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Fair Employment in Northern Ireland

Presented to Parliament by the Secretary of State for Northern Ireland by Command of Her Majesty
May 1988

Published in London by,
HER MAJESTY'S STATIONERY OFFICE, 1988

Cmd 380
ISBN 0 10 103802 X

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PREFACE
FOREWORD
CHAPTER 1:	INTRODUCTION AND GENERAL PRINCIPLES
	Introduction
	The Social and Economic Scene
	Aims of Policy
	Basic Principles
CHAPTER II:	INSTITUTIONAL CHANGES
	Introduction
	The Existing System and the Need for Change
	The Future Role of the FEA
	Individual Cases of Discrimination
	Appeals
	Conclusion
CHAPTER III:	THE RESPONSIBILITIES OF EMPLOYERS
	A Wider Concept of Equality of Opportunity
	Monitoring: The Need for Information
	Monitoring and Affirmative Action
	Conclusion
CHAPTER IV:	CODE OF PRACTICE
	The Role of the Code
	Legal Status of the Code
	Authorship of the Code
	Scope and Content of the Code
CHAPTER V:	MONITORING, REGISTRATION AND CERTIFICATION
	Introduction
	Mechanisms for Monitoring
	Relationships with the Commission
CHAPTER VI:	ENFORCEMENT, SANCTIONS AND EVALUATION
	Introduction
	Sanctions for Breaches of Duty
	Policy Evaluation

INTRODUCTION

1.1 There are clear and long-standing differences betweenthe employment experiences of the Catholic and the Protestantsections of the community in Northern Ireland. In particular,unemployment rates are significantly higher among Catholics andthey hold relatively fewer senior positions.

1.2 There are many reasons for these differentials whicharise from a range of social, geographical and historical influences.phenomenon of a cycle of disadvantage is an experience commonto parts of every industrial society and Northern Ireland is byno means unique in demonstrating that such a cycle can be verydifficult to break.

1.3 No society can afford the waste of talent or the senseof unfairness that such persistent disadvantage entails. In NorthernIreland social and economic influences have interacted with politicaland security issues to produce the intractable and well-knownproblems which have caused so much suffering in recent years. This makes it all the more important that no aspect of this wholecomplex of problems should be neglected.


THE SOCIAL AND ECONOMIC SCENE

1.4 The specific problem of the Catholic/Protestant differentialin employment experience needs to be seen in the context of theoverall economic situation in Northern Ireland. The scale ofthe current economic difficulties is well known. The unemploymentrate in Northern Ireland is almost double that in Great Britain,with a much higher incidence of long term unemployment. Thisis reflected in output in Northern Ireland per head of populationwhich is around two-thirds that in Great Britain. For those inwork earnings tend to be lower. Higher levels of unemploymentare reflected in higher dependency on social security benefits(23.8% of the population of Northern Ireland compared with 15%in Great Britain).

1.5 Unemployment and disadvantage affect Protestants aswell as Catholics. For example 1 in 5 Protestant families dependson supplementary benefit and over a quarter are in receipt ofhousing benefit. However, the most severe disadvantage is undoubtedlyconcentrated among Catholics. Of Catholic families more than1 in 3 depends on supplementary benefit and over 2 in 5 receivehousing benefit.

Religion and disadvantage

1.6 Discrimination - in the sense of adverse treatmenton grounds of religion - is undoubtedly one element which contributesto the relatively high disadvantage in employment which affectsmany Catholics. But while it is very difficult to quantify itsimpact, it is clear that it is by no means the sole nor even themain explanation. The situation is much more complex. The SACHRin its Report on Fair Employment issued in 1987, looked at tenpossible factors - other than religion - which might be felt toinfluence the differential 'employment experience of Catholicsand Protestants. These included demography, educational attainmentand a range of social and economic factors. The report foundsome evidence for the view that each of these factors contributedto the greater disadvantage experienced by Catholics; but foundthat it was impossible to quantify the overall importance of thesevarious factors with any confidence. They concluded:

"it is reasonable to suppose that religion is the mostlikelyexplanatory factor which accounts for at least someif notmost of the residual element"

"a residual factor which may account for some or all ofthe overall difference ... in so far as it cannot be explainedby other factors".

1.8 It is also important to recognise that discrimination,in the sense of the creation of disadvantage, is very often unintentional. It is quite possible for employment practices and policies toproduce a differential impact in practice even though they arenot designed with any discriminatory intent. Indeed such unconsciousdiscrimination can be particularly difficult to eliminate preciselybecause an employer may not be aware of what is happening. Intackling disadvantage the best starting point is therefore toestablish what is happening on the ground. If this shows an unjustifiableadverse impact on a particular group, the factors which are producingthat impact can be identified and tackled. In one sense it doesnot matter whether the effect is intended or not: the importantthing is to put it right. It is one of the chief aims of thenew legislation which the Government is now proposing that effectivemethods be available for tackling unintentional discriminationas well as deliberate discrimination.


AIMS OF POLICY

1.9 The overall objective of the Government's policy inthis field is therefore:
to have equality of opportunity in employment for all sectionsof the community.

The means by which this is to be achieved is:
promoting the use of good employment practices, designed toensure that no unnecessary obstacles are placed in the way ofany individual from any section of the community in gaining accessto employment opportunities.

Fair employment policy is one of the most important componentsof the Government's overall approach to tackling the problemsof disadvantage - an approach which extends across a broad rangeof educational, economic and social policies.


The importance of fair employment

1.10 The Government attaches particular importance to fairemployment for five main reasons:

(a)It is wrong in itself that anyone's employment prospectsshould suffer on account of their religious background
Where this is the result of deliberate prejudice, redressand protection must continue to be available to any individualwho is harmed. Where it results from unthinking or ill-informedaction, educational measures must be available to correct thesituation.

(b)Fair employment has a part to play in building a more unitedcommunity
Discrimination and disadvantage foster a sense of grievance. They are destructive of good community relations. Fair employmentgives more people a stake in society and is a stabilising influence.

(c)Fair employment will make best use of our human resources
It is an integral part of good personnel management practiceand will help to ensure the best person for the job.

(d) Fair employment will help to broaden employment opportunitiesfor people in areas of high unemployment
Unemployment in Northern Ireland is not only high in overall termsbut is unequal in its geographical distribution. Some areas (e.g.Strabane) suffer rates of male unemployment as high as 40%. Effortsto promote employment in such areas will continue to be vigorouslysupported by the Government, but unemployment problems as severeas those found in some particularly disadvantaged areas will notnecessarily, in the short term at any rate, be solved purely byemployment based in the immediate locality. It is therefore importantthat people living in these areas should have a full opportunityto apply and be considered on fair and equal terms for employmentoutside their immediate locality, and that they should not behindered - or feel themselves inhibited or discriminated against- in doing so.

(e)Fair employment will help to encourage inward investment
Northern Ireland competes for inward investment with many otherareas of Europe and more widely. It will not be assisted in thisif it has the reputation and image - whether deserved or not -of being an area where sectarian discrimination is practised ortolerated.

1.11 In pursuing its objectives, the Government regardsit as axiomatic that:

(a)Fairness in employment should be pursued through methodswhich are themselves fair to all
It would be unacceptable if the effect of action in this fieldwere to be simply to transfer disadvantage from one group to another. Measures to promote fairness must themselves give fair treatmentto all who are affected by them, or else they will fail by theirown test.

(b)Policy and practice must be forward-looking: they mustbe capable of sustaining their own momentum
The aim must be to create procedures and foster attitudes whichpre-empt any unfairness and which make equality of opportunitya natural outcome.

(c)Fair employment should contribute to the healing of divisionsin the community
One of the causes of discrimination is discord in the communityand the feelings of insecurity that this engenders. Fair employmentis more likely to be achieved in practice if it is pursued inways which tend to unite the community rather than to divide italong sectarian lines.

1.12 The Government believes that it is the direct corollaryof these basic principles that appointment to jobs should alwaysbe solely on merit, without regard to religious affiliation orbelief and in accordance with the obligation not to discriminate.

1.13 This is the premise upon which successive Governmentshave built their approach to fair employment in Northern Ireland. It is also fundamental to anti-discriminatory legislation incognate fields throughout the United Kingdom. To set merit asideand to make appointments or promotions on the basis of favouringone religious group over another would be grossly unfair to theindividuals thus excluded. It would also institutionalise badpractice rather than good and it would tend to exacerbate sectariandivisions rather than heal them. The fact that some would seeit as being done from a good motive, e.g. to counter-balance historicaldisadvantage, would make it no less inequitable or unsatisfactory.

1.14 The Government is therefore convinced that appointmenton merit is the only basis on which fair employment can properlybe promoted. But it is a necessary corollary that this must bedone in the context of a genuine determination to promote equalityof opportunity, in which case appointments on merit will contributeto this outcome and will advance the cause of fair employment. In practice this means that in selecting the best person forthe job or for promotion, employers must be careful to assessmerit according to:

(a) the actual requirements of the job - not irrelevant ones

(b) structured and job-related personnel criteria - not subjectiveand random ones

(c) potential ability -as well as past experience.

1.15 The meaning and content of affirmative action programmesis considered further in Chapters Ill to V. These explain thedetails of the new statutory duties which will be placed on employers,and set out how they will work in practice and the guidance andhelp that will be available to employers in discharging theirresponsibilities. Chapter 11 deals first with the institutionalchanges that are proposed, and sets out the role and structureof the new Fair Employment Commission and of the new Fair EmploymentTribunal.

INTRODUCTION

6.1 The main thrust of the Government's policy initiativeon fair employment is to improve employment practices and to changeattitudes. It is designed to help employers and others concernedbecome more aware of what is happening to the composition of theirworkforce and the factors that are producting that result; toheap them assess whether that result is satisfactory in termsof affording equality of opportunity; and to heap them in decidingwhat changes it may be necessary to make in their employment practicesso as better to afford equality of opportunity.

6.2 This is essentially an educational process and thisis one reason why particular emphasis has been placed on the Commission'seducational and promotional role. The Government is confidentthat the vast majority of employers will respond positively tothe new policy and will welcome the assistance which the Commissionwill be able to give them. In a very real sense it would be asign of failure of the educational aspect of the initiative if,in any particular case, it were necessary to resort to enforcementof change by means of due process of law or by the applicationof sanctions. Nevertheless, it is clearly right that there shouldbe an enforcement mechanism built into the new legislation sothat its aims may not be frustrated by either lack of energy orlack of goodwill on the part of any particular employer.


SANCTIONS FOR BREACHES OF DUTY

6.3 The sanctions that will be available under the newlegislation will fall into three main categories:

(a) Specific penalties for breach of certain specific duties.

(b) Enforcement of Directions issued by the Commission in patternand practice cases.

(c) Exclusion from a range of Government grants and from publicsector tenders of employers who are in serious breach of theirduties under the Act.

Specific duties

6.4Under the new legislation a number of specific dutieswill be imposed on employers. The most important of such dutieswill be:

(a) To register with the Commission (see para 5.12).

(b) To monitor the workforce (see paras 3.12 and para 5.13 (b)).

(c). To submit annual monitoring returns to the Commission (seepara 3.12 and para 5.13(c)).

(d) To surrender a Certificate if it is withdrawn (see para 5.17).

6.5 A Direction issued by the Commission will be bindingon the employer concerned. If a Direction is not complied with,the Commission will be able to apply to the Tribunal for an Orderof Compliance and the Tribunal will have power to make such anOrder in the terms applied for by the Commission or in differentterms. If the Order is not complied with to the satisfactionof the Commission, then (the Commission) will be able to applyto the High Court for the exercise of its contempt jurisdiction.

6.6The Tribunal's Order of Compliance will represent thefinal decision as to the precise steps which the employer musttake. If the Order is disobeyed, the Commission may refer thematter to the High Court where the Commission will need only todemonstrate that the Order has not been complied with. If theHigh Court is satisfied that the employer has disobeyed the Orderof Compliance it may punish the employer as if the Order was anOrder of the High Court. As this will involve the contempt jurisdictionof the High Court, the employer would be liable to unlimited finesor to committal or both, at the discretion of the High Court. The onus would then be on the employer to purge his contemptby discharging his obligations under the Order.


Public sector

6.7The specific and general duties imposed by the newlegislation will apply as much to the public sector as to theprivate sector. The consequences for breach of these duties willalso apply to both the public and private sectors, with whatevermodifications of detail may be appropriate to reflect the differentcircumstances and responsibilities which prevail in each case.


Grants and tenders

6.8The Government's aim is to use the force of publicexpenditure on goods and services and the availability of Governmentgrants as:

(a) a further inducement and encouragement to employers to complywith their statutory obligations;

(b) conversely, to use the exclusion from grants and tenders ofoffending employers as a mark of the Government's disfavour.

6.10 Eligibility for Government grants will also be linkedto Certification and to the discharge of statutory obligations. The precise range of grants which it would be appropriate toattach in this way is for consideration, but the Government intendsthat as a minimum grants linked to the creation or maintenanceof employment will be denied to employers who are in breach oftheir statutory obligations.


Security considerations

6.11 In the light of the continuing threat from terrorismin Northern Ireland, it is vitally important that the presentsafeguards for national security should continue to be availablein the new legislation. Section 42 of the 1976 Act provides thatthe legislation shall not apply to actions done for the purposeof safeguarding national security or protecting public safetyor public order. There is provision for the Secretary of Stateto issue a certificate which is then conclusive evidence thatan act was done for that purpose. The Agency is therefore precludedfrom pursuing an investigation into a complaint in respect ofwhich such b certificate has been issued. The Government considersthat it would be irresponsible to dispense with this provision. Regrettably, terrorist violence still plagues Northern Irelandand the Government has a paramount duty to protect national security,public safety and public order. The Government notes that theSACHR was also satisfied that a national security exception shouldremain. The Government is therefore convinced that section 42must remain in force, and that it should apply to the provisionsof the new legislation.


POLICY EVALUATION

6.12 Policy measures on fair employment need to be evaluatedperiodically to assess whether they are achieving their originalobjectives. Such evaluation is a standard procedure in all newpolicy initiatives. The Government intends that there will bea formal review of the effectiveness of the new legislation afterfive years, but evaluation of the effects of the new legislationwill be a continuous process.

6.13 It is important that evaluation should focus on thosematters that are directly affected by the policy measures in question. In the case of fair employment policy, the aim is to achievea fair distribution of jobs throughout the community, and thiswill be done by measures which impact on the recruitment of peopleinto employment and on promotions within employment. To assessthe effectiveness of these measures, information will be neededon:

(a) patterns and trends in the employed workforce;

(b) improvements in employment and recruitment practices;

(c) better opportunities for under-represented groups to haveaccess to employment opportunities.

(a) Current employment situation: The database that will be builtup through the annual submission of monitoring returns to theCommission will in itself be a major source of information. Itwill give - for the first time - a reliable and comprehensiveindication of the patterns of representation and under-representationin the workforces of all sizeable employers.

(b) Trends in employment: Over time, comparison of successivemonitoring returns will indicate the trends which are taking placein these patterns of representation and under-representation andin the flows into and through the workforce. Because the overallpicture will be composed of returns from a large number of individualemployers, the total will be capable of being accurately brokendown by business sector. It will therefore be possible to assessthe effects of shifts in the level of economic activity in differentsectors on the differential employment experience of differentgroups in the community.

(c) Geographical and economic factors: The precise importanceof geographical factors as well as of economic factors for differentialemployment experience should also be more clearly revealed.

(d) Commission's experience: The experience of the Commissionin conducting pattern and practice cases will give informationon changes in the overall standard of employment practices inindividual firms or sectors.

(e) Trends in applications: Where affirmative action programmesinvolve the systematic monitoring of applications as well as employment,it will be possible to derive information about the extent towhich applications from under-represented groups are being increased.

(f) Public sector experience: The practice and experience of thepublic sector, which accounts for over 40% of the employed workforce,will be monitored carefully.

6.16 The database on employment experience that will bederived from the annual monitoring returns to the Commission andfrom associated activities will be a most valuable research basefor a whole range of labour market studies. It will itself bea major aid to the Government in assessing the effectiveness ofits policy. The Government therefore intends to give carefulconsideration to the arrangements that can best be made for thestorage, processing and publication of aspects of this databaseand its availability to those with a genuine professional interestin its contents. Any such arrangement would of course have toprotect the confidentiality of any individuals concerned, butthey could properly and usefully cast light on trends in a widerange of employment-related issues.

6.17 To the extent that the study of the database so builtup suggests that other social and geographical factors - outsidethe direct scope of the fair employment initiative - have a significantimpact on the differential employment experience of the two mainsectors of the community, more research studies may need to beundertaken. These would follow on from and develop the studiescommissioned by SACHR for the purposes of their 1987 Report onFair Employment.

Employment and unemployment

6.18The Government believes that criteria and indicatorsof the sort set out above provide a more reliable basis for evaluatingthe effectiveness of fair employment policy than would the SACHR'srecommendation, that a target should be set in terms of a reductionin the differential between the rates of male unemployment amongCatholics and among Protestants. To set a target in terms oflevels of unemployment would be to ignore the importance of themany variable and unpredictable factors which determine the overalllevel of unemployment in the community. In addition, it wouldleave out of the reckoning the fact that the unemployment differentialbetween Catholics and Protestants will be at least as stronglyinfluenced by social, geographical and economic factors as byfair employment policies. The latter have a vital role to playin ensuring fair and equal access for all to the employment opportunitieswhich exist at any given time; but the former - coupled with theoverall level of economic activity - will have a major bearingon the way in which employment and unemployment is actually distributedin the community.

6.19 This is why the Government has always insisted thatthere must be realism as well as determination in the applicationand development of fair employment policies. These are a fundamentaland necessary part of the drive for a fairer society in NorthernIreland, but by themselves they are not and cannot be a sufficientguarantee of a prosperous economic future for all sections ofthe community. That will only be achieved if we are also successfulin the promotion of overall economic development. The Governmenttherefore continues to emphasise that the drive to promote moreinvestment and more jobs in Northern Ireland is an essential complementto the drive to promote fair employment. All who are genuinelyinterested in employment equality should also support the promotionof more jobs in Northern Ireland. The more healthy the economythe better the prospects for promoting fair employment.