The Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement (in Northern Ireland) the provisions of Council Directive 2000/78/EC (OJ No. L 303, 2.12.2000, p.16), establishing a general framework for equal treatment in employment and occupation (“the Directive”), so far as it relates to disability discrimination but only insofar as the Directive’s obligations impact upon Chapter II of Part III of the Special Educational Needs and Disability (Northern Ireland) Order 2005 (S.I. 2005/1117 (N.I. 6)) (“the 2005 Order”). The Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 (S.R. 2004/55), which came into operation on 1st October 2004, implemented the Directive’s obligations with respect to Parts II and III of the Disability Discrimination Act 1995.

New Article 28(3A) of the 2005 Order prohibits discrimination as regards the conferment of qualifications by bodies responsible for educational institutions or the arrangements made for the purpose of conferring such qualifications. (Regulation 5)

New Articles 28(3B) and 29A prohibit harassment by relevant institutions and define what harassment means. (Regulations 5 and 7)

New Article 29(2) defines discrimination as failing to comply with a duty imposed to make reasonable adjustments. The extent and meaning of that duty is set out in new Articles 30(1) to (1D) and 30A(5). (Regulations 6, 8 and 10)

New Article 29(5) to (11) amends the definition of “discrimination” and sets out the ambit of the justification defence for an act which constitutes discrimination. (Regulation 6)

New Article 29(10) prohibits direct discrimination and defines the term “direct discrimination”. (Regulation 6)

New Article 30(1) to (1D) imposes a duty to make reasonable adjustments in relation to admissions, student services, the conferment of qualifications and physical features of premises. (Regulation 8)

New Article 30A prohibits discrimination and harassment and imposes duties to make reasonable adjustments in relationships which have come to an end. (Regulation 10)

New Article 30B prohibits instructions and pressure to discriminate. (Regulation 10)

New Article 30C prohibits publishing discriminatory advertisements. (Regulation 10)

New Article 31(1A) makes provision for the burden of proof in proceedings brought under Chapter II. These Regulations also include transitional provisions concerning the burden of proof. (Regulations 3 and 11)

New Article 31A sets out the enforcement procedure for articles 30B and 30C. (Regulation 12)

These Regulations make provision for commencement on the day after they are made so far as enabling anything to be done for the purposes of preparing and bringing into operation on or after 1st September 2006 a code of practice under section 54A of the Disability Discrimination Act 1995 concerning any provision of the 2005 Order as it will have effect on or after that date by virtue of these Regulations. Otherwise, the Regulations come into operation on 1st September 2006. (Regulation 1)

A copy of the Transposition Notes in relation to the implementation of the Directive for Chapter II of Part III of the 2005 Order may be obtained from Further Education Division, Department for Employment and Learning, Adelaide House, 39-49 Adelaide Street, Belfast, BT2 8FD; and a copy has also been placed in the Library of the Northern Ireland Assembly.