- Why does our business need rules and procedures?
- What support does the Equality Commission provide to employers?
- Where do I get an equal opportunities policy?
- Should I give each employee their own copy of the equal opportunities policy?
- Can I get an equal opportunities number or a certificate to show that I am registered with the Commission?
- Does the Commission provide advice on recruitment and selection?
- Is it ok to have a policy of seeking references from former employers?
- Are employee referral schemes lawful?
- What is harassment and how can it be managed in the workplace?
- Are employers liable for acts of discrimination or harassment carried out by their employees?
- What is meant by the concept of victimisation in the workplace?
- Are volunteers protected under equality legislation?
- What is an Employment Equality Plan?
- What is objective justification?
- What is a "genuine occupational qualification"?
- Is it lawful to require employees to work anti social hours?
- How do I complete an annual monitoring review form?
- Summary of the A -v- B & C case [Industrial Tribunal, 2003]
People use rules to set and establish acceptable standards of conduct and performance.
Where a business has rules in the form of clearly written policies and procedures, they help their workers maintain expected standards of conduct and/or performance. Those policies and procedures will also help businesses manage situations where conduct and or performance falls short of that which is expected. For this reason you need to make sure that workers are aware of and understand the business’s polices and procedures. Think about the Green Cross Code; what is the use of telling people to use the green Cross Code use is the ‘policy and procedure each time they cross the road if they do not know what he Green Cross Code is?
- Enquiry Line Service: for free advice on equality in your organisation, employment practices, procedures and current best practices (028 90 890 890).
- Codes of Practice, Guides: we provide a range of useful publications, covering key areas of equality.
- Employment Policies: a range of model employment policies are available on our web site; we can provide advice on tailoring these policies for your needs and can review your existing employment equality policies.
- Training Courses: we deliver free training courses, seminars and workshops covering a wide range of employment equality issues.
The Commission´s model equal opportunity policy is available to download online.
The Commission has also produced equal opportunities statements as A2 posters. These statements explain the rights and responsibilities of employees as well as the responsibilities of the employers and are available in several languages.
Yes, if possible, each employee should be given a copy of your Equal Opportunities policy when they start employment and trained on what the policy means. An Equal Opportunity policy is simple to write (download a copy here) and distribute; you can include a section on anti-harassment or have a separate Harassment and Bullying policy.
The Commission can also provide employers with A2 sized Equal Opportunities statements; these A2 versions are ideal for putting up on the workplace notice board and clearly set out everyone´s rights and responsibilities.
However you choose to disseminate the policy, it is essential that the senior management team acknowledge and effectively demonstrate their support for the policy to the workforce.
Other examples of reasonable steps that employers should take include:
- Revising and updating the policy regularly;
- Training managers further on equal opportunities with an emphasis on their role as managers;
- Updating training for all employees regularly;
- Reminding all staff about the Equal Opportunities policy regularly (a good time to do this is before any company social functions such as Christmas parties);
- Proactively intervening if employees engage in inappropriate behaviour, speaking to employees to warn of the dangers of such behaviour and to remind them of the terms of the equal opportunities policy.
Unified Guide to Promoting Equal Opportunities in Employment
5. Can I get an equal opportunities number or a certificate to show that I am registered with the Commission?
The Fair Employment Agency (which no longer exists) provided companies with an equal opportunities number and certificate referred to as a Declaration of Principal & Intent. This was ended in 1989.
Under the 1998 Fair Employment and Treatment (FETO) legislation, we now have a Register of Employers and all employers meeting the criteria of having 11 employees working 16hrs or more per week must register with the Commission.
All companies that comply with the registration and monitoring requirements of FETO can state they are a Fair Employer for the purposes of FETO unless they are NOT QUALIFIED.
The register is available to view online and there are currently NO companies that are NOT QUALIFIED under article 62 FETO.
Yes. The Commission´s guidance on Recruitment and Selection can be found in Chapter 10 of the Unified Guide to Promoting Equal Opportunities in Employment.
It is generally permissible for employers to seek references about job applicants. However, to seek and rely on references only from applicants´ current or former employers is likely to place at a substantial disadvantage those persons who have been out of conventional employment for a long time, or who have intermittent employment records, or who have not yet developed an extensive employment record in the local economy. A range of people may be disadvantaged in this way; such as some disabled persons, some women with dependants, migrant workers who are recently arrived here, and young workers. Therefore, seeking and relying only on references from current or former employers could potentially give rise to disability discrimination and indirect sex, race and age discrimination. Consequently, employers who have a policy of seeking references only from current or former employers should only do so with good reason; i.e. a reason that is objectively justifiable.
A better practice is to also accept and rely on references from other persons who know the applicants in a non-occupational context and who can provide information that is relevant to the job selection criteria, and which may help employers to assess the applicants against those criteria. A policy of seeking references should be applied to all applicants consistently and in a non-discriminatory manner. Employers should provide referees with the job descriptions and personnel specifications relevant to the jobs in question. Employers should ask referees, including those who are not former employers of the applicant, specific questions which seek to elicit information about an applicant´s ability to carry out the particular requirements of the job.
Many companies use an Employee Referral Scheme when recruiting for some posts with a monetary reward for employees if the person(s) they introduce are still with the Company some months later.
While this in itself is not unlawful it would be important to ensure that the Commission’s guidelines on good practice as set out in the Equality Codes of Practice and, more recently, in Section 10C of the Unified Guide to Promoting Equal Opportunities in Employment, are followed when recruiting employees.
Section 10C of the Commission’s Unified Guide which can be downloaded from the Commission’s website at www.equalityni.org states:
10C.3 Employers should advertise as widely as is practicable so that as many eligible and suitably qualified candidates as possible have an opportunity to apply.
10C.4 Where practicable, employers should use of variety of different media to publish their advertisements; for example, employers who advertise job vacancies on their own corporate websites should also concurrently advertise those vacancies in Job Centres, or in one or more newspapers, or on online recruitment websites.
10C.6 Employers should not publish job advertisements in locations or publications where they are likely to be read only by persons who share a particular community background, or sex, or race, or disability, or sexual orientation, or age. For example, do not advertise vacancies exclusively at “Milk Rounds” conducted in universities or exclusively in newspapers that are read wholly or mainly by persons from one community background or racial group.”
It would be important to ensure that any employee referral scheme is run in conjunction with a public advertising campaign for these posts in order to reduce the potential for it to be discriminatory. It would also be important to ensure that ‘nominees’ are not given any form of preferential treatment.
There are a number of other points which should also be considered:
- The impact of the scheme should be monitored on an ongoing basis to assess whether its operation is having an adverse impact on people of different religious beliefs/political opinions, ages, ethnic groups, sexual orientations, men and women and those with a disability. If it is, its use should be reviewed in consultation with the Equality Commission.
- Application forms should be made available to all applicants and all applications should be processed in a fair and consistent manner. Accurate records should be kept of all application requests regardless of the method used.
- Application forms should be issued for existing vacancies but the practice of providing applications in response to casual requests when a job vacancy does not exist should be avoided.
- Those who introduce applicants should not be permitted to participate in the selection process. This should also be extended to those who administer the scheme.
- The source of an application should not be made known to the shortlisting or interview panel.
- The scheme should be available to all employees taking account of the above.
- Selection should be on merit.
- The company’s policy in this regard should be incorporated into your recruitment and selection procedures.
Harassment is unwanted conduct that has the purpose or effect of violating an employee’s dignity, or of creating an intimidating, hostile, degrading humiliating, or offensive environment for that employee. The Equality Commission recommends that employers commit themselves to promoting good and harmonious working environments within their workplaces, in which all persons are treated with dignity and respect; and no person is subjected to harassment by conduct that is related to religious belief; political opinion; sex; gender reassignment; race; age; sexual orientation; disability; being married or being in a civil partnership. The Commission’s guidance on managing harassment in the workplace can be found in Chapter 5 of A Unified Guide to Promoting Equal Opportunities in Employment. In addition, the Commission has published joint publication with the Labour Relations Agency, entitled Harassment and Bullying in the Workplace which is particularly useful to employers for training purposes and as a source of good practice advice to managers in dealing with complaints of harassment.
Yes, equality legislation states that anything done by a person in the course of his or her employment is to be treated as done by that person’s employer as well as by the individual – whether or not it was done with the employers knowledge or approval. In certain circumstances, the law also makes employers directly liable for the acts of discrimination or harassment committed against employees by non employees, such as clients or customers, which they could have prevented or controlled. Employers can therefore find themselves liable for the discriminatory acts of clients or members of the public.
Employers may be liable for discrimination that occurs outside the workplace and outside working hours, and should ensure that their policies and procedures on preventing discrimination are extended to include conduct at work-related social events and any other out-of-hours conduct that reflects on the employment relationship. Employers may also wish to ensure that any personal contractors they employ are covered by their equal opportunities policies and procedures.
Even if an act has been committed by an employee or personal contractor in the course of employment, an employer can escape liability if it can prove it took such steps as were reasonably practicable to prevent the individual from doing that act. If the employer has done this thoroughly (for example through training, distribution of relevant policies, employee briefings, etc) then it is likely that it will be able to avoid being held legally responsible. (This does not mean that a victim will go uncompensated; he or she may still be able to obtain compensation directly from the actual perpetrator). The Commission runs a training course on ‘The Reasonable Steps Defence’ and further information with a full list of training sessions can be found on our website
A person (“X”) discriminates against another person (“Y”) if he treats Y less favourably than he treats or would treat other persons and he does so for one of more of the following reasons:
- Y has brought proceedings under the equality statutes against X or another person; or
- Y has given information in connection with such proceedings brought by another person; or
- Y has alleged that X or another person has contravened the equality statutes; or
- Y has otherwise done anything under; or by reference to the equality statutes; or
- X knows, or suspects, that Y has done or intends to do any of the things listed above.
This protection against victimisation in respect of any allegation made by Y does not apply if the allegation was false and not made in good faith.
As volunteers are not deemed to be employees, in most situations volunteers will not have protection under the equality legislation. This is because there are a number of fundamental and important things that make volunteers stand out from paid employees. Firstly they provide their services for free, without an expectation of salary or wage and secondly they cannot normally be compelled to provide these services and may withdraw them at any time. Consequently this places the emphasis on the need for organisations who involve volunteers to acknowledge a moral responsibility to protect them from discrimination. This is necessary to develop and promote a fair and harmonious environment for volunteering. For further information see Promoting Equality and Diversity in Volunteering - A Guide for Volunteer Involving Organisations.
The Commission recommends that employers develop an Integrated Employment Equality Plan (EEP) to help coordinate the promotion of equality of opportunity across all grounds within their workforce.
EEPs are essentially an action plan outlining how a company´s equal opportunity policy will be implemented. They provide a practical framework for co-ordinating all aspects of equality work, such as equality impact assessing employment policies and practices, developing of outreach measures relating to affirmatve or positive action targets. EEPs also assist employers to fully integrate equality into performance management systems, quality initiatives and corporate planning processes.
Employers may treat people differently on the grounds of their age if they have an objective justification.
The test of objective justification means that employers will have to show that what is done is a proportionate means of achieving a legitimate aim. Some examples of a legitimate aim may include training requirements of the job, health, welfare etc.
Employers will need to provide strong evidence to support any claim of objective justification. Assertion alone will not be sufficient and each case must be considered on its individual merits.
Employers must remember that it will be difficult to meet these requirements as the general principle remains that different treatment on grounds of age will be unlawful and different treatment on grounds of age will only be possible exceptionally and only for good reasons.
It will be up to the employer to show that the aim is valid and ultimately up to the tribunals to decide what constitutes a legitimate aim. For further information, see Chapter 3 of Age Discrimination in Northern Ireland, A Guide for Employers.
Where the genuine and determining nature, or essential nature, of a particular job requires that it be carried out by a person who has a particular sex, religious belief, political opinion, race, sexual orientation, or age then an employer may be entitled to rely on certain statutory exceptions in the anti-discrimination laws to reserve the job for persons who have that particular characteristic.
Most general forms of employment cannot rely on these statutory exceptions. Some examples of jobs that may rely on them include: ministers of religion; nurses in single-sex hospital wards, provided certain conditions are satisfied; waiting staff in ethnically-themed restaurants, again provided that certain conditions are satisified. Employers who contemplate relying on these exceptions should always seek advice from the Equality Commission before taking action.
Employers who operate inflexible working practices may deny equality of opportunity to some employees. This will most likely occur where the employees particular personal, caring, family, medical, cultural or religious needs conflict with the strict work patterns laid down by their employees. The persons who are most likely to suffer particular disadvantages compared to other people because of these conflicts are:
- persons, particularly women, who require time off to attend their parental and caring responsibilities;
- some disabled persons, if they need particular reasonable adjustments, such as time off for rest periods or to attend for medical treatment;
- persons with strong religious beliefs, if they are required to work on their Sabbath days, or on other days of religious significance to them.
Such practices may even, depending on the particular circumstances of each case, cause unlawful disability discrimination, or indirect sex or religious or race discrimination. By taking reasonably practicable steps to provide flexible working arrangements employers can significantly promote equality of opportunity and reduce the possibility that unlawful discrimination may occur.
For further information see Flexible Working - The Law and Good Practice - A Guide for Employers and Chapter 14 of the Unified Guide to Promoting Equal Opportunity in Employment.
The annual monitoring return form (MRF) is something that registered employers complete once each year; the information must be gathered throughout the year as part of each recruitment exercise. The Commission runs workshops each month on how to monitor and can meet with employers individually if this will help. Guidance is set out in the Commission´s Step by Step Guide.
The complainant was a female employee who had been sexually harassed by a co-worker at an office Christmas party. Nevertheless, the employer successfully avoided being held liable for the actions of its employee by demonstrating that it took such steps as were reasonably practicable to prevent such acts occurring. For example, the employer provided evidence that all its employees, including the employee whose conduct caused the harassment, had received equal opportunities training; that managers had received further equal opportunities training with an emphasis on their role as managers; that all staff had been provided with copies of the employer´s equal opportunities policy, which was an anti-harassment policy too, and with copies of revised versions of the policy whenever it was updated; that managers proactively intervened when they heard employees engage in inappropriate banter, on which occasions they spoke to employees to warn of the dangers of such banter and to remind them of the terms of the equal opportunities policy; that in the run-up to the Christmas party season the employer circulated a memorandum to all employees which reminded them of the terms of the equal opportunities policy and specifically warned them to act appropriately during the party season; that the policy and memorandum described the kinds of behaviour that were unacceptable; that the policy and memorandum were discussed with employees on several occasions at staff meetings.
This case was concerned with the topic of harassment but its lessons can be applied to many other employment scenarios. For example, employees who sit on recruitment and selection panels should be provided with training that addresses equal opportunities issues in the context of recruitment and selection and they should be reminded of the content of the employer´s equal opportunities policy before participating in recruitment exercises. These same principles also apply to employees who manage or supervise other staff and who have duties in respect of dealing with requests for flexible working, or managing absenteeism. These subjects are addressed in the Unified Guide to Promoting Equal Opportunities in Employment.