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A Single Equality Bill for Northern Ireland

A Single Equality Bill for Northern Ireland. The SEB Consultation Paper: Draft ECNI Response Evelyn Collins Chief Executive Equality Commission for Northern Ireland 21 October 2004. Introduction. ECNI Position Papers: www.equalityni.org/ Recent Publications/Single Equality Bill

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A Single Equality Bill for Northern Ireland

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  1. A Single Equality Bill for Northern Ireland The SEB Consultation Paper: Draft ECNI Response Evelyn Collins Chief Executive Equality Commission for Northern Ireland 21 October 2004

  2. Introduction • ECNI Position Papers: • www.equalityni.org/ Recent Publications/Single Equality Bill • Draft Response Paper agreed on 08.09.04 • Final Response Paper to be agreed 27.10.04 • promotion of recommendations until mid-November

  3. Introduction • Equality dimension to Belfast Agreement – including setting up of ECNI + introduction of statutory equality duty • Programme for Government 2000-03: SEA by 2003 • overtaken by EU implementation • SEB: 2005-06 SEA: 2007 • prospects for a GB SEA?

  4. The EU dimension • Race + Ethnic Origin Directive 2000 (REOD): amends RRO in relation to race + ethnic origin (but not nationality or colour) by June 2003 • Framework Employment Equality Directive 2000 (FEED): amends FETO (in relation to religion or belief but also political opinion)

  5. The EU dimension • and introduces SO discrimination by Dec 2003 + to amend DDA by October 2004 and introduce age discrimination law by Dec 2006 • Revised Equal Treatment Directive 2002: updating and enhancing gender equality law by 2005

  6. NI Regulations • RRO (Amendment) Regs 2003 (06.03) • Employment Equality (Sexual Orientation) Regs 2003 (12.03) • FETO (Amendment) Regs 2003 (12.03) • DDA (Amendment) Regs 2004 (10.04) • Equal Pay (Amendment) Regs 2004 (07.04) • Age Discrimination in Employment Regs (10.06)?

  7. The NI + Irish dimensions • FETO model is unique to NI: fair employment: a generation on (2004) • statutory equality duty: requires PAs to undertake EQIAs of policies under 9 headings – existing regimes + SO, age + dependants • draft Bill of Rights/NIHRC • Employment Equality Act 1998 + Equal Status Act 2000 (RoI)

  8. 2: Purpose and principles • ‘mainstreaming’ of equality through ‘common template’ • common and effective concepts • common and effective enforcement • ‘variable geometry’: modest variations in common template in interests of respect for diversity • maximum facilitation for those orgs which wish to pursue equality - maximum encouragement for those orgs which merely wish to satisfy (or even avoid) equality principles

  9. 2: Purpose and principles • non-regression (not just in implementation of EU directives) • satisfaction of EU + international standards • harmonisation to ‘best standard’ in existing regimes • establishment of ‘best practice’ on comparative basis

  10. 3: Grounds • existing grounds:- • race: include colour + nationality (cp RRO (Amendment) Regs) • disability: ECNI Recommendations in ‘Enabled’, eg ‘perceived disability’ • + other section 75 grounds: age - with disabilities - marital and family status – with dependants

  11. 3: Grounds • additional grounds: • ? socio-economic status • ? past convictions • ? victims • ? trans issues • ? genetic disposition • ? Language • other status

  12. 4: Scope • wide definition of ‘employment relationship’ • volunteers – clear definition – substantial and well-established • extension of regimes to GFS + small premises/private clubs • performance of public functions – good relations? • education (including SENDO) • social protection + advantages • equal pay

  13. 5: Definitions - Direct discrimination • Art 2(2)(a) REOD/FEED: direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1 • is there a need for a comparator in ‘blatant’ cases? – question of ‘proof, not necessity’ • “disadvantage on the basis of” prohibited ground

  14. 5: Definitions - Harassment • Art 2(3) REOD/FEED: Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment

  15. 5: Definitions - Harassment • disjunctive approach as in Amendment Regulations • comparators a question of ‘proof, not necessity’ • so also with definition of victimisation

  16. 5: Definitions - Indirect discrimination • Art 2(2)(b) REOD/FEED: indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

  17. An effective concept of indirect discrimination? • (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary • non-statistical approach towards ID but ECNI prefers “necessary aim” test in accordance with EU gender employment equality law • apply to disability

  18. 5: Definitions - Reasonable accommodation • Art 5 FEED: ... reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer

  19. An effective concept of ‘reasonable accommodation’? • ECNI: development of anticipatory concept for employment as in GFS • applying concept of ‘reasonable accommodation’ to all equality heads?

  20. 6: Exceptions • general GOR, based on Art 4(1) REOD/FEED, instead of ‘specified list’ approach: • “a difference of treatment which is based on a characteristic related to any of the grounds referred to in this Act shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out

  21. 6: Exceptions • such a characteristic constitutes a genuine and essential occupational requirement, provided that the objective is legitimate and the requirement is proportionate. • adapted to FETO test: ‘essential’ OR • also a ‘genuine service requirement’ (GSR) • ECNI: general GOR/GSR – give examples in SEA and subject to Code of Practice

  22. 6: Exceptions • ‘organised religion’ exception could be example • ‘teachers’ exemption’ restricted to primary school teachers • some autonomous subject-specific exceptions (eg on age?) • remainder repealed

  23. 6: Exceptions • ‘exceptional circumstances’ in relation to age • sensitive re-examination of health and safety protection • clear delineation of ‘loyalty’ criterion • unconvinced by ‘financial planning’ criterion • ‘necessary’ continuation of legislative age limits

  24. 7: Goods, facilities and services • presumption in favour of GFS • definition by way of examples • supported by Code of Practice • public and contracted-out GFS included • ‘unconvinced’ on need for staging

  25. 8: Addressing under-representation • extension of FETO model of monitoring, report and ‘Article 55’ review across SEA – age profiling • incorporate ‘equality’ into EU consultation/s75 type model • could include equality impact assessment, mitigation and alternatives on lines of statutory equality duty

  26. 8: Addressing under-representation • but also permissive positive action approach, based on Art 5 REOD/Art 7(1) FEED: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1

  27. 8: Addressing under-representation • ECNI: wider scope for positive action – positive inclusionary measures – which may be indirectly discriminatory in favour of previously disadvantaged groups – eg younger workers/recipients of services • possibility of positive discriminatory measures short of quotas • subject to ECNI approval? • review of provisions on Gov contracts and grants

  28. 9: ECNI functions and powers • harmonise general duties – including to promote affirmative action – respect diversity? • application of ‘goods relations’ duty across SEA grounds – cp hate crime legislation • legal assistance – reform criteria – issues ancillary to or outside SEA but central to strategic objectives, eg HRA

  29. 9: ECNI functions and powers • reform of formal investigations on FETO model – less adversarial approach – private investigation but public reports • include EDO reforms, eg undertakings in lieu of investigation and action plans • apply across SEA, including GFS

  30. 10: Courts and tribunals • Single Equality Tribunal • governing all equality issues, including GFS • legal aid • case management • time limits

  31. 10: Courts and tribunals • standing: Art 7 REOD/Art 9 FEED Member States shall ensure that associations, organisations or other legal entities which have … a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

  32. 10: Courts and tribunals • ECNI, TUS and NGOs act in own name on behalf of named complainants • but also act in own name without a named complainant

  33. 10: Courts and tribunals • remedies: Art 15 REOD/Art 17 FEED: Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive

  34. 10: Courts and tribunals • exemplary compensation in some cases? • proactive remedies to require changes to policies and practices? • to require equality audits? • to require liaison with ECNI? • injunctive relief?

  35. 11: Alternative dispute resolution • conciliation: extension of DDA approach to GFS cases • mediation (eg RoI experience) • arbitration; in some cases but doubts about others

  36. Conclusion • opportunity to create coherent, consistent and effective equality law system • choreography between EU implementation, enactment of BoRTs, enactment of SEA and possible GB agenda

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