You are here: Home > fair employment & treatment

Fair employment & treatment

The Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), as amended, makes it unlawful to discriminate on the grounds of religious belief and/or political opinion in the fields of employment, the provision of goods facilities and services, the sale or management of land or property and further and higher education. The 1998 Order was amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 in December 2003 to meet the requirements of the EU Framework Directive for Equal Treatment in Employment and Occupation.

What is religious belief/political opinion discrimination?

Employment

Exceptions

Scope

Further and higher education

Premises and land

Goods, facilities and services

Other unlawful acts

General exceptions

Enforcement of FETO employment complaints

Enforcement of other FETO complaints

Investigation and enforcement

What is religious belief/political opinion discrimination?

Discrimination is not simply unfairness. To be discriminated against means to be treated less favourably than others. FETO outlines situations where individuals may complain that they have been discriminated against on grounds of religious belief and/or political opinion.

It may be that individuals believe that they are treated less favourably than others because they are Catholic or Protestant or because they are perceived to hold either of these religious beliefs; or because they are perceived to be nationalist or unionist; or individuals may be discriminated against because they do not hold any of these beliefs or opinions. Political opinion is not limited solely to Northern Ireland constitutional politics and may include political opinions relating to the conduct or government of the state, or matters of public policy. A political opinion which includes approval or acceptance of the use of violence for political purposes in Northern Ireland is excluded. Religious belief includes those of other religions, eg, Judaism, Islam and Eastern Orthodox Christianity, as well as other faiths and philosophies such as Hinduism, Buddhism and philosophical theism, to name a few.

FETO outlines four types of discrimination:

1. Direct Discrimination is where someone is treated or would be treated less favourably than others in the same or similar position on grounds of religious belief and/or political opinion.

Example
The best candidate at interview was not appointed to a job because of their religion, while a less able candidate of a different religion was offered the post.

2. Indirect Discrimination in employment exists where a provision, criterion or practice is applied or would apply equally to everyone but which has the effect of putting people of a particular religious belief or political opinion at a particular disadvantage when compared with others and which cannot be shown to be a proportionate means achieving a legitimate aim.

Example
An employer whose workforce is wholly or mainly either Protestant or Roman Catholic offers opportunities for promotion to internal candidates only.

A slightly different definition of indirect discrimination applies to complaints in non-employment cases.

3. Victimisation means treating someone less favourably than others because they:

have brought proceedings under the fair employment legislation;
have given evidence or information in connection with proceedings brought under the fair employment legislation;
have done anything under the fair employment legislation;
have alleged that someone has committed an act which is unlawful under the fair employment legislation; or
intend to do any of the above.

Example
An employee loses overtime because s/he was a witness for a colleague in a fair employment tribunal hearing against their employer. This would be unlawful victimisation.

4. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for a person.

Example
Sectarian graffiti is on display in the workplace.

FETO does not specifically outlaw harassment in the field of goods, facilities and services but such treatment may amount to unlawful discrimination.

Employment

FETO outlaws discrimination by employers against members of their existing workforce and in the recruitment of new employees. Employers are also liable for acts of discrimination committed by their employees in the course of their employment, whether or not the acts were done with the employer´s knowledge or approval, unless the employer can show that he took such steps as were reasonably practicable to prevent the discrimination occurring.

FETO also applies to the following bodies:

those with statutory power to select employees for others;
employment agencies;
trade unions & employer organisations;
vocational training providers;
those who have power to confer qualifications;
those for whom work is done by contract workers;
those who have power to select office holders;
office holders;
barristers; and
partnerships.

In addition, in certain circumstances, former employees will have rights under FETO. For example, it will be unlawful for an employer to refuse to provide a work reference for a former employee because he/she did not approve of the ex-employee’s religious beliefs.

Exceptions

Not all types of employment are covered by the fair employment and treatment legislation. For example, the legislation does not apply to clergymen and ministers of religion or to the recruitment of teachers in schools. In addition, any employment or occupation where the essential nature of the job requires it to be done by a person holding or not holding a particular religious belief or political opinion is excluded from protection against discrimination. For example, posts with duties of a religious nature, are exempt.

Scope

FETO covers religious belief/political opinion discrimination in employment in Northern Ireland if the employee does his/her work wholly or partly in Northern Ireland or does his/her work wholly outside Northern Ireland and:

the employer has a place of business at an establishment in Northern Ireland;
the work is for the purposes of the business carried on at the establishment; and
the employee is ordinarily resident in Northern Ireland at the time when s/he applies for or is offered the employment or at any time during the course of the employment.

Further and higher education

FETO also makes it unlawful to discriminate in higher and further education. It is unlawful for either a university or an institution of further education in Northern Ireland to discriminate:

in the terms in which it offers to admit a student to the establishment;
by refusing or deliberately omitting to accept an application for admission as a student;
in the way it affords a pupil whom it has admitted to the establishment access to any benefits or by refusing or deliberately omitting to afford such access;
by excluding a student from the establishment or by subjecting a student to any other detriment; and
by subjecting to harassment a person who applies for admission to the establishment as a student or a student of the establishment.

Premises and land

It is unlawful for anyone selling or managing property or premises to discriminate on the grounds of religious belief and/or political opinion. For example, it would be unlawful for a landlord to refuse to rent to or to evict someone on the basis of their religious belief or political opinion. Similarly, anyone selling land or premises, either by advertisement or through an estate agent, may not discriminate either on the terms on which the land or premises are offered, or by refusing to sell to someone on the basis of religion or political opinion.

There are some exceptions to these provisions, for example, they do not apply to people who are renting out part of their own home in which they live or premises which come within the legal definition of “small premises”.

Goods, facilities and services

FETO also outlaws discrimination on the grounds of religious belief and/or political opinion in the provision of goods, facilities and services which are available to the public; this includes refusal of a service or the provision of a lower standard of service.

Discrimination of this kind is unlawful whether the service provided is paid for or not. Examples include:

access to and use of any place which members of the public are permitted to enter;
accommodation in a hotel, boarding house or other similar establishment;
facilities by way of banking or insurance or for grants, loans, credit or finance;
facilities for training;
facilities for entertainment, recreation or refreshment;
facilities for transport or travel; and
the services of any profession, trade or business, or any local or other public authority.

Other unlawful acts

FETO makes it unlawful to publish discriminatory advertisements. It is also unlawful to instruct or put pressure on a person to do anything contrary to FETO by discriminating in employment or other fields, or to knowingly aid another person to carry out such acts.

Employers are also liable for acts of discrimination committed by their employees in the course of their employment whether or not the acts were done with the employer´s knowledge or approval, unless the employer can show that he took such steps as were reasonably practicable to prevent the discrimination occurring.

General exceptions

There are exceptions to the general principle of discrimination on the grounds of religious belief and political opinion and FETO exempts:

employment or occupation as a clergyman or minister of a religious denomination;
employment or occupation where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief or political opinion;
recruitment of teachers in schools;
access to training facilities in certain circumstances where the employer is taking lawful affirmative action;
selection for redundancy in certain circumstances where the employer is taking lawful affirmative action;
measures to encourage applications, etc. from an under-represented community where the employer is taking lawful affirmative action;
recruitment from the unemployed;
benefits conferred by charities on persons of a particular religious belief or political opinion;
acts done under statutory authority in the provision of goods, facilities and services and premises;
acts done to safeguard national security or to protect public safety or public order; and
the 50/50 recruitment provisions which apply to the PSNI in respect of the recruitment of Police Trainees and Police Support Staff where six or more vacancies for the same post are to be filled.

Enforcement of FETO employment complaints

Complaints of discrimination in employment under the Fair Employment and Treatment Order must be made within three months of the date on which the complainant first had knowledge of the act complained of, or six months from the date on which the act was done, whichever is earlier.

Complaints are dealt with by the Fair Employment Tribunal. Where a Tribunal decides in favour of the complainant, it may award such of the following remedies as it considers just and equitable:

an order declaring the rights of the parties;
an order requiring the respondent to pay compensation to the complainant;
a recommendation that the respondent takes remedial action to obviate or reduce the discrimination or the adverse effect on a person other than the complainant.

In Fair Employment Tribunal proceedings, each party will normally pay its own costs although the Tribunal may award costs against either party in certain circumstances, for example if a case is conducted in an unreasonable way by acting vexatiously, abusively or disruptively or if a complainant brings a case which is misconceived. The maximum costs the Tribunal can award against a party are £10,000. In practice awards of costs are much lower than this and the Tribunal will take into account the claimant’s ability to pay.

There is a right of appeal on a point of law to the Court of Appeal against a decision of the Fair Employment Tribunal.

Enforcement of other FETO complaints

Claims of unlawful discrimination under the other provisions of FETO must be brought in the county court and must be made within six months of the alleged discrimination. Where a county court finds in favour of a complainant, it may award any of the following remedies:

an order declaring the rights of the parties;
an injunction or order; or
damages, including compensation for injury to feelings.

Where the court finds against a party, that party will normally pay their own costs and the costs of the other party.

There is a right of appeal to the Court of Appeal against a decision of a county court. If leave is granted, a further appeal can be made to the House of Lords.

Duties on employers

FETO places a number of significant duties on employers that are not found in other anti-discrimination legislation either in Northern Ireland or in Great Britain.

Registration

All private sector employers with more than ten full-time employees (working more than sixteen hours per week) are required to register with the Equality Commission. Specified public sector employers are automatically deemed to be registered.

Monitoring

All registered employers must submit annually to the Commission a monitoring return giving details of the community background, sex and occupational classification of their workforce. Community background in this context means those who are treated as belonging to either the Protestant or the Roman Catholic community in Northern Ireland. All registered employers must provide details of their employees, applicants and appointees. In addition, large private sector employers (those with more than 250 employees, full and part-time) and all public sector employees must provide details of promotees and leavers.

Article 55 reviews

All registered employers must review the composition of their workforce, their recruitment, training and promotion practices at least once every three years in order to determine whether fair participation in employment is being secured by both Protestants and Roman Catholics. Where it appears to an employer in the course of a review that fair participation in employment is not being provided to members of one or other community or is not likely to continue to be provided, he is under a duty to determine the affirmative action (if any) which would be reasonable and appropriate for him to take.

Affirmative action

FETO permits employers to undertake affirmative action "to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in Northern Ireland by means including:

the adoption of practices encouraging such participation; and
the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation".

The affirmative action provisions allowed by FETO include:

the encouragement of applications for employment or training for people from under-represented groups;
the recruitment from those not in employment;
targeting training in a particular area or at a particular class of person;
the amendment of redundancy procedures to help achieve fair participation; and
the provision of training for non-employees of a particular religious belief, following approval by the Equality Commission.

Investigation and enforcement

The Equality Commission can investigate the employment practices of any Northern Ireland employer at any time. Where the Commission considers that affirmative action is required to ensure fair participation, it may seek an undertaking from the employer that he will take such action. If an undertaking is not given or not complied with, the Commission can issue a legally enforceable direction. The Fair Employment Code of Practice provides detailed guidance for employers regarding their duties under FETO. Employers who are in default of the legislation through failure to register with the Commission or for not submitting monitoring returns face criminal penalties of up to £5,000 as well as economic sanctions - the loss of Government grants and exclusion from public contracts.