Select Committee on Northern Ireland Affairs Fourth Report


30. There are several concepts used in the 1989 Act and continued in the 1998 Order which need to be clarified at the outset, since they can give rise to uncertainty and confusion. Clarifying them also helps to make clear the aims and purposes of the legislation, and thus helps identify the appropriate criteria for assessing the effectiveness of the legislation and complementary Government policies.


31. The first concept is 'discrimination'. This encompasses 'direct' discrimination, which arises where one person treats a second person less favourably than a third person would be treated on grounds of religious belief or political opinion.[76] Discrimination also encompasses 'indirect' discrimination, which arises where one person unjustifiably treats a second person the same as a third person is or would be treated, but the effect of doing so is disproportionately to disadvantage persons from the same religious or political group as the second person.[77] In many respects, the concept of discrimination in fair employment legislation is analogous to the idea of discrimination in race and sex discrimination legislation.

32. There is, however, a major difference in the role the concept of discrimination plays in the fair employment legislation compared with the role it plays in the race and sex discrimination legislation. In the latter, the anti-discrimination principle is the primary concept which underpins the legal enforcement roles of the statutory enforcement bodies (the Commission for Racial Equality for Northern Ireland and the Equal Opportunities Commission for Northern Ireland). In the fair employment legislation, simply removing discrimination is not the primary focus of the enforcement powers given to the FEC. Instead, the legislation uses concepts such as fair participation, affirmative action and equality of opportunity.

Equality of Opportunity

33. The concept of equality of opportunity between persons of different religious beliefs provides the basis for an important set of FEC investigation powers. A person of any religious belief has equality of employment opportunity with a person of any other religious belief if he or she has "the same opportunity... as that other person has or would have [in the employment context], due allowance being made for any material difference in their suitability."[78] The legislation further provides that "a person is not to be treated as not having the same opportunity as another person has or would have by reason only of anything lawfully done in pursuance of affirmative action."[79] This affirmative action exception has the effect that, if equality of opportunity and lawful affirmative action conflict in practice, affirmative action prevails.

Affirmative action

34. The White Paper[80] which preceded the 1989 legislation indicated that affirmative action was to be a central concept in the legislation. This it defined as "special measures taken to promote a more representative distribution of employment in the workforce and designed to give all sections of the community full and equal access to employment opportunities." Affirmative action is defined as "action designed to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in Northern Ireland by means including:

  • the adoption of practices encouraging such participation, and
  • the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation."[81]

35. Although the definition of equality of opportunity includes a general exception for lawful affirmative action, as we saw in the previous paragraph, the prohibition of discrimination does not. Except in the particular specified circumstances described earlier,[82] the power and the duty to engage in affirmative action is not specifically exempted from the duty not to discriminate.

Fair participation

36. The concept of fair participation is central to the regulatory structure of the legislation, but it is not defined in the legislation. The FEC has adopted an interpretation of this key concept which considers that fair participation primarily involves redressing imbalances and under-representation in employment between the two communities in Northern Ireland. The underlying aims and objectives of the legislation are based on securing greater fairness in the distribution of jobs and opportunities between those two communities, while recognising that, because of such factors as personal choice on the part of potential and actual employees, not all types of employment will necessarily reflect proportionate representation. Alongside this element of the idea of fair participation, however, the FEC also views its role as in part reducing the relative separateness of the two communities in employment.[83]

76  1998 Order, Article 3(1)(a). Back

77  1998 Order, Article 3(2). Back

78  1998 Order, Article 5(2). Back

79  1998 Order, Article 5(3). Back

80  Fair Employment in Northern Ireland, Cm 380, HMSO, May 1988, para 3.20. Back

81  1998 Order, Article 4(1). Back

82  See para 25. Back

83  Q123. Back

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Prepared 29 July 1999