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Statutory Instruments 1998 No. 3162 (N.I. 21)
The Fair Employment and Treatment (Northern Ireland) Order 1998 - continued

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At the Court at Buckingham Palace, the 16th day of December 1998

Present,

The Queen's Most Excellent Majesty in Council

Whereas a draft of this Order has been approved by a resolution of each House of Parliament:

     Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: - 



PART I

INTRODUCTORY

Title and commencement

Title and commencement
     1.  - (1) This Order may be cited as the Fair Employment and Treatment (Northern Ireland) Order 1998.

    (2) This Order comes into operation on such day or days as the Secretary of State may by order appoint.

Interpretation

General interpretation
     2.  - (1) Subject to Articles 102 and 103, the Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to an Act of the Northern Ireland Assembly.

    (2) In this Order - 

    "access" shall be construed in accordance with paragraphs (7) and (8);

    "act" includes a deliberate omission;

    "advertisement" includes every form of advertisement or notice, whether to the public or not;

    "affirmative action" has the meaning given in Article 4;

    "the Agency" means the Labour Relations Agency;

    "benefits" includes all opportunities, services and facilities and, in particular, includes opportunities for training, transfer or promotion, for betterment of any kind (including more attractive terms or conditions of work) or for any financial advantage (including bonuses, advances of money and preferential terms for acquiring property of any kind);

    "the Commission" means the Equality Commission for Northern Ireland established by section 73 of the Northern Ireland Act 1998;

    "complainant" means a person making a complaint that unlawful discrimination has been committed against him;

    "complaint" means a complaint of unlawful discrimination made to the Tribunal under Article 38;

    "confer", in relation to a qualification, includes renew and extend;

    "contract" includes any contract, whether in writing or oral, express or implied;

    "costs" includes expenses;

    "the Department" means the Department of Economic Development;

    "discrimination" and "discriminate" shall be construed in accordance with Article 3;

    "employer" (except in Part VII) means - 

    (a) in relation to apersonwho isseekingemployment, anybody who has employment available;

    (b) in relation to a person employed under a contract of service or of apprenticeship or a contract personally to execute any work or labour, the person entitled to the benefit of the contract;

    (c) in relation to a person who has ceased to be in employment, his former employer;

and "employee", correspondingly, means (except in that Part) such a person as is first mentioned in sub-paragraph (a), (b) or (c) of this definition;

    "employment" (except in Part VII) means employment under - 

    (a) a contract of service or apprenticeship; or

    (b) a contract personally to execute any work or labour;

    "employment agency" means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers;

    "employment in Northern Ireland" shall be construed in accordance with Article 6;

    "equality of opportunity" shall be construed in accordance with Article 5;

    "government department" means a Northern Ireland department or a department of the Government of the United Kingdom;

    "member" - 

    (a) in relation to a vocational organisation, includes (except in Article 23) a person seeking to become a member and a person who has ceased to be a member; and

    (b) in relation to such an organisation (other than an organisation of workers or employers) also includes any person belonging to a class of person recognised by the organisation as having any particular status in connection with an employment or occupation for the purposes of which the organisation exists, including students and associates,

and "membership" shall be construed accordingly;

    "Northern Ireland" includes such of the territorial waters of the United Kingdom as are adjacent to Northern Ireland;

    "Northern Ireland Minister" includes the First Minister and deputy First Minister acting jointly;

    "notice" means notice in writing;

    "occupation" means any trade, business, profession or vocation, but not any employment;

    "occupation in Northern Ireland" shall be construed in accordance with Article 6;

    "organisation" includes any society or association, whether corporate or unincorporate;

    "practices" includes procedures and arrangements;

    "premises" includes land of any description;

    "the President" means the President of the Industrial Tribunals and the Fair Employment Tribunal;

    "qualification" includes authorisation, recognition, registration, enrolment, approval and certification;

    "the respondent" - 

    (a) in relation to a complaint, has the meaning given by Article 38(1); and

    (b) in relation to a claim under Article 40, has the meaning given by Article 40(1);

    "school" has the same meaning as in the Education and Libraries (Northern Ireland) Order 1986;

    "statutory body" means a body established by a statutory provision;

    "statutory office" means an office established by a statutory provision;

    "statutory provision" has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954;

    "training" includes any form of education or instruction, except that in Articles 5(4)(b)(ii), 11(1)(e) and 24, it does not include education provided by - 

    (a) a school;

    (b) an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997 or an institution providing further education in respect of which grants are paid under Article 5(1) of that Order;

    (c) a college of education within the meaning of the Education and Libraries (Northern Ireland) Order 1986; or

    (d) a university;

    "the Tribunal" means the Fair Employment Tribunal for Northern Ireland;

    "unlawful discrimination" shall be construed in accordance with Article 3(7);

    "the Vice-President" means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal;

    "vocational organisation" means - 

    (a) an organisation of workers;

    (b) an organisation of employers;

    (c) any other organisation of persons engaged in a particular employment or occupation, or employments or occupations of any class, for the purposes of which the organisation exists.

    (3) In this Order references to a person's religious belief or political opinion include references to - 

    (a) his supposed religious belief or political opinion; and

    (b) the absence or supposed absence of any, or any particular, religious belief or political opinion.

    (4) In this Order any reference to a person's political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.

    (5) For the purposes of this Order a person is seeking employment if he is available for employment, whether or not he is aware of the existence of an opportunity for any particular employment.

    (6) References in this Order to submitting a person for consideration for employment include references to making available to an employer in any way relevant particulars relating to him.

    (7) References in this Order to the affording by any person of access to benefits are not limited to benefits provided by that person himself, but include any means by which it is in that person's power to facilitate access to benefits provided by any other person (the "actual provider").

    (8) Where by any provision of this Order the affording by any person of access to benefits in a discriminatory way is in certain circumstances prevented from being unlawful, the effect of the provision shall extend also to the liability under this Order of the actual provider.

    (9) Subject to paragraph (10), in this Order references (however expressed) to acts done or to power to do any acts include references to acts done or power to do the acts outside Northern Ireland.

    (10) Paragraph (9) - 

    (a) is without prejudice to Article 6 or any order under paragraph (3) of that Article;

    (b) is subject to any other provision of this Order which is by its express terms limited to acts done in Northern Ireland; and

    (c) does not apply to references to acts which may be the subject of criminal proceedings under this Order.

    (11) References in this Order to a contract include references to a contract which is not governed by the law of Northern Ireland.

    (12) References in this Order to the Crown are to the Crown in right of the Government of the United Kingdom and in right of the Government of Northern Ireland.

"Discrimination" and "unlawful discrimination"
     3.  - (1) In this Order "discrimination" means - 

    (a) discrimination on the ground of religious belief or political opinion; or

    (b) discrimination by way of victimisation;

and "discriminate" shall be construed accordingly.

    (2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if - 

    (a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

    (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but - 

      (i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and

      (ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and

      (iii) which is to the detriment of that other because he cannot comply with it.

    (3) A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

    (4) A person ("A") discriminates by way of victimisation against another person ("B") in any circumstances relevant for the purposes of this Order if - 

    (a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

    (b) he does so for a reason mentioned in paragraph (5).

    (5) The reasons are that - 

    (a) B has - 

      (i) brought proceedings against A or any other person under this Order; or

      (ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

      (iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

      (iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or

    (b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

    (6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

    (7) For the purposes of this Order a person commits unlawful discrimination against another if - 

    (a) he does an act in relation to that other which is unlawful by virtue of any provision of Part III or IV; or

    (b) he is treated by virtue of any provision of Part V as doing such an act.

"Affirmative action"
     4.  - (1) In this Order "affirmative action" means action designed to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in Northern Ireland by means including - 

    (a) the adoption of practices encouraging such participation; and

    (b) the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation.

    (2) In the application of this Article for the purposes of Part VII, references to employment are references to employment within the meaning of that Part.

"Equality of opportunity"
     5.  - (1) In this Order "equality of opportunity" means equality of opportunity between persons of different religious beliefs.

    (2) For the purposes of this Order a person of any religious belief has equality of opportunity with a person of any other religious belief if, being - 

    (a) a person who is seeking employment or is in employment; or

    (b) a person who is seeking to become engaged in, or is engaged in, any occupation,

he has in any circumstances the same opportunity of a kind mentioned in paragraph (4) as that other person has or would have in those circumstances, due allowance being made for any material difference in their suitability.

    (3) For the purposes of paragraph (2), a person is not to be treated as not having the same opportunity as another person has or would have by reason only of anything lawfully done in pursuance of affirmative action.

    (4) The kinds of opportunity referred to in paragraph (2) are - 

    (a) in relation to an employment, the opportunity to be considered, and to be submitted for consideration, for the employment and to have and to hold it on any terms, with access to all benefits connected with it and without being subjected to any detriment; and

    (b) in relation to an employment oran occupation - 

      (i) the opportunity to become, and remain, on any terms a member of any vocational organisation which exists for purposes of the employment or the occupation (or for purposes of employments or occupations of any class which includes the employment or occupation), with access to all benefits of membership and without being subjected to any detriment; and

      (ii) where services in connection with training for the employment are provided by a person other than the employer, or where services in connection with training for the occupation are provided by any person, the opportunity to have those services on any terms, with access to all benefits connected with them; and

      (iii) the opportunity to have conferred on him, and to hold, on any terms any qualification which is needed for, or facilitates, his engagement in the employment or the occupation.

    (5) Any reference in this Order to the promotion of equality of opportunity includes a reference to the promotion of affirmative action and, accordingly, any reference to action for promoting equality of opportunity includes a reference to affirmative action.

"Employment in Northern Ireland" and "occupation in Northern Ireland"
     6.  - (1) For the purposes of this Order, employment is to be regarded as being employment in Northern Ireland unless the employee does his work wholly or mainly outside Northern Ireland.

    (2) Paragraph (1) does not apply to - 

    (a) employment on board a ship registered at a port of registry in Northern Ireland; or

    (b) employment on an aircraft or hovercraft registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland other than an aircraft or hovercraft while operated in pursuance of a contract with a person who has his principal place of business, or is ordinarily resident, outside the United Kingdom,

but for the purposes of this Order such employment is to be regarded as being employment in Northern Ireland unless the employee does his work wholly outside Northern Ireland.

    (3) In relation to employment concerned with exploration of the sea bed or subsoil or the exploitation of their natural resources, the Department may by order provide that paragraphs (1) and (2) shall each have effect as if the last reference to Northern Ireland included any area for the time being designated under section 1(7) of the Continental Shelf Act 1964, or any part of such an area, in which the law of Northern Ireland applies.

    (4) An order under paragraph (3) may provide that, in relation to employment to which the order applies, this Order is to have effect with such modifications as are specified in the order.

    (5) In this Article references to the work an employee does include - 

    (a) in relation to apersonwho is seeking employment, references to the work he would do if employed; and

    (b) in relation to a person who has ceased to be in employment, references to the work he did when employed.

    (6) This Article has effect for construing references in this Order to a person's being engaged, or seeking to become engaged, in an occupation in Northern Ireland as if references in this Article to employment were references to an occupation and references to an employee were references to a person engaged, or seeking to become engaged, in an occupation.

    (7) In the application of this Article for the purposes of Part VII, references to employment are references to employment within the meaning of that Part.



PART II

FUNCTIONS OF THE EQUALITY COMMISSION

Principal functions of Commission

General duty of Commission
     7. It shall be the duty of the Commission - 

    (a) to promote equality of opportunity in Northern Ireland;

    (b) to promote affirmative action;

    (c) to work for the elimination of unlawful discrimination; and

    (d) to keep under review the working of this Order and, when it is so required by the Department or otherwise thinks it necessary, draw up and submit to the Department proposals for amending this Order,

and for the purposes of discharging that duty the Commission shall have the functions conferred on it by this Order.

Educational and advisory functions
     8.  - (1) In order to assist the Commission in discharging its duty under Article 7 the Commission may - 

    (a) establish services for giving advice on matters connected with equality of opportunity;

    (b) provide training courses;

    (c) hold conferences;

    (d) undertake research which appears to the Commission to be necessary or expedient for the purposes of its functions; and

    (e) disseminate (subject to the safeguard in Article 18(1)) information about the Commission's activities or anything to which those activities relate;

or it may arrange for, or assist (financially or otherwise), any of those things to be done.

    (2) The Commission may advise the Department on - 

    (a) any matter relating to the duty of the Commission under Article 7; or

    (b) any other matter specified by the Department.

    (3) The Commission may make charges for training or other facilities or services made available by it under paragraph (1).

Codes of practice
     9.  - (1) The Commission shall continue to maintain a code of practice containing such practical guidance as the Commission thinks fit for the promotion of equality of opportunity, including the elimination of discrimination which is unlawful by virtue of any provision of Part III.

    (2) Where the Commission in carrying out its functions under this Order is considering whether or not action is required for promoting equality of opportunity, it shall have such regard to the recommendations contained in the code of practice under paragraph (1) as it considers proper in all the circumstances.

    (3) The Commission may issue a code of practice containing such practical guidance as the Commission thinks fit for the elimination of discrimination which is unlawful by virtue of any provision of Part IV.

    (4) Part I of Schedule 1 shall apply in relation to the issue of a code of practice under paragraph (3) and Part II of that Schedule shall apply in relation to all codes of practice under this Article.

Identification of patterns and trends of employment, etc.
     10.  - (1) It shall be the duty of the Commission to identify and keep under review patterns and trends of employment in Northern Ireland and of occupations in Northern Ireland for the purposes of - 

    (a) considering whether they reveal the existence or absence of equality of opportunity; and

    (b) assisting the Commission in forming an opinion about - 

      (i) the manner in which equality of opportunity can best be achieved; or

      (ii) where such equality is absent, the reasons for its absence.

    (2) It shall also be the duty of the Commission to keep itself informed about proceedings on complaints under Article 38.

Investigation of practices
     11.  - (1) The Commission may conduct the investigations mentioned in paragraph (2) for the purpose of assisting it in considering what, if any, action for promoting equality of opportunity ought to be taken by any of the following persons, that is to say - 

    (a) any employer;

    (b) any person who is empowered by virtue of any statutory provision to select or nominate another person for employment by a third person;

    (c) any employment agency;

    (d) any vocational organisation;

    (e) any person who provides services in connection with training for employment in any capacity or for a particular employment (not being services provided by the employer of a person who is seeking to obtain or is receiving those services) or in connection with training for a particular occupation; and

    (f) any person who has power to confer a qualification that is needed for, or facilitates, engagement in employment in any capacity, or in a particular employment or occupation.

    (2) The investigations referred to in paragraph (1) are investigations - 

    (a) into the composition, by reference to religious beliefs, of any of the following classes of person (or any class of person within such a class), that is to say - 

      (i) the employees of, or other persons who have applied for employment by, any employer or employers of any class;

      (ii) the persons who have applied for or obtained the services of any employment agency;

      (iii) the members of, or other persons who have applied for membership of, any vocational organisation or such an organisation of any class;

      (iv) the persons who have sought (or on whose behalf there have been sought) or who have obtained the services of a person such as is mentioned in paragraph (1)(e); or

      (v) the persons who have applied to have, or have had, conferred on them any qualification such as is mentioned in paragraph (1)(f); and

    (b) into practices - 

      (i) affecting the recruitment, admission to membership or access to benefits of persons belonging to any class referred to in sub-paragraph (a) or the terms of employment or membership or provision of benefits applicable to such persons;

      (ii) involving any detriment to such persons; or

      (iii) affecting the conferring or holding of any qualification such as is mentioned in paragraph (1)(f),

    including practices discontinued before the time of the investigation so far as relevant for explaining the composition of the class of persons in question at that time.

    (3) Schedule 2 has effect with respect to the conduct of investigations under this Article.

Undertakings or directions for promoting equality of opportunity

Undertaking following investigation under Article 11
     12.  - (1) The following provisions of this Article apply where, following an investigation under Article 11, the Commission is of the opinion that any of the persons mentioned in paragraph (1) of that Article ought to take action for promoting equality of opportunity.

    (2) The Commission shall use its best endeavours - 

    (a) to ensure that the person concerned takes such action for promoting equality of opportunity as is, in all the circumstances, reasonable and appropriate; and

    (b) where appropriate, to secure a satisfactory written undertaking by him that such action will be taken.

    (3) Where the Commission asks the person concerned for an undertaking, on such terms as appear satisfactory to the Commission, to take such action as is mentioned in paragraph (2)(a), then - 

    (a) if the undertaking is not given, the Commission shall serve on the person concerned a notice containing directions such as are mentioned in Article 14(1); and

    (b) if the undertaking, although given, is not complied with, the Commission shall either - 

      (i) serve on him such a notice containing such directions (which shall supersede the undertaking); or

      (ii) make an application to the Tribunal under Article 16 for enforcement of the undertaking.

    (4) Paragraph (3) does not apply in any case where the Commission decides that no further action by it is appropriate.

 
  © Crown copyright 1998
Prepared 20 January 1999

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