2016 No. 191
Sex Discrimination

The Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2016

Made
Coming into operation
The Office of the First Minister and deputy First Minister, being a Department designated for the purposes of section 2(2) of the European Communities Act 19721 in relation to discrimination2, makes the following Regulations in exercise of the powers conferred by that section:

Citation, commencement and interpretation1.

(1)

These Regulations may be cited as the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2016 and shall come into operation on 2nd May 2016.

(2)

The Interpretation Act (Northern Ireland) 19543 shall apply to these Regulations as it applies to an Act of the Assembly.

Amendment of the Sex Discrimination (Northern Ireland) Order 19762.

The Sex Discrimination (Northern Ireland) Order 19764 (“the 1976 Order”) is amended in accordance with regulations 3 to 20.

Amendment of Article 2 of the 1976 Order3.

In Article 2 (interpretation)—

(a)

in paragraph (2)5, omit the definition of “provision, criterion or practice”;

(b)

in paragraph (7)(b)6, after “3,” insert “3A”.

Amendment of Article 3 of the 1976 Order4.

(1)

For Article 37 (direct and indirect discrimination against women), substitute the following—

“Direct discrimination on the ground of sex3.

In any circumstances relevant for the purposes of any provision of this Order, a person (“A”) discriminates against another (“B”) if, on the ground of sex, A treats B less favourably than A treats or would treat another person.”.

(2)

After Article 3, insert the following—

“Indirect discrimination on the ground of sex3A.

(1)

In any circumstances relevant for the purposes of any provision of this Order, a person (“A”) discriminates against another person (“B”) if A applies to B a provision, criterion or practice which is discriminatory in relation to B’s sex.

(2)

For the purposes of paragraph (1), a provision, criterion or practice is discriminatory in relation to B’s sex, if –

(a)

A applies, or would apply, it to persons of a different sex,

(b)

it puts, or would put, persons of the same sex as B at a particular disadvantage when compared with persons of a different sex,

(c)

it puts, or would put, B at that disadvantage, and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.”.

Amendment of Article 4 of the 1976 Order5.

In Article 4 (sex discrimination against men)—

(a)

in paragraph (1), omit “Article 3 and”;

(b)

in paragraph (2), after “paragraph (1)” insert “and Articles 3 and 3A,”.

Amendment of Article 4A of the 1976 Order6.

(1)

Article 4A8 (discrimination on the grounds of gender reassignment) is amended as follows.

(2)

In the heading, for “Discrimination” substitute “Direct discrimination”.

(3)

In paragraph (1)(b), for the word “he” in each place, substitute “A”.

(4)

In paragraph (3)—

(a)

for the word “he” in each place, substitute “B”;

(b)

in sub-paragraph (b), for “him” substitute “B”.

Insertion of Article 4B into the 1976 Order7.

After Article 4A (discrimination on the ground of gender reassignment), insert the following—

“Indirect discrimination on the ground of gender reassignment4B.

(1)

A person (“A”) discriminates against another person (“B”) in any circumstances relevant for the purposes of —

(a)

any provision of Part 3; or

(b)

any provision of Part 4, so far as it applies to vocational training,

if A applies to B a provision, criterion or practice which is discriminatory in relation to B’s gender reassignment.

(2)

For the purposes of paragraph (1), a provision, criterion or practice is discriminatory in relation to B’s gender reassignment if—

(a)

A applies, or would apply, it to persons who do not intend to undergo, are not undergoing or have not undergone gender reassignment;

(b)

it puts, or would put, persons who intend to undergo, are undergoing or have undergone gender reassignment at a particular disadvantage when compared with persons who do not intend to undergo, are not undergoing or have not undergone gender reassignment;

(c)

it puts, or would put, B at that disadvantage; and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.”.

Amendment of Article 7 of the 1976 Order8.

In Article 79 (basis of comparison)—

(a)

before paragraph (a), insert—

“(aa)

a comparison of the cases of persons required for the purposes of Article 3,”.

(b)

in paragraph (a), for “Article 3(1) or (2)” substitute “Article 3A”;

(c)

in paragraph (b), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 8 of the 1976 Order9.

In Article 8(8)10 (applicants and employees), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 10A of the 1976 Order10.

In Article 10A(1)11 (corresponding exception relating to gender reassignment), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 10B of the 1976 Order11.

In Article 10B(1)12 (supplementary exceptions relating to gender reassignment), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 11 of the 1976 Order12.

In Article 11(7)13 (Equal Pay Act (Northern Ireland) 1970), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 12 of the 1976 Order13.

In Article 1214 (contract workers)—

(a)

in paragraph (3A), for “Article 4A” substitute “Article 4A or 4B”;

(b)

in paragraph (3B), for “Article 4A” substitute “Article 4A or 4B”;

(c)

in paragraph (3C), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 14 of the 1976 Order14.

In Article 1415 (partnerships)—

(a)

in paragraph (3A), for “Article 4A” substitute “Article 4A or 4B”;

(b)

in paragraph (3B), for “Article 4A” substitute “Article 4A or 4B”;

(c)

in paragraph (3C), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 35 of the 1976 Order15.

In Article 35(5)16 (exception for voluntary bodies), for “Article 3 or 4A” substitute “Article 3, 3A or 4A”.

Amendment of Article 38 of the 1976 Order16.

In Article 38(1)17 (discriminatory practices)—

(a)

in sub-paragraph (a)—

(i)

omit the word “(a)”;

(ii)

for “3(2)(b)” substitute “3A”;

(iii)

omit the word “,or” (at the end of sub-paragraph (a));

(b)

omit sub-paragraph (b).

Amendment of Article 44 of the 1976 Order17.

In Article 44(2A)18 (charities), for “Article 3 or 4A” substitute “Article 3, 3A or 4A”.

Amendment of Article 47 of the 1976 Order18.

In Article 47(4)(c)19 (communal accommodation), for “Article 4A” substitute “Article 4A or 4B”.

Amendment of Article 65 of the 1976 Order19.

In Article 65(1B)20 (remedies on complaint under Article 63), for “Article 3(2)(b)” substitute “Article 3A”

Amendment of Article 66 of the 1976 Order20.

In Article 66 (claims under Part IV)—

(a)

omit paragraph (3)21;

(b)

omit paragraph (3A)22.

Amendment of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 199021.

In Article 3(3) of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 199023—

(a)

for “Article 3(2)(b)(i)”, substitute “Article 3A(2)(b)”;

(b)

in sub-paragraph (a), for “justifiable as mentioned in Article 3(2)(b)(ii) or 5(1)(b)(ii)” substitute “proportionate as mentioned in Article 3A(2)(d) or 5(1)(b)(iii)”;

(c)

in sub-paragraph (b), for “Article 3(2)(b)(ii) or 5(1)(b)(ii)” substitute “Article 3A(2)(d) or 5(1)(b)(iii)”.

Transitional provision22.

The amendments to Article 66(3) and (3A) of the 1976 Order made by regulation 20 do not apply to any proceedings which were commenced but not disposed of before 2nd May 2016.

Sealed with the Official Seal of the Office of the First Minister and deputy First Minister on 22nd March 2016.

Margaret Rose McNaughton
A senior officer of the
Office of the First Minister and deputy First Minister
EXPLANATORY NOTE
(This note is not part of the Regulations)

These Regulations amend the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”) to give full effect in Northern Ireland to Council Directive 2006/54/EC of 5th July 2006 (“the Directive”) on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

Regulation 3 provides for the omission of the definition of “provision, criterion or practice” in Article 2(2) of the 1976 Order.

Regulation 4 inserts a new Article 3A into the 1976 Order to create a single definition of indirect discrimination which applies to all provisions of the 1976 Order. The regulation also substitutes Article 3 of the 1976 Order so that Article 3 only contains a single definition of direct discrimination which applies to all provisions of the 1976 Order.

Regulation 7 inserts a new Article 4B into the 1976 Order. This Article extends the 1976 Order to cover indirect discrimination on the ground of gender reassignment in employment and occupation.

Regulations 5, 6 and 8 to 20 make minor amendments to the 1976 Order consequential on the substitution of Article 3 of the 1976 Order with new Articles 3 and 3A (regulation 4) and the insertion of new Article 4B (regulation 7).

Regulation 21 amends Article 3(3) of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990 consequential on the substitution of Article 3 of the 1976 Order with new Articles 3 and 3A (regulation 4).

Regulation 22 contains a transitional provision to deal with cases before the court at the time of commencement of the Regulations.