Equality and human rights: key differences in Scotland and Northern Ireland
Scotland: The Scottish Government introduced the Civil Partnership Bill into Parliament on 30 September 2019. The Bill, when enacted, will allow mixed-sex couples to form a civil partnership, bringing Scotland in line with the UK.
Northern Ireland: The Employment Act (Northern Ireland) 2016, which received Royal Assent on 22 April 2016, introduces various reforms to align some of the employment laws in Northern Ireland with Great Britain, including an obligation on employers to publish gender pay gap information. Under the Act, the Northern Irish Government is required to have made new regulations to bring the gender pay gap reporting duties into force no later than 30 June 2017. However, this requirement has yet to be put into effect.
The law relating to discrimination and equal pay is governed by the Equality Act 2010 in Scotland just as in England and Wales, with a few variations.
Specific public sector equality duties
The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (SI 2012/162) came into force on 27 May 2012. The Regulations impose specific duties on the public authorities listed in the schedule to the Regulations for the purpose of enabling the better performance of the relevant authority's general equality duty under s.149(1) of the Equality Act 2010.
The Regulations require a listed authority to do the following:
- Publish a report on the progress that it has made towards making the equality duty integral to the exercise of its functions (which it was required to do by no later than 30 April 2013). Thereafter it is required to publish such a report at intervals of not more than two years from the date of publication of the initial report.
- Publish a set of "equality outcomes" (which it was required to do by no later than 30 April 2013). Thereafter it is required to publish a set of equality outcomes at intervals not exceeding four years from the date of publication of the initial equality outcomes.
- Publish a report on the progress made to achieve the equality outcomes it has identified by 30 April 2015 and subsequently at intervals of not more than two years.
- Assess the impact of applying a proposed new or revised policy or practice against the needs mentioned in s.149(1) of the Act and publish the results of such an assessment within a reasonable period. The authority must consider relevant evidence relating to persons who share a relevant protected characteristic and it must take account of the assessment when developing relevant policies or practices.
- Make such arrangements as it considers appropriate to review and, where necessary, revise any policy or practice that it applies in the exercise of its functions to ensure that, in exercising those functions, it complies with the equality duty.
- Gather information on the composition of its employees (if any), and "the recruitment, development and retention of persons as employees ... with respect to, in each year, the number and relevant protected characteristics of such persons" and use this information to improve its performance of the equality duty. The explanatory note to the Regulations suggests that this requirement extends to applicants who are not offered employment. Unless previously published, an annual breakdown of this information and relevant progress made must be published in the progress report referred to above.
- If the authority has at least 20 employees it must publish information on the gender pay gap. The Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2016 (SI 2016/159), which came into force on 18 March 2016, reduced the threshold at which listed public authorities are required to publish gender pay gap information from 150 to 20 employees. The 2016 Regulations also inserted a new reg.8A into the 2012 Regulations, which sets out the relevant timescales for publication of gender pay gap information. Previously, if the authority had 150 employees it was initially required to publish this information no later than 30 April 2013. Thereafter it was required to publish such information every second year after that.
- If the authority has at least 20 employees it must publish information about both its equal pay policy and occupational segregation. The Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2016 (SI 2016/159), which came into force on 18 March 2016, reduced the threshold at which listed public authorities are required to publish statements on equal pay and occupational segregation from 150 to 20 employees. The 2016 Regulations also inserted a new reg.8A into the 2012 Regulations, which sets out the relevant timescales for publication of statements on equal pay and occupational segregation. Previously, if the authority had 150 employees it was initially required to publish this information no later than 30 April 2013. Thereafter it was required to publish such information every fourth year after that.
Information published pursuant to the Regulations must be provided in a manner that makes it accessible to the public.
The Regulations also impose a duty in relation to public procurement.
The Equality and Human Rights Commission (EHRC) has issued non-statutory guidance on the public sector equality duty in Scotland to assist in the implementation of the specific duties Regulations. The guidance provides an overview of the general equality duty, the specific equality duties; and which public authorities are subject to the respective duties.
Gender representation objective
The main operating provisions of the Gender Representation on Public Boards (Scotland) Act 2018 came into force on 29 May 2020. The Act introduced a "gender representation objective", which requires specified public authorities to achieve 50% female non-executive board membership by 31 December 2022. The gender representation objective will be triggered when a board vacancy becomes available. The Act adopts a dual approach to positive action by requiring the appointing authority to:
- take steps to encourage women to apply for non-executive positions (the good practice section of the statutory guidance suggests measures such as training, mentoring or succession planning); and
- give preference to a candidate who is a woman if appointing that candidate "will result in the board achieving (or making progress towards achieving) the gender representation objective", where there are two or more candidates who are equally qualified.
While there are no sanctions for non-compliance, appointing authorities and the Scottish Minister have a duty to issue reports to the Scottish Parliament every two years on the measures they have taken to meet the gender representation objective.
Northern Ireland has its own legislation on sex, race, age and sexual orientation discrimination. With the exception of a provision concerning employees engaged in offshore work, the Equality Act 2010 does not extend to Northern Ireland (the Act largely repealed and replaced the previous anti-discrimination legislation in England, Wales and Scotland with effect from 1 October 2010). In general, the provisions in Northern Ireland mirror the relevant Acts and regulations that applied in England and Wales prior to the coming into force of the Equality Act 2010, but there have been differences in implementation dates. For example, race discrimination became unlawful in Northern Ireland only in 1997, 21 years after it did so in England and Wales. Northern Ireland also has its own legislation on discrimination on grounds of religion or political belief. The Disability Discrimination Act 1995 continues to apply to Northern Ireland with some minor modifications.
Northern Ireland was the first part of the UK to have specific legislation dealing with discrimination on the grounds of religion. Northern Ireland is the only part of the UK to have specific legislation dealing with discrimination on the grounds of political belief.
In 1976 the Fair Employment (Northern Ireland) Act 1976 was passed outlawing discrimination on the grounds of religious belief or political opinion in both public and private sector employment. The legislation was enhanced and extended by the Fair Employment (Northern Ireland) Act 1989. This introduced the requirements for compulsory monitoring of the composition of individual workforces, regular reviews of their practices and composition, the concept of fair participation, mandatory affirmative action and the introduction of goals and timetables. In addition, adjudication on individual complaints was put on a more public footing with the introduction of the Fair Employment Tribunal, and the concept of unlawful indirect discrimination was introduced.
On 1 March 1999 the Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162) (NI 21) came into effect. This repealed and re-enacted in consolidated form the provisions of the previously existing Fair Employment Acts of 1976 and 1989. It also extended the concept of unlawful discrimination on the grounds of religious belief or political opinion to the provision of goods and services, and the sale of premises and land, bringing fair employment law into line with that on race and gender. In addition, provisions for monitoring were extended, and additional affirmative action measures were introduced. These allowed for the provision by employers of training limited to people from one religious group, in certain circumstances of under-representation, and for recruitment specifically from the unemployed without being subject to a challenge on grounds of indirect discrimination.
The Fair Employment and Treatment (Northern Ireland) Order 1998 was amended, with effect from 10 December 2003, by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 (SR 2003/520). The amendments were intended to implement the provisions of the EU Equal Treatment Framework Directive (2000/78/EC) dealing with discrimination on grounds of religion or belief. Changes applying to discrimination in the field of employment and vocational training included a new definition of indirect discrimination, express provisions prohibiting harassment and changes to the burden of proof. The exclusion from the legislation of smaller partnerships was removed. The general exception for employment in a private household was removed and the provision excepting the employment of a teacher in a school was amended to apply the exception only to the recruitment of a person as such a teacher.
Northern Ireland race discrimination legislation specifically prohibits discrimination on the grounds of belonging to the Irish Traveller community. Amendments intended to implement the race discrimination provisions of the EU Equal Treatment Framework Directive were made, with effect from 19 July 2003, to the Race Relations (Northern Ireland) Order 1997 (SI 1997/869) (NI 6). These introduced comparable changes, in relation to discrimination on grounds of race, ethnic or national origin, to amendments made to the Race Relations Act 1976 (now repealed and replaced by the Equality Act 2010) by regulations in Great Britain. These included express provisions on harassment, a new definition of indirect discrimination and changes to the burden of proof. The Race Relations (Northern Ireland) Order 1997 was amended with effect from 11 January 2010 to make it clear that its indirect discrimination provisions cover both persons who are put at a disadvantage, and those who would be put at a disadvantage, by a discriminatory provision, criterion or practice.
Amendments were made to the Disability Discrimination Act 1995 with effect from 1 October 2004 by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 (SR 2004/55) to implement the disability discrimination provisions of the EU Equal Treatment Framework Directive. These introduced comparable changes to those made to the Disability Discrimination Act 1995 in Great Britain (also now repealed and replaced by the Equality Act 2010), including new definitions of discrimination, express provisions prohibiting harassment and changes to the burden of proof. The Disability Discrimination Act 1995 was further amended by the Disability Discrimination (Northern Ireland) Order 2006 (2006/312) (NI 1), which introduced new duties for public authorities with effect from 1 January 2007, and altered the definition of disability with effect from 31 October 2007 to provide that people with mental illness no longer have to establish that their condition is "clinically well-recognised", and those with HIV, cancer or multiple sclerosis are deemed to be disabled from the date of diagnosis.
The Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042) (the 1976 Order) has been amended a number of times to implement European law. The Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2016 (SR 2016/191) came into effect on 2 May 2016 and have been implemented to give full effect to the recast Equal Opportunities and Equal Treatment Directive (2006/54/EC). These regulations amend the definition of direct discrimination in the 1976 Order to ensure that it extends to discrimination based on association and perception. Additionally, a single definition of indirect discrimination now applies to all provisions set out within the 1976 Order and a new provision addresses indirect discrimination on the ground of gender reassignment.
The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (SI 2003/497) came into force on 2 December 2003. The regulations make discrimination on the ground of sexual orientation unlawful and mirror, in large part, the relevant provisions in the Equality Act 2010 applying to the rest of the UK.
The Civil Partnership Act 2004 amended the Sex Discrimination (Northern Ireland) Order 1976 with effect from 5 December 2005 to make discrimination against registered civil partners unlawful in the same way as discrimination against married persons. The changes are comparable to those that were made in Great Britain to the Sex Discrimination Act 1975. The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (SI 2019/1514) came into force on 13 January 2020, allowing same-sex marriage and mixed-sex civil partnerships, bringing Northern Ireland in line with Great Britain.
The main provisions of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (SR 2006/261) were introduced with effect from 1 October 2006 to implement the age discrimination provisions of the EU Equal Treatment Framework Directive, making it unlawful for employers to discriminate on grounds of age in the areas of employment and vocational training. The occupational pensions provisions came into force separately on 1 December 2006. The Employment Equality (Age) Regulations (Northern Ireland) 2006 were amended with effect from 11 January 2010 in respect of service-related benefits in statutory transfer schemes.
The Equality Commission
The Equality Commission of Northern Ireland is an independent public body established under the Northern Ireland Act 1998. The Commission provides advice and assistance regarding discrimination on the grounds of:
- colour, race, nationality, and ethnic or national origins;
- religious belief or political opinion;
- sex, marital status or equal pay;
- sexual orientation; and
The Fair Employment and Treatment (NI) Order 1998 provided that the Equality Commission of Northern Ireland has statutory duties of:
- promoting equality of opportunity;
- promoting affirmative action;
- working for the elimination of unlawful discrimination; and
- keeping under review the working of the Order and submitting proposals for amendment.
The legislation that outlaws discrimination on the grounds of sex, race, disability, sexual orientation and age is similar to that in force in England and Wales and reference should be made to the other sections in this Chapter for details.
With regard to discrimination on grounds of religious belief or political opinion employees are given the same protection as under the Equality Act 2010 in relation to direct discrimination, indirect discrimination and victimisation. However, there are some important additional duties on employers under the Fair Employment and Treatment (NI) Order 1998:
All private sector employers with 11 or more employees are required to register with the Equality Commission. All public authority employers are treated as registered. For the purpose of the registration requirements of the legislation an employee is defined as someone who normally works 16 hours per week or more or as someone personally contracted to carry out any work or labour.
Failure to register is a criminal offence.
Registered employers are required to monitor the religious composition of the workforce and applicants. Monitoring is defined as the collection of information on the community background of employees and job applicants, ie how many belong to the Protestant Community and how many belong to the Roman Catholic Community.
All registered employers have to submit an annual monitoring return to the Equality Commission.
Additionally, all specified public bodies and other registered employers with more than 250 employees must submit on their monitoring return information on the composition of employees promoted and those who have left.
Employers are required to review at least once every three years the workforce composition and employment practices to determine whether members of each community are enjoying, and are likely to continue to enjoy, fair participation in employment. The determination of what is fair depends on the circumstances of each particular case, ie each specific employment situation.
If, following the review, it is concluded that fair participation is not being afforded the employer must determine appropriate affirmative action to remedy the situation. In general terms affirmative action can be defined as anything consistent with the legislation that is necessary to get results. This will normally mean that the employer will have to revise the policies, practices and procedures in the workplace, taking into account the examples given by the Code of Practice for Fair Employment.
Goals and timetables
These should be set by the employer to assist in the evaluation of the success of an affirmative action programme. They should be regarded as targets to aim for within a specified period of time and should be used as an integral part of good personnel practice.
The principle of goals and timetables is not to set quotas, so employers should still look at assessing the best person for the job on non-discriminatory grounds.
Generally, affirmative action that discriminates against a group will be unlawful, although there are specific tightly defined circumstances of under-representation when such will be protected from discrimination claims.
Public authority duties
The public sector equality duty set out in the Equality Act 2010 does not extend to Northern Ireland but s.75 of the Northern Ireland Act 1998 provides that public authorities are required to have due regard to the need to promote equality of opportunity:
- between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;
- between men and women generally;
- between persons with a disability and persons without; and
- between persons with dependants and persons without.
The Equality Commission for Northern Ireland (ECNI) has issued guidance on the duty under s.75, which is available on its website.
Legislation in Northern Ireland
Equal Pay Act (Northern Ireland) 1970
Disability Discrimination Act 1995
Northern Ireland Act 1998
Civil Partnership Act 2004
Employment Act (Northern Ireland) 2016
Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042) (NI 15)
Race Relations (Northern Ireland) Order 1997 (SI 1997/869) (NI 6)
Fair Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162) (NI 21)
Equality (Disability, etc) (Northern Ireland) Order 2000 (SI 2000/1110) (NI 2)
Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (SR 2003/497)
Employment (Northern Ireland) Order 2003 (SI 2003/2902) (NI 15)
Equal Pay (Questions and Replies) Order (Northern Ireland) 2004 (SR 2004/322)
Fair Employment (Specification of Public Authorities) Order (Northern Ireland) 2004 (SR 2004/494)
Employment (Northern Ireland) Order (Dispute Resolution) Regulations 2004 (SR 2004/521)
Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005 (SR 2005/426)
Employment Equality (Age) Regulations (Northern Ireland) 2006 (SR 2006/261)
Disability Discrimination (Northern Ireland) Order 2006 (SI 2006/312) (NI 1)
Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 (SR 2011/168)
Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2016 (SR 2016/191)