1 A Single Equality Bill for Northern Ireland The SEB Consultation Paper: Draft ECNI Response Evelyn Collins Chief Executive Equality Commission for Northern

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A Single Equality Bill for Northern Ireland

The SEB Consultation Paper: Draft ECNI Response

Evelyn CollinsChief ExecutiveEquality Commission for Northern Ireland

21 October 2004

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IntroductionIntroduction

ECNI Position Papers:www.equalityni.org/ Recent

Publications/Single Equality BillDraft Response Paper agreed on

08.09.04Final Response Paper to be agreed

27.10.04promotion of recommendations until

mid-November

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IntroductionIntroduction

Equality dimension to Belfast Agreement – including setting up of ECNI + introduction of statutory equality duty

Programme for Government 2000-03: SEA by 2003

overtaken by EU implementationSEB: 2005-06 SEA: 2007prospects for a GB SEA?

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The EU dimensionThe EU dimension

Race + Ethnic Origin Directive 2000 (REOD): amends RRO in relation to race + ethnic origin (but not nationality or colour) by June 2003

Framework Employment Equality Directive 2000 (FEED): amends FETO (in relation to religion or belief but also political opinion)

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The EU dimensionThe EU dimension

and introduces SO discrimination by Dec 2003 + to amend DDA by October 2004 and introduce age discrimination law by Dec 2006

Revised Equal Treatment Directive 2002: updating and enhancing gender equality law by 2005

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NI RegulationsNI Regulations

RRO (Amendment) Regs 2003 (06.03)Employment Equality (Sexual

Orientation) Regs 2003 (12.03)FETO (Amendment) Regs 2003 (12.03)DDA (Amendment) Regs 2004 (10.04)Equal Pay (Amendment) Regs 2004

(07.04)Age Discrimination in Employment

Regs (10.06)?

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The NI + Irish dimensionsThe NI + Irish dimensions

FETO model is unique to NI: fair employment: a generation on (2004)

statutory equality duty: requires PAs to undertake EQIAs of policies under 9 headings – existing regimes + SO, age + dependants

draft Bill of Rights/NIHRCEmployment Equality Act 1998 +

Equal Status Act 2000 (RoI)

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2: Purpose and principles 2: Purpose and principles

‘mainstreaming’ of equality through ‘common template’

common and effective conceptscommon and effective enforcement ‘variable geometry’: modest variations in

common template in interests of respect for diversity

maximum facilitation for those orgs which wish to pursue equality - maximum encouragement for those orgs which merely wish to satisfy (or even avoid) equality principles

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2: Purpose and principles 2: Purpose and principles

non-regression (not just in implementation of EU directives)

satisfaction of EU + international standards

harmonisation to ‘best standard’ in existing regimes

establishment of ‘best practice’ on comparative basis

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3: Grounds3: Grounds

existing grounds:-race: include colour + nationality

(cp RRO (Amendment) Regs)disability: ECNI Recommendations in

‘Enabled’, eg ‘perceived disability’+ other section 75 grounds: age -

with disabilities - marital and family status – with dependants

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3: Grounds3: Grounds

additional grounds:? socio-economic status? past convictions? victims? trans issues? genetic disposition? Language other status

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4: Scope4: Scopewide definition of ‘employment

relationship’volunteers – clear definition –

substantial and well-established extension of regimes to GFS + small

premises/private clubsperformance of public functions –

good relations?education (including SENDO)social protection + advantagesequal pay

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5: Definitions - Direct discrimination

5: Definitions - Direct discrimination

Art 2(2)(a) REOD/FEED: direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1

is there a need for a comparator in ‘blatant’ cases? – question of ‘proof, not necessity’

“disadvantage on the basis of” prohibited ground

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5: Definitions - Harassment5: Definitions - Harassment

Art 2(3) REOD/FEED: Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment

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5: Definitions - Harassment5: Definitions - Harassment

disjunctive approach as in Amendment Regulations

comparators a question of ‘proof, not necessity’

so also with definition of victimisation

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5: Definitions - Indirect discrimination

5: Definitions - Indirect discrimination

Art 2(2)(b) REOD/FEED: indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

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An effective concept of indirect discrimination?

An effective concept of indirect discrimination?

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary

non-statistical approach towards ID but ECNI prefers “necessary aim” test in accordance with EU gender employment equality law

apply to disability

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5: Definitions - Reasonable accommodation

5: Definitions - Reasonable accommodation

Art 5 FEED: ... reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer

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An effective concept of ‘reasonable accommodation’?

An effective concept of ‘reasonable accommodation’?

ECNI: development of anticipatory concept for employment as in GFS

applying concept of ‘reasonable accommodation’ to all equality heads?

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6: Exceptions6: Exceptions

general GOR, based on Art 4(1) REOD/FEED, instead of ‘specified list’ approach:

“a difference of treatment which is based on a characteristic related to any of the grounds referred to in this Act shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out

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such a characteristic constitutes a genuine and essential occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

adapted to FETO test: ‘essential’ ORalso a ‘genuine service requirement’

(GSR)ECNI: general GOR/GSR – give examples

in SEA and subject to Code of Practice

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‘organised religion’ exception could be example

‘teachers’ exemption’ restricted to primary school teachers

some autonomous subject-specific exceptions (eg on age?)

remainder repealed

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‘exceptional circumstances’ in relation to age

sensitive re-examination of health and safety protection

clear delineation of ‘loyalty’ criterionunconvinced by ‘financial planning’

criterion‘necessary’ continuation of legislative

age limits

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7: Goods, facilities and services

7: Goods, facilities and services

presumption in favour of GFSdefinition by way of examplessupported by Code of Practicepublic and contracted-out GFS

included‘unconvinced’ on need for staging

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8: Addressing under-representation


extension of FETO model of monitoring, report and ‘Article 55’ review across SEA – age profiling

incorporate ‘equality’ into EU consultation/s75 type model

could include equality impact assessment, mitigation and alternatives on lines of statutory equality duty

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but also permissive positive action approach, based on Art 5 REOD/Art 7(1) FEED: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1

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ECNI: wider scope for positive action – positive inclusionary measures – which may be indirectly discriminatory in favour of previously disadvantaged groups – eg younger workers/recipients of services

possibility of positive discriminatory measures short of quotas

subject to ECNI approval?review of provisions on Gov

contracts and grants

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9: ECNI functions and powers9: ECNI functions and powers

harmonise general duties – including to promote affirmative action – respect diversity?

application of ‘goods relations’ duty across SEA grounds – cp hate crime legislation

legal assistance – reform criteria – issues ancillary to or outside SEA but central to strategic objectives, eg HRA

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9: ECNI functions and powers9: ECNI functions and powers

reform of formal investigations on FETO model – less adversarial approach – private investigation but public reports

include EDO reforms, eg undertakings in lieu of investigation and action plans

apply across SEA, including GFS

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10: Courts and tribunals10: Courts and tribunals

Single Equality Tribunalgoverning all equality issues,

including GFSlegal aidcase managementtime limits

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standing: Art 7 REOD/Art 9 FEED Member States shall ensure that associations, organisations or other legal entities which have … a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

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ECNI, TUS and NGOs act in own name on behalf of named complainants

but also act in own name without a named complainant

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remedies: Art 15 REOD/Art 17 FEED: Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive

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exemplary compensation in some cases?

proactive remedies to require changes to policies and practices?

to require equality audits?to require liaison with ECNI?injunctive relief?

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11: Alternative dispute resolution

11: Alternative dispute resolution

conciliation: extension of DDA approach to GFS cases

mediation (eg RoI experience)arbitration; in some cases but

doubts about others

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ConclusionConclusion

opportunity to create coherent, consistent and effective equality law system

choreography between EU implementation, enactment of BoRTs, enactment of SEA and possible GB agenda

Documents

1 A Single Equality Bill for Northern Ireland The SEB Consultation Paper: Draft ECNI Response Evelyn Collins Chief Executive Equality Commission for Northern