 |
PLEASE NOTE: This section is currently being updated - Jan 2008
THE SEX DISCRIMINATION (NORTHERN
IRELAND) ORDER 1976 (AS AMENDED)
The Sex Discrimination (Northern Ireland) Order 1976 ( “SDO”)
came into force on 2nd July 1976 and has been amended many
times since its enactment largely because of the impact of
European Community Law in particular the Equal Treatment Directive76/207/EC
and, more recently, the Revised Equal Treatment Directive
2002/73. The SDO was most recently substantially amended by
the Employment Equality (Sex Discrimination) Regulations (Northern
Ireland) 2005 (the 2005 Regulations). The SDO not only outlaws
discrimination on grounds of sex but also (in relation to
acts covered by part III which relates to the areas of employment
and training) discrimination against married people on grounds
of their marital status.
The rights contained in the SDO afford the same legal rights
and protections to children and young people under 18 as are
afforded to adults.
Although the SDO provides some limited statutory permissions
for engaging in positive action in relation to employment
and training, it does not impose on individuals or organisations
positive obligations to take proactive steps to promote equality
of opportunity between the sexes . The SDO is very restrictive
o in this regard. Its main thrust is therefore prohibitive
which limits its potential for achieving structural change.
In addition to the legislation there is a statutory Code of
Practice to which Courts and Tribunals must have regard in
determining relevant cases under the SDO.
Definitions of sex discrimination
The SDO at present expressly defines five main types of unlawful
discrimination:
• Direct discrimination
• Indirect discrimination
• Pregnancy discrimination
• Harassment
• Victimisation
Direct discrimination
Direct discrimination is perhaps the simplest form of discrimination
to identify and understand.
Article 3(1) (a) of the SDO provides that a person discriminates
against another if on grounds of her sex he treats her less
favourably than he treats or would treat another in the same
or not materially different circumstances.
In 1999 the definition of direct discrimination in the SDO
was amended by the Sex Discrimination (Gender Reassignment)
Regulations 1999. Those Regulations added a new article 3A
to the SDO providing that less favourable treatment of a person
is also unlawful if it is on ground that she or he “intends
to undergo, is undergoing, or has undergone gender reassignment.”
Article 5(1)(a) provides that a person discriminates against
another if on grounds of her marital status he treats that
other less favourably than he treats or would treat another
unmarried person of the same sex in the same or not materially
different circumstances Following the entry into force of
the Civil Partnership Act 2004 the protection against discrimination
has extended to people who are in a civil partnerships.
Direct discrimination does not need to be deliberate as it
is now clearly established that motive and intention are irrelevant.
Further and significantly direct discrimination, for the purposes
of the SDO, once established cannot be justified.
Indirect Discrimination
Indirect sex discrimination is a more complex concept than
direct discrimination and not so readily identifiable. In
brief, it is concerned with the situation where the application
of an apparently neutral criterion, provision or practice,
although applied equally to others, has the effect of disadvantaging
a particular gender group and it cannot be objectively justified.
The question of objective justification is now approached
by determining whether there is a legitimate aim and whether
the means chosen are proportionate. A possible example is
the imposition of a height requirement (which may adversely
impact against females who are on average shorter than males)
for undertaking particular employment or training which is
not in fact necessary for the safe and effective performance
of the job or participation in the training in question.
Pregnancy discrimination
Although until recently there was no express reference to
pregnancy discrimination in the SDO, the prohibition on direct
sex discrimination has long been interpreted to include discrimination
on grounds of pregnancy or maternity. The 2005 Regulations
have now amended the SDO to include an express prohibition
against such discrimination.
If for example a young woman is dismissed from her employment,
excluded from training or school or subjected to any other
detriment on grounds of pregnancy or exercising her statutory
right to maternity leave this may give rise to a claim of
unlawful direct sex discrimination.
Sexual harassment
Although it is well established that sexual harassment amounts
to unlawful sex discrimination, the 2005 Regulations amend
the SDO to include, for the first time, an express prohibition
on such conduct . A complaint of sexual harassment can relate
to a course of conduct or a sufficiently serious “one-off”
incident. Cases of sexual harassment at work, during training
or at school (e.g. sexist name calling or assaults) may be
challengeable under the SDO. The first sexual harassment case
in Northern Ireland under the SDO was pursued by a young woman
subjected to harassment at work. She was an apprentice mechanic
working with exclusively male colleagues.
There may also be additional legal protection from harassment
available under the Protection from Harassment (Northern Ireland)
Order 1997 (PHO). In the case of Majrowski v Guys and St Thomas’s
NHS Trust , a case brought under the equivalent legislation
applying in Great Britain ( the Protection from Harassment
Act 1997), the House of Lords has held that an employer could
be held vicariously liable for the actions of its employee
under that Act. The case involved an allegation that Mr Majrowski
had been harassed by his line manager and that one of the
reasons for the harassment was Mr Majrowski’s sexual
orientation. The court held that liability could be established
under the Act provided that the wrongful actions were sufficiently
closely connected with the employment. Although the case concerned
discrimination on grounds of sexual orientation, the legal
principles established are arguably equally applicable to
cases of sexual harassment. It is also strongly arguable that
the Act (and the PHO) equally apply to harassment or bullying
in, for example, a school or training context where the necessary
connection is established.
Victimisation
Article 6 of the SDO provides that it is unlawful to victimize
individuals who have made allegations or complaints of sex
discrimination or provided information or assisted another
to make a complaint. Victimization may for example take the
form of ostracizing or disciplining someone or dismissing
them. The victimization provision does not apply in relation
to allegations, which were false and not made in good faith.
Scope of the SDO
The SDO provides protection against sex discrimination in
a number of areas that are clearly relevant to the lives of
children and young people in Northern Ireland. It covers discrimination
in:
• Employment and vocational training (including practical
work experience) (Part III);
• Education (Part IV);
• The provision of Goods Facilities and Services (Part
IV);
• Housing and the disposal of premises (Part IV).
Employment
“Employment “under the SDO, in common with the
other discrimination statutes, is widely defined and includes
a contract of service or apprenticeship and the wider notion
of a contract personally to execute work or labour.
The protection provided by the SDO relates to “employment
at an establishment in Northern Ireland” which is widely
defined to include the situation where the work is wholly
or partly in Northern Ireland or wholly outside Northern Ireland
provided certain conditions are met.
The protection provided in relation to employment applies
to all regardless of age, length of service and hours worked.
Therefore young people who are seeking or who already have
part-time or seasonal (e.g. holiday jobs) may be able to challenge
sex discrimination under the SDO.
Who has rights under Part III (Employment and Training)?
The SDO provides protection to a wide variety of groups in
relation to employment and included amongst these are:
• those seeking employment;
• existing employees;
• those seeking training placements;
• those on training placements;
• those on practical work experience;
• contract workers;
• agency workers.
Who has responsibilities under Part III (Employment
and Training)?
Included amongst those with legal responsibilities in relation
to employment and training under the SDO are:
• employers of all sizes (including prospective employers);
• those arranging/providing training;
• those arranging/providing work experience placements;
• employment agencies;
• workers organizations (e.g. trade unions);
• employers’ organizations;
• qualifying bodies i.e. those bodies which can confer
authorizations or qualifications to engage in a particular
trade or occupation.
Article 8(1) of the SDO provides that it is unlawful to discriminate
on grounds of sex against those seeking employment in relation
to:
• the arrangements made for deciding who should be offered
employment (includes advertising, selection/appointment methods,
selection criteria interview etc.);
• the terms on which the employment is offered;
• by refusing or deliberately omitting to offer the
employment.
Article 8(2) provides that, in relation to existing employees,
it is unlawful to discriminate on grounds of sex in relation
to
• opportunities for promotion transfer or training;
• in relation to benefits and facilities;
• dismissal;
• by subjecting an employee to any other detriment.
It is important to note that Article 8(2) does not however
deal with gender discrimination in contractual pay and benefits.
This form of discrimination is dealt with separately under
the Equal Pay Act (Northern Ireland) 1970 as amended.
Article 8(2A) makes it unlawful for an employer to subject
to harassment an employee or an applicant for employment.
Article 17(1) makes it unlawful for those concerned with the
provision of vocational training or making arrangements for
such training to discriminate:
• in the arrangements made for determining who receives
such training;
• in the terms on which access to such training is afforded;
• by refusing or deliberately refusing to afford access;
• by terminating such training;
• by subjecting a person to any detriment during the
course of such training;
• by subjecting to harassment.
“Vocational training” means all types and all
levels of vocational training, advanced vocational training,
and vocational guidance including practical work experience.
It is also important to note that new article 22A expressly
outlaws post termination discrimination/harassment. One of
the most common circumstances in which this right is likely
to apply is where a former employer or training provider refuses
to provide a reference or provides a bad reference on grounds
of sex.
Exceptions to the prohibition on sex discrimination in the
employment field
Genuine Occupational Qualification (GOQ)
Article 10 of the SDO expressly provides specific circumstances
where it may be lawful to discriminate on grounds of sex on
the basis that there is a genuine occupational qualification
(GOQ) for recruiting on the basis of gender. The list is exhaustive
and in accordance with well established principles any exception
to the equality principle must be narrowly construed. The
main circumstances listed in article 10(2) are as follows:
• for reasons of physiological authenticity;
• to preserve privacy and decency;
• the job in question involves doing work or living
in a private household and involves close physical or social
contact with the employer to which there might be reasonable
objection;
• the job requires living in and there are facilities
for one sex only;
• the job is at an establishment for persons of a particular
sex requiring special supervision;
• jobholder provides services promoting welfare/education
and those services can most effectively be provided by a person
of a particular gender;
• job involves work outside UK in order to comply with
the laws and/or customs of that country;
• job is one of two to be held by a married couple.
Note: The GOQ exception cannot be relied upon if there are
already sufficient persons of the required gender who can
carry out the duties that attract the GOQ.
Articles 10A and 10B contain an equivalent GOQ exception in
relation to gender-reassignment that has been significantly
narrowed by the Gender Recognition Act 2004
Education
Sex discrimination in the field of education is prohibited
under Part IV of the SDO. The provisions referred to below
were invoked to challenge successfully gender discrimination
in the marking system adopted for the 11 Plus Transfer Procedure
in Re EOC’s Application.
Article 24, which applies to actual and prospective pupils,
provides that an educational establishment cannot discriminate
on grounds of sex:
• in the terms on which it offers to admit a person
to the establishment as a pupil;
• by refusing or deliberately omitting to accept an
application for admission to the establishment as a pupil.
Where a person is a pupil of the establishment,
• in the way it affords a person access to any benefits,
facilities or services, or by refusing or deliberately omitting
to afford access to them, or
• by excluding a person from the establishment or subjecting
that person to any other detriment.
These duties relate to both private and public sector educational
establishments.
Article 25 provides that the Education and Library Boards
are under a further duty not to discriminate.
Article 26 imposes a general duty on any body to which the
SDO legislation applies, to ensure that facilities for education
provided by it and any ancillary benefits or services are
provided without sex discrimination.
The Department of Education for Northern Ireland (DENI) has
the power to intervene and issue directions under article
101 of the Education and Libraries (Northern Ireland) Order
1986 to an educational establishment or authority which has
failed to observe the duties under Article 24, 25 or 26.
Exceptions in the education field
There are exceptions to the principle of non-discrimination
on grounds of sex in the field of education.
Article 27 provides an exception in relation to admissions
for single sex educational establishments which may discriminate
in relation to their admissions policy. That article also
provides that in certain circumstances a boarding school that
is not a single- sex establishment may lawfully discriminate
in its admission policy for boarders and the provision of
boarding facilities.
Article 28 provides a further exception for single-sex establishments
turning co-educational.
Article 29 of the SDO as originally enacted provided an exception
in relation further education courses in physical training.
This exception has been repealed.
Provision of Goods Facilities and Services
Part IV of the SDO prohibits sex discrimination in the provision
of goods, facilities and services. The SDO provides quite
extensive protection against such discrimination. Article
30 makes it unlawful for any person concerned with the provision
(for payment or not) of goods, facilities or services to the
public or a section of the public to discriminate on grounds
of sex by
• refusing or deliberately omitting to provide the goods
or services;
• refusing or deliberately omitting to provide them
in the like manner or on the like terms as are normal in relation
to members of the opposite sex.
Article 30 provides examples of facilities and services but
this is not an exhaustive list. Included in the examples are
facilities and services provided by hotels, restaurants, cinemas,
theatres, leisure facilities, banks or insurance companies,
transport services, services provided by a profession or trade
or by a local or public authority).
If for example a shopping centre has a policy of refusing
admission to groups of young men and no such policy is applied
to comparable groups of young women this may amount to unlawful
sex discrimination.
Premises
The SDO provides protection in the private and public sector
against sex discrimination in terms of renting, buying /selling,
allocation or management of premises. “Premises”
should include land houses, flats and business premises. .
Article 31 of the SDO provides that it is unlawful for a person
to discriminate on grounds of sex in relation to premises
in Northern Ireland:
• in the terms on which the premises are offered;
• by refusing an application for those premises;
• in relation to any list of persons in need of premises
of that description.
The Northern Ireland Housing Executive, housing associations,
hostels, landlords estate agents property developers, owner-occupiers,
banks and building societies are all covered by SDO in this
regard.
Article 31(3) provides a limited exemption for owner-occupiers.
An occupier who owns an estate or interest in the premises
is exempt from the provision relating to disposal of the premises
unless that person uses an estate agent or otherwise advertises
the premises.
Article 33 contains an exception in relation to small dwellings
as defined in the Order.
Exceptions from Articles 30 & 31
There are a number of general exceptions to liability under
articles 30 and 31 as follows:
Article 33 contains a narrowly defined exception for small
dwellings.
Article 36 provides that it is permissible to restrict facilities
or services to one gender group where the place at which the
facilities or services are provided is a hospital or other
establishment for persons requiring special supervision. It
is also lawful to discriminate in the provision of facilities
or services at a place occupied or used for the purposes of
an organized religion but such discrimination must be in order
to comply with the doctrines of that religion or to avoid
offending the religious susceptibilities of a significant
number of the followers.
Article 36 also provides a further exemption for providers
of facilities or services where the presence of a man (or
a woman) is likely to cause “serious embarrassment.”
Other Unlawful Acts (Part V)
Advertisements
Article 39 provides that it is unlawful to publish or cause
an advertisement to be published which might reasonably be
understood as indicating an intention by a person to commit
an act of discrimination.
Instructions to discriminate
Article 40 provides that it is unlawful for any person to
instruct another to discriminate against a person e.g. where
a shop manager instructs staff not to serve or permit entry
to groups of teenage boys.
Pressure to discriminate
Article 41 provides that it is unlawful for any person to,
pressurize, induce or attempt to induce another to discriminate
against a person. Inducement is defined as “providing
or offering to provide him with any benefit or subjecting
or threatening to subject him to any detriment.”
Vicarious liability
Article 42 provides that employers are vicariously liable
for the acts of their employees done in the course of their
employment. An employer will have a defence against a claim
that s/he is vicariously liable where it can be shown that
s/he took such steps as were reasonably practicable to prevent
the employee from doing the particular act or acts of that
nature.
In order to avail of this defence an employer has to show
the precise steps that have been taken to prevent the discrimination
from occurring in the first place. It is not sufficient that
an employer reacts to discrimination once raised. They must
take proactive steps. These steps may include the adoption
and regular updating of a comprehensive equality policy that
has been clearly communicated to all employees and on which
all employees have been properly trained. It should also include
clear procedures for dealing with discrimination complaints
and ideally have a designated person with whom complaints
can be raised.
Aiding unlawful discrimination
Article 43 provides that it is unlawful to knowingly aid another
to discriminate. The most common example of this is where
someone is harassed by a work colleague/co-trainee who is
not the employer/training provider. The employer/training
provider and the harasser will have a separate liability with
the latter being potentially liable under article 43.
General Exceptions
Charities
Article 44 provides a general exception for provisions in
charitable instruments which confer benefits on persons of
one sex only (disregarding exceptional or insignificant benefits
to the other sex).
Sport
Article 45 provides a general exemption for competitive sports
and games where the strength, stamina and physique of an average
female places her at a disadvantage to the average male.
Positive Action
The SDO does not allow positive discrimination ie; an employer
cannot try to change the gender balance of the workforce by
selecting someone on grounds of sex. This is direct discrimination
and is unlawful.
Articles 48 and 49 provide limited exceptions allowing discrimination
in certain specified circumstances in training or encouragement
to apply for particular work in which members of a particular
sex have been under-represented. This is referred to as positive
action and is lawful. The aim of positive action is to ensure
that those from the previously excluded or under-represented
gender group can compete on equal terms with other applicants.
It is intended to make up for the effects of past discrimination.
The law does not compel employers to take positive action
but it permits them to do so.
One example of lawful positive action may be the provision
of single-sex training courses to equip girls to compete for
posts in an area of work in which females have traditionally
been under represented e.g. light engineering.
National Security
Article 53 provides an exception to the prohibition on discrimination
in relation to acts done for the purpose of safeguarding national
security.
ENFORCEMENT OF INDIVIDUAL RIGHTS UNDER THE SDO
Role of the Equality Commission for Northern Ireland (ECNI)
The ECNI has overall statutory responsibility for enforcement
of the SDO. Article 54 imposes duties on the Commission to
• work towards the elimination of discrimination;
• to promote equality of opportunity between females
and males generally.
The ECNI carries out its statutory remit through a range of
functions. Most important of these in terms of enforcing the
right of individuals is the ECNI’s power to assist individuals
who make a formal application for assistance under Article
75 of the SDO. Assistance, if granted may be by way of advice
or, in some cases, by way of representation in the courts
or tribunals. The Children’s Law Centre can help children
and young people to make applications for assistance to the
ECNI.
The ECNI also has power to undertake research and education
, to issue Codes of Practice and conduct Formal Investigations.
Actions by the ECNI
There are a number of contraventions of the SDO referred to
earlier in this section that can be brought only in the name
of the ECNI and these are:
• Discriminatory Advertising (Article 39);
• Instructions to discriminate (Article 40);
• Pressure to discriminate (Article 41).
Role of the courts and tribunals in relation to individual
complaints
Cases of sex discrimination in employment and vocational training
or cases relating to work experience (Part III) are heard
in the Industrial Tribunal. All other cases including education,
access to goods and services, housing and accommodation (Part
IV) are heard in the County Court. In relation to both jurisdictions
strict time limits apply and these are discussed below.
Time limits
The time limits that apply in sex discrimination proceedings
before the Industrial Tribunals and the County Court are different.
Article 76 of the SDO contains the provisions relating to
time limits.
Industrial Tribunal Proceedings
Proceedings in the Industrial Tribunals are commenced by way
of a Claim Form (IT1). In sex discrimination cases involving
employment, vocational training and work experience an IT1
must be lodged with the tribunal before the end of the period
of 3 months beginning when the act complained of was done.
For example if you have been unsuccessful in your application
for a vocational training placement and you believe that your
gender was the reason for the refusal the time limit will
run from the date on which you first learned that your application
had been unsuccessful whether orally or in writing. Where
the act of discrimination continues over a period of time
(e.g. a continous campaign of sexual harassment) the three
month time limit will run from the end of the period. It is
however very important to distinguish between a series of
discrete incidents and an act that extends over a period.
In the former the time limit will begin to run after each
discrete incident.
County Court
Goods, services and housing
In the County Court proceedings are commenced by Ordinary
Civil Bill. In sex discrimination cases relating to goods,
facilities, services, housing and accommodation proceedings
must be issued before the end of the period of six months
beginning when the act complained of was done and, as with
proceedings in the industrial tribunal, an act of discrimination
which extends over a period i.e. is continuous shall be treated
as being done at the end of the period and the six month time
limit will run from that date.
Education
There are special rules relating to the time limits in education
cases that are quite complex. Article 66(5) provides that
before proceedings can be issued in education cases (SDO Articles
24, 25 and 26)
• The claimant must give notice of the claim to the
Department of Education for Northern Ireland (DENI) and
• DENI has notified the claimant that it does not require
further time to consider the matter or
• Two months has elapsed since the claimant gave notice
to the Department
In these types of cases the time limit for issuing an Ordinary
Civil Bill in the County Court is extended to eight months.
Claims which are out of time
Both the industrial tribunal and the County Court have a discretion
to admit claims outside the time limit where in all the circumstances
of the case the tribunal or court considers that it is just
and equitable to do so. The trend however in recent years
has been to exercise that discretion very sparingly.
Statutory Questionnaire Procedure
It is often difficult to obtain direct evidence of discrimination.
Article 74 of the SDO provides a statutory questionnaire procedure
that is available for obtaining information to claimants in
sex discrimination cases of all types. Claimants can ask questions
and seek documentary evidence from Respondents that will assist
them in determining whether they have been discriminated against.
Respondents are required to provide a response within 8 weeks.
It is important to remember that even if a response to a questionnaire
is outstanding the time limit continues to run in the usual
way as described above and therefore if necessary protective
proceedings should be lodged pending a response to the statutory
questionnaire.
Remedies
Where an individual is successful in a claim of unlawful discrimination
on grounds of sex in the Industrial Tribunal may:
• Make a Declaration of discrimination;
• Award compensation ( including compensation for injury
to feelings);
• Make a Recommendation that the Respondent take certain
steps to obviate the effects of the discrimination on the
Claimant/Plaintiff.
Where a complaint of sex discrimination is upheld in the County
Court the remedies available are comparable to those available
in the High Court. This may include awards of damages for
loss suffered and injury to feelings and /or Orders requiring
the Defendant to take or desist from certain action(s).
|
