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.
2. ROLE OF
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. HISTORY AND
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.
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
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
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
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.
This task was initially entrusted to the Government's Central
Community Relations Unit (CCRU) which consulted on and developed
a research strategy.
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
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.
In June 1997 SACHR published its final Report, "Employment
Equality: Building for the Future".
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
4. ACHIEVEMENTS OF
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
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 Catholican 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
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. DIFFICULTIES WITH
THE 1989 ACT
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. EMPLOYMENT EQUALITY
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.
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
PRINCIPAL CHANGES TO LEGISLATION
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;
(d) draw up such Codes of Practice on issues relating
to goods, facilities services and premises as it considers necessary.
Extension of monitoring provisions
(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
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)1
|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)
|Managers and Administrators||69.5
|Associate professional and technical||59.9
|Clerical and secretarial||65.8
|Craft and skilled manual||65.7
|Personal and protective services||71.5
|Plant and machine operatives||61.5
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
Report and Recommendations of the Working Party on Discrimination
in the Private Sector of Employment (HMSO, May 1973). Back
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
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
Central Secretariat Circular 5/93: Policy Appraisal and Fair Treatment
(December 1993). Back
House of Commons Hansard: Standing Committee B, 16 March
1989, Col. 500. Back
The Review of Employment Equality in Northern Ireland (CCRU, September
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D Magill and S Rose, SACHR, 1996). Policy Aspects of Employment
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1996). Public Views and Experiences of Fair Employment and Equality
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SACHR-Employment Equality: Building for the Future (HMSO, Cm 3684,
June 1997). Back
The Fair Employment and Treatment (Northern Ireland) Order 1998
(S.I., 1998 No. 3162(NI21)). Back