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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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Regulations as to monitoring
53. - (1) The Department shall, by regulations made after consultation with the Commission, make provision for the purposes of Article 52.

(2) The regulations may -

(a) require information to be given separately by reference to the sex of the employee, former employee or applicant or by reference to different descriptions or classes of employment;

(b) provide for Article 52(4) to apply either generally or in prescribed circumstances as if the reference to 250 employees were a reference to the prescribed number of employees;

(c) provide that -

(d) require -

to be retained by the employer for such period as may be prescribed and provide that a person who without reasonable excuse fails to comply with such a requirement shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale;

(e) make such other provision as to the manner of preparing monitoring returns (including provision for the disclosure of information held for the purposes of monitoring to the person to whom it relates) as appears appropriate to the Department;

(f) provide that -

(g) provide that, subject to such exceptions as may be prescribed, a person who discloses -

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) The regulations may authorise or require the employer to determine which community (if any) a person employed or applying for employment in or ceasing to be employed in the concern is to be treated as belonging to for the purposes of monitoring by applying the principal method prescribed or where that method does not enable him to make that determination, by applying the residuary method, or one of the residuary methods, prescribed; so that, for example -

(a) where an applicant has stated that he belongs to a particular community the employer may be required to determine that he is to be treated as belonging to the community concerned; and

(b) where, in any case not within sub-paragraph (a), the employer has information about the applicant, being information which the employer is authorised by the regulations to take into account as tending to show that the person to whom it relates has a connection with a particular community, the employer may be required to determine the community to which the applicant is to be treated as belonging by reference to that information.

    (4) Where the regulations authorise an employer to take into account information which relates to the schools attended by any person, the regulations may require the Commission to maintain a list classifying each school, or each school in any class specified by the Department, as a school attended mainly by members of a particular community.

    (5) The regulations may require compliance with any direction of the Commission to a particular employer to apply the prescribed methods for determining the community to which a person is to be treated as belonging for the purposes of monitoring in a manner different from that otherwise authorised or required by the regulations.

    (6) Paragraphs (2) to (5) do not prejudice the generality of paragraph (1).

Monitoring applicants
     54. - (1) The Department may, by regulations made after consultation with the Commission, provide that the employer shall, for the purpose of enabling the composition of those applying to fill vacancies for employment in any registered concern in Northern Ireland to be ascertained, seek to obtain such information about them as may be prescribed.

    (2) The regulations may -

(a) require information of a prescribed description which is obtained in pursuance of the regulations to be retained by the employer for such period as may be prescribed;

(b) provide that a person who -

(c) provide that, subject to such exceptions as may be prescribed, a person who discloses any information of a prescribed description which is obtained in pursuance of the regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) In this Article "prescribed" means prescribed by regulations under this Article.

Review of recruitment, training and promotion practices
Periodic reviews by employers
     55. - (1) In the case of each registered concern, the employer shall from time to time review the composition of those employed in and ceasing to be employed in the concern in Northern Ireland and the employment practices of the concern for the purposes of determining whether members of each community are enjoying, and are likely to continue to enjoy, fair participation in employment in the concern.

    (2) In a case where it appears to the employer in the course of the review that members of a particular community are not enjoying, or are not likely to continue to enjoy, such participation, he shall as part of the review determine the affirmative action (if any) which would be reasonable and appropriate.

    (3) In a case where the employer determines in the course of the review that affirmative action would be reasonable and appropriate he shall as part of the review -

    (4) A review under this Article shall be carried out not more than 3 years after the date on which the description of the concern is entered, or treated by virtue of Article 51 as entered, in the register and subsequent reviews at intervals of not more than 3 years.

    (5) In carrying out a review under this Article the employer shall have regard to the code of practice maintained under Article 9(1) and the Commission shall, if requested to do so by the employer, give advice as to the manner in which a review under this Article should be carried out.

    (6) In this Part -

Enquiries, undertakings and directions

Enquiries by the Commission
     56. - (1) The Commission may from time to time require the employer to give the Commission such information retained by the employer in compliance with regulations under Article 53(2)(d) or 54(2)(a), as the Commission may specify; but an employer who has been required on any date to give any information under this paragraph shall not be required to do so again before the expiry of the period of 6 months beginning with that date.

    (2) Where a monitoring return in respect of any registered concern has been served on the Commission, the Commission may require the employer to give the Commission such information as to the manner in which the return was prepared as it may specify.

    (3) The Commission may, in the case of any registered concern, require the employer to give the Commission such information as it may specify as to the steps the employer has taken or proposes to take to carry out a review and as to the manner in which the review has been or is to be carried out.

    (4) The Commission may, where a review has been carried out in the case of any registered concern, require the employer to give to the Commission such information as it may specify -

(a) as to the matters disclosed by the review;

(b) as to any determination under Article 55(2); and

(c) in a case falling within Article 55(3), as to his consideration of the matters referred to in sub-paragraph (a) of that paragraph and any determination under sub-paragraph (b) of that paragraph.

(5) The Commission shall, where a review discloses that members of a particular community are not enjoying, or are not likely to continue to enjoy, fair participation in employment in the concern, make such recommendations as it thinks fit as to the affirmative action to be taken and, assuming the action is taken, as to the progress towards fair participation in employment in the concern, by reference to any period or periods, that can reasonably be expected to be made by members of the community.

(6) Where the employer discloses to the Commission a determination to take any affirmative action, the Commission may from time to time require him to give the Commission such information as it may specify as to the affirmative action that he has taken or proposes to take, but the Commission may not require an employer to give any information under this paragraph before the expiry of the period of 6 months beginning with -

(a) the date of the disclosure; or

(b) if he has previously been required to give any information under this paragraph, the date on which he was last required to do so.

(7) Where the employer discloses to the Commission a determination as to the progress towards fair participation in employment in the concern, by reference to any period, that can reasonably be expected to be made by members of a particular community, the Commission may from time to time require him to give the Commission such information as it may specify for the purpose of determining the extent to which the progress has been made on the date of the requirement, but the Commission may not require an employer to give any information under this paragraph before the expiry of the period of 6 months beginning with -

(a) the date of the disclosure; or

(b) if he has previously been required to give any information under this paragraph, the date on which he was last required to do so.

(8) A requirement under this Article to give any information in respect of a registered concern -

(a) shall be made by notice served on the employer; and

(b) shall specify the time by which the information is to be given,

and the reference in paragraphs (1), (6) and (7) to the date of the requirement is to the date on which the notice was served.

    (9) A notice under this Article served on the person whose name and address is for the time being included in the entry for any concern in the register is to be treated as served on the employer.

    (10) A person required to give any information under this Article who fails to comply with the requirement by the specified time shall be guilty of an offence.

    (11) A person guilty of an offence under paragraph (10) -

(a) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale; and

(b) if the failure continues after conviction, shall be liable on a second or subsequent summary conviction to a fine not exceeding one-tenth of level 5 on the standard scale for each day on which the failure continues.

(12) It is a defence for a person charged with an offence under paragraph (10) to show that he had a reasonable excuse (which may include unreasonable expense or inconvenience) for failing to comply with the requirement by the specified time and, in a case where it was reasonably practicable for him to comply with it after that time, to show that either -

(a) he complied with it as soon as was reasonably practicable; or

(b) it was not reasonably practicable for him to comply with it before the proceedings were commenced,

and for the purposes of this paragraph the making of a complaint is to be treated as the commencement of the proceedings.

(13) A person required to give any information under this Article who knowingly gives false or misleading information is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Undertakings in connection with monitoring and reviews
57. - (1) The following provisions of this Article apply where the Commission is of the opinion, in the light of information received in respect of any registered concern in pursuance of a requirement under Article 56 -

(a) that the manner in which the employer prepares his monitoring returns is in any respect unsatisfactory or that the information sought by him for the purposes of monitoring is in any respect inadequate; or

(b) that the employer has no proposals for carrying out a review or that the manner in which he proposes to carry out the review, or the timing of the review, is in any respect unsatisfactory or that the information sought by him for the purposes of the review is in any respect inadequate.

(2) The Commission shall use its best endeavours for the following purposes (as the case may be) -

(a) to ensure that the manner in which the employer prepares his monitoring returns is satisfactory;

(b) to ensure that the information sought by the employer for the purposes of monitoring is adequate;

(c) to ensure that the information sought by the employer for the purposes of a review is adequate; or

(d) to ensure that a review is carried out at a time and in a manner that is satisfactory,

and shall where appropriate use its best endeavours to secure a satisfactory written undertaking by the employer for the purpose in question.

(3) Where the Commission asks the employer for an undertaking, on such terms as appear satisfactory to the Commission, for the purpose in question, then -

(a) if the undertaking is not given, the Commission shall serve on the employer a notice containing directions such as are mentioned in Article 58; and

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

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

Directions
     58. - (1) The directions contained in a notice served under Article 57(3) shall be those which the Commission considers to be, in all the circumstances, reasonable and appropriate for the purpose in question.

    (2) The directions may in particular include such directions as the Commission considers necessary to ensure that other directions are duly carried out.

    (3) The terms of the directions contained in a notice served under Article 57(3)(b)(i) which supersede an undertaking shall be such as, in the opinion of the Commission, are not substantially more onerous than the terms of the undertaking.

    (4) A notice served under Article 57(3)(a) or (b)(i) shall inform the employer of the right of appeal against the directions which is conferred by Article 15.

    (5) The Commission, on the written application of the employer, may -

(a) revoke all of the directions; or

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

and, in substitution for any directions which are revoked under sub-paragraph (a), may accept from the employer an undertaking such as is mentioned in Article 57(2).

(6) The Commission shall serve notice of the revocation or modification on the employer.

(7) The directions -

(a) are binding on the employer (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.

Application of Articles 15 to 17
59. Articles 15 to 17 shall have effect for the purposes of Articles 57 and 58 as they have effect for the purposes of Articles 12 and 14, but as if -

(a) references to Article 12(2) or (3) were references to Article 57(2), or as the case may be, (3);

(b) references to Article 14(4) were references to Article 58(5); and

(c) for sub-paragraphs (b) and (c) of Article 15(2) there were substituted -

Goals and timetables

Notices about goals and timetables
60. - (1) The Commission may serve a notice under paragraph (2) on the person who is the employer in relation to a registered concern where -

(a) he gives an undertaking under Part II to take any action;

(b) he has been directed under that Part to take any action; or

(c) the Tribunal makes an order under Article 16(3)(a) in relation to an undertaking given by, or directions given to, him to take any action,

being action appearing to the Commission to be affirmative action, and the Commission is of the opinion that, assuming the action is taken, it is practicable to determine, by reference to one or more periods, the progress towards fair participation in employment in the concern that can reasonably be expected to be made by members of a particular community.

(2) The notice ("a notice about goals and timetables") shall specify the period or periods concerned and, in respect of any specified period, the progress that, in the opinion of the Commission, can reasonably be expected to be made towards fair participation by members of the community concerned -

(a) in employment, or any class of employment, in the concern in Northern Ireland; or

(b) among applicants to fill vacancies for such employment or any class of such employment.

(3) Where, by virtue of any undertaking given by, or directions given to, the person who is the employer in relation to a registered concern, such a notice is served on him, the notice shall cease to have effect -

(a) if the Tribunal makes an order for the purpose of giving effect to the undertaking or directions or, in the case of directions, the Tribunal or the Commission substitutes for them or any of them other directions; or

(b) in the case of directions, if they, or such of them as the notice relates to, are quashed or otherwise cease to have effect; or

(c) in the case of an undertaking, if it, or such part of it as the notice relates to, ceases to have effect,

but without prejudice, in a case within sub-paragraph (a), to any power to give a new notice.

(4) Where a notice about goals and timetables has effect, the Commission may from time to time require the employer to give the Commission such information as the Commission may specify for the purpose of determining the extent to which the progress specified in the notice in respect of any period has been made on the date of the requirement.

(5) The Commission may not require an employer to give any information under this Article before the expiry of the period of 6 months beginning with -