Select Committee on Northern Ireland Affairs Minutes of Evidence

Memorandum submitted by the Department of Economic Development Northern Ireland


  The Northern Ireland Affairs Committee has invited the Department to provide a memorandum on the extent to which the Act has succeeded in its objectives, the difficulties which have arisen in implementing its provisions and the need for reform of the Act in the light of the experience of the past 10 years.


  The Department's responsibilities in relation to the Act are:

    (i)  preparation of legislation;

    (ii)  sponsorship of the Fair Employment Commission, including appointment of members and funding; and

    (iii)  funding of the Fair Employment Tribunal, including provision of accommodation and administrative staff and appointment of lay panel members.


  3.1 Since the establishment of Direct Rule in 1972, successive administrations have recognised the importance of eliminating discrimination based on religion or political opinion, and promoting greater equality between all sections of the population in Northern Ireland. Equality of opportunity is a fundamental human right which should also accelerate economic growth by maximising human potential. Furthermore, widespread confidence that the labour market operates fairly, with recruitment and promotion based on merit, should lead to greater social cohesiveness and better relations between different sections of the community. Also, perceptions of discrimination and unfairness have fuelled political alienation.

  3.2 Part III of the Northern Ireland Constitution Act 1973 created protection against religious and political discrimination in legislation and in the discharge of public sector executive functions. The 1973 report of the Van Straubenzee working party on employment discrimination in the public sector established the need for new legislation and institutions.[1] This was the origin of the Fair Employment (Northern Ireland) Act 1976 and the establishment of the Fair Employment Agency.

  3.3 The second major impetus to legislation in this field came in the mid-1980s, derived from statistical evidence of continuing differentials in the socio-economic experiences of the Catholic and Protestant sections of the community. This prompted a series of official publications which addressed the potential for the strengthening of the Fair Employment legislation and other measures which the Government might take to promote greater equality of opportunity in the socio-economic sphere. The Department of Economic Development published a consultative paper on future strategy options in September 1986; the Standing Advisory Commission on Human Rights (SACHR) produced an extensive report on fair employment in September 1987; and the Government published a White Paper containing legislative proposals in May 1988.[2] This period was marked by a close interest in fair employment issues on the part of the trade union movement, non-governmental organisations and commentators in the United States. Since the 1985 Anglo-Irish Agreement, the Irish Government also had the right to raise issues such as employment equality through the Inter-Governmental Conference under the terms of Article 5 of the Agreement.[3]

  3.4 The Fair Employment (Northern Ireland) Act 1989 resulted from this debate on, and re-appraisal of, previous policy. The Act represented a major advance. Among other provisions, it imposed new obligations on employers in terms of the monitoring of their workforce, arrangements which provided a comprehensive database for future statistical analysis of employment trends. It created new institutions with wider powers, in the form of the Fair Employment Commission (FEC) and the Fair Employment Tribunal (FET). Building on the 1976 Act, the new legislation probably constituted the toughest measures against employment discrimination available to any European Government, going well beyond equivalent provisions in UK law on race and sex discrimination.

  3.5 New Government policies, introduced in the early 1990s, also had a potential relevance to equality of opportunity in employment. The Targeting Social Need (TSN) initiative was launched in 1991 with the intention of focusing resources in Government programmes towards areas and people in greatest social need, defined by objective criteria. As the Catholic population suffered higher levels of socio-economic disadvantage, it was expected that, over time, TSN would contribute to the erosion of communal differentials. In 1993, administrative guidelines on Policy Appraisal and Fair Treatment (PAFT) were issued to Government Departments in Northern Ireland.[4] These had the objective of proofing policies and service delivery against discriminatory impacts in terms of a broad range of social categories, including religion and political opinion.

  3.6 During the passage of the 1989 legislation, Peter Viggers MP, then the Minister responsible for Northern Ireland industry, had announced an intention to have a comprehensive review, taking account of all the factors influencing access to employment, after five years' experience of the new law[5]. This task was initially entrusted to the Government's Central Community Relations Unit (CCRU) which consulted on and developed a research strategy.[6] It became apparent that a comprehensive review would have to extend beyond the impact of the Fair Employment legislation and the institutions which it created. Government policies on job creation, inward investment training and education all contribute to the provision of employment opportunities and a workforce with appropriate skills to avail of those opportunities. There was continuing evidence of the persistence of the unequal impact on the Protestant and Catholic communities of long-term unemployment, especially among males.

  3.7 In 1994, a number of organisations and commentators expressed concern that the review of employment equality would not be sufficiently independent of Government. There were calls for the responsibility for carrying forward the review to be transferred from CCRU to SACHR. At the end of 1994 the then Secretary of State, the Right Hon. Sir Patrick Mayhew QC MP, invited SACHR to take forward work on the review, building on the research already commissioned by CCRU. SACHR accepted this remit and the Government provided appropriate resources to ensure a fully comprehensive review. SACHR initiated a wide-ranging consultation process and commissioned extensive research. Three volumes of material derived from these exercises were published in Summer 1996[7]. In June 1997 SACHR published its final Report, "Employment Equality: Building for the Future"[8]. This report included a Dissenting Note by one member of the Commission, Mr Dermot Nesbitt. The main body of the report contained over 160 recommendations on changes to legislation, policies and practices.

  3.8 Shortly before publication of SACHR's report, the new Labour administration had been elected to office. The new Government was committed to tackling long-term unemployment and, in Northern Ireland, the Secretary of State, the Rt Hon Marjorie Mowlam MP, restated her aim of progressing equality of opportunity. SACHR's report offered an opportunity to review existing policies at an early stage in the life of the new administration. Tony Worthington MP was given Ministerial responsibility for the review, complementing his departmental responsibilities for community relations, education and training. In July 1997, he wrote to some 40 organisations representative of interests which would be directly affected by specific SACHR recommendations. Officials and Ministers subsequently made a detailed assessment of all the recommendations.

  3.9 The White Paper "Partnership for Equality" (Cm 3890) published in March 1998 was a distillation of this exercise and set out Government proposals for amendments to the Fair Employment legislation. These proposals are summarised at section 9 of this Memorandum.


  4.1 The success of the legislation can be measured by examining changes in the composition of the Northern Ireland monitored workforce, changes in the composition of the Northern Ireland workforce by occupational classification and a comparison of applicants for, and appointments to, jobs in the public sector and in private firms with more than 250 employees during 1991 to 1997.

4.2 Composition of Employment

  4.2.1 Table 1 sets out the changes in employment between 1990 and 1997 in sectors monitored by the FET (i.e., public sector and private sector concerns with 25+ employees). It shows that the Catholic share of employment increased from 34.9 per cent in 1990 to 38.8 per cent in 1997 (all figures in this section exclude those for whom a community was not determined). The latest (unpublished) estimate of Catholics in the economically active population is 41.4 per cent (source: 1995 Labour Force Survey).

  4.2.2 Of the two sectors monitored, the FEC states in its 1997 monitoring report that 38.2 per cent of public sector employees are Catholic—an increase of 2.9 per cent since 1990. In 1997, Catholics made up 8.4 per cent of those in security-related occupations whose community background was determined; an increase of 1 per cent since 1990.

  4.2.3 As regards the private sector, the main area of imbalance identified by the Commission is in large private sector companies. Progress towards fair representation of both communities is, however, being made and since 1990 Catholic representation in those companies has increased by 5.7 per cent from 32.5 per cent in 1990 to 38.2 per cent in 1997.

4.3 Occupational Analysis

  4.3.1 Table 2 shows that substantial progress has been made towards fairer participation in all occupational groups, but particularly in managerial and professional occupations.

4.4 Flows into Employment

  4.4.1 Table 3 summarises the number of applicants for and appointments to jobs in the public sector and in the private sector for firms which have more than 250 employees. It shows that, taking one year with another, the proportion of appointees (whether Catholic or Protestant) reflects the number of applicants and enabled SACHR to conclude that there is no evidence that either community is experiencing systematic discrimination at the point of selection.

4.5 General

   The FEC has analysed the Section 31 review reports of all public sector employers and a sample of private sector bodies received during 1995-96 to assess the extent to which employers are pursuing affirmative action measures and to review the range of measures adopted. This analysis shows that employers are increasingly aware of the importance of proper equal opportunities policies and practices and were working to create an equal opportunities environment and culture within their organisations. (FEC 1996 Employers' Response to Affirmative Action Arising from the Fair Employment (NI) Act 1989).

4.6 Registration/Monitoring compliance

  4.6.1 Under Section 22 of the Fair Employment (Northern Ireland) Act 1989, the Commission has a duty to keep a Register of those concerns employing more than 10 people in Northern Ireland. The seventh Register of Employers, published in September 1996, showed that there were 3,948 private sector concerns registered with the Commission. In addition, 116 specified public authorities were deemed to be registered. Registered private and public sector concerns together accounted for 397,000 employees, or 70 per cent of those in employment in Northern Ireland.

  4.6.2 During the 1996-97 year, the Commission mounted some 18 prosecutions against registered employers who had failed to submit monitoring returns to the Commission. This represents a conviction rate of 0.4 per cent of all registered employers and matches the high level of compliance with the monitoring requirement achieved in the preceding six years. A summary of the total number of convictions over the six years since statutory monitoring was introduced is shown in Table 5.


  5.1 The only difficulty with the 1989 Act which necessitated amendment related to the confidentiality of information obtained or used for religious monitoring purposes. The 1989 Act placed on employers a range of duties, including the duty to monitor the religious composition of their workforces and to submit annual monitoring returns to the Fair Employment Commission.

  5.2 Section 30 of the Act made it an offence for an employer or employee to disclose, except in very limited circumstances, information used for monitoring purposes or from which the community background of an employee or an applicant for a job could be deduced. The protection given by Section 30 was so wide that the majority of complainants bringing cases of alleged religious discrimination before the Tribunal were unable to prepare or pursue their cases properly since they lacked the necessary information about the community affiliation of others involved. Also, employers were unable to bring forward similar evidence to answer a complainant.

  5.3 The offence created by Section 30 also extended to the release of such information where necessary for proceedings relating to sex discrimination or unfair dismissal, if the information might enable an individual's community affiliation to be deduced.

  5.4 The need for an amendment arose from a ruling by the Fair Employment Tribunal on 11 October 1990 not to make an order for the disclosure of certain documents on the grounds that to do so would have put the respondent at risk of committing a criminal offence. The result was a block on cases being heard by the Tribunal.

  5.5 The problem was resolved by the Fair Employment (Amendment) (Northern Ireland) Order 1991 which gave the Department of Economic Development a power under Section 28 to make regulations specifying the extent to which disclosure of monitoring information would be an offence. Disclosure for the purposes of individual complaints under the 1976 Act is now possible without risk of committing a criminal offence.


  6.1 As noted at paragraphs 3.6 to 3.9 above, the Government committed itself to a comprehensive review "taking account of all the factors influencing access to employment" after five years' experience of the new law during passage of the 1989 legislation. The outcome of this review was published in the White Paper "Partnership for Equality" which drew heavily on the SACHR report "Employment Equality: Building for the Future" but also reflected the radical policy programme which the Administration embarked upon, both at national and Northern Ireland levels, following the General Election of May 1997.

  6.2 The White Paper set out a coherent set of policy decisions which will determine the direction of the Government's future strategies. It accepted SACHR's basic analysis that the current Fair Employment legislation, which is having a positive impact on equality of opportunity for those in work, should be supplemented by measures to assist those who are unemployed. Furthermore, the promotion of equality of opportunity must be effectively mainstreamed into the work of the public sector. The intention is that this demanding agenda will be built upon the foundations established by the existing Fair Employment legislation.

  6.3 More specifically, the Government is seeking to create a synergy between a range of new initiatives which it has planned, either at national or Northern Ireland level, to benefit the unemployed or those at risk of becoming the next generation of unemployed. First amongst these is the New Deal, with considerable sums of additional public expenditure planned. Childcare, transport, education and training policies will also make a positive contribution to this end. A re-launched Targeting Social Need initiative, with a primary focus on the unemployed, will seek to direct Government programme resources to those objectively identified as being most in need. This will be linked to a parallel Promoting Social Inclusion initiative which will draw on the innovative approaches of the Social Exclusion Initiative in England.

  6.4 Tackling unemployment, particularly long-term unemployment, is key to addressing many other manifestations of social disadvantage. The Government will not differentiate between Protestant and Catholic unemployed in the implementation of its policies. However, it is conscious that the continuing unemployment differential between the communities is an indicator of Catholic socio-economic disadvantage; it is not a valid indicator of the success, or otherwise, of the Fair Employment legislation, nor of discrimination in recruitment. In line with well established TSN principles, the Government would hope that action to help the unemployed, whatever their community background, would have the effect, over time, of eroding the unemployment differential. It will endeavour, in co-operation with its social partners and others, to agree what these benchmarks should be. A substantial reduction in the unemployment differential by the time of the 2011 census should be a realistic aspiration, not solely for Government, but for society as a whole. The position will be subject to regular monitoring in the interim using both the 2001 Census of Population and routine household surveys.

  6.5 One of the most radical proposals in the paper envisaged statutory obligations to promote equality of opportunity throughout the public sector, superseding the former current PAFT guidelines. To give direction and oversight to this major institutional change, it was proposed that the existing Equality Commissions should be merged to form a new statutory authority. These proposals are now being given statutory effect in the Northern Ireland Bill currently before Parliament.

  6.6 As shown above, statistical evidence shows that fairness in recruitment is being achieved and that consistent progress in being made towards participation. The essential balance of the Fair Employment legislation has, therefore, been justified by events. To take account of experience and changing work patterns, a number of amendments are proposed to the legislation as it affects employment, notably in the field of monitoring. The Government also proposes to extend the scope of the legislation against religious discrimination to the fields of goods, facilities, services and premises. A summary of the Government's main proposals is attached and legislation will be brought forward shortly[9].

  6.7 These proposals will have an impact beyond employment and the economy. They are intended to contribute directly to improved community relations, to social justice and to the achievement of a durable peace. They constitute part of the practical implementation of the principles of equality of opportunity, equity of treatment and parity of esteem which guide the Government's policies in Northern Ireland. Recognising the importance of these measures, the Government undertook as part of the Belfast Agreement to make rapid progress with the measures on employment equality included in the White Paper.

Department of Economic Development

6 October 1998


  The principal changes proposed are as follows:

    —  Legislation is to be extended to cover the provision of goods, facilities, services, and transactions relating to land and premises, with appropriate exemptions.

    —  Additional roles to be given to the Fair Employment Commission to:
  (a)  advise Government on measures to reduce the number of, or religious imbalance in, the unemployed;
  (b)  advise employers on recruitment from the unemployed;
  (c)  keep the working of the legislation under review and, if necessary, submit proposals to Government for its amendment; and
  (d)  draw up such Codes of Practice on issues relating to goods, facilities services and premises as it considers necessary.

    —  Extension of monitoring provisions to require:
  (a)  part-time employees (who work less than 16 hours per week) to be included in monitoring returns but shown separately;
  (b)  all public sector employees and those private sector employers with more than 250 employees to monitor promotions, redundancies and other leavers;
  (c)  all registered employers (not just the public sector and larger employers as at present) to monitor applicants and appointees.

    —  Employers and training providers to be allowed to engage in religion-specific training of non-employees.

    —  Protection for employers recruiting from those not in employment.

    —  Extension of legislation to cover discrimination by, or in relation to, barristers and partnerships of six or more.

    —  Compensation for unintentional discrimination.

Changes in employment 1990-1997 in sectors monitored by the FEC
(Public Sector and Private Sector concerns with 26+ employees)
Per cent 1997
Per cent Change
Per cent
Men57,97916.6 67,41918.39,440 16.3
Women57,28716.4 68,81918.711,532 20.1
All Catholics115,26633.0 136,23836.920,972 18.2

Men123,20235.3 118,61532.2-4,587 -3.7
Women91,48926.2 96,64426.25,155 5.6
All Protestants214,691 61.4215,25958.4 5680.3

19,443 5.617,2484.7 -2,195-11.3
Total349,400 368,74519,345 5.5
1 FEC Monitoring Returns.

Change in composition of Northern Ireland workforce by occupation 1990-97
(Public Sector and Private Sector concerns with 26 or more employees)
Per cent
ProtestantCatholic ProtestantCatholic
Managers and Administrators69.5 30.563.536.5
Professional66.633.4 59.440.6
Associate professional and technical59.9 40.157.742.3
Clerical and secretarial65.8 34.260.739.3
Craft and skilled manual65.7 34.364.235.8
Personal and protective services71.5 28.568.032.0
Sales66.733.3 59.740.3
Plant and machine operatives61.5 38.557.642.4
Other61.238.8 59.041.0
Total65.134.9 61.238.8
Percentages based on those for whom a community has been determined.


Catholic share of applicants and appointeers 1991-971
(A) Public Sector employers



(B) Private Sector firms (concerns with 251 or more employers)

1 FEC monitoring returns.

Convictions for monitoring offences 1990-97
Number of
Per cent
1990-911,88317 0.9
1991-921,9916 0.3
1992-934,05632 0.8
1993-944,06933 0.8
1994-954,08012 0.3
1995-964,00419 0.5
1996-973,93518 0.4

1   Report and Recommendations of the Working Party on Discrimination in the Private Sector of Employment (HMSO, May 1973). Back

2   Equality of Opportunity in Employment in Northern Ireland: Future Strategy Options: A Consultative Paper (HMSO, September 1986). SACHR-Religious and Political Discrimination and Equality of Opportunity in Northern Ireland-Report on Fair Employment (HMSO, Cm 237, October 1987). Fair Employment in Northern Ireland (HMSO, Cm 380, May 1988). Back

3   Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ireland (HMSO, Cm 9690, December 1985). Back

4   Central Secretariat Circular 5/93: Policy Appraisal and Fair Treatment (December 1993). Back

5   House of Commons Hansard: Standing Committee B, 16 March 1989, Col. 500. Back

6   The Review of Employment Equality in Northern Ireland (CCRU, September 1992). Back

7   Fair Employment Law in Northern Ireland: Debates and Issues (ed. D Magill and S Rose, SACHR, 1996). Policy Aspects of Employment Equality in Northern Ireland (ed. E McLoughlin and P Quirk, SACHR, 1996). Public Views and Experiences of Fair Employment and Equality Issues in Northern Ireland (ed. J McVey and N Hutson, SACHR, 1996). Back

8   SACHR-Employment Equality: Building for the Future (HMSO, Cm 3684, June 1997). Back

9   The Fair Employment and Treatment (Northern Ireland) Order 1998 (S.I., 1998 No. 3162(NI21)). Back

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