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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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Voluntary undertakings
     13.  - (1) Any of the persons mentioned in Article 11(1) may give a written undertaking to the Commission if the Commission informs him - 

    (a) that, in exercising its functions under this Order, the Commission has formed the opinion that he ought to take action for promoting equality of opportunity; or

    (b) that it appears to the Commission from any decision of the Tribunal in proceedings under Part VI, or from any evidence given in such proceedings, that he ought to take such action.

    (2) An undertaking under this Article shall be in such terms as appear satisfactory to the Commission for the purpose of ensuring that the person giving it takes such action for promoting equality of opportunity as is, in all the circumstances, reasonable and appropriate.

    (3) If an undertaking given by a person under this Article is not complied with, the Commission shall either - 

    (a) serve on him a notice containing directions (which shall supersede the undertaking) such as are mentioned in Article 14(1); or

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

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

    (5) Paragraph (3) does not apply in relation to an undertaking given by any of the authorities specified in paragraph (1) of Article 95, but where an undertaking given under this Article by such an authority is not complied with the Commission shall send a report of the circumstances of the failure to comply with it to the person to whom a report under paragraph (2) of that Article following an investigation relating to the authority would be sent.

Directions under Articles 12 and 13
     14.  - (1) The directions contained in a notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) shall be those which the Commission considers to be, in all the circumstances, reasonable and appropriate for promoting equality of opportunity, and the directions may in particular include - 

    (a) directions for the abandonment, or for the modification in accordance with any instructions given in the directions, of any practice or for the substitution or adoption of new practices specified by the Commission; and

    (b) such directions as the Commission considers necessary to ensure that other directions are duly carried out,

but the terms of the directions contained in a notice under Article 12(3)(b)(i) or 13(3)(a) shall be such as, in the opinion of the Commission, are not substantially more onerous than the terms of the undertaking which they supersede.

    (2) The directions contained in a notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) shall not require any person - 

    (a) to apply a requirement or condition described in paragraph (1) of Article 75; or

    (b) to do any act described in Article 76(1).

    (3) A notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) shall inform the person on whom it is served of the right of appeal against the directions which is conferred by Article 15.

    (4) The Commission, on the written application of the person on whom a notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) is served, may - 

    (a) revoke all of the directions; or

    (b) modify the directions in accordance with the application - 

      (i) by revoking any of them; or

      (ii) by substituting new directions for all or any of them,

    and, in substitution for any directions which are revoked under sub-paragraph (a), may accept from that person an undertaking such as is mentioned in Article 12(2)(b) or 13(2).

    (5) The Commission shall serve notice of the revocation or modification on the person concerned.

    (6) The directions - 

    (a) are binding on the person concerned (except to the extent that they are quashed, or other directions are substituted for them, by the Tribunal under Article 15); and

    (b) are enforceable only in accordance with Article 16.

    Appeals and legal proceedings in relation to undertakings and directions

Appeal to Tribunal against directions under Article 12 or 13
     15.  - (1) Where under Article 12(3) or 13(3)(a), the Commission serves on a person a notice containing directions (not being directions substituted for others in accordance with an application made by him under Article 14(4)), he may within 21 days from the date of service appeal to the Tribunal against the directions.

    (2) The appeal may be brought on any of the following grounds - 

    (a) that in all the circumstances it is unreasonable to expect the appellant to comply with the directions;

    (b) that in all the circumstances the directions are not appropriate for promoting equality of opportunity; or

    (c) that the appellant is already affording equality of opportunity and taking any appropriate action to promote equality of opportunity and the directions are, therefore, unnecessary.

    (3) On hearing the appeal the Tribunal may - 

    (a) dismiss the appeal; or

    (b) quash the directions or any of them; or

    (c) substitute for the directions or any of them such other directions (of a kind that the Commission could have given) as the Tribunal considers reasonable and appropriate in all the circumstances.

    (4) Directions substituted under paragraph (3)(c) are binding on the appellant and are enforceable only in accordance with Article 16.

Order of Tribunal to enforce undertaking or directions
     16.  - (1) Where - 

    (a) an undertaking to take action for promoting equality of opportunity - 

      (i) which has been given to the Commission under Article 12(2) or 13 and has not been superseded by directions given by the Commission; or

      (ii) which has been given to the Commission under Article 14(4),

    has not been complied with within such period as the Commission considers reasonable;

    (b) directions given by the Commission or substituted by the Tribunal under Article 15 for directions given by the Commission have not been complied with within such period as the Commission considers reasonable; or

    (c) steps have not been taken to the Commission's satisfaction within such period as the Commission considers reasonable to comply with the undertaking or directions,

the Commission may, subject to paragraph (2), make an application to the Tribunal under this Article for enforcement of the undertaking or directions.

    (2) An application for the enforcement of directions shall not be made - 

    (a) until the end of the period of 21 days within which an appeal may be brought to the Tribunal under Article 15; or

    (b) if such an appeal is brought, until - 

      (i) the appeal is abandoned; or

      (ii) the appeal is determined and the period within which notice of an appeal to the Court of Appeal under Article 90 may be given has expired; or

    (c) if notice of an appeal to the Court of Appeal under that Article is given within that period, until the appeal is abandoned or determined.

    (3) On an application under paragraph (1) the Tribunal - 

    (a) may make such order as it thinks fit for the purpose of giving effect to the undertaking or directions; and

    (b) whether or not it makes such an order, may order that the whole or part of the undertaking or directions shall cease to have effect.

    (4) An order under paragraph (3)(a) - 

    (a) shall specify the steps to be taken by the person by whom the undertaking was given or to whom the directions were given;

    (b) may specify the time within which each step is to be taken; and

    (c) may require a specified person to attend before the Tribunal at a specified time to report to the Tribunal on the extent to which those steps have been taken.

    (5) The terms of an order under paragraph (3)(a) (except so far as it requires attendance before the Tribunal) shall be such as, in the opinion of the Tribunal, are not substantially more onerous than the terms of the undertaking or directions.

    (6) An order under paragraph (3)(a) shall not require any person - 

    (a) to apply a requirement or condition described in paragraph (1) of Article 75; or

    (b) to do any act described in Article 76(1).

    (7) The Commission - 

    (a) is entitled to appear and be heard when a person attends before the Tribunal in pursuance of an order under paragraph (3)(a); and

    (b) may itself apply to the Tribunal for the enforcement of such an order.

    (8) Subject to paragraphs (5) and (6), the Tribunal may at any time revoke or vary the terms of an order under paragraph (3) - 

    (a) on an application by the Commission or by the person in relation to whom the order was made; or

    (b) where a person attends before the Tribunal in pursuance of an order under paragraph (3)(a) or on an application by the Commission under paragraph (7)(b).

Failure to comply with order of Tribunal
     17.  - (1) Paragraph (3) applies where the Tribunal determines that a person (in this Article referred to as "the respondent") - 

    (a) has failed to comply with a requirement to attend before the Tribunal included in an order under Article 16(3)(a); or

    (b) has failed to comply to the satisfaction of the Tribunal with any term included in such an order by virtue of Article 16(4)(a) or (b).

    (2) The Tribunal shall not make a determination under paragraph (1) until the end of the period within which notice of an appeal to the Court of Appeal under Article 90 against the order in question may be given or, if notice of such an appeal is given within that period, until the appeal is abandoned or determined.

    (3) Where this paragraph applies, the President or Vice-President may - 

    (a) certify the failure to the High Court; or

    (b) require the respondent to pay to the Department a pecuniary penalty of an amount not exceeding £40,000.

    (4) Where the President or Vice-President has certified a failure under paragraph (3)(a), the High Court may deal with the respondent as if the relevant order of the Tribunal had been an order of the High Court.

    (5) The Judgments Enforcement (Northern Ireland) Order 1981 shall apply with the necessary modifications in relation to a penalty imposed under paragraph (3)(b) as it applies to a sum due to the Crown under a money judgment (within the meaning of that Order).

    (6) If it appears to the Department that there has been a change in the value of money since the relevant date, it may by order substitute for the sum for the time being specified in paragraph (3)(b) such other sum as appears to it to be justified by the change.

    (7) In paragraph (6) "the relevant date" means - 

    (a) in relation to the first order under that paragraph, the coming into operation of this Article; and

    (b) in relation to each subsequent order, the last occasion when the sum specified in paragraph (3)(b) was altered.

    (8) The Department shall pay into the Consolidated Fund any sums received in respect of penalties under this Article.

Restriction on disclosure of information

Restriction on disclosure of information
     18.  - (1) No information in the Commission's possession which discloses, or from which there can be deduced, the religious belief of any identifiable individual shall, without the written consent of that individual, be disclosed by a person who is, or has been, a member or officer of the Commission to a person who is not associated with the Commission, except so far as such disclosure - 

    (a) is necessary or expedient for the proper discharge of the functions of the Commission or is necessary to comply with any obligation imposed by or under any statutory provision (including this Order); or

    (b) is made for the purpose of, or in connection with - 

      (i) any actual or prospective proceedings before the Tribunal or an industrial tribunal; or

      (ii) any actual or prospective civil or criminal proceedings before a court.

    (2) For the purposes of paragraph (1) a person is associated with the Commission if - 

    (a) he is a member or officer of the Commission; or

    (b) his services have been made available to the Commission for the purpose of the exercise of any of its functions.

    (3) Paragraph (4) applies to any information supplied to the Commission - 

    (a) in the course of an investigation under Article 11 or 71; or

    (b) in pursuance of a requirement under Article 67.

    (4) No information to which this paragraph applies shall be disclosed by a person who is, or has been, a member or officer of the Commission to a person who is not a member or officer of the Commission, except so far as such disclosure - 

    (a) is relevant for the purposes of Article 8(1) or 71(4) of this Order or paragraph 5 of Schedule 8 to the Northern Ireland Act 1998 and is not prohibited by paragraph (1);

    (b) is made as mentioned in paragraph (1)(b); or

    (c) is permitted by paragraph (5) or required by paragraph (6).

    (5) Where it is necessary or expedient to do so for the proper discharge of the functions of the Commission, a member or officer of the Commission may - 

    (a) disclose to an employer any information in the Commission's possession which relates to his employees or to other persons who have applied for employment by him;

    (b) disclose to a principal (within the meaning of Article 20) any information in the Commission's possession which relates to contract workers whose services are or have been available to him;

    (c) disclose to any person who is empowered by virtue of any statutory provision to select or nominate another person for employment by a third person any information in the Commission's possession which relates to a person who has applied for the employment in question;

    (d) disclose to an employment agency any information in the Commission's possession which relates to a person who has applied for or obtained the services of the agency;

    (e) disclose to a vocational organisation any information in the Commission's possession which relates to members of that organisation;

    (f) disclose to a person who provides services in connection with the training of persons for employment in any capacity, or for a particular employment or occupation, any information in the Commission's possession which relates to a person who has sought, or on whose behalf it has been sought, to obtain those services, or who has obtained those services; or

    (g) disclose to a person who has power to confer a qualification such as is mentioned in Article 25 any information in the Commission's possession which relates to a person who has applied to have, or has had, that qualification conferred on him.

    (6) The Commission shall supply to the Department any information in the Commission's possession, the supply of which is, in the opinion of the Department, necessary for the proper discharge of the Department's functions.

    (7) Any person who discloses any information in contravention of any provision of this Article is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (8) It is a defence for a person charged with contravening paragraph (1) or (4) to show that before the disclosure in question was made he had also obtained the information otherwise than in his capacity as a member or officer of the Commission.



PART III

DISCRIMINATION IN THE EMPLOYMENT FIELD

Discrimination in the employment field

Discrimination against applicants and employees
     19.  - (1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, - 

    (a) where that person is seeking employment - 

      (i) in the arrangements the employer makes for the purpose of determining who should be offered employment; or

      (ii) in the terms on which he offers him employment; or

      (iii) by refusing or deliberately omitting to offer that person employment for which he applies; or

    (b) where that person is employed by him - 

      (i) in the terms of employment which he affords him; or

      (ii) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

      (iii) by dismissing him or by subjecting him to any other detriment.

    (2) Paragraph (1)(b) does not apply to benefits of any description if the employer is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public comprising the employee in question, unless - 

    (a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or

    (b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

    (c) the benefits relate to training.

Discrimination against contract workers
     20.  - (1) This Article applies to any work for a person ("the principal") which is available to be done by individuals ("contract workers") - 

    (a) who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal; and

    (b) who, if they were instead employed by the principal to do that work, would be in his employment in Northern Ireland.

    (2) It is unlawful for the principal, in relation to work to which this Article applies, to discriminate against a contract worker - 

    (a) in the terms on which he allows him to do that work; or

    (b) by not allowing him to do it or continue to do it; or

    (c) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

    (d) by subjecting him to any other detriment.

    (3) Paragraph (2)(c) does not apply to benefits of any description if the principal is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public to which the contract worker in question belongs, unless that provision differs in a material respect from the provision of the benefits by the principal to his contract workers.

Discrimination by persons with statutory power to select employees for others
     21. It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to discriminate against a person, in relation to employment in Northern Ireland, - 

    (a) by refusing or deliberately omitting to select or nominate him for employment; or

    (b) where candidates are selected or nominated in order of preference, by selecting or nominating him lower in order than any other who is selected or nominated.

Discrimination by employment agencies
     22.  - (1) It is unlawful for an employment agency to discriminate against a person, in relation to employment in Northern Ireland, - 

    (a) in the terms on which the agency offers to provide any of its services; or

    (b) by refusing or deliberately omitting to provide any of its services; or

    (c) in the way it provides any of its services.

    (2) References in paragraph (1) to the services of an employment agency include guidance on careers and any other services related to employment.

    (3) This Article does not apply if the discrimination only concerns employment which the employer could lawfully refuse to offer the person concerned.

    (4) An employment agency shall not be subject to any liability under this Article if it proves - 

    (a) that it acted in reliance on a statement made to it by the employer to the effect that, by reason of the operation of paragraph (3), its action would not be unlawful; and

    (b) that it was reasonable for it to rely on the statement.

    (5) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (4)(a) which in a material respect is false or misleading shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Discrimination by vocational organisations
     23. It is unlawful for a vocational organisation to discriminate against a person who is employed or is seeking employment in Northern Ireland, or who is engaged or is seeking to become engaged in an occupation in Northern Ireland, - 

    (a) where that person is not a member of the organisation - 

      (i) by refusing or deliberately omitting to accept his application for membership; or

      (ii) in the terms on which it is prepared to admit him to membership; or

    (b) where that person is a member of the organisation - 

      (i) in the way it affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

      (ii) by depriving him of membership, or varying the terms on which he is a member; or

      (iii) by subjecting him to any other detriment.

Discrimination by persons providing training services
     24.  - (1) It is unlawful for a person who provides services in connection with the training of persons for employment in any capacity, or for a particular employment or occupation, in Northern Ireland to discriminate against another person - 

    (a) where that other person is seeking to obtain those services or they are sought to be obtained on his behalf - 

      (i) by refusing or deliberately omitting to provide those services; or

      (ii) in the terms on which the person offers to provide those services; or

    (b) where that other person is receiving those services - 

      (i) in the way the person provides those services; or

      (ii) in the way he affords him access to benefits connected with the services or by refusing or deliberately omitting to afford him access to them; or

      (iii) by withdrawing those services from him or varying the terms on which they are provided; or

      (iv) by subjecting him to any other detriment.

    (2) In paragraph (1) "services", in relation to training for employment, means services provided otherwise than by the employer of the person who is seeking to obtain or is receiving the services.

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

    (a) discrimination which is rendered unlawful by Article 27; or

    (b) discrimination which would be rendered unlawful by Article 27 but for the operation of any other provision of this Order.

Discrimination by persons with power to confer qualifications
     25.  - (1) It is unlawful for a person who has power to confer on another a qualification which is needed for, or facilitates, his engagement in employment in any capacity, or in a particular employment or occupation, in Northern Ireland to discriminate against him - 

    (a) by refusing or deliberately omitting to confer that qualification on him on his application; or

    (b) in the terms on which the person is prepared to confer it; or

    (c) by withdrawing it from him or varying the terms on which he holds it.

    (2) Paragraph (1) does not apply to discrimination which is rendered unlawful by Article 27.

Discrimination by partnerships

Discrimination by partnerships
     26.  - (1) It is unlawful for a firm consisting of 6 or more partners, in relation to a position as partner in the firm, to discriminate against a person - 

    (a) in the arrangements they make for the purpose of determining who should be offered that position; or

    (b) in the terms on which they offer him that position; or

    (c) by refusing or deliberately omitting to offer him that position; or

    (d) in a case where the person already holds that position - 

      (i) in the way they afford him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

      (ii) by expelling him from that position, or subjecting him to any other detriment.

    (2) Paragraph (1) shall apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.

    (3) Paragraph (1)(a) and (c) do not apply to a position as partner where, if it were employment, the essential nature of the job would require it to be done by a person holding, or not holding, a particular religious belief or political opinion.

    (4) In this Article - 

    (a) "firm" has the meaning given by section 4 of the Partnership Act 1890; and

    (b) references to a partner shall, in the case of a limited partnership, be construed as references to a general partner as defined in section 3 of the Limited Partnerships Act 1907.



 
  © Crown copyright 1998
Prepared 20 January 1999

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