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How is our work influencing life in Northern Ireland and delivering equality? Learn more about our policy, legal and research work.
 
 

Enforcement and remedies

Race law reform

What you need to know

 

Increased powers for the Equality Commission
 

Key points
 

  • These changes will enhance the powers of the Equality Commission to issue additional Race Codes of Practice in a wider range of areas. Our recommendations are in line with powers available to the Equality Commission under other equality grounds and with the powers granted to the Equality and Human Rights Commission in Great Britain.
  • These changes will also enhance the ability of the Equality Commission to undertake formal race investigations by removing unnecessary procedural barriers. Our recommendation is in line with Commission powers that already exist under the fair employment legislation.


Our recommendations

Codes of Practice

We recommend that we are granted increased powers to issue Race Codes of Practice in a wider range of areas. In particular, we recommend that our powers to issue Race Codes of Practice are extended to cover all areas, including goods, facilities and services, the exercise of public functions and education (at all levels).


Rationale for change
 
These changes will enhance our powers to issue additional Race Codes of Practice in a wider range of areas.

Under the race equality legislation, we currently only have the power to issue Codes of Practice in the fields of employment and housing.  We therefore do not have the power to issue Race Codes of Practice in relation to the provision of goods, facilities and services, the exercise of public functions or education; either as regards schools or institutions of further and higher education.

Codes of Practice have an important status. For example, courts and tribunals must take into account any part of a Code of Practice that appears to them to be relevant to any question arising in those proceedings.

For example, the provisions of the Fair Employment Code  have been referred to extensively by the Fair Employment Tribunal in its decisions. If is of note that the Tribunal has referred to the Fair Employment Code as ‘fundamental to the provision of equality of opportunity’ and stated that ‘it cannot safely be ignored by any employer’.

Further, we have issued a wide range of Codes of Practice on other equality grounds which have proved beneficial in helping employers, service providers, etc., to understand their obligations under the equality legislation and encouraging the adoption of good practice measures.

Our ability to issue Codes of Practice is therefore an essential tool in helping us to embed our work to promote equality of opportunity and ensure the elimination of discriminatory practices.

Our recommendation is also in line with powers available to the Equality Commission under other equality grounds; for example, under the disability legislation, we have the power to issue Codes of Practices in a wide range of areas, including goods, facilities and services, the exercise of public functions and education.

Our recommendation is also in line with powers that have been granted to the Equality and Human Rights Commission in Great Britain. It, for example, has the power to issue Codes of Practice across all equality grounds including race, in relation to both employment and non-employment areas.
 

Formal investigations

We recommend that our powers under the race legislation are strengthened in line with the powers of investigation which currently exist under the fair employment legislation. 

In particular, we recommend, in line with provisions under the fair employment legislation, that our power to conduct a formal ‘named person’ investigation under the race legislation, does not require a “belief” that an act of discrimination has occurred. 
 
Rationale for change
 
These changes will enhance our ability to undertake formal race investigations by removing unnecessary procedural barriers.  

We require effective legal tools in order to support our work and to enable us to work strategically and to take enforcement action when required on racial equality grounds.

Our ability to conduct formal investigations into the practices of employers, service providers, etc., is an important tool in enabling us to tackle deep-rooted and systematic racial discrimination.

Under the race equality legislation, we have the power to conduct two main types of formal investigation.  Firstly, there is the power to conduct general investigations into issues within our mandate.  These do not result in findings of unlawful discrimination or the issuing of non-discrimination notices. We have, for example, undertaken a general formal investigation under the race equality legislation into the role of employment agencies in the recruitment and employment of migrant workers.

We also has the power to conduct ‘named person’ investigations under the race equality legislation; where we reasonably suspect that named persons have committed acts of unlawful discrimination.  In these investigations, we may make findings of unlawful discrimination. 

In relation to our investigation powers under the race legislation, we have encountered difficulties in using our powers.  In particular, under the race equality legislation (as well as the sex, sexual orientation and disability legislation), a formal investigation into a particular employer or provider must be based upon a “belief” that an act of discrimination has occurred.  Sufficient evidence must therefore be gathered to provide the basis for a reasonable belief that discrimination has occurred before we can initiate an investigation.

Under the fair employment legislation, we have the power to conduct investigations in the employment field. In particular, we have the power to conduct such investigations “for the purpose of assisting it in considering what, if any, actions for promoting equality of opportunity ought to be taken” by a person/s under investigation.

In contrast to our power to conduct ‘named person investigations’ under the race equality legislation, a formal investigation under the fair employment legislation into a named employer, does not need to be based upon a “belief” that an act of discrimination has occurred. 

Prior to commencing a formal investigation under the fair employment legislation, we are not required to have evidence that an act of discrimination has been committed.  The lower threshold under this legislation has enabled us to initiate an investigation in order to assist us in considering what, if any, action ought to be done to promote equality of opportunity. 

The focus of the investigation is on the promotion of equality of opportunity, rather than looking for discriminatory practices or policies. Formal investigations under the fair employment legislation are therefore less confrontational than investigations on the other equality grounds where there is a requirement to have a “belief” that an act of discrimination has occurred.

We therefore recommend, in line with provisions under the fair employment legislation, that our power to conduct a formal ‘named person’ investigation under the race legislation, does not require a “belief” that an act of discrimination has occurred. 

We also recommend that our powers that exist under the fair employment legislation in this area are widened across all equality grounds, including race.

 

Increased powers for tribunals

Key points:
 

  • This change will widen the powers of tribunals to make recommendations that benefit the whole workforce.
  • Our recommendation is in line with powers already available to the Fair Employment Tribunal under the fair employment legislation.


Our recommendation

We recommend that the race equality legislation is strengthened by providing increased powers for tribunals to make recommendations that benefit the whole workforce and not simply the person bringing the discrimination complaint (‘the complainant’).

Rationale for change

These changes will widen the powers of tribunals to make recommendations that benefit the whole workforce.

For example, recommendations by tribunals, for the purpose of obviating or reducing the adverse effect on a person other than the complainant of any unlawful discrimination, could include the following:
 

  • that the respondent ensures that its practices and procedures comply with the relevant equality legislation and accompanying Code of Practice.  If the facts of the case reveal the need for an employer to amend a particular policy or practice (for example, its recruitment policy or procedures) then this could be specifically referred to in the recommendation
  • that the respondent undertakes equality training in relation to the equality area in question (for example, racial equality training), or more specifically on particular policies (for example, recruitment, selection and promotion procedures or terms and conditions of employment).


Our recommendation is in line with powers already available to the Fair Employment Tribunal under the fair employment legislation. For example, pursuant to its powers under the fair employment legislation, in the fair employment cases of Grimes -v- Unipork Limited and McGrath -v- Viper International Limited, the Fair Employment Tribunal made a recommendation that the employer display on a works notice board, a statement to the effect that the complainant (a former employee) had been unlawfully discriminated against on the grounds of religious belief.

We also recommend that the race equality legislation is amended to ensure, in the case of non-compliance with a tribunal recommendation, that there are sanctions which are effective, proportionate and dissuasive.

Our recommended changes also reflect the original approach adopted in Great Britain under the Equality Act 2010; which originally contained provisions granting tribunals wider powers to make recommendations. It will however be noted that the UK Government, as part of its Red Tape challenge , has recently indicated that it proposes to repeal this provision through the draft Deregulation Bill currently progressing through Parliament. 

 

Harmonise the enforcement mechanism for education complaints

Key Points
 

  • These changes will harmonise and simplify the enforcement mechanism for education complaints against schools under the race equality legislation.
  • Our recommendation is in line with time limits and procedures which exist in other non-employment discrimination complaints and with changes implemented in Great Britain.


Our recommendation

We recommend that the enforcement mechanism for education complaints against schools under the race equality legislation is harmonised and simplified.


Rationale for change

These changes will harmonise and simplify the enforcement mechanism for education complaints against schools. They will also remove unnecessary barriers to pupils in schools making complaints under the race equality legislation.

Currently, under the race equality legislation, the enforcement mechanism requires that before a complaint can be lodged with the county court, notice of the complaint against the school must be given in the first instance to the Department of Education for Northern Ireland.

Further restrictions apply as regards race discrimination complaints against schools on the grounds of colour and nationality. In particular, civil proceedings cannot be lodged with the county court unless the Department of Education has informed the claimant that it does not require further time to consider the matter or a period of two months has elapsed since the claimant gave notice to the Department of Education.

We recommend that racial complaints in relation to education in schools should be subject to the same time limits as those which apply in the case of complaints of race discrimination as regards the provision of goods and services; namely six months from the date of the alleged act of discrimination.

We further recommend that the requirement to give notice to the Department of Education prior to lodgement of complaints is removed. In addition, the requirement either to wait up to two months or to receive confirmation from the Department of Education that it does not require further time to consider the matter, should also be abolished.

These restrictions unnecessarily prolong the adjudication process and is a form of enforcement not found in other areas covered by the race equality legislation.

It will, however, be noted that complaints against schools under the disability discrimination legislation have a different process and procedure in that complaints are brought to the Special Educational Needs and Disability Tribunal (SENDIST) and not the county court.

The time limits for disability education complaints are, however, consistent with those that apply in other non-employment areas. In particular, disability discrimination complaints must be made to SENDIST within six months of the alleged act of discrimination. Unlike under the race equality legislation, there is therefore no requirement to give prior notice to the Department of Education before lodging proceedings with SENDIST; or to allow a period of two months to elapse since giving notice to the Department of Education before lodging proceedings.

Our recommendations are also in line with changes that have been introduced in other parts of the United Kingdom under the Equality Act 2010. In particular, in Great Britain, discrimination complaints against schools, other than disability complaints , must be lodged with the county court within six months of the alleged act of discrimination. No restrictions exist similar to those that currently operate in Northern Ireland as regards notice to the Department of Education, etc. 

Finally, as this anomaly equally exists in other areas of equality law, including sex and sexual orientation, we recommend a harmonisation of time limits and procedures across the equality grounds.

 
 
 
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