The Fair Employment and Treatment (Northern Ireland) Order 1998

PART I N.I. INTRODUCTORY

Title and commencement N.I.

Title and commencement N.I.

1.—(1) This Order may be cited as the Fair Employment and Treatment (Northern Ireland) Order 1998.

(2) This Order comes into operation on such day or days as the Secretary of State may by order appointF1 .

F1 fully exercised by SR 1999/81; 1999/355

Interpretation N.I.

General interpretation N.I.

2.—(1) Subject to Articles 102 and 103, the [1954 c. 33 (N.I.).] Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to an Act of the Northern Ireland Assembly.

(2) In this Order—

• “access” shall be construed in accordance with paragraphs (7) and (8);

• “act” includes a deliberate omission;

• “advertisement” includes every form of advertisement or notice, whether to the public or not;

• “affirmative action” has the meaning given in Article 4;

• “the Agency” means the Labour Relations Agency;

• “benefits”[F2 , except in Article 25A,] includes all opportunities, services and facilities and, in particular, includes opportunities for training, transfer or promotion, for betterment of any kind (including more attractive terms or conditions of work) or for any financial advantage (including bonuses, advances of money and preferential terms for acquiring property of any kind);

• “the Commission” means the Equality Commission for Northern Ireland established by section 73 of the [1998 c. 47.] Northern Ireland Act 1998;

• “complainant” means a person making a complaint that unlawful discrimination[F2 or unlawful harassment] has been committed against him;

• “complaint” means a complaint of unlawful discrimination[F2 or unlawful harassment] made to the Tribunal under Article 38;

• “confer”, in relation to a qualification, includes renew and extend;

• “contract” includes any contract, whether in writing or oral, express or implied;

• “costs” includes expenses;

• “the Department” means the Department of Economic Development;

• [F2 “detriment” does not include conduct of a nature such as to constitute harassment;]

• “discrimination” and “discriminate” shall be construed in accordance with Article 3;

• “employer” (except in Part VII) means—

  (a)

  in relation to apersonwho isseekingemployment, anybody who has employment available;

  (b)

  in relation to a person employed under a contract of service or of apprenticeship or a contract personally to execute any work or labour, the person entitled to the benefit of the contract;

  (c)

  in relation to a person who has ceased to be in employment, his former employer;

  and “employee”, correspondingly, means (except in that Part) such a person as is first mentioned in sub-paragraph (a), (b) or (c) of this definition;

• “employment” (except in Part VII) means employment under—

  (a)

  a contract of service or apprenticeship; or

  (b)

  a contract personally to execute any work or labour;

• “employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers;

• “employment in Northern Ireland” shall be construed in accordance with Article 6;

• “equality of opportunity” shall be construed in accordance with Article 5;

• “government department” means a Northern Ireland department or a department of the Government of the United Kingdom;

• [F2 “harassment” shall be construed in accordance with Article 3A;]

• “member”

  (a)

  in relation to a vocational organisation, includes (except in Article 23) a person seeking to become a member and a person who has ceased to be a member; and

  (b)

  in relation to such an organisation (other than an organisation of workers or employers) also includes any person belonging to a class of person recognised by the organisation as having any particular status in connection with an employment or occupation for the purposes of which the organisation exists, including students and associates,

  and “membership” shall be construed accordingly;

• “Northern Ireland” includes such of the territorial waters of the United Kingdom as are adjacent to Northern Ireland;

• “Northern Ireland Minister” includes the First Minister and deputy First Minister acting jointly;

• “notice” means notice in writing;

• “occupation” means any trade, business, profession or vocation, but not any employment;

• “occupation in Northern Ireland” shall be construed in accordance with Article 6;

• “organisation” includes any society or association, whether corporate or unincorporate;

• “practices” includes procedures and arrangements;

• “premises” includes land of any description;

• “the President” means the President of the Industrial Tribunals and the Fair Employment Tribunal;

• [F2 “provision, criterion or practice” includes requirement or condition;]

• “qualification” includes authorisation, recognition, registration, enrolment, approval and certification;

• [F2 “religious belief” in relation to discrimination or harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) includes any religion or similar philosophical belief;]

• “the respondent”

  (a)

  in relation to a complaint, has the meaning given by Article 38(1); and

  (b)

  in relation to a claim under Article 40, has the meaning given by Article 40(1);

• “school” has the same meaning as in the [1986 NI 3.] Education and Libraries (Northern Ireland) Order 1986;

• “statutory body” means a body established by a statutory provision;

• “statutory office” means an office established by a statutory provision;

• “statutory provision” has the meaning given by section 1(f) of the [1954 c. 33 (N.I.).] Interpretation Act (Northern Ireland) 1954;

• “training” includes any form of education or instruction, except that in Articles 5(4)(b)(ii), 11(1)(e) and 24, it does not include education provided by—

  (a)

  a school;

  (b)

  an institution of further education within the meaning of the [1997 NI 15.] Further Education (Northern Ireland) Order 1997 or an institution providing further education in respect of which grants are paid under Article 5(1) of that Order;

  (c)

  a college of education within the meaning of the Education and Libraries (Northern Ireland) Order 1986; or

  (d)

  a university;

• “the Tribunal” means the Fair Employment Tribunal for Northern Ireland;

• “unlawful discrimination” shall be construed in accordance with Article 3(7);

• [F2 “unlawful harassment” shall be construed in accordance with Article 3A(3);]

• “the Vice-President” means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal;

• “vocational organisation” means—

  (a)

  an organisation of workers;

  (b)

  an organisation of employers;

  (c)

  any other organisation of persons engaged in a particular employment or occupation, or employments or occupations of any class, for the purposes of which the organisation exists.

• [F2 “vocational training” and “vocational guidance” have the same meaning as in Article 3 of Council Directive 2000/78/EC;]

(3) In this Order references to a person's religious belief or political opinion include references to—

(a) his supposed religious belief or political opinion; and

(b) the absence or supposed absence of any, or any particular, religious belief or political opinion.

(4) In this Order any reference to a person's political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.

(5) For the purposes of this Order a person is seeking employment if he is available for employment, whether or not he is aware of the existence of an opportunity for any particular employment.

(6) References in this Order to submitting a person for consideration for employment include references to making available to an employer in any way relevant particulars relating to him.

(7) References in this Order to the affording by any person of access to benefits are not limited to benefits provided by that person himself, but include any means by which it is in that person's power to facilitate access to benefits provided by any other person (the “actual provider”).

(8) Where by any provision of this Order the affording by any person of access to benefits in a discriminatory way is in certain circumstances prevented from being unlawful, the effect of the provision shall extend also to the liability under this Order of the actual provider.

(9) Subject to paragraph (10), in this Order references (however expressed) to acts done or to power to do any acts include references to acts done or power to do the acts outside Northern Ireland.

(10) Paragraph (9)—

(a) is without prejudice to Article 6 or any order under paragraph (3) of that Article;

(b) is subject to any other provision of this Order which is by its express terms limited to acts done in Northern Ireland; and

(c) does not apply to references to acts which may be the subject of criminal proceedings under this Order.

(11) References in this Order to a contract include references to a contract which is not governed by the law of Northern Ireland.

(12) References in this Order to the Crown are to the Crown in right of the Government of the United Kingdom and in right of the Government of Northern Ireland.

F2 SR 2003/520

“Discrimination” and “unlawful discrimination” N.I.

3.—(1) In this Order “discrimination” means—

(a) discrimination on the ground of religious belief or political opinion; or

(b) discrimination by way of victimisation;

and “discriminate” shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of[F3 a provision of this Order, other than a provision to which paragraph (2A) applies,] if—

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.

[F3 (2A) A person also discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B) if—

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;

(ii) which puts that other at that disadvantage; and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

(2B) The provisions mentioned in paragraph (2A) are—

(a) Part III;

(b) Article 27, so far as it applies to vocational training or vocational guidance;

(c) Article 32; and

(d) Part V, in its application to the provisions referred to in sub-paragraphs (a) to (c).]

(3) A comparison of the cases of persons of different religious belief or political opinion under paragraph (2)[F3 or (2A)] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(4) A person ( “A”) discriminates by way of victimisation against another person ( “B”) in any circumstances relevant for the purposes of this Order if—

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

(b) he does so for a reason mentioned in paragraph (5).

(5) The reasons are that—

(a) B has—

(i) brought proceedings against A or any other person under this Order; or

(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

(7) For the purposes of this Order a person commits unlawful discrimination against another if—

(a) he does an act[F3 other than an act of harassment] in relation to that other which is unlawful by virtue of any provision of Part III or IV; or

(b) he is treated by virtue of any provision of Part V as doing such an act.

F3 SR 2003/520

[F4 “Harassment” and “unlawful harassment” N.I.

3A.— (1) A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of—

(a) violating B's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

(3) For the purposes of this Order a person subjects another to unlawful harassment if he engages in conduct in relation to that other which is unlawful by virtue of any provision mentioned in Article 3(2B).]

F4 SR 2003/520

“Affirmative action” N.I.

4.—(1) In this Order “affirmative action” means 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—

(a) the adoption of practices encouraging such participation; and

(b) the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation.

(2) In the application of this Article for the purposes of Part VII, references to employment are references to employment within the meaning of that Part.

“Equality of opportunity” N.I.

5.—(1) In this Order “equality of opportunity” means equality of opportunity between persons of different religious beliefs.

(2) For the purposes of this Order a person of any religious belief has equality of opportunity with a person of any other religious belief if, being—

(a) a person who is seeking employment or is in employment; or

(b) a person who is seeking to become engaged in, or is engaged in, any occupation,

he has in any circumstances the same opportunity of a kind mentioned in paragraph (4) as that other person has or would have in those circumstances, due allowance being made for any material difference in their suitability.

(3) For the purposes of paragraph (2), 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.

(4) The kinds of opportunity referred to in paragraph (2) are—

(a) in relation to an employment, the opportunity to be considered, and to be submitted for consideration, for the employment and to have and to hold it on any terms, with access to all benefits connected with it and without being subjected to any detriment; and

(b) in relation to an employment oran occupation—

(i) the opportunity to become, and remain, on any terms a member of any vocational organisation which exists for purposes of the employment or the occupation (or for purposes of employments or occupations of any class which includes the employment or occupation), with access to all benefits of membership and without being subjected to any detriment; and

(ii) where services in connection with training for the employment are provided by a person other than the employer, or where services in connection with training for the occupation are provided by any person, the opportunity to have those services on any terms, with access to all benefits connected with them; and

(iii) the opportunity to have conferred on him, and to hold, on any terms any qualification which is needed for, or facilitates, his engagement in the employment or the occupation.

(5) Any reference in this Order to the promotion of equality of opportunity includes a reference to the promotion of affirmative action and, accordingly, any reference to action for promoting equality of opportunity includes a reference to affirmative action.

“Employment in Northern Ireland” and “occupation in Northern Ireland” N.I.

6.—(1) For the purposes of this Order, employment is to be regarded as being employment in Northern Ireland [F5 if the employee—]

[F5 (a) does his work wholly or partly in Northern Ireland; or

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

[F5 (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.]

[F6 (2) The reference to "employment" in paragraph (1) includes—

(a) employment on board a ship registered at a port of registry in Northern Ireland; and

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

[F5 (3) In relation to employment concerned with exploration of the sea bed or subsoil or the exploitation of their natural resources, the Department may by order provide that—

(a) paragraph (1) shall have effect as if the references to Northern Ireland in sub-paragraphs (a) and (b) included any area for the time being designated under section 1(7) of the Continental Shelf Act 1964, or any part of such an area, in which the law of Northern Ireland applies; and

(b) paragraph (2) shall have effect as if the last reference to Northern Ireland included such an area, or any part of such an area.]

(4) An order under paragraph (3) may provide that, in relation to employment to which the order applies, this Order is to have effect with such modifications as are specified in the order.

(5) In this Article references to the work an employee does include—

(a) in relation to a person who is seeking employment, references to the work he would do if employed; and

(b) in relation to a person who has ceased to be in employment, references to the work he did when employed.

(6) This Article has effect for construing references in this Order to a person's being engaged, or seeking to become engaged, in an occupation in Northern Ireland as if references in this Article to employment were references to an occupation and references to an employee were references to a person engaged, or seeking to become engaged, in an occupation.

(7) In the application of this Article for the purposes of Part VII, references to employment are references to employment within the meaning of that Part.

F5 SR 2003/520

F6 SR 2000/8