 |
PLEASE NOTE: This section is currently being updated - Jan 2008
THE EMPLOYMENT EQUALITY (SEXUAL ORIENTATION) REGULATIONS
(NORTHERN IRELAND) 2003 (AS AMENDED)
The Employment Equality (Sexual Orientation) Regulations (Northern
Ireland) 2003 (“SOR”) outlaws discrimination on
grounds of sexual orientation in employment and training.
They were designed to give effect to the provisions of the
Framework Directive 2000/78/EC on equal treatment in employment
and occupation and to provide for the first time protection
against discrimination in grounds of sexual orientation. The
rights contained in SOR afford the same legal rights and protections
to children and young people under 18 in employment and vocational
training as are afforded to adults.
The Regulations came into operation on 2nd December 2003 but
have been subject to amendment since that date. The SOR were
most recently amended by the Civil Partnership Act 2004 which
came into operation on 5th December 2005 and those amendments
are referred to below. Although the SOR provides some limited
statutory permissions for engaging in positive action in relation
to employment and training, they do not impose on individuals
or organizations positive obligations to take proactive steps
to promote equality of opportunity between persons of a different
sexual orientation . The SOR, like the SDO, is particularly
restrictive in this regard. Its main thrust is therefore prohibitive
which limits its potential for achieving structural change.
Key Concepts
The Regulations define “sexual orientation” as
sexual orientation towards
• persons of the same sex;
• persons of the opposite sex; or
• persons of the same sex and of the opposite sex
Definitions of discrimination on grounds of sexual
orientation
SOR expressly defines four main types of unlawful discrimination:
• Direct discrimination
• Indirect discrimination
• Harassment
• Victimization
Direct discrimination
Direct discrimination is perhaps the simplest form of discrimination
to identify and understand. It is clear from earlier case
law under the other discrimination strands that direct discrimination
does not have to be deliberate and that motive or intention
is irrelevant
Article 3(2) (a) of SOR provides that a person discriminates
against another if, on grounds of sexual orientation he treats
that other less favourably than he treats or would treat other
persons in the same or not materially different circumstances.
Indirect Discrimination
Indirect 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 provision criterion or practice, although
applied equally to others, has the effect of disadvantaging
persons of a particular sexual orientation and it cannot be
justified. The question of objective justification is approached
by determining whether there is a legitimate aim and whether
the means chosen are proportionate.
Harassment
Regulation 5 provides:
(1) A person (A) subjects another person (b) to harassment)
where, on grounds of sexual orientation A engages in unwanted
conduct that 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.
A similar definition is now contained in the RRO, SDO, DDA
and FETO.
Harassment on grounds of sexual orientation may relate to
ongoing harassive treatment over a period of time or a sufficiently
serious one off incident. Cases of harassment at work, during
training or in further and higher education, may be challengeable
under SOR. There may also be additional legal protection from
harassment available under the Protection from Harassment
(Northern Ireland) Order 1997 (PHO). In the recent 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.
It is strongly arguable that the Act (and the PHO) is equally
applicable to harassment or bullying in, for example, a school
or training context where the necessary connection is established.
Victimisation
Article 4 of SOR provides that it is unlawful to victimize
individuals who have made allegations or complaints of discrimination
on grounds of sexual orientation or provided information or
assisted another to make a complaint. Victimisation 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 SOR
SOR is more restrictive in its scope than the other discrimination
statutes. It covers discrimination in:
• Employment and vocational training (including work
experience)(Part II)
• Further and Higher Education (Part II)
Note that unlike the other discrimination statutes SOR does
not at present prohibit discrimination in the provision of
goods and services including education (other than FE) and
the disposal of premises. Government has however signalled
its intention to legislate for such a prohibition with effect
from October 2006.
Employment
“Employment “under SOR 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 SOR 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 (provided they are lawfully in employment)
, length of service and hours worked. Therefore young people
who are seeking or who already have part-time or holiday jobs
may be able to challenge discrimination on grounds of sexual
orientation under SOR.
Who has rights under Part II (Employment and Training)?
SOR provides protection to a wide variety of groups in relation
to employment and training and included amongst these are:
• those seeking employment;
• existing employees;
• those seeking training placements;
• those on training placements;
• those on practical work experience;
• contract worker;
• agency workers.
Who has responsibilities under Part II (Employment
and training)?
Included amongst those with legal responsibilities in relation
to employment and training under SOR 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 that can confer
authorization or qualification to engage in a particular trade
or professional.
Regulation 6(1) of SOR provides that it is unlawful to discriminate
on grounds of sexual orientation against a person seeking
employment in relation to:
• the arrangements made for determining 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.
Regulation 6(2) provides that In relation to existing employees
it is unlawful to discriminate on grounds of sexual orientation
in relation to
• opportunities for promotion transfer or training;
• in relation to benefits and facilities;
• dismissal;
• by subjecting that other to any other detriment;
Regulation 6(3) makes it unlawful for an employer to subject
to harassment an employee or applicant for employment.
Regulation 19 of SOR provides that it is unlawful for those
concerned with the provision of vocational training to discriminate
on grounds of sexual orientation
• in relation to access to any training course or other
facilities concerned with such training;
• by deliberately omitting to afford such access;
• in the terms on which the training is provided;
• by terminating the training;
• by subjecting a person to any detriment during the
course of training;
• by subjecting to harassment.
Regulation 23 expressly outlaws post termination discrimination/harassment.
The most common circumstance 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 sexual orientation.
Exception to the prohibition on discrimination on grounds
of sexual orientation in the employment field.
Article 8 of SOR, in common with the RRO and FETO, contains
a restrictive exception to the prohibition on discrimination
where there is a genuine and determining occupational requirement
(GOR). In accordance with established principles, however,
exceptions to the equality principle must be narrowly construed.
Education
Discrimination in the field of education is also prohibited
under Part II of SOR. However the scope of protection against
discrimination is narrower than that which applies under the
SDO and the RRO as it is currently restricted to the field
of further and higher education including universities. By
contrast the SDO and RRO potentially apply to all educational
establishments. Discrimination on grounds of sexual orientation
in primary and secondary schools is not at present prohibited
under SOR. As stated earlier, Government has signalled its
intention to legislate for such a prohibition albeit limited
with effect from October 2006. However it may also in certain
circumstances be possible to challenge discrimination in education
on grounds of sexual orientation by relying on Article 2 Protocol
1 (Right not to be denied an effective education) of the ECHR
read together with Article 14 (non-discrimination)
Under Regulation 22 of SOR, which applies to actual and prospective
students, an educational establishment coming within SOR cannot
discriminate on grounds of sexual orientation;
• in the terms on which it offers to admit a person
to the establishment as a student,
• by refusing or deliberately omitting to accept an
application for admission to the establishment as a student;
or
where a person is a student in the establishment,
• in the way it affords 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.
Other unlawful acts (Part III)
Vicarious liability
Regulation 24 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 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
Regulation 25 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 this Regulation.
General Exceptions
National Security
Regulation 26 provides an exception in relation to acts done
for the purpose of safeguarding national security.
Positive Action
The SOR does not allow positive discrimination i.e. an employer
cannot try to change the profile of the workforce by selecting
someone on grounds of sexual orientation. This is direct discrimination
and is unlawful.
Regulation 29, however, provides a limited exception allowing
discrimination in certain specified circumstances in training
or encouragement to apply for particular work in where it
prevents or compensates for disadvantages linked to sexual
orientation. This is referred to as positive action and is
lawful. 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.
Welcoming statements are a common form of positive action
e.g. an advertisement for a vocational training programme
which makes clear that applications from all are welcome regardless
of sexual orientation.
ENFORCEMENT OF INDIVIDUAL RIGHTS UNDER THE SOR
Role of the Equality Commission for Northern Ireland (ECNI)
The ECNI has overall statutory responsibility for enforcement
of the SOR. Regulation 30 imposes duties on the Commission
to
• work towards the elimination of discrimination;
• to promote equality of opportunity between persons
of differing sexual orientations.
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 Regulation
40 of the SOR. 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 with
applications to the Equality Commission.
The ECNI also has power to undertake research and education
and to issue Codes of Practice. Unlike the other discrimination
strands the ECNI has no powers to conduct formal investigations
into discrimination on grounds of sexual orientation.
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 II) are heard in
the Industrial Tribunal. Education cases under Regulation
22 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 sexual orientation discrimination
proceedings before the industrial tribunal and the county
court are different. Regulation 41 of the SOR contains the
provisions relating to time limits.
Industrial tribunal Proceedings
Proceedings in the Industrial Tribunals are commenced by way
of a Claim Form Application (IT1). In sexual orientation 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 sexual orientation was the reason for the refusal
the time limit will run from the date on which you first learned
that you application had been unsuccessful whether orally
or in writing. Where the act of discrimination continues over
a period of time (e.g. a continuous campaign of 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
Education cases under Regulation 22 are dealt with in the
County Court. County Court proceedings are commenced by Ordinary
Civil Bill. Claims under Regulation 22 instituted 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.
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.
Regulation 39 of the SOR 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 sexual orientation 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 sexual orientation discrimination is
upheld in the County Court the remedies available are comparable
to those available in the High Court.
|
