Employees, contract workers and applicants for employment have statutory protection against discrimination under a number of distinct pieces of equality legislation, covering protected characteristics such as gender; religious belief; age; disability etc.  In this article, Leeanne Armstrong, Legal Director, TLT LLP outlines an Employer’s obligations in complying with Equal Opportunities legislation.

1. Equal Opportunities in Northern Ireland

'Equal opportunities' refers to the right of all people to be given the same opportunities for employment, pay and promotion without discrimination.

Employees, contract workers and applicants for employment have statutory protection against discrimination under a number of distinct pieces of equality legislation, covering protected characteristics of:

• Religious belief or political opinion
• Race (including colour, nationality, ethnic or national origin, and ethnic or racial groups, i.e. Irish Travellers)
• Sex (including persons who have undergone or are in the process of under-going gender reassignment)
• Marital/civil partnership status
• Pregnancy and maternity Leave
• Sexual orientation
• Disability
• Age.

In Northern Ireland there are also additional obligations placed on employers to ensure equal opportunity in employment between males and females, and members of the Roman Catholic and Protestant communities.

The Equality Commission for Northern Ireland (ECNI) is the corporate body responsible for promoting equality of opportunity in Northern Ireland.

2. Do I Need to Have an Equal Opportunities Policy?

Whilst there is no legal requirement for you to have an equal opportunities policy, the operation of such a policy demonstrates your organisation's commitment to fairness and equality. The policy does not need to be extensive or complicated but can simply set out the organisation's understanding of its equality duties, promotion of equality of opportunity and demonstrate commitment to taking steps to eliminate discrimination, harassment and victimisation in the workplace.

Your organisation's commitment to equal opportunities will not be self-contained within this policy document and will extend into other important workplace policies and procedures including, for example, those related to grievances, anti-bullying and harassment and recruitment and selection. The promotion of equality of opportunity should be a consistent factor which is considered and practiced on a day to day basis.

Your equal opportunities policy should, as a minimum, include a declaration that you are an equal opportunities employer. The following sample wording could be included in the General Policy Statement at the beginning of your policy:

"[Employer Name] is an Equal Opportunities Employer and is committed to ensuring that all persons have equality of opportunity regardless of religious belief, political opinion, race, sex (including pregnancy, marital/civil partner status, gender reassignment), sexual orientation and disability."

3. Implementation

As with all policies and procedures contained within your handbook, it is recommended that an individual is identified as responsible for the implementation of the policy.

Publication of and training on the policy will be of equal importance so that senior managers within your organisation accept responsibility for ensuring that the policy is followed. It will also ensure that all individuals employed or engaged in your organisation have an appreciation of what is expected of them and have accountability for their own actions in the workplace.

The implementation of an equal opportunities policy can not only work towards creating a good and harmonious working environment where each person feels accepted and valued, but it can also prove vital to your organisation if faced with litigation. Employers may be able to successfully rely on what is known as the statutory defence in circumstances where they would otherwise be vicariously liable for the unlawful acts of discrimination committed by another employee but can demonstrate that it took all such steps as were reasonable in order to prevent such conduct taking place.

4. Monitoring Obligations

If you are a registered employer, your equal opportunities policy should set out the organisation's commitment to complying with monitoring obligations, and the implementation of affirmative action in order to address any workforce imbalances that are identified.

Under the Fair Employment and Treatment (Northern Ireland) Order 1998, private sector employers 11 or more employees working 16 hours or more per week are required to register with the ECNI, and should register within one month of reaching this threshold. Public sector employers must register regardless of workforce size.

a) Annual Monitoring Returns

Registered employers are required to complete and submit an annual monitoring return to the ECNI setting out the composition in terms of community background and gender of its employees and applicants. Organisations with over 250 employees and public authorities must always monitor the composition of promotes and leavers.

Employers will usually gather this data via monitoring forms which should be completed by all applicants, and regularly reviewed for employees. Employers will usually opt to use the 'direct question' method to obtain this data from individuals. However, in circumstances where it is not possible to collect the data in that way, perhaps because individuals do not wish to provide the information, employers may use what is known as the 'residuary method' to collect data. This permits employers to use other information that has been provided by the employee which provides a reasonable indication of community background.

As a registered employer you are legally obligated to submit an annual monitoring return to the ECNI, and a failure to submit or submitting later than 4 months after the end of the year (12 month period anniversary of registration date) is a criminal offence.

b) Periodic review

Employers are also required to carry out periodic reviews of the composition of employees, those who have left the organisation and employment practices. These reviews, known as 'Article 55 Reviews' should take place at least once every three years, and look at the organisation's practices with regard to recruitment, promotion, training and redundancy in order to determine if there is fair participation between members of the Roman Catholic and Protestant communities.

While there is not a formal requirement for the Article 55 Review to be submitted, you are as an employer legally obligated to complete it. The ECNI, under their duty to ensure employers are complying, can request it be made available.

When conducting a periodic review you are required to take The Fair Employment Code of Practice into consideration.

While there is no statutory requirement to expand the scope of review beyond religious community background, you may wish to take the opportunity to include your practices across other characteristics such as age, race or disability and can voluntarily review your workforce on these categories.

If you identify an imbalance you should undertake further investigation to try to understand the root cause by reviewing how you are advertising roles, your practices for recruiting and selecting and whether there are any aspects of your operations or setup that are less appealing to a particular community.

5. Affirmative action

As part of your review, you have an obligation to determine if any affirmative action would be appropriate and reasonable to ensure that members of a particular community are enjoying, and likely to continue to enjoy, fair participation in employment in your organisation.

The ECNI defines affirmative action as This involves taking steps within the law to bring about a change in your workforce so that it broadly reflects the composition of the population from which it is drawn"taking steps within the law to bring about a change in your workforce so that it broadly reflects the composition of the population from which it is drawn."

This may mean abandoning or modifying practices within your organisation that act as a barrier to fair workforce participation. Any measures you intend to implement in your organisation must be lawful or may only be lawful if certain conditions are applied. It is recommended that you consult with the ECNI before undertaking any action which you are concerned may not represent a lawful practice.

Examples of such affirmative action might include:

• The inclusion of a statement welcoming applications from a particular gender and/or community background as a means of encouraging applications from that particular group
• Changes to recruitment procedures
• Implementation of training and development programmes for underrepresented groups.

It is recommended that your equal opportunities policy makes reference to the taking of positive or affirmative action where issues are identified.

6. Complaints

Finally, your equal opportunities policy should clarify how complaints are to be raised and addressed. As set out above, your equal opportunities policy will link in with other organisational policies, and you will want to signpost employees to the relevant internal procedure for raising complaints. This may be under your Grievance and Harassment procedures as appropriate.

Your equal opportunities policy should also make employees aware of their legal rights to pursue claims should they believe they have suffered unlawful discrimination. This may include details of the relevant statutory time limits that apply to making such claims.