THE STRUCTURE OF THE 1989 ACT
10. In the following paragraphs, we sketch some of
the main elements of the 1989 legislative structure, before turning
to consider the changes to those provisions made more recently.
Among the many issues that are sensitive in discussion on fair
employment is the question of how to refer to the different groups
in Northern Ireland. The 1989 Act refers to the "two communities",
referring to the Catholic (or Roman Catholic) and Protestant communities.
There are, of course, many communities in Northern Ireland. When
we refer to the two communities (to reflect the usage of the 1989
Act) or the two designated religious communities, we do not intend
to call this diversity into question. We also use "Catholic"
and "Roman Catholic" interchangeably.
Individual complaints
11. Under the 1989 Act, individual complaints of
religious and political discrimination in employment were to be
made to the Fair Employment Tribunal, a specialised wing of the
industrial tribunal system in Northern Ireland.[11]
Unlawful discrimination was defined to include both direct and
indirect discrimination.[12]
The FEC might assist complainants in taking such complaints.[13]
Remedies included damages (except for unintentional indirect discrimination)
and recommendations for action by the employer for reducing the
adverse effect on the complainant of any unlawful discrimination.[14]
Exceptions, including affirmative action
12. There were several exceptions to the general
prohibition of employment discrimination,[15]
including exceptions for various types of affirmative action training
to remedy under-representation,[16]
encouraging applications from an under-represented community,[17]
and agreed redundancy schemes to preserve progress made under
affirmative action measures.[18]
Another important exception provided that discrimination which
was necessary for safeguarding national security or for protecting
public safety or public order was not unlawful.[19]
The Act provided that the Secretary of State's certificate was
conclusive evidence that an act was done for those purposes.
Regulatory scheme of the 1989 Act
13. In addition to providing a means of resolving
complaints of unlawful discrimination, the 1989 Act established
a detailed regulatory structure to ensure that employers took
action proactively. Many private sector employers [20]
were required to register with the FEC.[21]
Public sector employers were deemed to be automatically registered
with the Commission.[22]
14. Registered employers were required to monitor
the religious composition of their full-time workforce.[23]
Larger employers (those with more than 250 employees) and all
public sector employers were required to monitor the religious
composition of applications for employment.[24]
A monitoring return had to be completed annually. Employers had
to classify existing and, where relevant, prospective employees
by sex, religion and occupation.[25]
Religion might be determined for that purpose either by reference
to the school(s) attended or by directly asking the employee or
applicant, or by using other specified methods. This monitoring
return had to be submitted to the FEC. Although not provided for
by the Act, the FEC decided, soon after the Act came into force,
to publish regularly an overview of the results of monitoring.
15. Employers were also under a duty periodically
(every three years) to review their employment practices (excluding
redundancy) for the purpose of determining whether members of
each community were enjoying, and were likely to continue to enjoy,
fair participation in employment in the concern.[26]
Where fair employment was not evident, employers were required
to engage in affirmative action, as described above. Affirmative
action was also enforceable by the Commission, as was the setting
of goals and timetables against which to measure progress.[27]
Government contracts and grants might be withdrawn in cases of
persistent and recalcitrant behaviour.[28]
16. The FEC had the power to review patterns and
practices in employment and where necessary to issue directions
which were enforceable on employers.[29]
Appeals against such directions were heard by the FEC.[30]
The FEC was also able to accept binding agreements from employers
which were enforceable if not complied with. It was able to revise
the Code of Practice, the first version of which was produced
by the Department of Economic Development.[31]
11 Fair Employment (Northern Ireland) Act 1976, Section
24. Back
12 Fair
Employment (Northern Ireland) Act 1976, Section 16. Back
13 Fair
Employment (Northern Ireland) Act 1976, Section 29. Back
14 Fair
Employment (Northern Ireland) Act 1976, Section 26. Back
15 Fair
Employment (Northern Ireland) Act 1976, Part V. Back
16 Fair
Employment (Northern Ireland) Act 1976, Section 37A. Back
17 Fair
Employment (Northern Ireland) Act 1976, Section 37C. Back
18 Fair
Employment (Northern Ireland) Act 1976, Section 37B. Back
19 Fair
Employment (Northern Ireland) Act 1976, Section 42. Back
20 Fair
Employment (Northern Ireland) Act 1989, Section 25. Employers
with 10 or more employees. Back
21 Fair
Employment (Northern Ireland) Act 1989, Section 23. Back
22 Fair
Employment (Northern Ireland) Act 1989, Section 26. Back
23 Fair
Employment (Northern Ireland) Act 1989, Section 27. Back
24 Fair
Employment (Northern Ireland) Act 1989, Section 29. Back
25 Fair
Employment (Monitoring) Regulations (Northern Ireland) 1989. Back
26 Fair
Employment (Northern Ireland) Act 1989, Section 31. Back
27 Fair
Employment (Northern Ireland) Act 1989, Section 36-37. Back
28 Fair
Employment (Northern Ireland) Act 1989, Section 38-43. Back
29 Fair
Employment (Northern Ireland) Act 1989, Section 11-14. Back
30 Fair
Employment (Northern Ireland) Act 1989, Section 15. Back
31 Fair
Employment (Northern Ireland) Act 1989, Section 7-9. Back
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