Fair Participation
The Fair Employment and Treatment (NI) Order is designed to promote and secure equality of opportunity and fair participation in employment for members of the Protestant and Roman Catholic communities in Northern Ireland.
Relevant employers have six key duties: to register with the Equality Commission; to monitor the community background composition of the workforce; to submit annual monitoring returns to the Equality Commission; to conduct periodic reviews of the composition of the workforce and employment practices; to have regard to the fair employment code of practice in conducting those reviews; to take affirmative action, where it is reasonable and appropriate and to consider setting goals and timetables.
Employers are obliged to register with the Equality Commission, where they are a public authority specified by Order made under the legislation or all other employers who employ more than 10 employees in Northern Ireland. For this purpose, employees are those who work 16 hours a week or more.
And the obligation applies to the private sector, voluntary sector, and community sector. Once the threshold is exceeded, the employer must register within one month. Registration may be done online or by letter. Changes in business ownership must be notified to the Equality Commission.
Employers must monitor employees, trainees, job applicants, and appointees. Private, voluntary, and community sector employers employing more than 250 employees and all public authorities must also monitor promotees and leavers. All employers are recommended to monitor these categories, irrespective of the statutory duty.
The principal method of monitoring background, whether Catholic, Protestant, or other, is by way of direct question. Employers are also recommended to monitor the racial group of applicants and employees. There is a model equal opportunities monitoring form, which is published to monitor applicants and employees.
The form is also of assistance in monitoring employees on the basis of other prohibited discrimination categories. At a minimum, community background and sex must be monitored. The Equality Commission has published guidance on monitoring.
Registered employees must submit an annual return to the Equality Commission. Failure to do so is an offence. The Equality Commission sends monitoring returns with guidance for completion.
Employers must conduct periodic reviews of the composition of their workforce and their employment practices for the purpose of determining whether members of the Catholic and Protestant communities are enjoying or are likely to enjoy fair participation in the employment concerned. They must be conducted at least once every three years.
The Equality Commission will send the pro forma templates together with guidance. The method by which the employer carries out a review will depend on its circumstances.
Employers must have regard to advice contained in the Fair Employment Code of Practice when they carry out their review. The primary purpose of the review is to enable the employer to determine whether he is providing or is likely to continue to provide fair participation for members of the community.
Fair participation is not defined, but the Code of Practice gives guidance on relevant considerations. What constitutes fair depends on the circumstances of each employee. Employers should be working continuously as an integral part of their personnel and management functions and especially in consultation with the Equality Commission to ensure equality of opportunity for members of both communities.
Where equality of opportunity is not being provided, employers must make a sustained effort promoted through affirmative action measures and, if appropriate, the setting of goals and timetables. It is not required that every job or occupation must reflect the distribution of Catholics and Protestants in the community.
It is not possible to prescribe a rigid and predetermined level of participation that should be achieved generally. What is fair will depend on individual cases. Where a community is underrepresented, the employer must ask himself in the light of all factors known, including advising the Commission, the composition of the workforce and recent recruits, as revealed by monitoring, whether it is broadly in line with what might reasonably be expected. If it is not in line, then they must ask why and take positive action.
If, for example, members of appointees and applicants from a particular community are low compared with the community generally, positive action is likely to be required.
The employees must determine what affirmative action, if any, would be reasonable. They must consider whether it is practicable to set goals and timetables for progress towards fair participation that can be reasonably expected to be made by the underrepresented community concerned.There must be a method of measuring performance and progress towards fair participation.
The Equality Commission must also publish guidance for public sector and private sector employees on equality grounds, other than community backgrounds.
Employers who are registered with the Commission for the purpose of fair employment legislation must monitor the sex of job applicants and employees. Although not required by law to monitor on other grounds, the Commission recommends that they do so for the reasons mentioned.
Monitoring is stated to be an important means of demonstrating and implementing a commitment to promoting equality of opportunities. Monitoring can assist employees in identifying barriers that hinder access for certain groups. It will assist employers in developing solutions such as positive action plans and alternative policies and practices. It provides an evidential basis for taking action.
The Employment Equality Commission recommends that employers develop and implement a policy on conducting equal opportunities monitoring.
Employees are obliged to comply with data protection legislation in compiling information. Most of the discriminatory grounds are sensitive grounds, and higher data protection obligations apply to them. Employees are recommended to establish and maintain an environment process that acknowledges that the collection of data is a highly sensitive issue and will be managed in a highly sensitive and secure way. The employer should explain the reasons for monitoring and establish and maintain data protection safeguards.
The monitoring information must be kept accurate and up to date. Employers should resurvey employees periodically to maintain the accuracy of the monitoring database. The information collected will be reviewed to focus on the equality and facts of particular policies, practices, and procedures.
An alternative procedure would involve a comprehensive analysis of the composition of the employer’s workforce and its practices on a periodic basis. The methodology required in relation to the statutory review in respect of community participation may be appropriate.
The Equality Commission has published templates for Article 55 review. The template may be adapted to more general reviews.
It is necessary to take lawful, affirmative, and positive action when implementing the commitment to promote equality of opportunity and fair participation in employment. This may entail the adoption of practices that promote equality of opportunity and encourage fair participation. It may mean the modification and abandonment of practices that are barriers to such equality of opportunity and participation.
It is good practice to develop a written affirmative or positive action programme or an employment equality plan or diversity plan. This will describe the actions which the employer proposes to take. It shall assist in setting priorities on which to focus attention and resources.
Some forms of affirmative or positive action consist of taking proactive steps to reach out to underrepresented groups. This may involve encouraging them to apply for job or training opportunities, reviews of welcoming statements.
There is a range of outreach, affirmative or positive action measures which employers may lawfully undertake provided conditions are met. The Equality Commission publishes guidance.
The range of lawful outreach measures includes: adding welcoming statements to job or training advertisements to encourage members of particular underrepresented groups; providing access to facilities for training to members of particular underrepresented groups; reserving specific job vacancies for persons who are unemployed or who have been unemployed for a specific period of time.
An employer who applies this criterion has a defence against claims of religious, political, racial discrimination; placing job advertisements in media associated with the underrepresented group; developing links with influential individuals, community groups, job schools, clubs, voluntary organizations associated with the underrepresented groups, sponsoring communities, sporting and youth events associated with that group, creating networks with other employers for the purpose of taking joint positive or affirmative action.
When taking affirmative action, employers must consider whether it is practicable to set goals and timetables and progress towards fair participation that can reasonably be expected to be made by the underrepresented community. If it is practicable to do so, then they must do so. When taking positive action after completing an employment equal opportunities review, it is best practice for employers to set goals and timetables for progress for securing equality of opportunity that can reasonably be met by the underrepresented group.
The Disability Discrimination Act 1995 permits employers to take a wider range of positive action in support of anti-discrimination, anti-disability discrimination that applies under other anti-discrimination laws. The Act makes it lawful to treat disabled persons more favourably than persons who are not disabled.
It will be lawful for an employer to reserve a job vacancy for a disabled person to the exclusion of others who are not disabled. They may operate guarantee interview schemes for disabled job applicants.
The Disability Discrimination Act imposes a reasonable adjustment duty on employers in certain cases. These cases apply where a disabled job applicant or employee has been placed or will be placed at a substantial disadvantage relative to other persons who are not disabled by any provision, criteria, or practice applied by the employer or by the physical features of the employer’s premises.
The adjustment is permitted to enable compliance with the statutory duty to make the adjustment. A failure to make the adjustment may constitute disability discrimination.