This change will mean that employers, service providers and others can take a wider range of voluntary positive action to promote racial equality. It result in the removal of unnecessary barriers to their taking positive action, and extend what is permissible positive action to the extent allowed by EU law.
Currently, employers , service providers, and public bodies carrying out public functions in Northern Ireland are allowed, but not required, to take a limited range of special measures, known as ‘positive action’ measures, aimed at alleviating disadvantage experienced by BME individuals or groups.
For employers, this limited action primarily relates to encouraging job applications and providing specific training where BME individuals are under-represented in the workforce. Service providers are also permitted to take action to meet the special needs of particular racial groups in the areas of education, training or welfare or any ancillary benefits.
However, the current provisions allowing positive action under the race equality legislation in Northern Ireland are more limited than those permitted under EU law.
In addition, some employers in Northern Ireland have experienced difficulties in taking positive action due to the limitations imposed by legislation. For example, before taking positive action, employers must have gathered and assessed statistical information relating to a previous 12 month period which shows the degree to which a particular racial group is undertaking work of a particular nature in Northern Ireland or in an area within Northern Ireland.
This has presented difficulties due to a lack of statistical information about the extent of BME participation in the workplace . This lack of statistics further reinforces the need for improved workforce monitoring by employers on the grounds of nationality and ethnic origin, as recommended below .
Further, the positive action proposed has to be in relation to ‘particular work’; which does not always accord with employers’ training programmes that are aimed at improving certain skills and competencies rather than a particular type of work.
Our recommendation is also in line with changes already implemented in Great Britain. In particular, there is currently a greater scope for employers and service providers in Great Britain to take positive action to promote racial equality than those in Northern Ireland.
In addition, the Equality Act 2010 brought consistency in terms of what positive action could be taken across all equality grounds and extended what was permissible action for employers and others to take, to the extent allowed by EU law.
International human rights standards allow for positive action that is necessary, proportionate and time limited. These standards were reflected in the Equality Act 2010 which permitted employers, service providers and others to take proportionate action if it is aimed at; overcoming or minimising a disadvantage; meeting the needs of a particular racial group; or so as enable or encourage members of a particular group to participate in an activity where their participation is proportionally low.
For example, across all equality grounds, employers in Great Britain can take a range of measures; such as targeting training at a specific group, work shadowing, or encouraging applications from an underrepresented group. In addition, across all equality grounds, service providers and others can take positive action measures; such as providing additional or bespoke services, separate facilities, accelerated access to services, targeting resources or induction or training opportunities to benefit a particular disadvantaged group.
Importantly, there is no requirement on employers to assess statistical data relating to under-representation of a racial group across a 12 month period; nor is positive action limited to ‘particular work’. This contrasts with the requirements placed on employers in Northern Ireland, as highlighted above, under the race equality legislation.
Further, our recommendation is also compatible with the principles underpinning the statutory duties under Section 75, which are aimed at encouraging public bodies to take action that promotes equality of opportunity for people of different racial groups