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Frequently Asked Questions

An employee will be 65 years old, but I haven´t given notice of his retirement…
I´m reviewing existing staff policies and see that we have ´last in, first out´ as the criteria for selecting redundancies. Is this lawful?
Longer serving staff get more holiday leave - is this lawful?
Where do I get an equal opportunities policy?
Should I give each employee their own copy of the equal opportunities policy?
How do I complete an annual monitoring review form?
How can employers ensure that they provide equal pay?
In terms of Equal Pay, what does "like work" mean?
Summary of the A -v- B & C case [Industrial Tribunal, 2003]
Do I have to advertise all job vacancies in newspapers?
Can I include having a driving licence as a criterion in the personnel specification?
Can I get an equal opportunities number or a certificate to show that I am registered with the Commission?
Where can I find out more information about creating ´informal advisors´ to assist employees who feel they have been bullied or harassed?
What support does the Equality Commission provide to employers?
Why do some employers add the line "We are an equal opportunities employer" to their recruitment advertisements?
There is a difference in the pay rates between some male and female employees doing similar jobs, but I don´t think the difference is due to gender. Is this ok?
All Senior Managers recently received an anonymous email purportedly from a “disgruntled employee” making derogatory and racially offensive comments about a manager. What should we do?
Must we have more than 1 person on a recruitment panel and does it matter if they are all the same gender?
We are implementing a Managing Absence policy, what equality issues do we need to consider?
We advertised a basic administrative job (minimum wage) through the job market and received 120 applicants. Can we simply disregard over-qualified applicants?
Can you explain the law around advertising jobs?
What guidance can you provide on writing job descriptions?
How can I find out if my company is already registered with the Equality Commission?
Are employers obliged to translate employment documents such as contracts of employment and staff handbooks into other languages?
We are about to run a recruitment exercise for floor staff and plan to create a reserve list that we can use to fill future vacancies. How long can we keep the reserve list open?
Can we use our job application forms to find out about someone´s health and past absence(s) from work?
Should employers investigate incidents involving employees that take place outside of the workplace?
Are employers obliged to grant leave to an employee who has requested time off for religious observance?
We are experiencing a decline in business and may need to restructure the company in the near future; redundancies are a possibility. We have a member of staff who is currently on sick leave with post-natal depression following maternity leave. Her position may become redundant. Can you advise us how to handle this situation?
Can employers ask applicants for their date of birth on a job application form?
We didn´t score candidates on the day of the interviews and now one of our selection panel members has gone on sick-leave. What should we do?
Does asthma meet the definition of a Disability under the Disability Discrimination Act?

1. An employee will be 65 years old, but I haven´t given notice of his retirement…

An employee is approaching the default retirement age in 19 weeks (on 3rd December 2009) but you have not yet notified the employee of your intention to retire the employee.

The Commission´s Age Discrimination guide for employers explains the special provisions in the Age Regulations for those about to retire. The Regulations set a National Default Retirement Age (the “default retirement age”) of 65. The Regulations allow employers to either retire employees or set retirement ages in their organisation at or above 65. The Regulations also allow employers retire employees, or set retirement ages, below the default retirement age, but they will need to satisfy the test of objective justification.

In Chapter 4, the guide sets out the 3-stage retirement procedure; it is very important that you follow these stages. The guide states: at 4.20 "If an employer fails to notify the employee between twelve and six months in advance of retirement, the employer may be liable for a payment of compensation. The employee may have the right to eight weeks´ pay as compensation."

At 4.21 "The employer has an ongoing duty, up to two weeks before the retirement, to inform the employee of both the intended date and their right to request to work longer. Failure to do this will make the retirement dismissal automatically unfair."

2. I´m reviewing existing staff policies and see that we have ´last in, first out´ as the criteria for selecting redundancies. Is this lawful?

The Employment Equality (Age) Regulations (Northern Ireland) 2006 prohibit age discrimination against employees in relation to dismissal from employment. When considering redundancy, employers will need to ensure that selection criteria, provisions and practices are free of age discrimination.

Employers should take particular care when using length of service as a redundancy selection criterion. Such a criterion is potentially age discriminatory; all the more so if it is used as the sole selection criterion (i.e. Last In, First Out ("LIFO")), because it may disproportionately benefit older employees, who are likely to be the longest-serving employees.

An employer will have to objectively justify its use of a selection criterion which disproportionately benefits employees of one age group compared to another. Employers should note that it is likely to be very difficult to justify the use of length of service (or, LIFO) where it is the sole selection criterion, because, on its own, that criterion may not be a proportionate means of selecting employees for redundancy (although that objective is likely to be a legitimate aim).

However, if a particular selection criterion (including length of service) is used in conjunction with several other selection criteria, then the potential age discriminatory impact (if any) of each criterion will be diminished. Other selection criteria might include performance appraisal scores, conduct, attendance, time-keeping, etc. Furthermore, an employer is likely to find it easier to objectively justify a particular selection criterion where it is used in conjunction with other selection criteria. This is because it is more likely that it will be deemed to be a proportionate means of achieving a legitimate aim in this context than where it is used as the sole selection criterion.

Further information:
Age Discrimination in Northern Ireland - A Guide for Employers

3. Longer serving staff get more holiday leave - is this lawful?

Awarding work-related benefits, such as holiday entitlement or incremental pay rises, on the basis of length-of-service has the potential to be indirectly age discriminatory; i.e. longer serving employees may be, on average, older than employees with shorter service records.

However, the Employment Equality (Age) Regulations (Northern Ireland) 2006 permit employers to award benefits on this basis so long as certain conditions are satisfied. Without the exception contained in the Regulations, the application of such criteria could amount to indirect age discrimination because some age groups are more likely to satisfy the length of service criteria than others.

The exemption provides that benefits may be awarded to workers using the criterion of length of service, subject to one qualification. Once a worker exceeds 5 years´ service, the worker may only be disadvantaged compared to a longer serving worker if it reasonably appears to the employer that the way in which they use the length of service criterion fulfils a business need of the undertaking (for example, by encouraging the loyalty or motivation, or rewarding the experience, of some or all of their workers).

More information is contained in the Commission´s Age Discrimination in Northern Ireland - A Guide for Employers

4. Where do I get an equal opportunities policy?

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.

5. Should I give each employee their own copy of the equal opportunities policy?

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.

Further information:
Unified Guide to Promoting Equal Opportunities in Employment

6. How do I complete an annual monitoring review form?

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.

7. How can employers ensure that they provide equal pay?

Many employers believe there is no gender discrimination in the terms and conditions they provide for employees. They assume that there is no pay discrimination. Research has shown that while many employers said they did not have a problem, only a small percentage actually carried out gender pay audits to determine whether or not there was a pay gap.

Employers are advised to:

Follow guidance in the Code of Practice in Equal Pay
Adopt and implement an Equal Pay policy
Carry out an equal pay review

One of the barriers to equal pay is the secrecy surrounding what people earn. More transparency is essential. It is essential that any pay system is one where employees understand not only their rate of pay but also the components of their individual pay packets and how each component contributes to total earnings in any pay period. For employers, conducting a gender review will provide a clear picture across the whole organisation of how women and men are paid.

Further information:
See the Equal Pay section of the Commission´s web site

8. In terms of Equal Pay, what does "like work" mean?

"Like Work" is work which is the same or broadly similar.

Examples of work which is the same would be:

Women and men bank cashiers working at the same counter
Men and women serving meals at the same restaurant

Examples of work which is broadly similar are:

Men and women shop assistants working in different sections of the same store
A female cook who prepares lunches for the directors and a male chef who cooks for employees in the canteen.

More information is available in a series of fact sheets available in the Equal Pay category of the publications section of the Commission´s web site.

9. Summary of the A -v- B & C case [Industrial Tribunal, 2003]

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.

10. Do I have to advertise all job vacancies in newspapers?

The Commission recognises that work situations differ and that there is a range of ways to advertise job vacancies. Employers should advertise as widely as is practicable so that as many eligible and suitably qualified candidates as possible have an opportunity to apply; this does not necessarily imply the use of newspaper advertising.

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 University "Milk Rounds", or in newspapers that are read wholly or mainly by persons from one community background or racial group;
Employers should use language which is clear, simple and non-discriminatory. When citing job titles and selection criteria, adhere to the language used in the job descriptions and personnel specifications for the posts. When describing the working environment do not use vague or abstract words like- Young, Mature, Dynamic or Energetic.
Where it is not possible to avoid using a job title or description which has a sexual connotation, then an employer should add a prominent equal opportunities statement to the advertisement to indicate that the employer welcomes applications from all suitably qualified men and women.
Exercise caution when using photographs or drawings in advertisements. Ensure that the advertisement as a whole does not give the impression that the employer might be seeking to recruit a person with a particular "equality" characteristic: e.g. a man or a woman; a person of a particular colour; a young person; a person without a disability. Where there is a possibility that a photograph or drawing may give this impression, then a prominent equal opportunities statement should be added to the advertisement to indicate that the employer welcomes applications from all suitably qualified persons.
Exercise particular caution with job titles and photographs in respect of jobs that are traditionally associated with one or other of the sexes: for example, nursing and women; airline stewarding and women; mechanics and men. Where this danger arises, then a prominent equal opportunities statement should be added to the advertisement to indicate that the employer welcomes applications from all suitably qualified men and women.
In some circumstances, see above for details, it is necessary for the advertisement to contain an equal opportunities statement. In all other circumstances, however, it is nonetheless good practice to place one in the advertisement. A range of statements may be used and the following are only examples of kinds that employers typically use. Ultimately, the content of a statement is a matter for each employer to decide in the light of their own circumstances- "We are an equal opportunities employer"; or "We are an equal opportunities employer and we welcome applications from all suitably qualified men and women"; or "We are an equal opportunities employer and we welcome applications from all suitably qualified persons regardless of their sex; religious beliefs; political opinions; marital, civil partnership or family statuses; races; ages; sexual orientations; whether they are disabled; or whether they have undergone, are undergoing or intend to undergo gender reassignment."
Where an employer has an affirmative or positive action programme which is designed to address an under-representation of, or other disadvantages suffered by, a particular group of persons: for example, men or women; Catholics or Protestants; disabled persons, then the employer´s job advertisements should complement and be consistent with that programme. For example, in certain circumstances the following may be an appropriate positive action statement to include in an advertisement- "We are an equal opportunities employer. We welcome applications from all suitably qualified persons. However, as women are currently underrepresented in our workforce, we would particularly welcome applications from women." Another option may be to include a notice in job advertisements to promote particular working arrangements or benefits which might attract applications from an under-represented group. For example, a short sentence may be included to let potential applicants know that flexible working arrangements are available. This may help to attract applications from women who have caring responsibilities.
Where the employer intends to rely on a genuine occupational requirement exception, i.e. where it is genuinely necessary for the job to be carried out by a person, or persons, of a particular sex or race or religious belief or political opinion or sexual orientation or age, then this fact should be noted in the advertisement.
Where the employer intends to publish a composite advertisement which advertises two or more different vacant posts and also intends to rely on a genuine occupational requirement exception, or other exception, such as a positive action welcoming statement, in respect of one of those posts, the advertisement must clearly state which post the exception applies to. The advertisement must not give the impression that the exception applies to posts that cannot rely on it.

11. Can I include having a driving licence as a criterion in the personnel specification?

Employers should exercise particular caution with criteria which might directly or disproportionately exclude persons who have certain characteristics. A requirement to have a driving licence may disproportionately exclude disabled persons and should not be adopted unless they are genuinely essential for the performance of the job and where no reasonable alternative method of performing the travelling duties is available.

12. 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.

13. Where can I find out more information about creating ´informal advisors´ to assist employees who feel they have been bullied or harassed?

Part 3 of the Bullying and Harassment in the Workplace guide sets out how ´in-house´ procedures can be set up to deal with allegations of bullying or harassment at an early stage. Organisations with established advisory services have found them to be effective in either nipping problems in the bud or ensuring that correct advice is given at an early stage.

The use of ´informal advisors´ is entirely outwith formal investigatory or disciplinary procedures and have no power to sanction those who are accused of bullying or harassment. Instead they are concerned with the resolution of complaints, normally acting under instruction from the person who brings forward the initial complain or enquiry.

Read Part 3 of the Equality Commission/ LRA Guide to Bullying and Harassment in the Workplace for more information on setting up in-house procedures for dealing with complaints of bullying or harassment.

NB It is important that employers have a written Bullying & Harassment policy with training for all staff; additional training should be given to supervisors and managers as their role is centrally important - they often become aware of difficulties as they emerge.

14. What support does the Equality Commission provide to employers?

The Equality Commission provides support to employers on employment equality matters; we assist employers to comply with equality legislation and promote best practice.

Enquiry Line Service: for free advice on equality in your organisation, employment practices, procedures and current best practices (028 90 890890).
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.

15. Why do some employes add the line "We are an equal opportunities employer" to their recruitment advertisements?

Including an Equal Opportunities Employer statement in a job advertisement is a way of ensuring that a job advertisement does not indicate that an employer intends to commit, or which might be reasonably understood as indicating that an employer intends to commit, an act of unlawful discrimination when determining who should be offered employment or promotion.

While it is unlikely that any employer will attempt to publish an advertisment which is intentionaly and blatantly discriminatory, discriminatory advertising still occurs, often inadvertently.

Employees can take steps to ensure that job advertisements do not unlawfully discriminate, although where it is not possible, for example, to avoid using a job title or description which has a sexual connotation then a prominent equal opportunities statement should be added to the advertisement to indicate that the employer welcomes applications from all suitably qualified men and women.

For further information, see Recruitment Advertising: A Good Practice Guide for Employes for Promoting Equality of Opportunity.

16. There is a difference in the pay rates between some male and female employees doing similar jobs, but I don´t think the difference is due to gender. Is this ok?

The law allows an employer to defend an equal pay case by showing that the difference in pay is genuinely due to a material factor which is not the difference of sex. This is known as the "genuine material factor" defence.

If compared jobs are the same, broadly similar or of equal value, but a woman is paid less than a man (or vice versa) the onus is on the employer to expain the difference.

This will depend on the facts of each individual case. An employer will succeed in a case if she/he can show a significant and real reason for the difference in pay which is not connected with the sex of the people doing the job.

More information is available in a series of fact sheets available in the Equal Pay category in the Publications section of this website.

17. All Senior Managers recently received an anonymous email purportedly from a “disgruntled employee” making derogatory and racially offensive comments about a manager. What should we do?

Making derogatory and racially offensive comments is likely to constitute harassment which the Commissions model harassment policy defines as unwanted conduct related to a particular characteristic (in this case race) which violates the dignity of women and men at work; it should also be an offence under your company’s disciplinary policy. It may be difficult to implement the disciplinary policy due to the anonymous nature of the email, but other steps can still be taken.

Your Company should already have set out a policy on dealing with harassment as part of an overall commitment to equal opportunity; there should be an equal opportunity policy, in writing, which states that you are committed to promoting equality of opportunity in employment for all persons regardless of their sex; religious belief; political opinion; race; age; sexual orientation; or whether they are disabled; or whether they are married or are in a civil partnership; or whether they have undergone, are undergoing or intend to undergo gender reassignment.

The policy must be effectively implemented; an employer who can demonstrate that he or she has effectively implemented an equal opportunities policy will have a considerable advantage when it comes to defending a complaint. In the event of a discrimination or harassment complaint, an Industrial Tribunal or the Fair Employment Tribunal may take the view that a failure by an employer to implement a written policy is evidence of a failure to take such steps as were reasonably practicable to prevent employees from committing acts of unlawful discrimination or harassment.

An essential first step in implementing the equal opportunities policy is for the employer’s senior management team to acknowledge and effectively demonstrate their support for the policy to the workforce.

Other steps will include providing all staff with training on equal opportunities; providing further equal opportunities training to managers and supervisors with an emphasis on their role as managers; providing all staff with updated copies of the Equal Opportunities policy as appropriate; reminding all staff about the Equal Opportunities policy annually or more frequently if appropriate; 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 the policy was implemented.

The Commission guide Harassment & Bullying in the Workplace, written with the LRA, provides further advice.

18. Must we have more than 1 person on a recruitment panel and does it matter if they are all the same gender?

The Unified Guide to Equal Opportunities provides advice on Recruitment and Selection at Chapter 10.

Selection panel membership
Every selection panel should be comprised of at least two persons and, as far as is practicable, they should be persons of different sex and community background.

Employers should ensure that the individuals who are called to serve as selection panel members have received appropriate training in relation to their responsibilities under the employer´s equal opportunities and recruitment and selection policies; their and the employer´s responsibilities under current equality legislation; the guidance set out in the equality codes of practice and other guidance publications issued by the Equality Commission.

19. We are implementing a Managing Absence policy, what equality issues do we need to consider?

Avoid unlawful discrimination
Employers should apply their absence management procedures fairly and consistently to all employees regardless of their sex; religious belief; political opinion; race; age; sexual orientation; or, whether they are married or are in a civil partnership; or, whether they are disabled; or whether they have undergone, are undergoing or intend to undergo gender reassignment. To do otherwise, on any of these grounds, is likely to amount to an act of unlawful discrimination. However, employers should also note the following.

Disability-related absences
If a disabled employee is or has been absent, or needs to take a leave of absence, for a reason related to his or her disability, then the employer should always consider whether any reasonable adjustments need to be made, either to the absence management procedure itself, and/or to other aspects or features of the workplace or to the working arrangements. A failure to comply with the duty to make reasonable adjustments is an act of disability discrimination.
The Disability Code of Practice, particularly in Chapters 5 and 8, gives some guidance about how the reasonable adjustment duty will apply in circumstances such as these. Employers should have particular regard to the Code in these circumstances. The Code may be downloaded from the Equality Commission’s website.

Pregnancy-related absence and maternity leave
In managing absences that are related to pregnancy or maternity leave, employers must avoid committing acts of pregnancy or maternity leave discrimination. The definitions of these forms of discrimination are set out in Appendix 2 of the Commissions Unified Guide to Equal Opportunities

Monitoring
Employers should monitor the impact of their absence management procedures, as part of their wider equal opportunities monitoring policies.

More information on absence management policies and advice to employers on how to manage staff absence is provided by the Labour Relations Agency.

20. We advertised a basic administrative job (minimum wage) through the job market and received 120 applicants. Can we simply disregard over-qualified applicants?

No, do not disregard applicants because they appear to be ‘over-qualified’; this will leave your organisation open to a claim of unlawful discrimination it is important not to make unnecessary assumptions. Your recruitment & selection processes must be systematic, fair and objective.

Chapter 10 of the Commission’s Unified Guide to Equal Opportunities sets out how to recruit in a systematic, fair and objective way; it is entirely lawful to shortlist applicants for interview on the basis of the essential and desirable criteria for the job

Click here to find out more.

21. Can you explain the law around advertising jobs?

It is generally unlawful for an employer to publish a discriminatory advertisement, or to cause one to be published. There are some exceptions but most of these rarely apply in practice.

A discriminatory job advertisement is a job advertisement which indicates, or which might reasonably be understood as indicating, that an employer intends to commit an act of unlawful discrimination when determining who should be offered employment or promotion.

An advertisement must be read as a whole and account must be taken not only of the words but also of the pictures that it uses.

The Commission’s Recruitment Advertising Good Practice Guide for Employers provides more detail.

22. What guidance can you provide on writing job descriptions?

Draft job descriptions for all jobs

For every post employers should draft written job descriptions which accurately describe the genuine essential duties of the post.

Avoid using discriminatory language

Job descriptions should be drafted in language that is clear, simple and non-discriminatory. Where possible, do not use job titles which have a distinctly male or female connotation. For example, do not use words such as the following:

Waiter; Waitress; Salesman; Salesgirl; Stewardess; Handyman; Craftsman; Foreman; Manageress; Storeman; Matron; Postman; Chairman/Chairwoman; Head Master/Head Mistress

Instead, where possible, use job titles that have a gender-neutral connotation. For example, the following words are appropriate:

Waiting staff; Sales Assistant; Postal Worker; Manager; Stores Person; Supervisor; Chairperson; Nurse Manager; Head Teacher

Where possible, do not use job titles which have an age-related connotation. The words Junior or Senior when used in job titles do not usually have an age-related connotation and are generally acceptable. However, there may be exceptions. For example, it may be reasonable to interpret the job title of Office Junior as having an age-related connotation as this could reasonably indicate that the employer intends to fill the post with a recent school leaver, or another young person. In this case it would be advisable for an employer to use an alternative job title such as Office Clerk or Administrative Assistant.

Genuine occupational requirements

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, or religious belief, or political opinion, or race, or sexual orientation, or age then an employer may be able 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 are: 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 satisfied.

Employers should note that there is nothing arbitrary about making a determination to use a genuine occupational requirement exception. An employer who does so must ensure that the conditions laid down in the relevant statutory provisions have been satisfied. Employers who contemplate relying on these exceptions may seek advice from the Equality Commission.

Consider flexible working arrangements

The provision of flexible working arrangements will promote equality of opportunity for many employees, particularly for women, and will reduce the possibility that disability-related discrimination and indirect forms of discrimination may arise. Therefore, it is good practice for employers to consider how to allow for flexible working arrangements when determining how a job will be performed and in developing the corresponding job description. Further guidance on providing flexible working arrangements is set out in Chapter 14 of the Unified Guide to Promoting Equal Opportunities in Employment.

Consider making reasonable adjustments

Some job-seekers and employees may be disabled persons. When considering how a particular job will be performed and when developing the corresponding job description, employers should ask themselves whether a proposed job performance method will be likely to result in some classes of disabled persons being unable to perform the job in question, or whether they will only be able to do it with difficulty. If this result appears likely, then the employers should consider whether there are alternative ways to perform the job. If it would be reasonable to make arrangements for the job to be performed in these alternative ways, then the employers should make them.

By taking such considerations into account during the process of developing jobs and their corresponding job descriptions, and by making any relevant adjustments or arrangements at the early developmental stage, employers will significantly promote equality of opportunity for disabled jobseekers, and will significantly reduce the potential that disability discrimination might arise later.

Insert a duty to comply with equality policies

Employers should include in all job descriptions a duty which requires the post-holders to comply with their employers´ equal opportunities and harassment policies and procedures.

Review job descriptions periodically

Employers should not use the same job descriptions repeatedly year after year in every recruitment exercise for each job. It is good practice to review job descriptions prior to the commencement of recruitment exercises for the respective posts. In addition, outside of the immediate concerns of particular recruitment exercises, it is good practice to conduct periodic reviews of the job descriptions of current employees.

In conducting reviews, employers should seek to promote equality of opportunity by taking account of technical or other developments that affect the way the jobs may be performed; or, legal developments affecting employees´ rights or which expand the scope of anti-discrimination law; and, to allow for organisational changes, flexible working arrangements and reasonable adjustments.

Through such reviews, employers should make necessary changes to job descriptions to ensure that they continue to remain relevant to the corresponding jobs.

23. How can I find out if my company is already registered with the Equality Commission?

Each year the Commission publishes its "Register of Employers", listing all the oragnisations that are currently registered with it. You can check if your company is already registered by referring to the Register of Employers.

As an alternative, you can contact our Enquiry Line for this information on 028 90 890 890.

24. Are employers obliged to translate employment documents such as contracts of employment and staff handbook into other languages?

There is no simple answer to this question and there are dangers for the unwary employer. For example, an employer who employs migrant workers who originate from countries where English is not the first or main language and who does not translate these documents risks committing one or more acts of unlawful indirect discrimination.

The risk of indirect discrimination really lies in respect of jobs for which there are no, or there are low, English literacy standards required. For example, workers from countries where English is not the first or main language, even if they are able to converse in spoken English, may not necessarily be able to read written English, or read it well, but this will not prevent them from performing the duties of such jobs satisfactorily. However, even for jobs of this nature there will inevitably be a series of documents associated with the work, like Staff Handbooks, company policies and staff notices. These will usually be written in English. Workers from countries where English is not the first or main language may be at a particular disadvantage compared to local workers when it comes to understanding the contents of such documents, particularly the more important ones.

As a matter of good practice an employer ought not to presume that an employee who signs an application or other form in English, or an acknowledgement slip understands the contents of those English language documents. Instead, an employer ought to try to determine during the job interview or induction that the employee can read and understand written English to a standard comparable to that of local workers. Where the new employee is unable to do this, then the employer ought to take additional steps to ensure that the contents of important written documents are communicated to the employee. For example, the employer might increase the length of the induction session so as to spend extra time explaining the contents of a Staff Handbook, or at least the most important policies; for example, Equal Opportunities; Harassment; Discipline and Dismissal; Health and Safety policies.

An employer should also consider translating the Handbook, or some of the more important policies, into other languages. The employer should actually provide the translated documents where it is reasonably practicable to do so. In considering where it is practicable to do this, an employer should take into account the following factors-

the relative importance of each document: thus, it might reasonably be considered that Equal Opportunities, Harassment and Health and Safety policies are more important than some other policies and, therefore, it may be more practicable to translate these policies rather than others, or to give priority to translating these first;
the availability of advice and support from other bodies: for example, the Health and Safety Executive provides health and safety information in a variety of languages - see the H & S Executive´s website by clicking here.
the relative numbers of its employees from a particular country who require translated documents: If an organisation employs a relatively large number of Polish workers but very few Portuguese workers, it may be more practicable to translate a wide range of documents into Polish but only the most important ones into Portuguese;
the potential that the content might be subject to imminent or frequent change: thus, a recently updated Equal Opportunities and Harassment policy is unlikely to be changed for several years to come, therefore, it may be more practicable to translate documents like this than ones that change very frequently;
the resources available to an employer: It is unlikely that cost will be deemed to be an over-riding factor. Simply because it costs money to provide translated documents is not a sufficient excuse in itself for failing to do so. However, it may be a factor in setting priorities, particularly in the light of the other factors described above.

25. We are about to run a recruitment exercise for floor staff and plan to create a reserve list that we can use to fill future vacancies. How long can we keep the reserve list open?

Employers who create reserve lists of successful applicants should normally keep them open for no longer than twelve months unless there are cogent reasons for extending the period.

26. Can we use our job application forms to find out about someone´s health and past absence(s) from work?

It is generally permissible for an employer to seek information from job applicants and employees about their health and by extrapolation, past absences from work; this might be done by asking them to complete medical questionnaires or to undergo medical assessments. Employers should only seek such information if they have good reason for doing so i.e. they have a reason that is objectively justifiable.

If an employer does seek information about health and past absences from work, it is good practice only to seek it from successful job applicants who have been given conditional job offers; in practice it is best not to routinely ask all job applicants to complete a medical/absence questionnaire, or to undergo a medical assessment. The Equality Commission would recommend that you do not require all job applicants to submit a completed medical/absence questionnaire together with their application forms for the job. Questions about health and/or absence should not be included within job application forms.

The information should not be collected or used in an unlawfully discriminatory way. It is particularly important that disabled job applicants and migrant workers are not singled out without justification to complete medical/absence questionnaires or to undergo medical examinations.

Consider how the information about health and absence(s) will be used; would applicants be automatically excluded from consideration for a job if they have a certain amount of absence? This is where difficulties can arise as this could disadvantage people with a disability as they might have a greater amount of absence as a result of their disability. If this were the case and they were not considered for a job because of the level of their past absence, it could amount to disability discrimination. Similarly, it could disadvantage someone who has been off work due to sickness associated with pregnancy. If someone were to be excluded from consideration for a job because of absence associated with pregnancy, it is likely to be considered unlawful sex discrimination.

Employers need to be able to demonstrate how their decisions are objectively based on the evidence before them, and not, for example, on stereotypical or discriminatory assumptions.

A response to a medical or absence questionnaire, the results of a medical examination or the opinion of a Medical Advisor should only be one of a number of factors that an employer should consider when reaching their final selection decision and it should not of itself be treated as being determinative of the matter.

Where a job applicant is known to be disabled or might possibly be disabled, employers should also consider what reasonable adjustments, if any, may be required. Selection decisions should only be made following an assessment of how the applicant would perform in the job if these reasonable adjustments were actually made.

27. On Monday morning, one of our employees made their line manager aware of something that had taken place on the previous Friday after work.

A group of staff had arranged to go for a few drinks after work in a local pub; as the evening progressed, one of the male staff began to tease a new female employee about being gay. The teasing got out of hand as the evening progressed and the male employee got pretty abusive. Other staff members stepped in and put the teasing to an end when they saw that the female employee was visibly upset; she left the bar shortly after. She wasn´t in work on Monday and phoned in sick again today.

We suspect she is off work because of this incident but it occurred outside work. We know the female employee is not gay and has just bought a house with her boyfriend, one of our other employees. She hasn´t made any sort of complaint about the incident. Do we need to do anything?

There are a number of issues to consider.

The starting point is that an employee has notified you of an ´incident´ involving two of your employees and for this reason you are trying to establish whether you need to respond to it.

The scenario outlined is an example of homophobic abuse/harassment and as such is covered by the Employment Equality (Sexual Orientation) Regulations (NI) 2003, also known as the Sexual Orientation Regulations. Case law has confimed that the Sexual Orientation Regulations cover instances of homophobic abuse against a person who is not gay and who is not perceived to be gay by those who made the remarks.

Even though the ´incident´ took place outside work the company should not assume that it doesn´t need to investigate or to take any other action. If during the course of their employment, one employee harasses another employee or anyone else, the employer may be vicariously liable for that harassment. A sufficiently clear link between the employment and the act of harassment must first be demonstrated. The test could be summarised as: "Would the group of people have been socialising together on this ocassion but for the fact they work together? Would the act of harassment have taken place if the parties did not work together?"

Legal precedents confirm that acts of harassment that take place outside work e.g. in taxis booked by the company for employees and at office parties organised through work, have a sufficiently clear link with employment to make the employer vicariously liable for the act of harassment. Social outings that take place with work colleagues have also been viewed as an extension of the workplace irrespective of whether the outing was organised by the employer; this premise seems applicable to this incident.

In view of the potential vicarious liability or the act of harassment, the incident should be thoroughly investigated in line with the company´s Equal Opportunity and Bullying & Harrassment policies. The person subjected to the act of harassment does not have to make a formal complaint to their employer in order for the matter to be investigated; as soon as an employer becomes aware that an act of harassment has taken place they should investigate it. Disciplinary action might need to be taken depending upon the outcome of the investigation. A Court or Tribunal would not look favourably on a scenario where an employer knew that an act of harassment had occurred but failed to investigate.

A further incentive to investigate the incident is the risk that the harassment could be carried over into the normal working environment or that it might escalate into something more serious given that the female employee´s boyfriend also works for the company.

In sumary - yes, the company does need to act. The incident should be formally and thoroughly investigated under your Equal Opportunity and Bullying & Harassment policies. Further action may need to be taken depending on the outcome of the investigation. The company should also consider providing all employees with awareness training and periodic refresher training on Equality of Opportunity and Bullying & Harassment. It is important that employers make sure that all of their workers understand the protections, duties and obligations imposed by the company´s Equal Opportunity Policy and by equality legislation in general.

28. Are employers obliged to grant leave to an employee who has requested time off for religious observance?

With regard to days of religious observance which occur during an employer´s normal working week, it is a question of balance. For instance, if the employer provides Christian workers with the opportunity to take time off to attend Church services (e.g. on Ash Wednesday) it will amount to direct religious discrimination against workers of other faiths (e.g. Muslims, Jews, Hindus) if the employer does not provide them with the opportunity to take time-off too to attend similar services in their places of worship. The employer could also be discriminating against any workers who are refused opportunities to take time off for secular activities (e.g. to visit a dentist, or to attend a school play or sports day). However, employers must be careful about adopting an inflexible solution that prevents all workers from ever having an opportunity to attend religious ceremonies.

This entire issue is one that is better considered under the heading of flexible working . Where employees have particular cultural and religious needs which conflict with existing work requirements, it is recommended that employers should consider whether it is reasonably practicable to vary or adapt these requirements to enable such needs to be met. Employers who operate inflexible working practices, such as requiring all employees to work tradtional "9 to 5" working patterns, 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 employers.

An employer will probably have valid reasons for adopting a particular working pattern but if it is too inflexible, for example refusing to allow any worker to take time off for any reason, it may disadvantage people who need to take time off whether for religious or secular reasons. The employer may be able to justify an inflexible policy if there are good business reasons for it: for example, at certain very busy times of the year it may be necessary to have all workers present during certain hours so as to meet particular targets or to fulfil business orders, but otherwise the employer should allow some flexibility in his arrangements. Most business plans probably have some capacity to permit a degree of flexibility. Where this exists, the employer should adopt a fair procedure for dealing with requests for time-off.

29. We are experiencing a decline in business and may need to re-structure the company in the near future; redundancies are a possibility. We have a member of staff who is currently on sick leave with post-natal depression following maternity leave. Her position may become redundant. Can you advise us how to handle this situation?

The Commission recommends that employers should develop and implement appropriate policies and procedures to deal with handling redundancies. Employers should generally follow the guidance recommended by the Labour Relations Agency in its publication Advice on Handling Redundancies, and the general principles outlined in paragraphs 18.6 and 18.9.

Employers should apply the redundancy policy fairly and consistently to all employees regardless of their sex; marital or civil partnership status; pregnancy, etc. To do otherwise, on any of these grounds is likely to amount to an act of unlawful discrimination. Employers will therefore need to demonstrate that any employee being selected for redundancy was selected on the basis of fair and objective criteria as set out in the organisation´s redundancy policy and procedure.

If an employer contemplates dismissing a female employee under a redundancy procedure, the employer must avoid committing acts of pregnancy or maternity leave discrimination. In addition, employers should also have regard to the fact that he or she is under a particular statutory duty in respect of any employee who is at the time taking ordinary or additional maternity leave. If this situation arises, and where it would not be practicable by reason of redundancy for the employer to continue to employ the employee under her existing contract of employment, then the employer must offer her any suitable vacant posts, if one exists. As the female employee in question is not taking ordinary or additional maternity leave at the relevant time, the statutory duty does not apply and the employee should be subject to the same fair and objective redundancy selection criteria as all other employees.

30. Can employers ask applicants for their date of birth on a job application form?

It is good practice to omit questions relating to age and date of birth, unless these are relevant to objectively justifiable job criteria. More information can be found in Chapter 10 of the Unified Guide to Promoting Equal Opportunities in Employment.

Employers should consider placing questions about date of birth or age within a separate or detachable "personal information" section of the form that will be retained for administrative purposes only. As an alternative, questions about age could be asked on an equal opportunities monitoring form. It is a good idea to review questions on application forms about educational and employment history to ensure they do not seek unnecessary information from which the ages of applicants can be inferred.

More guidance for employers on the subject of Age Discrimination can be downloaded by clicking here.

31. We are filling a Clerical Assistant post and the interviews have already taken place. We had two people on the interview panel and they took notes during the interviews but they did not score the candidates on the day of the interviews. The two panel members planned to score the candidates at a later stage. One of our selection panel members has gone on sick leave and the candidates still haven´t been scored. The business needs to fill the post within the next 5 working days; the panel member on sick leave will not have returned to work by then. What should we do?

The Commission´s guidance on Recruitment and Selection can be found in Chapter 10 of the Unified Guide to Promoting Equal Opportunities in Employment. To ensure fairness, consistency and transparency your interview panel should have scored each candidate at the time the interviews took place. Even with the aid of good interview notes, time lapse between interview and scoring makes it more difficult for interview panel members to consistently recall interview responses, to objectively score the candidates and thus appoint on the basis of merit. Further guidance on recruitment is available from the Labour Relations Agency.

As an employer, you should consider the following actions:

Arrange for the absent panel member to score the candidates having reference to the notes they took during the interviews.
Have an independent person (e.g. another manager or an HR Officer who did not otherwise take part in the interview process) score the notes. For the independent person to be able to meaningfully score the candidates, comprehensive and legible notes would need to have been compiled by the person currently on sick leave. If this course of action were to be followed and one of the unsuccessful candidates made an allegation of discrimination, it is likely that a Tribunal would look unfavourably on the fact that candidates were not scored at the time of the interviews and also that the scoring was carried out by someone who was not present at the interviews. An employer would thus find it difficult to defend their position and to demonstrate that the scoring was objective and not unlawfully discriminatory.
Hold off making the appointment until the person on sick leave returns to work and then score the candidates and make recommendations for appointment.

It is ultimately for the employer to decide how it will act but they should be informed by the Commission´s guidance and should satisfy itself that any appointment made is objectively justified, fair, transparent and not unlawfully discriminatory; the employer should also be in a position to demonstrate these points.

32. Does asthma meet the definition of a Disability under the Disability Discrimination Act?

There is no definitive answer to this question. The only conditions which are explicitly covered under the Disability Discrimination Act are cancer, HIV and multiple sclerosis. These conditions are covered from the poit of diagnosis. A disabled person, for the purposes of the DDA is someone who has a physical or mental impairment which has an effect on his or her ability to carry out normal day-to-day activities. The effect must be substantial, adverse and long-term.

There is no exhaustive list of conditions covered by the DDA and it is important to note that the same condition may have different effects on different individuals. The definition of disability is complex and courts and tribunals can spend a lot of time deciding whether a condition meets this definition. Employers are recommended to seek advice when deciding whether a particular condition meets the definition of disability, and can do so by contacting the Commission directly.

The Commission has published the following guidance documents to assist employers:

Definition of Disability - Disability Discrimination Act 1995: explains the issues in more detail using examples, and examines particular case / conditions. It can be downloaded by clicking here.

Definition of Disability - Fact Sheet 5: gives guidance regarding conditions specifically not covered by the legislation and conditions covered by special provisions. It can be downloaded here.

Disability Code of Practice Employment and Occupation: describes the duties of employers and others in regard to preventing discrimination and assists employers to avoid workplace disputes. The Code can be used in evidence in legal proceedings under the Act therefore employers are advised to follow the guidance contained in it. Click here to download. a copy.