The fair employment legislation protects individuals from unlawful discrimination because of their religious belief and/or political opinion. Under this legislation, certain employers, including public and private sector employers, are required to register with the Equality Commission and to collect monitoring information on the community background and sex of their workforce .
Registered employers are required to monitor the community background and sex of their employees, job applicants, appointees and apprentices. In addition, private, voluntary and community sector employers who employ more than 250 employees and all specified public authorities must also monitor their promotees and leavers.
All registered employers are required to collect this monitoring information and submit it to the Equality Commission in their annual monitoring return.
This monitoring information is then used by employers to conduct periodic reviews of the composition of their workforce and of their employment practices.
In particular, it is used by employers in order to determine whether members of the Protestant and Roman Catholic communities are enjoying, and are likely to continue to enjoy, fair participation in employment. These reviews, known as Article 55 reviews, must be conducted at least once every three years.
Although the term ‘fair participation’ is not defined in the fair employment legislation, further guidance on what employers are required to consider is set out in the Fair Employment Code of Practice (pdf). This Code makes it clear that ‘what is required is that you afford opportunities to both communities and, where a community is under-represented, you take affirmative action steps to remedy that under-representation.’
There is currently no requirement under the fair employment legislation for registered employers to collect workforce monitoring information on the racial composition of their workforce.
Finally, we consider that an additional requirement to collect workforce monitoring data on racial grounds will not pose a disproportionate burden on registered employers.
All registered employers across all sectors (public, private, and voluntary/community sector) already have monitoring practices and procedures in place to collect workforce monitoring data on grounds of community background and sex. Therefore, the introduction of this duty and the collection of additional monitoring data on racial grounds will not in our view place an excessive administrative burden on registered employers.
Further, many public bodies, pursuant to their Section 75 duties, already have in place mechanisms by which they collect equality monitoring data on applicants for employment and their workforce, including data on racial grounds. The collection by public authorities of additional workforce monitoring data on racial grounds will not therefore, in our view, be an onerous requirement.
The primary reason for the proposed changes is to ensure the continuing usefulness of the fair employment Monitoring Regulations. In particular, it will enable employers to make a more accurate and meaningful assessment of fair participation in employment in their organisation.
We also consider our proposed change is in line with good practice recommendations. For example, it is a key recommendation in the Equality Commission’s Race Code of Practice for employers (pdf). In particular, this Code recommends employers regularly monitor the outcome of selection decisions and the effects of personnel practices and procedures in order to assess whether equality of opportunity is being achieved.
More recently, as set out in its Unified Guide to Promoting Equal Opportunities in Employment (pdf), the Equality Commission has made it clear that it recommends, as a matter of good practice, that employers should monitor the racial group of job applicants and employees .
Our recommendation is also consistent with existing monitoring duties on public authorities under Section 75 of the Northern Ireland Act 1998.
The Equality Commission’s Section 75 Monitoring Guidance for use by Public Authorities (pdf), highlights that Section 75 places a clear onus on public authorities to put in place systems to collect relevant information and to make use of that information for assessing and monitoring the impact of their policies on the promotion of equality of opportunity . We consider that collecting this additional workforce monitoring data on racial grounds will enhance the ability of public bodies to fulfil their Section 75 duties.
Further our recommendation is in line with workforce monitoring duties placed on certain public bodies in other parts of the United Kingdom. In particular, under changes to the public sector equality duties in Great Britain, certain public bodies in Great Britain are already under a duty to collect and publish monitoring information relating to employees across a number of equality grounds including race .
Finally, our recommendation is consistent with the recommendations of international human rights monitoring bodies.
In particular, the Advisory Committee on the Framework Convention for the Protection of National Minorities (pdf) has recommended that authorities in Northern Ireland give consideration to “including persons belonging to minority ethnic communities in workforce monitoring” .
It was of the view that “workforce monitoring could be mainstreamed and expanded to include persons belonging to minority ethnic communities as a means of assessing equality of opportunity in the labour market for these persons as well.” It also encouraged authorities to build on the criteria in the 2011 Census and “start using identification criteria other than community/ religious background so as to obtain more accurate data on the population as a whole”.
Whilst the primary reason underpinning our recommendation is to ensure the continuing usefulness of the fair employment Monitoring Regulations, we consider that introducing a duty on registered employers to collect racial monitoring data will have the following secondary benefits.
Firstly, workforce monitoring on racial grounds can assist employers in assessing the impact of their employment policies and procedures on particular ethnic groups in the workplace. In particular, it can assist them in identifying discriminatory employment practices, which impact directly or indirectly on racial groups in their workforce.
For example, racial monitoring can help employers to identify barriers that hinder certain racial groups from accessing employment or career development. As made clear in the Equality Commission's Section 75 Monitoring Guidance for use by Public Authorities (pdf)
, monitoring is more than data collection; it is an ongoing process, the objective of which is to highlight possible inequalities and why these might be occurring .
Secondly, workforce monitoring on racial grounds can assist employers to ascertain the situations in which it would be lawful or permissible to take voluntary positive action for certain racial groups. Positive action, for example, could include providing access to facilities for training to members of a certain racial group which is under-represented in the organisation.
As highlighted in the Equality Commission’s Recommendations for Changes to the Race Relations Order 1997 , ‘employers in Northern Ireland face particular difficulties in that the statistical information about the extent of minority ethnic participation in the workplace is not available to allow employers and training providers to assess the applicability of positive action measures.’
Racial monitoring under the fair employment legislation can therefore provide the evidential basis for justifying the taking of lawful positive action measures under the race equality legislation.
Further, it can provide a valuable and extensive source of data on the racial composition of employees and applicants in Northern Ireland which will benefit a wide range of organisations, including Government Departments. For example, the data can help inform high level indicators for monitoring priority outcomes of Government strategies, including the revised Racial Equality Strategy.
The lack of robust disaggregated research on the employment experiences of BME groups has, for example, been highlighted by the Joseph Rowntree Foundation (2013), in Poverty and Ethnicity in Northern Ireland. In particular, it highlighted that “despite the policy progress on equalities, any impact on outcomes for people of minority ethnic backgrounds is unclear as data is required to demonstrate the policy effectiveness.”
In addition, subsequent research by the Joseph Rowntree Foundation (2014) (pdf) has further indicated that there is “a lack of local level data as to how individuals from different ethnic minority communities are living, the employment sectors they work in and their levels of employment and training.”
It will be noted that the need for urgent consideration to be given to extending monitoring under the fair employment legislation to include nationality and ethnicity was also highlighted by research in 2009 by New Migration, Equality and Integration, Issues and Challenges for Northern Ireland (pdf)