The Fair Employment and Treatment (Northern Ireland) Order 1998

The Employment & Incentives team at A&L Goodbody, explains the Fair Employment and Treatment (Northern Ireland) Order 1998, legislation under which individuals can bring a discrimination complaint on grounds of religious belief and/or political opinion. The Equality Commission has responsibility for enforcing the Order and working for the elimination of unlawful discrimination. It also has general duties with regard to promoting equal opportunities and affirmative action, as well as a duty to keep under review the operation of the Order.

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The Fair Employment and Treatment (Northern Ireland) Order 1998

The Fair Employment and Treatment (Northern Ireland) Order 1998, or FETO as it’s otherwise known, consolidated and amended the Fair Employment Act 1976 and the Fair Employment Act 1989. In Northern Ireland, the Equality Commission for Northern Ireland and the Labour Relations Agency published codes of practice on discrimination and employment laws, respectively. The Equality Commission has responsibility for enforcing the Fair Employment and Treatment (Northern Ireland) Order and working for the elimination of unlawful discrimination. It also has general duties with regard to promoting equal opportunities and affirmative action, as well as a duty to keep under review the operation of the Order.

Definition of The Fair Employment and Treatment Order 

The Fair Employment and Treatment Order makes discrimination on the grounds of religious belief and political opinion unlawful in the areas of employment, goods, facilities and services, the sale or management of land or property, and further and higher education. Discrimination is not simply unfairness. To be discriminated against means to be treated less favourably than others.

The Fair Employment and Treatment Order outlines situations where individuals may complain that they have been discriminated against on the grounds of both religious belief and/or political opinion. It may be that individuals believe they are less favourably treated than others because they are Catholic or Protestant, or because they are presumed to be from either of these communities, or because they are presumed to be Nationalist, Republican, Loyalist, or Unionist. Or, indeed, individuals may be discriminated against precisely because they do not hold any of these beliefs or opinions. Political opinion is not limited solely to Northern Ireland constitutional politics. It may include discrimination on the grounds of political opinion relating to the conduct or government of the state or matters of policy, for example, Conservative or Socialist political opinions.

Legal Proceedings

People who believe they may have suffered unlawful discrimination may issue legal proceedings. Those legal proceedings are decided by an independent tribunal, namely the Fair Employment Tribunal, or by a court. The Order applies to all employers, including subcontractors and franchises, regardless of size. It is unlawful for an employer to discriminate in recruitment and selection, including arrangements for deciding who should be offered employment, in the terms and conditions of the person’s employment, in relation to access to benefits, including opportunities for promotion or transfer, and by dismissing an employee or causing him or her any detriment.

Sectarian Harassment in the Workplace

An individual may also suffer sectarian harassment in the workplace. It can take subtle or overt forms. For example, singing of sectarian songs, sectarian remarks, comments, isolation or non-cooperation, erection of flags or bunting. Sectarian harassment is a form of direct discrimination and has the effect of intimidating those who suffer from it. Complaints of sectarian harassment may be made against the employer, as well as the harasser. In certain circumstances, individual employees can be held personally liable to pay compensation awards. Employers may be liable for any sectarian harassment committed by their employees in the course of their employment, even if they did not know about the harassment or would not have approved of it if they had known. Employers can successfully defend a sectarian harassment case only if they can show they took such steps as were reasonably practicable to prevent the harassment happening. This is otherwise known as the Reasonable Steps Defence.

Exclusions and Affirmative Actions

Not all types of employment are covered by the Fair Employment and Treatment legislation. Some limited examples apply. For example, any employment or occupation where the essential nature of the job requires it to be done by a person holding or not holding a particular religious belief or political opinion.

Affirmative action is another key mechanism for change contained in the Fair Employment legislation. Affirmative action measures are designed to ensure fair participation of all our citizens in the workplace, regardless of their community background. This may involve the adoption of practices aimed at encouraging fair participation, for example, advertising job vacancies by including a statement welcoming applicants from the community which is underrepresented in the workplace, or by modifying practices that may discourage fair participation.

Fives Duties on Employers

To ensure active practice of Fair Employment in Northern Ireland, the law places five key duties on employers with 11 or more employees. Those five key duties are:

1. Registration with the Equality Commission;
2. Monitoring the religious composition of the workplace and applicants for posts, and returning this annually to the Equality Commission;
3. Reviewing the composition of the workforce unemployment practices every three years to ensure the community is enjoying fair participation in employment;
4. Taking affirmative action if an underrepresentation of one community is identified within the workforce; and
5. Setting goals and timetables to assist in evaluating progress towards fair participation.

Complaints to the Fair Employment Tribunal

People who believe they have been subjected to religious or political discrimination in employment have the right to complain to the Fair Employment Tribunal. Under the Fair Employment legislation, complaints relating to discrimination in employment should be made to the Fair Employment Tribunal either within three months from when the complainant first had knowledge of the act complained of, or within six months of the date of the act. Crucially, it is the earlier of these times which applies. In most cases, this will mean that people who wish to take legal action about a Fair Employment complaint must do so within three months. In certain exceptional cases, the Tribunal might extend these deadlines, but simply not knowing that there were deadlines is insufficient reason for an extension of the deadline itself.