CONCEPTS IN ISSUE IN FAIR EMPLOYMENT LEGISLATION
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.
Discrimination
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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