promote equality.

The Equality Commission must keep the effectiveness of equality duty and legislation under review. It may offer advice to public bodies on issues and carry out its functions as are conferred on it. This includes investigation of complaints to investigations and determination.

Public authorities must develop an equality scheme for approval by the Commission within six months of commencement of designation or of the legislation. The equality scheme must be reviewed every five years. The scheme must set out how the authority proposes to fulfil its obligations and conform to guidelines prepared by the Commission.

The Equality Commission’s guidelines include instructions to public bodies, to which public bodies are to comply. They must set out the aims to be covered by the scheme managers, which may mitigate the adverse impact of policies that might better achieve the promotion of equality of opportunity. Schemes must show how the public authorities concerned propose to fulfil their obligations. They must conform with guidelines prepared by the Equality Commission or must be approved by the Commission or referred to the Secretary of State for approval.

Guidelines must include instructions to the bodies to which they may make reference. They must set out the aims of the policies covered by the schemes, measures to mitigate the adverse effect of alternative policies, and the need to make policy decisions by taking into account any assessment or consultation carried out in relation to the policies.

The Equality Commission has published guidelines on the implementation of statutory duties for public authorities. They set out the key elements of the Equality Scheme. The Commissioner has published practical guidance on the equality impact assessment.

The equality duty is supplemental to the pre-existing anti-discrimination legislation. It seeks to anticipate and avoid inequality. In contrast, anti-discrimination legislation penalises previous breaches. The Equality Legislation seeks to ensure that public bodies make plans to avoid the behaviour that would breach the equality principles.

The focus changes from discrimination in itself to acts or behaviour that might have an adverse effect, determinations as to adverse effect include examining alternatives, mitigating measures, and may require consultation with those affected.

The Human Rights Act 1998 incorporates the European Convention of Human Rights, which incorporates protections against discrimination.The Human Rights Commission promotes equality as one of its principal aims..

EU Equality Directives provide a free general framework for equal treatment, and employment and occupational matters must be implemented by 2006. It gives provisions on discrimination under equality on various grounds, some of which are not otherwise covered by pre-existing legislation, including age and sexual orientation.

The framework directive lays down a framework for combating discrimination on prohibited grounds. Its objective was to put into effect the principle of equal treatment in member states. This encompasses prohibitions on direct and indirect discrimination, prohibiting harassment and victimisation.

The Directive, which is just positive action, is acceptable with a view to ensuring equality in practice. It holds that the principle of equal treatment shall not prevent a member state from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to. There are a number of exemptions in relation to occupational requirements, reasonable accommodation for disabled persons, and differences under grounds of age.

States must provide the appropriate judicial and/or administrative mechanisms to ensure that their advice is communicated. Associations, organisations, and other entities with a legitimate interest may engage in support of complainants. States must promote dialogue between social partners, review through faster and equal treatment.

The EU Directive specifically refers to Northern Ireland. It allows measures to be taken which will tackle under-representation of one of the major religious communities in the Police Service of Northern Ireland. Differences regarding recruitment into the service, including support staff, shall not constitute discrimination as far as the differences in treatment are expressly authorised by national legislation.

To maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering reconciliation of historical differences between major religious communities, the provisions on religion or belief in the Directive shall not apply to the recruitment of teachers in schools in Northern Ireland, so far as this is expressly authorised by national legislation.

The Equality Commission strives to work towards the elimination of discrimination, to promote equality of opportunity, and to keep the operation of legislation under review.The Equality Commission takes over the roles of the Equal Opportunities Commission for Northern Ireland under the Sex Discrimination NI Order 1976.The Commission may undertake search and litigation activities and may take legal action in its name in limited circumstances.

It has powers to obtain information to carry out investigations. It may issue non-discrimination notices. It may prohibit discriminatory advertisements.

When deciding whether to provide assistance to litigants, it may take into account whether there is a question of principle at stake, whether it is unreasonable to expect a litigant to deal with the case that is needed, and whether there are any other special circumstances applicable.

The Fair Employment and Treatment NI Order 1998 provides for a duty to promote affirmative action. It has education and advisory functions, including advice-giving services, training, holding conferences, and researching, etc. The Commission maintains a code of practice regarding practical guidance on equality of opportunity and the elimination of unlawful discrimination in the employment field.

The Commission must identify and keep under review trends in employment and occupations in Northern Ireland. It must consult to inform regarding complaints to the Fair Employment Tribunal.

The Commission may conduct investigations for the purpose of considering action it or to take to promote employment equality of opportunity. An investigation may be taken in respect of any employer, principal authority selecting persons for employment, employment agencies, vocational organisations, and persons providing employment training services or bodies with the power to confer qualification. Legislation provides for the conduct of the investigations.

Pursuant to an investigation, the Commission may determine the entity being investigated or take action to promote equality of opportunity. The Commission must use its best endeavours to ensure the person concerned takes all action in the circumstances that is reasonable and appropriate. It may secure a satisfactory written undertaking of the action to be undertaken.

If the undertaking is not given, but not complied with, the Commission may serve directions and may apply to the tribunal for enforcement. Persons and entities may give an undertaking for the Commission to take to promote equality of opportunity. If they do not comply, a direction may be made, and an application may be made to the employment tribunal for enforcement of the undertaking.

Directions may require the modification or abandonment of practices, substitution of new practices as specified. Binding of the person concerned may be enforced by a tribunal order.

The court may apply to court for an injunction against persistent discrimination. It may apply to restrain the publication of discriminatory advertisements. The Commission is obliged to advise complainants seeking advice unless it is interviewed that the request is frivolous.

The Commission takes over the roles in the Race Relations NI Order.

The Commission was granted powers under the Equality Disability NI Order 2000 and enforces rights under the UK Disability Discrimination Act 1995. It may take steps to encourage good practice in terms of the treatment of disabled persons.

To assist disabled persons, it might be able to provide advice and support. Based on the cases under the 1995 Act.

It may provide information and advice, undertake investigations, prepare statutory codes, and practical guidance. It may arrange for independent conciliations between service providers and disabled persons.