Equality Provisions in Great Britain and Northern Ireland

Posted in : Supplementary Articles NI on 16 October 2023 Issues covered: Recruitment

Equality Provisions in Great Britain and Northern Ireland

The following table compares the main equality provisions in force in the two jurisdictions of Great Britain and Northern Ireland. The updates refer to numbers used in the Belfast Telegraph advertisement which was published in November 2023.

 

Update

Legislation

Position in Northern Ireland

1

Age discrimination

There has been a ban on age discrimination in goods, facilities and services in Great Britain since 1 October 2012.

Age not protected in goods, facilities & services in NI, unless an organisation is providing employment-related services to the public, such as employment agencies, career guidance services.

2

Positive action

 

Positive action measures were extended and harmonised in GB to allow, but not require, employers to take into account a wider range of measures aimed at alleviating disadvantage experienced by under-represented groups across all equality grounds.

 

In NI we can only encourage applications from, not ‘prefer’ under-represented groups. NI is behind and with an increasingly diverse population, this must be a concern.

3-7

Disability legislation

This has been strengthened in GB since the introduction of the Disability Discrimination Act 1995:

  • Replacement of the concept of ‘disability-related’ discrimination with protection against ‘indirect discrimination’ and ‘discrimination arising from disability’.
  • The duty to make reasonable adjustments for disabled people in GB was extended to when a disabled person experiences a ‘substantial disadvantage’.  The previous duty applied when it was ‘impossible or unreasonably difficult’ for a disabled person to work, study or use a service.

Specific provision has been made for associative and perceived discrimination in the GB Equality Act.

The 2008 case of Malcom stated that a comparator must be in the exact same position as the Claimant (i.e. not disabled). The application of Malcolm to disability discrimination law, renders Northern Ireland potentially in breach of the obligations under the Employment Framework Directive 2000/78 and the UN Convention on the Rights of Persons with Disabilities.

Associative, perceived disability discrimination and discrimination arising from disability do not exist in NI and therefore “the continued existence of diverse and separate pieces of legislation for different equality grounds results in the legal system in Northern Ireland being more complex, less accessible and, in some cases, affording weaker protections” (ECNI).

8

Equal pay legislation

Equal pay legislation was strengthened in GB to prohibit employers from preventing or restricting their employees from having discussions to establish if pay differences exist that are related to an equality ground.

Not the case in NI and therefore people may not know that they are being discriminated against in pay awards and bonuses. Statutory Questionnaire procedure still applies in NI.

9

Gender Pay Gap reporting

Implemented in GB in 2017

The Employment Act 2016 stated that regulations would be published no later than June 2017. This hasn’t happened. It also made provision for disability and ethnicity pay reporting in NI, which would have been an valuable addition.

Currently, the gender pay gap in NI businesses is not known.

10

Increased powers for Tribunals & access to remedies

ECNI has recommended that the equality legislation, across all grounds, is strengthened by providing increased powers for tribunals to make recommendations that benefit the whole workforce and not simply the complaint. This extended power already exists under the fair employment legislation in Northern Ireland. The UN raised the issue of legal aid in tribunal cases.

11

Intersectional Discrimination

 

Domestic legislation in Northern Ireland does not include protection against intersectional discrimination.

12

Non-disclosure Agreements (NDAs)

The ethics around the use of NDAs is much debated since the development of #MeToo Movement. The Legal Services Board launched a consultation into the role of solicitors in the use of NDAs in summer 2023. The Westminster government have discussed a ban or stronger regulation but have yet to act.

In summer 2022 NI Universities pledged to end their use of NDAs.

 

This article is correct at 16/10/2023
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.