Sex Discrimination (Northern Ireland) Order 1976

PART IIIN.I.[F1EMPLOYMENT FIELD]

F1SR 2005/426

Discrimination by employersN.I.

[F2Applicants and employees]N.I.

8 .F3—(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman—

(a)in the arrangements he makes for the purpose of determining who should be offered that employment, or

(b)in the terms on which he offers her that employment, or

(c)by refusing or deliberately omitting to offer her that employment.

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her—

(a)in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b)by dismissing her, or subjecting her to any other detriment.

[F2(2A) It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment—

(a)a woman whom he employs, or

(b)a woman who has applied to him for employment.]

[F4(2B) For the purposes of paragraph (2A), the circumstances in which an employer is to be treated as subjecting a woman to harassment shall include those where—

(a)a third party subjects the woman to harassment in the course of her employment, and

(b)the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.

(2C) Paragraph (2B) does not apply unless the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party.

(2D) In paragraphs (2B) and (2C), “third party” means a person other than—

(a)the employer, or

(b)a person whom the employer employs,

and for the purposes of those paragraphs it is immaterial whether the third party is the same or a different person on each occasion.]

Para. (3) rep. by 1988 NI 13

[F5(4) Paragraphs (1)(b) and (2) do not render it unlawful for a person to discriminate against a woman in relation to her membership of, or rights under, an occupational pension scheme in such a way that, were any term of the scheme to provide for discrimination in that way, then, by reason only of any provision made by or under Articles 62 to 64 of the Pensions (Northern Ireland) Order 1995 (equal treatment), an equal treatment rule would not operate in relation to that term.

(4A) In paragraph (4), “occupational pension scheme” has the same meaning as in the Pension Schemes (Northern Ireland) Act 1993 and “equal treatment rule” has the meaning given by Article 62 of the Pensions (Northern Ireland) Order 1995.]

(5) Subject to Article 11(3), paragraph (1)( b) does not apply to any provision for the payment of money which, if the woman in question were given the employment, would be included (directlyF6. . . or otherwise) in the contract under which she was employed.

(6) Paragraph (2) does not apply to benefits consisting of the payment of money when the provision of those benefits is regulated by the woman's contract of employment.

(7) Paragraph (2) does not apply to benefits, facilities or services of any description if the employer is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public comprising the woman in question, unless—

(a)that provision differs in a material respect from the provision of the benefits, facilities or services by the employer to his employees, or

(b)the provision of the benefits, facilities or services to the woman in question is regulated by her contract of employment, or

(c)the benefits, facilities or services relate to training.

[F7(8) In its application to any discrimination falling within [F8Article 4A or 4B] , this Article shall have effect with the omission of paragraphs (4) to (6).]

F2SR 2005/426

F3mod. SR 1991/127

F7SR 1999/311

[F9Exception relating to terms and conditions during maternity leaveN.I.

8A.—(1) Subject to paragraph (2), Article 8(1)(b) and (2) does not make it unlawful to deprive a woman who is on maternity leave of any benefit from the terms and conditions of her employment relating to remuneration.

(2) The reference in paragraph (1) to benefit from the terms and conditions of a woman's employment relating to remuneration does not include a reference to—

(a)maternity-related remuneration (including maternity-related remuneration that is increase-related),

(b)remuneration (including increase-related remuneration) in respect of times when the woman is not on maternity leave, or

(c)remuneration by way of bonus in respect of times when a woman is on compulsory maternity leave.

(3) For the purposes of paragraph (2), remuneration is increase-related so far as it falls to be calculated by reference to increases in remuneration that the woman would have received had she not been on maternity leave.

(4) In this Article—

“maternity-related remuneration”, in relation to a woman, means remuneration to which she is entitled as a result of being pregnant or being on maternity leave;

“on compulsory maternity leave” means absent from work in consequence of the prohibition in Article 104(1) of the Employment Rights (Northern Ireland) Order 1996;

“on maternity leave” means—

(a)on compulsory maternity leave,

(b)absent from work in exercise of the right conferred by Article 103(1) of the Employment Rights (Northern Ireland) Order 1996 (ordinary maternity leave), or

(c)absent from work in exercise of the right conferred by Article 105(1) of that Order (additional maternity leave); and

“remuneration” means benefits—

(a)that consist of the payment of money to an employee by way of wages or salary, and

(b)that are not benefits whose provision is regulated by the employee's contract of employment.]

F9Art. 8A substituted (6.4.2008 with effect as mentioned in reg. 1(2) of the amending S.R.) by Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/159), reg. 5

[F10Persons with statutory power to select employees for othersN.I.

9.—(1) It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to discriminate against a person—

(a)by refusing or deliberately omitting to select or nominate him for employment, or

(b)where candidates are selected or nominated in order of preference, by selecting or nominating him lower in order than any other who is selected or nominated.

(2) It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to subject that other to harassment.]

F10SR 2005/426

Exception where sex is a genuine occupational qualificationN.I.

10 .F11—(1) In relation to sex discrimination—

(a)Article 8(1)( a) or ( c) does not apply to any employment where being a man is a genuine occupational qualification for the job, and

(b)Article 8(2)( a) does not apply to opportunities for promotion or transfer to, or training for, such employment.

(2) Being a man is a genuine occupational qualification for a job only where—

(a)the essential nature of the job calls for a man for reasons of physiology (excluding physical strength or stamina) or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a woman; or

(b)the job needs to be held by a man to preserve decency or privacy because—

(i)it is likely to involve physical contact with men in circumstances where they might reasonably object to its being carried out by a woman, or

(ii)the holder of the job is likely to do his work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities; or

[F12(bb)the job is likely to involve the holder of the job doing his work, or living, in a private home and needs to be held by a man because objection might reasonably be taken to allowing to a woman—

(i)the degree of physical or social contact with a person living in the home, or

(ii)the knowledge of intimate details of such a person's life,

which is likely, because of the nature or circumstances of the job or of the home, to be allowed to, or available to, the holder of the job; or]

(c)the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere than in premises provided by the employer, and—

(i)the only such premises which are available for persons holding that kind of job are lived in, or normally lived in, by men and are not equipped with separate sleeping accommodation for women and sanitary facilities which could be used by women in privacy from men, and

(ii)it is not reasonable to expect the employer either to equip those premises with such accommodation and facilities or to provide other premises for women; or

(d)the nature of the establishment, or of the part of it within which the work is done, requires the job to be held by a man because—

(i)it is, or is part of, a hospital, prison or other establishment for persons requiring special supervision, attention or care, and

(ii)those persons are all men (disregarding any woman whose presence is exceptional), and

(iii)it is reasonable, having regard to the essential character of the establishment or that part, that the job should not be held by a woman; or

(e)the holder of the job provides individuals with personal services promoting their welfare or education, or similar personal services, and those services can most effectively be provided by a man, or

Sub‐para. (f) rep. by 1990 NI 2

(g)the job needs to be held by a man because it is likely to involve the performance of duties outside the United Kingdom in a country whose laws or customs are such that the duties could not, or could not effectively, be performed by a woman, or

(h)the job is one of two to be held

[F13(i)by a married couple,

(ii)by a couple who are civil partners of each other, or

(iii)by a married couple or a couple who are civil partners of each other]

.

(3) Paragraph (2) applies where some only of the duties of the job fall within sub-paragraphs ( a) to ( g) as well as where all of them do.

(4) Sub-paragraph ( a), ( b), ( c), ( d), ( e)F14. . . or ( g) of paragraph (2) does not apply in relation to the filling of a vacancy at a time when the employer already has male employees—

(a)who are capable of carrying out the duties falling within that paragraph, and

(b)whom it would be reasonable to employ on those duties, and

(c)whose numbers are sufficient to meet the employer's likely requirements in respect of those duties without undue inconvenience.

F11mod. SR 1991/127

[F15Corresponding exception relating to gender reassignmentN.I.

10A.—(1) In their application to discrimination falling within [F16Article 4A or 4B] , paragraphs (1) and (2) of Article 8 do not make unlawful an employer's treatment of another person if—

(a)in relation to the employment in question—

(i)being a man is a genuine occupational qualification for the job; or

(ii)being a woman is a genuine occupational qualification for the job; and

(b)the employer can show that the treatment is reasonable in view of the circumstances described in the relevant sub-paragraph of Article 10(2) and any other relevant circumstances.

(2) In paragraph (1) the reference to the employment in question is a reference—

(a)in relation to any sub-paragraph of Article 8(1), to the employment mentioned in that sub-paragraph;

(b)in relation to Article 8(2)—

(i)in its application to opportunities for promotion or transfer to any employment or for training for any employment, to that employment;

(ii)otherwise, to the employment in which the person discriminated against is employed or from which that person is dismissed.

(3) In determining for the purposes of paragraph (1) whether being a man or being a women is a genuine occupational qualification for a job, Article 10(4) applies in relation to dismissal from employment as it applies in relation to the filling of a vacancy.

[F17(4) Paragraph (1) does not apply in relation to discrimination against a person whose gender has become the acquired gender under the Gender Recognition Act 2004.]

F15SR 1999/311

Supplementary exceptions relating to gender reassignmentN.I.

10B.—(1) In relation to discrimination falling within [F18Article 4A or 4B] —

(a)Article 8(1)(a) or (c) does not apply to any employment where there is a supplementary genuine occupational qualification for the job;

(b)Article 8(2)(a) does not apply to a refusal or deliberate omission to afford access to opportunities for promotion or transfer to or training for such employment; and

(c)Article 8(2)(b) does not apply to dismissing an employee from, or otherwise not allowing him to continue in, such employment.

(2) Subject to paragraph (3), there is a supplementary genuine occupational qualification for a job only if—

(a)the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers;

(b)the job is likely to involve the holder of the job doing his work, or living, in a private home and needs to be held otherwise than by a person who is undergoing or has undergone gender reassignment, because objection might reasonably be taken to allowing to such a person—

(i)the degree of physical or social contact with a person living in the home, or

(ii)the knowledge of intimate details of such a person's life, which is likely, because of the nature or circumstances of the job or of the home, to be allowed to, or available to, the holder of the job;

(c)the nature or location of the establishment makes it impracticable for the holder of the job to live elsewhere than in premises provided by the employer, and—

(i)the only such premises which are available for persons holding that kind of job are such that reasonable objection could be taken, for the purpose of preserving decency and privacy, to the holder of the job sharing accommodation and facilities with either sex whilst undergoing gender reassignment, and

(ii)it is not reasonable to expect the employer either to equip those premises with suitable accommodation or to make alternative arrangements; or

(d)the holder of the job provides vulnerable individuals with personal services promoting their welfare, or similar personal services, and in the reasonable view of the employer those services cannot be effectively provided by a person whilst that person is undergoing gender reassignment.

[F19(3) Paragraph (2) does not apply in relation to discrimination against a person whose gender has become the acquired gender under the Gender Recognition Act 2004.]

[F20(4) Sub-paragraph (a) of paragraph (2) does not apply in relation to the filling of a vacancy at a time when the employer already has employees falling within paragraph 5—

(a)who are capable of carrying out the duties falling within that paragraph, and

(b)whom it would be reasonable to employ on those duties, and

(c)whose numbers are sufficient to meet the employer's likely requirements in respect of those duties without undue inconvenience.

(5) An employee falls within this paragraph if the employee does not intend to undergo and is not undergoing gender reassignment and either—

(a)the employee has not undergone gender reassignment; or

(b)the employee's gender has become the acquired gender under the Gender Recognition Act 2004]]

F15SR 1999/311

F20SR 2005/426

Equal Pay Act (Northern Ireland) 1970N.I.

11.  Para.(1) substitutes s. 1(1)‐(3) of 1970 c.32 (NI)

(2)  Section 1(1) of the Equal Pay Act (as set out in paragraph (1)) does not apply in determining for the purposes of Article 8(1)( b) the terms on which employment is offered.

(3) Where a person offers a woman employment on certain terms, and if she accepted the offer then, by virtue of an equality clause, any of those terms would fall to be modified, or any additional term would fall to be included, the offer shall be taken to contravene Article 8(1)( b).

(4) Where a person offers a woman employment on certain terms, and paragraph (3) would apply but for the fact that, on her acceptance of the offer, section 1(3) of the Equal Pay Act (as set out in paragraph (1)) would prevent the equality clause from operating, the offer shall be taken not to contravene Article 8(1)( b).

(5) An act does not contravene Article 8(2) if—

(a)it contravenes a term modified or included by virtue of an equality clause, or

(b)it would contravene such a term but for the fact that the equality clause is prevented from operating by section 1(3) of the Equal Pay Act.

Para.(6), with Schedule 1, effects amendments

[F21(7) In its application to any discrimination falling within [F22Article 4A or 4B] , this Article shall have effect with the omission of paragraphs (3), (4) and (5)(b).]

F21SR 1999/311

[F23Contract workers]N.I.

12 .F24—(1) This Article applies to any work[F23 at an establishment in Northern Ireland,] for a person ( “the principal”) which is available for doing by individuals ( “contract workers”) who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

(2) It is unlawful for the principal, in relation to work to which this Article applies, to discriminate against a woman who is a contract worker—

(a)in the terms on which he allows her to do that work, or

(b)by not allowing her to do it or continue to do it, or

(c)in the way he affords her access to any benefits, facilities or services or by refusing or deliberately omitting to afford her access to them, or

(d)by subjecting her to any other detriment.

[F23(2A) It is unlawful for a principal, in relation to contract work at an establishment in Northern Ireland, to subject a contract worker to harassment.]

(3) [F25Subject to paragraph (3A),] the principal does not contravene paragraph (2)( b) by doing any act in relation to a woman at a time when if the work were to be done by a person taken into his employment being a man would be a genuine occupational qualification for the job.

[F25(3A) Paragraph (3) does not apply in relation to discrimination falling within [F26Article 4A or 4B] .

(3B) In relation to discrimination falling within [F27Article 4A or 4B] , the principal does not contravene paragraph (2)(a), (b), (c) or (d) by doing any act in relation to a woman if—

(a)he does it at a time when, if the work were to be done by a person taken into his employment—

(i)being a man would be a genuine occupational qualification for the job; or

(ii)being a woman would be a genuine occupational qualification for the job; and

(b)he can show that the act is reasonable in view of the circumstances relevant for the purposes of sub-paragraph (a) and any other relevant circumstances.

(3C) In relation to discrimination falling within [F28Article 4A or 4B] , the principal does not contravene paragraph (2)(b) by doing any act in relation to a woman at a time when, if the work were to be done by a person taken into his employment, there would be a supplementary genuine occupational qualification for the job.]

[F29(3D) Paragraphs (3B) and (3C) do not apply in relation to discrimination against a person whose gender has become the acquired gender under the Gender Recognition Act 2004.]

(4) Paragraph (2)( c) does not apply to benefits, facilities or services of any description if the principal is concerned with the provision (for payment or not) of benefits, facilities or services of that description to the public, or to a section of the public to which the woman belongs, unless that provision differs in a material respect from the provision of the benefits, facilities or services by the principal to his contract workers.

F23SR 2005/426

F24mod. SR 1991/127

F25SR 1999/311

Meaning of employment at establishment in Northern IrelandN.I.

13.—[F30(1) For the purposes of this Part and section 1 of the Equal Pay Act (Northern Ireland) 1970 ( “the relevant purposes”), employment is to be regarded as being at an establishment in Northern Ireland if—

(a)the employee does his work wholly or partly in Northern Ireland, or

(b)the employee does his work wholly outside Northern Ireland and paragraph (1A) applies.

(1A) This paragraph applies if—

(a)the employer has a place of business at an establishment in Northern Ireland,

(b)the work is for the purposes of the business carried on at that establishment, and

(c)the employee is ordinarily resident in Northern Ireland—

(i)at the time when he applies for or is offered the employment, or

(ii)at any time during the course of the employment.]

[F31(2) The reference to “employment” in paragraph (1) includes—

(a)employment on board a ship[F30, only if the ship is] registered at a port of registry in Northern Ireland; and

(b)employment on aircraft or hovercraft[F30, only if the aircraft or hovercraft is] registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland.]

Para. (3) rep. by SR 2000/8

(4) Where work is not done at an establishment it shall be treated for the relevant purposes as done at the establishment from which it is done or (where it is not done from any establishment) at the establishment with which it has the closest connection.

[F30(5) In relation to employment concerned with exploration of the sea bed or subsoil or the exploitation of their natural resources, the Office of the First Minster and deputy First Minister may by order provide that paragraph (1) shall have effect as if—

(a)the reference to Northern Ireland in each of sub-paragraphs (a) and (b) of paragraph (1), and

(b)each of the references to Northern Ireland in paragraphs (1A) and (2),

included any area for the time being designated under section 1(7) of the Continental Shelf Act 1964, in which the law of Northern Ireland applies.

(6) An order under paragraph (5) may provide that, in relation to employment to which the order applies, this Part and section 1 of the Equal Pay Act are to have effect with such modifications as are specified in the order.

(7) The Office of the First Minister and deputy First Minister shall not make an order under paragraph (5) unless a draft of the order has been approved by resolution of the Assembly.

(8) Paragraphs (1) to (4) or, where an order under paragraph (5) is in operation, those paragraphs as modified by the order, apply for the purposes of determining whether contract work, within the meaning given by Article 12, is at an establishment in Northern Ireland, but so apply with the following modifications—

(a)a reference to employment is to be read as a reference to work to which Article 12 applies, and

(b)“employee” and “employer” shall be read (respectively) as “contract worker” and “principal” with “contract worker” and “principal” having the meaning given by Article 12.]

F30SR 2005/426

F31SR 2000/8

[F32Discrimination against office holders etc.N.I.

F32SR 2005/426

Offices and posts to which Article 13B appliesN.I.

13A.—(1) Subject to paragraphs (2) and (3), Article 13B applies to an office or post if—

(a)the office or post is one—

(i)to which persons are appointed to discharge functions personally under the direction of another person, and

(ii)in respect of which they are entitled to remuneration,

(b)the office or post is one to which appointments are made by a Minister of the Crown, a Northern Ireland Minister, the Assembly or a government department, or

(c)the office or post is one to which appointments are made on the recommendation of, or subject to the approval of, a person referred to in sub-paragraph (b).

(2) Article 13B does not apply to an office or post if Article 8 (Applicants and employees), Article 12 (Contract workers), or Article 14 (Partnerships)—

(a)applies in relation to an appointment to the office or post, or

(b)would apply in relation to an appointment to an office or post but for the operation of any other provision of this Order.

(3) Article 13B does not apply to—

(a)any office of the House of Commons held by a member of it,

(b)a life peerage within the meaning of the Life Peerages Act 1958, or any office of the House of Lords held by a member of it,

(c)any office of the Assembly held by a member of it,

(d)any office of a district council held by a member of it,

(e)any office of a political party.

(4) For the purposes of paragraph (1)(a), the holder of an office or post—

(a)is to be regarded as discharging her functions under the direction of another person if that other person is entitled to direct her as to when and where she discharges those functions;

(b)is not to be regarded as entitled to remuneration merely because she is entitled to payments—

(i)in respect of expenses incurred by her in carrying out the functions of the office or post, or

(ii)by way of compensation for the loss of income or benefits she would or might have received from any person had she not been carrying out the functions of the office or post.

(5) In this Article and Article 13B, appointment to an office or post does not include election to an office or post.

Office holdersN.I.

13B.—(1) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this Article applies, to discriminate against a woman—

(a)in the arrangements which he makes for the purpose of determining to whom the appointment should be offered,

(b)in the terms on which he offers her the appointment, or

(c)by refusing to offer her the appointment.

(2) It is unlawful, in relation to an appointment to an office or post to which this Article applies and which is an office or post referred to in Article 13A(1)(c), for a relevant person on whose recommendation, or subject to whose approval, appointments to the office or post are made, to discriminate against a woman—

(a)in the arrangements which he makes for the purpose of determining who should be recommended or approved in relation to the appointment, or

(b)in making or refusing to make a recommendation, or giving or refusing to give an approval, in relation to the appointment.

(3) It is unlawful for a relevant person, in relation to a woman who has been appointed to an office or post to which this Article applies, to discriminate against her—

(a)in the terms of the appointment,

(b)in the opportunities which he affords her for promotion, a transfer, training or receiving any other benefit, or by refusing to afford her any such opportunity,

(c)by terminating the appointment, or

(d)by subjecting her to any other detriment in relation to the appointment.

(4) It is unlawful for a relevant person, in relation to an office or post to which this Article applies, to subject to harassment a woman—

(a)who has been appointed to the office or post,

(b)who is seeking or being considered for appointment to the office or post, or

(c)who, in relation to appointment to the office or post, is seeking or being considered for a recommendation or approval referred to in Article 13A(1)(c).

(5) Paragraphs (1) and (3) do not apply to any act in relation to an office or post where, if holding the office or post constituted employment, that act would be lawful by virtue of Article 10 (Exception where sex is a genuine occupational qualification), 10A (Corresponding exception relating to gender reassignment), 10B (Supplementary exceptions relating to gender reassignment) or Article 21 (Ministers of religion etc.).

(6) Paragraph (2) does not apply to any act in relation to an office or post where, if holding the office or post constituted employment, it would be lawful by virtue of Article 10, 10A, 10B or 21 to refuse to offer the person such employment.

(7) Paragraph (3) does not apply to benefits of any description if the relevant person is concerned with the provision (for payment or not) of benefits of that description to the public, or a section of the public to which the person appointed belongs, unless—

(a)that provision differs in a material respect from the provision of the benefits to persons appointed to offices or posts which are the same as, or not materially different from, that which the person appointed holds,

(b)the provision of the benefits to the person appointed is regulated by the terms and conditions of her appointment, or

(c)the benefits relate to training.

(8) In paragraph (3)(c), the reference to the termination of the appointment includes a reference—

(a)to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions, and

(b)to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that she is entitled to terminate the appointment without notice by reason of the conduct of the relevant person.

(9) In this Article “relevant person”, in relation to an office or post, means—

(a)in a case relating to an appointment to an office or post, the person with power to make that appointment;

(b)in a case relating to the making of a recommendation or the giving of an approval in relation to an appointment, a person or body referred to in section 13A(1)(b) with power to make that recommendation or (as the case may be) to give that approval;

(c)in a case relating to a term of an appointment, the person with power to determine that term;

(d)in a case relating to a working condition afforded in relation to an appointment—

(i)the person with power to determine that working condition, or

(ii)where there is no such person, the person with power to make the appointment;

(e)in a case relating to the termination of an appointment, the person with power to terminate the appointment;

(f)in a case relating to the subjection of a person to any other detriment or to harassment, any person or body falling within one or more of sub‐paragraphs (a) to (e) in relation to such cases as are there mentioned.

(10) In paragraph 9(d) “working condition” includes any opportunity for promotion, a transfer, training or receiving any other benefit.

(11) In this Article—

(a)references to “making a recommendation” include references to making a negative recommendation;

(b)references to “refusal” include references to deliberate omission;

(c)“benefits” includes facilities and services]

Discrimination by other bodiesN.I.

PartnershipsN.I.

14.—(1) It is unlawful for a firmF33. . . , in relation to a position as partner in the firm, to discriminate against a woman—

(a)in the arrangements they make for the purpose of determining who should be offered that position, or

(b)in the terms on which they offer her that position, or

(c)by refusing or deliberately omitting to offer her that position, or

(d)in a case where the woman already holds that position—

(i)in the way they afford her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(ii)by expelling her from that position, or subjecting her to any other detriment.

(2) Paragraph (1) shall apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.

[F34(2A) It is unlawful for a firm, in relation to a position as partner in the firm, to subject to harassment a woman who holds or has applied for that position.]

(3) [F35Subject to paragraph (3A),] paragraph (1)( a) and ( c) do not apply to a position as partner where, if it were employment, being a man would be a genuine occupational qualification for the job.

[F35(3A) Paragraph (3) does not apply in relation to discrimination falling within [F36Article 4A or 4B] .

(3B) In relation to discrimination falling within [F37Article 4A or 4B] , paragraph (1) does not make unlawful a firm's treatment of a person in relation to a position as partner where—

(a)if it were employment—

(i)being a man would be a genuine occupational qualification for the job; or

(ii)being a woman would be a genuine occupational qualification for the job; and

(b)the firm can show that the treatment is reasonable in view of the circumstances relevant for the purposes of sub-paragraph (a) and any other relevant circumstances.

(3C) In relation to discrimination falling within [F38Article 4A or 4B] , paragraph (1)(a), (c) and, so far as it relates to expulsion, (d)(ii) do not apply to a position as partner where, if it were employment, there would be a supplementary genuine occupational qualification for the job.]

[F39(3D) Paragraphs (3B) and (3C) do not apply in relation to discrimination against a person whose gender has become the acquired gender under the Gender Recognition Act 2004.]

Para. (4) rep. by SR 2005/426

(5) In the case of a limited partnership references in paragraph (1) to a partner shall be construed as references to a general partner as defined in section 3 of the Limited Partnerships Act 1907 [1907 c.24] .

[F40(6) This Article applies to a limited liability partnership as it applies to a firm; and, in its application to a limited liability partnership, references to a partner in a firm are references to a member of the limited liability partnership.]

F34SR 2005/426

F35SR 1999/311

F40SR 2004/307

Trade unions etc.N.I.

15.—(1) This Article applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.

(2) It is unlawful for an organisation to which this Article applies, in the case of a woman who is not a member of the organisation, to discriminate against her—

(a)in the terms on which it is prepared to admit her to membership, or

(b)by refusing, or deliberately omitting to accept, her application for membership.

(3) It is unlawful for an organisation to which this Article applies, in the case of a woman who is a member of the organisation, to discriminate against her—

(a)in the way it affords her access to any benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b)by depriving her of membership, or varying the terms on which she is a member, or

(c)by subjecting her to any other detriment.

[F41(3A) It is unlawful for an organisation to which this Article applies, in relation to membership of that organisation, to subject to harassment a woman who—

(a)is a member of the organisation, or

(b)has applied for membership of the organisation.]

Para. (4) rep. by SR 2005/426

F41SR 2005/426

Qualifying bodiesN.I.

16.—(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a woman—

(a)in the terms on which it is prepared to confer on her that authorisation or qualification, or

(b)by refusing or deliberately omitting to grant her application for it, or

(c)by withdrawing it from her or varying the terms on which she holds it.

[F42(1A) It is unlawful for a body to which this Article applies, in relation to an authorisation or qualification of a kind mentioned in paragraph (1), to subject to harassment a woman who holds or applies for such an authorisation or qualification.]

(2) Where an authority or body is required by law to satisfy itself as to his good character before conferring on a person an authorisation or qualification which is needed for, or facilitates, his engagement in any profession or trade then, without prejudice to any other duty to which it is subject, that requirement shall be taken to impose on the authority or body a duty to have regard to any evidence tending to show that he, or any of his employees, or agents (whether past or present), has practised unlawful discrimination in, or in connection with, the carrying on of any profession or trade.

(3) In this Article—

(a)“authorisation or qualification” includes recognition, registration, enrolment, approval and certification,

(b)“confer” includes renew or extend.

(4) Paragraph (1) does not apply to discrimination which is rendered unlawful by Article 24 or 25.

[F42(5) Paragraph (1A) does not apply to harassment which is rendered unlawful by Article 24 or 25.]

F42SR 2005/426

[F43Persons concerned with provision of vocational trainingN.I.

17.—[F44(1) It is unlawful, in the case of a woman seeking or receiving vocational training, for any person who provides, or makes arrangements for the provision of, facilities for vocational training to discriminate against her—

(a)in the arrangements that person makes for the purpose of selecting people to receive vocational training,

(b)in the terms on which that person affords her access to any vocational training or facilities concerned with vocational training,

(c)by refusing or deliberately omitting to afford her such access,

(d)by terminating her vocational training, or

(e)by subjecting her to any detriment during the course of her vocational training.

(1A) It is unlawful for a provider of vocational training, in relation to such training, to subject to harassment a woman—

(a)to whom he is providing such training, or

(b)who has asked him to provide such training.

(1B) In this Article “vocational training”, in relation to a woman, includes (if it would not otherwise do so) any training which would help fit her for any employment.]

(2) Paragraph (1) does not apply to—

(a)discrimination which is rendered unlawful by Article 8(1) or (2) or Article 24 or 25; or

(b)discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Order.]

F44SR 2005/426

Employment agenciesN.I.

18.—(1) It is unlawful for an employment agency to discriminate against a woman—

(a)in the terms on which the agency offers to provide any of its services, or

(b)by refusing or deliberately omitting to provide any of its services, or

(c)in the way it provides any of its services.

[F45(1A) It is unlawful for an employment agency, in relation to the provision of its services, to subject to harassment a woman—

(a)to whom it provides such services, or

(b)who has requested the provision of such services.]

(2) References in paragraph (1) to the services of an employment agency include guidance on careers and any other services related to employment.

(3) This Article does not apply if the discrimination only concerns employment which the employer could lawfully refuse to offer the woman.

(4) An employment agency shall not be subject to any liability under this Article if it proves—

(a)that it acted in reliance on a statement made to it by the employer to the effect that, by reason of the operation of paragraph (3), its action would not be unlawful, and

(b)that it was reasonable for it to rely on the statement.

(5) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (4)( a) which in a material respect is false or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding[F46 level 5 on the standard scale].

F45SR 2005/426

Special casesN.I.

Art. 19 rep. by 2000 c. 32

Prison officersN.I.

20.  Nothing in this Part renders unlawful any discrimination between male and female prison officers as to requirements relating to height.

[F47Ministers of religion etc.N.I.

21.—(1) Nothing in this Part shall make it unlawful to apply a requirement in relation to employment where—

(a)the employment is for purposes of an organised religion,

(b)the requirement is one to which paragraph (3) applies, and

(c)the requirement is applied—

(i)so as to comply with the doctrines of the religion, or

(ii)because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion's followers.

(2) Nothing in Article 16 shall make it unlawful to apply a requirement in relation to an authorisation or qualification (as defined in that Article) where—

(a)the authorisation or qualification is for purposes of an organised religion,

(b)the requirement is one to which paragraph (3) applies, and

(c)the requirement is applied—

(i)so as to comply with the doctrines of the religion, or

(ii)by the authority or body concerned, or by the person by whom the authority or body acts in a particular case, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion's followers.

(3) This paragraph applies to—

(a)a requirement to be of a particular sex,

(b)a requirement not to be undergoing or to have undergone gender reassignment,

(c)a requirement relating to not being married or to not being a civil partner,

(d)a requirement, applied in relation to a person who is married, or is a civil partner, that relates—

(i)to the person, or the person's spouse or civil partner, not having a living former spouse or a living former civil partner, or

(ii)to how the person, or the person's spouse or civil partner, has at any time ceased to be married or ceased to be a civil partner.]

F47SR 2005/426

MidwivesN.I.

22.—(1) [F48Until 1st September 1983] Article 8(1) does not apply to employment as a midwife.

(2) [F48Until 1st September 1983] Article 8(2)( a) does not apply to promotion, transfer or training as a midwife.

(3) [F48Until 1st September 1983] Article 17 does not apply to training as a midwife.

Para.(4), which inserts s.54A in 1970 c.11 (NI), rep. by 1979 c.36

F48SR 1983/166

[F49Relationships which have come to an endN.I.

22A.—(1) This Article applies where—

(a)there has been a relevant relationship between a woman and another person ( “the relevant person”), and

(b)the relationship has come to an end (whether before or after the commencement of this Article).

(2) In this Article, a “relevant relationship” is a relationship during the course of which an act of discrimination by one party to the relationship against the other party to it is unlawful under any preceding provision of this Part.

(3) It is unlawful for the relevant person to discriminate against the woman by subjecting her to a detriment where the discrimination arises out of and is closely connected to the relevant relationship.

[F50(4) It is unlawful for the relevant person to subject a woman to harassment where that treatment arises out of or is closely connected to the relevant relationship.]]

F49SR 2004/172

F50SR 2005/426

  • 23.  Para. (1) rep. by 1990 NI 2

  • Para. (2) rep. by 1995 NI 12