Towards a More Inclusive Future - The Case for a Single Equality Act in Northern Ireland

Legal Island has been a respected and influential voice in the field of equality law and practice in Northern Ireland over the last 25 years, and we’d like to think our contributions, along with many others, have helped to shape and improve societal attitudes towards equality and diversity in NI.

We were talking about Diversity and Inclusion years ago and included sessions on menopause and bereavement in the workplace in our famous Annual Reviews of Emloyment Law long before they were trending on Twitter!

Not content with helping to shape societal attitudes, we’ve turned our attention to shaping the legal landscape and have been working with other key stakeholders to make the case for  Single Equality Act in Northern Ireland.

At present, there are 10 separate pieces of legislation governing equality. A Single Equality Act could help to clarify and strengthen these protections and ensure that they are effectively implemented and enforced across all areas of society. And what about progress? It’s not just about consolidating existing legislation and resolving the issues in disability legislation thrown up by London Borough of Lewisham v Malcolm. What other innovations, progress and ‘out of the box’ thinking could (or should) Northern Ireland consider?

Led by Legal Island Chairman, Barry Phillips, our panel consisting of Ciara Fulton, Partner, Lewis Silkin LLP and Roisin Mallon, Director, Equality Commission explored the key areas in which NI has fallen behind as well as some thorny questions.

Recording:

Transcript

Barry:  Well, good afternoon to everybody. My name is Barry Phillips, and you're very welcome to today's webinar. The webinar is entitled Towards a More Inclusive Future: The Case for a Single Equality Act in Northern Ireland.

Those attending will know that there's an Equality Act in force in GB, and has been since October 2010. You may not know, but it largely was the result of the efforts of one QC Barrister, Bob Hepple, who was a human rights barrister then practicing in London and formally practicing in South Africa, where he was a lawyer to Nelson Mandela.

Currently, what we know to be equality law in Northern Ireland is contained in nine pieces of legislation totalling over 660 pages. So the big question for today, therefore, is can we bring this all together under one roof? And if so, how do we go about it?

And to help us with these big questions, I'm delighted to have today Roisin Mallon, who is director of the Dedicated Mechanism Unit at the Equality Commission Northern Ireland. And we also have Ciara Fulton, who is partner at Lewis Silkin's Employment, Immigration and Reward team based here in Belfast.

We'll be hearing from them in a moment. And then we'll go into a Q&A round at the end, wrapping up sometime about 1:00. Hopefully you'll have time thereafter to grab your lunch, go outside and look for the nearest bit of green grass, and then just enjoy a beautiful lunch outside.

We have almost 150 signed up for this webinar today, which is perhaps an indication of the strength of interest in this topic and the likely support for a bill.

Before we get going, can I just say a big thank you to MCS Group for sponsoring today's webinar?

So, Roisin, if I can start with you, perhaps you can give attendees an overview of the efforts that have taken place so far in Northern Ireland to draft a bill, and perhaps a little bit about what we've learnt so far. Roisin?

Roisin: Okay. Thank you, Barry. Good afternoon, everyone. Yes, as you say, I'll give a short overview of the background to work on developing a single equality bill for Northern Ireland.

I think a good place to start is to look at the way our equality legislation has developed over time, including what has been happening in some of our neighbouring jurisdictions.

So maybe starting first in terms of how our equality law has developed. I think a good place to start is the Fair Employment Legislation. It was first introduced in 1976 by the Fair Employment Act of 1976, but the legislation wasn't a success, so it was therefore strengthened in 1998 by the Fair Employment Order.

And it's quite a unique piece of legislation. It's very different to legislation in other parts of the UK and, in many ways, more robust. And it's certainly been effective in making significant changes in the composition of the Northern Ireland labour market.

So more generally, in some instances our equality laws here have been introduced at similar times to equivalent laws in Great Britain. For example, Equal Pay and Sex Discrimination Legislation was introduced here in 1970 and 1976, respectively. And that largely mirrored the timelines for legislative reform in these areas in Great Britain.

But unfortunately, that hasn't always been the case. So if you take, for example, the Race Equality Legislation here, it was introduced in Great Britain in 1997, and it was over 20 years before we got somewhat similar legislation in Northern Ireland.

In terms of the disability legislation, that was introduced here by the Disability Discrimination Act in 1995. And that was a significant UK-wide piece of legislation that protected disabled people against discrimination.

I think another key development that has led to developments in equality law here is the Belfast Good Friday Agreement. As many will know, that's a legally binding international agreement and had a significant impact in strengthening our legislation here.

In particular, the commitments in the Good Friday Agreement were implemented through various pieces of legislation, including changes to the Northern Ireland Act 1998, as well as some changes to the human rights legislation, in particular Human Rights Act of 1998.

So, in effect, what the Belfast Good Friday Agreement resulted in is we got changes to our Fair Employment Legislation. We got changes to our Human Rights Law through the incorporation of the European Convention on Human Rights into domestic law here. And that included Article 14, which is relating to discrimination.

And critically, we saw the Belfast Good Friday Agreement resulting in the introduction of the Section 75, equality duty on public bodies here. And in fact, that legislation was very much a trailblazing piece of legislation. It was the first of its kind in Europe. In fact, it was introduced way ahead of similar legislation that came in later in Great Britain.

And importantly, for the first time we saw the introduction in Northern Ireland of legislation on some of the other equality grounds such as sexual orientation.

I think a very important part of the backdrop to this discussion is the impact of EU law on equality rights here. EU law has very much helped to strengthen, to shape our equality laws here. And prior to Brexit, EU law was really a critical driver for change, not just here, but also in other member states, including Ireland.

And what it meant was that there was sort of minimum and common standards that were introduced across the island of Ireland in areas that EU law covered. So what we found was that the EU law had not only strengthened, but facilitated the alignment of many of our equality laws on the island of Ireland. And as I said, it strengthened rights. So it resulted in increased protection on the grounds of gender, race, sexual orientation, age, for example.

And by way of an example of that, the Northern Ireland sexual orientation regulations actually came in as a result of an EU directive.

So, against that background, I want to just briefly touch on progress on the single equality legislation. Since the early 2000s, the Equality Commission has urged for reform to address some of the key gaps in protections, including new and emerging inequalities through single equality legislation, and also to tackle some of the inconsistencies in the legislation that have emerged due to the piecemeal way that the legislation has been introduced that I've just mentioned.

It's also resulted, for example, on there being stronger protection on some grounds than under grounds for no clear reasons.

So in 2004, we saw the Office of the First Minister and Deputy First Minister, now the Executive Office, consulting on single equality legislation in Northern Ireland. And again, this was very much leading the way. This was well in advance of any consultation in Great Britain. However, and unfortunately, nothing came of that consultation and no bill was taken forward.

Though in a somewhat later positive development, we did have the commitment in 2006 to the St Andrews Agreement, where I think the UK government accepted that there was a need for single equality legislation because there was a commitment to work rapidly to take and make the necessary preparations to bring that legislation in.

However, despite that commitment, there hasn't been any further progress in relation to the Equality Bill in Northern Ireland.

And in terms of what was then happening in Great Britain, we saw Great Britain marching ahead with the introduction of the Equality Act in 2010. It was introduced by the Labour government. And I think what that showed was, for the first time, this could actually be done, that you could introduce single equality legislation, that you could consolidate, you could harmonise protections into one piece of legislation.

So, as I said, despite Northern Ireland's initial attempt to bring forward single equality legislation, it was very much behind the curve with the introduction in Great Britain of the Equality Act in 2010. And in many ways, Northern Ireland has remained behind that curve as well.

And in fact, since, the Good Friday Agreement, the Assembly has seldom acted to introduce new equality legislation here, with the vast majority of changes coming through as a result of either EU law or indeed through Westminster.

So, in light of that, in 2009 the Equality Commission introduced its priority areas for law reform, and particularly in recognition of the fact there had been no follow-up from the consultation in 2004.

So we set out some priority areas, and they included, for example, in the area of goods, facilities, and services on the grounds of age. There were areas of the race legislation that needed reform. The disability legislation needed reform, and the sex equality legislation, as well as the fair employment legislation, as regards to monitoring and the teacher's exemption.

So in terms of what's happened since the introduction of the Equality Act in 2010, there has been some limited progress here in terms of bringing about legislative change. For example, we saw in 2015 OFMDFM introduced a consultation on extending discrimination on the grounds of age in goods, facilities, and services. But unfortunately, no progress was made following that consultation.

We also saw an attempt to introduce pay transparency reporting requirements here. That was in 2016. Again, those provisions have not yet been introduced.

And then more recently, in fact this year, the TEO has commenced the race law reform consultation in terms of bringing forward some changes to the race equality legislation, which really stemmed from a commitment in the racial equality strategy. And I think was following on from some considerable criticism in terms of lack of progress, including more recently from the Northern Ireland Affairs Committee.

And then, of course, also recently we had the positive development in terms of the legislation reforming the teacher's exemption in the fair employment legislation by the Assembly through a Private Members' Bill.

So, hopefully that's given a bit of the background to what's happened here, as well as what's been happening across the water in Great Britain. So, I'll pass back to you, Barry.

Barry:  Roisin, thank you very much for a very useful overview of efforts to date. Ciara, can I just come to you and perhaps you can say a little bit about the complexity, I suppose, or the challenges of bringing all this legislation into one place, first of all, and then something about the updating process that inevitably we'll be thinking about if we do see this as an opportunity to catch up with GB. So a few thoughts on that?

Ciara:  Yeah, certainly, Barry. And thank you for asking me to speak on this important topic today.

So as Roisin has outlined, you can see that there have been enormous efforts made to try and ensure that Northern Ireland has equality legislation fit for a purpose and at least keeping up with GB and the rest of the UK. But unfortunately, we've only seen limited progress in that regard.

And unfortunately, where that leaves us in Northern Ireland is that we have this horribly complex situation that is very difficult for claimants, for respondents, for tribunals, for practitioners to navigate.

We have, as Roisin mentioned, 9 or 10 pieces of equality legislation, primary pieces, many codes, many statutory instruments. And if I grapple to understand the complexity of those as someone who practises in this area, you can imagine how difficult that becomes for self-represented claimants and people who aren't familiar with the legislative provisions.

And what you find is that that leads to inconsistencies and differences in equality laws between NI and GB. And I also always look to ROI and see how we're diverting and differing from them, because many of the employers and employees in our jurisdiction work across borders.

So if I think that it's unnecessarily complex, other practitioners do, and it needs to be updated. We felt that it was worth looking, Barry, and I felt that it was worth looking at the laws in this area and seeing what we could do to push for a single equality act.

But you start coming into questions then when you look at that as to which areas are your priorities. Is it just bringing all the legislation into one place? Which on the face of it seems quite simple and quite sensible. That in itself would make a difference. And if that was all we can achieve, then that would be something. There is one legislative piece or document people can refer to, perhaps annotated and explained.

But why not do what GB did in 2010 when they introduced the Equality Act, and update and harmonise the law? Because as well as all of the legislation, as well as all of the codes of practice, we have a myriad of case law that has been decided on foot of this legislation and various EU directives over the years that won't necessarily be reflected in legislation, and isn't easy for users to navigate and to understand.

What you find in practice is that claimants come before a tribunal, often respondents come before tribunals as well, and they're referring to GB guidance or GB legislation and don't realise that in Northern Ireland we're actually different.

Now, what are some of those key differences? Where are the complexities and how are we lagging behind? Well, Roisin has mentioned age discrimination and the review of the race relations order, so I won't mention that. Also, she's mentioned the gap in the area of age discrimination and the fact that there's no protection for people around age in the provision of goods and services. When you think about that, that's quite shocking.

But for me, one of the key areas is in the area of disability discrimination. We are lagging so far behind as a jurisdiction in Northern Ireland. And I think it really is putting people at a disadvantage, and some of those people are the most vulnerable and marginalised in our communities.

So in Northern Ireland, we still have disability-related discrimination as opposed to discrimination arising from a disability, which was what was introduced in GB in 2010 in the Equality Act.

And disability-related discrimination requires claimants to compare themselves in a situation where it's not direct discrimination with a comparator whose material circumstances are the same. And that arises from a House of Lord's decision in Malcolm back many years ago.

So in GB, it was recognised that that case meant that claimants in that jurisdiction effectively lost protection against indirect discrimination, because we don't have indirect discrimination in Northern Ireland either.

And so in 2010, they updated the law to introduce this new concept of discrimination arising from a disability, which means that people who are disabled in GB do not in fact need to compare themselves against anyone. They simply ask whether the treatment is arising as a consequence of their disability. And if it is, then that is sufficient to bring themselves within the scope of protection.

So I think there's an urgent need to provide at least that level of protection in Northern Ireland, and we are failing if we don't do that. So that's one of those areas where I think we need to update and consolidate and improve protections under Equality Legislation.

One of the other areas is in the whole area of gender pay transparency. Of course, in GB we've seen gender pay gap reporting since 2017 on foot of the Equality Act 2010, and employers are required to report under their gender pay gap reporting rules in order to identify where there is no gender pay parity.

And in ROI that was introduced in 2002, but under Northern Ireland, we, of course, have had legislation on the books since the 2016 Employment Act. However, that's never yet been implemented. So we are, again, falling behind GB and ROI in that area. So if we're introducing a single equality act, it's one of those areas that we could update and harmonise our laws in.

Another area that I'd like to focus on is in the whole area of transgender rights. And of course, in GB, they have removed the need for transition to be done under medical supervision, but in Northern Ireland for someone to have protection under our legislation, any transitioning needs to have been done under medical supervision.

So that's another area where we're falling behind GB, and if we introduce a single equality act, then we would be able to address and update our laws in those areas.

One of the other areas where we could also benefit greatly from updating and harmonising our laws is in the area of positive action. And in GB, in 2010 when the Equality Act came into force, they strengthened the positive action protections for people in GB who can . . . In a tiebreak situation in a recruitment exercise, employers can now prefer the underrepresented category or protected characteristic in an equal situation, whereas that doesn't extend to Northern Ireland.

And so we see lots of areas where we're falling behind and that protections aren't keeping pace with the rest of our employers in the UK. And even in areas like third-party harassment, which was introduced in GB, but then repealed in 2013, we could see progress in Northern Ireland.

Indeed, in areas like associative and perceived discrimination, where in GB and ROI people who are associated with persons with the protected characteristics have protection, or are perceived to have protected characteristics have protection. In Northern Ireland, those only apply in limited circumstances due to European Court of Justice case law.

And so, again, it just means that protections that we have for people in Northern Ireland are really lagging behind both our comparators in GB and in ROI. And in my view, there is a real need, an urgent need, for us to look at a single equality act, which not just combines, but also harmonises conducting those laws.

Barry:  Ciara, thank you very much for that very useful overview of where we are. Can I just go back to Roisin now briefly just to ask if there's anything, Roisin, you'd like to add to what you've heard there from Ciara? Roisin?

Roisin: Yeah, thanks, Barry. I mean, just to say single equality legislation provides an opportunity to harmonise, to standardise levels of protection across a range of equality grounds, and to get rid of the unjustifiable inconsistencies that Ciara has mentioned there.

I think it's important that single equality legislation harmonises upwards, so there's no regression of our existing level of rights. And also that it reflects best practice in terms of international standards, of course, looking across the different jurisdictions, including in Ireland and Great Britain, to see what best practice and lessons are from what's been happening there.

But I think it's important to say it's not simply about copying the Equality Act 2010, although there were some positive areas in terms of what the Equality Act 2010 did in terms of harmonising and strengthening. But there are also areas of the Equality Act that the Equality Commission thinks can be improved on and, in fact, don't go far enough. So, I think there's an opportunity for single equality legislation to do all of those things.

I just briefly wanted to mention a little bit more about the impact of Brexit, as I'd mentioned about how EU law had helped strengthen and develop law in Northern Ireland. And in fact, we saw that prior to Brexit, there was already stronger protection against discrimination in both Ireland and Great Britain in some areas. But Brexit has led to changes in equality law.

Many of you will be aware of the UK government's commitment in Article 2 of the Windsor Framework, previously the Northern Ireland Protocol, whereby the UK government said that it wouldn't roll back on certain equality and human rights here that were actually in Northern Ireland law prior to the end of the Brexit transition period. And the Commission and the Human Rights Commission have become new powers to monitor that commitment.

But I think what's really critical is that the UK government said not only would it not roll back, but that it would keep pace should the EU in the future make any changes to the six equality directors in Annex 1 of the Windsor Framework.

So, that's really important because it means if the EU is to take forward new legislation to strengthen rights relating to those quality directives . . . which include, for example, the race directive and gender directives. So if those laws are changed by the EU to strengthen rights, the UK government has committed to take those changes forward.

So, as I say, EU law therefore still has both a relevance and an opportunity to strengthen our rights here.

And really, the last point I want to make is that, despite what I've just said, there is a risk of increasing diversions of rights in terms of equality and human rights on the island of Ireland, because the UK government does not have to keep pace with all EU laws, only some of them. And what we will see is that Ireland will march ahead in terms of strengthening protections due to EU law, whereas in those instances the UK government will not be required to keep pace. It'll be up to the Executive to decide whether or not to voluntarily align with those EU laws.

Thank you, Barry.

Barry:  Thank you, Roisin. Now we've got a few questions in, so thank you for those questions. If anybody else would like to send some questions in, then please do so.

Just before we go to the Q&A, can I just take this moment to remind attendees of things coming up from Legal-Island later this month and next?

On 12 June, we've got a webinar "The Power and Potential of Employment Charters".

On 19 June, "Working Time: That Was Then, This is Now". That's going to be an interesting webinar.

And 3 July, we've got "D&I and the Rise of the AI Machines: Understand They're as (un)Inclusive as We Make Them". That's going to be delivered by Raafi Alidina, who's always a very popular speaker. So, that promises to be a really good session on 3 July.

And this is just to remind everybody that there is 25% off all our eLearning at the moment until the end of August, and that's to celebrate our 25 years of being in existence at Legal-Island.

And the next slide is just to remind everybody that we've just this moment confirmed details of our AI for HR event, which is going to take place online on 21 September. It's an all-day event. That promises to be really, really interesting. We've got some great sessions and speakers lined up for that. So really looking forward to that event on the 21st.

And we mustn't forget our old friend Annual Review of Employment Law 2023, which is going to be a hybrid event this year. You can attend in person, but you can also access it remotely. That's going to happen on 7 November.

So, back to questions. And one question is, "What can we do to help the case for a single equality act?" And I suppose when we say we, I think perhaps what the person meant was we employers. So maybe, Roisin, is that a question you'd like to take?

Roisin: Well, maybe start with what the Equality Commission is doing. Obviously, that's, part of our key role. We did have a law reform conference at the end of December last year really to highlight this issue. And we had a wide range of stakeholders present, including from businesses, including the equality and human rights stakeholders representing different groups, and the trade unions.

There was broad support for the need for single equality legislation, including, and I think Ciara has touched on this in terms of employers, making the case as to why it benefits employers. It can clarify their responsibilities, make it more accessible and just easier to navigate so they're clear on what their responsibilities are. So, that came out quite strongly from the conference. And Ciara has also mentioned about the legal profession and the benefits to them.

So I think change will come about when there's a strong voice coming forward seeking reform with robust rationale as to the need. But I think that call has to come from not just the Equality Commission, but from others. And we've also produced a position paper to help others to outline why this is important.

Barry:  Sure. Ciara, anything to add to that, or onto the next question?

Ciara:  No, I don't think I've very much other than to mention, I suppose, the work that you've been doing, Barry, and we've been doing collectively to raise awareness of the issues. Just the very good work that the Equality Commission does and the Human Rights Commission.

But round table events, webinars like this, raising it, making sure the people are aware of it, supporting it, letting your voice be heard if you're a member of CBI, or the Federation of Small Businesses, or any of these organisations and there are opportunities just to let your voice be heard, join in, in that.

Barry:  Sure. Thank you, Ciara. And Ciara just touched on there a bit of work that the both of us have actually been doing over the last few months. I might just say that we've done our own little mini-tour of the political parties, just trying to lobby heads of the political parties just to get an indication of what interest there would be in supporting a bill.

And as of today, I can say that the state of play is something like this. The Alliance have already committed in their previous manifesto to a single equality bill, and there's no reason to suspect that won't happen again in the next one.

The SDLP did contact us a couple of weeks ago and said they would be supporting the call for a bill in the next manifesto, which was interesting.

We also reached out to Emma Sheerin in Sinn Féin, and she indicated that they would be up for considering the bill.

I also heard from the UUP and Doug Beattie, who was also very positive about the idea for a bill.

We went to see Sir Jeffrey Donaldson the day after he'd returned back from America. He was looking a bit jet lagged, and we hit him with all these legal provisions. But he did say he was open to thinking about it, and the DUP would like more time. So, that's where we are there.

And I've also been in touch with TUV, and awaiting to hear from them.

A question I think for you, Ciara, is, "Can Ciara go into more detail on what the Malcolm case actually does, please? I was so shocked when I heard exactly what it means".

Ciara:  Yes, I can, absolutely. So the Malcolm case was actually a case involving social housing. It wasn't an employment case. It was a tenant of the London Borough of Lewisham who had illegally sublet his flat. The landlord wanted to evict him. And in that case, he argued that he should not be evicted under the disability-related discrimination provisions because he was a schizophrenic, and that that had affected his judgement, and therefore that someone who wasn't schizophrenic would not have been evicted from their house in the same circumstances.

And the case went all the way to the House of Lords. And the House of Lords said that you had to compare this gentleman with someone who was not schizophrenic and who had also illegally sublet their flat. And if they would also be evicted, actually then it would not be DRD. It would not be disability-related discrimination.

Up to that point in time, it had been thought that he would compare himself to someone, as I said, who hadn't illegally sublet the flat. And of course, they wouldn't be evicted because they hadn't illegally sublet their flat.

That was transposed into employment law by Clark v Novacold. And so what that means is that if you had somebody with a disability and who, for example, is absent from work because of that disability, and they hit the triggers, then it's arguable what they have to do is they have to compare themselves to someone who is not disabled, but who is absent from work the same number of occasions. And in doing so, they may not have protection against disability discrimination under the new regime following Malcolm and Clark v Novacold.

Whereas in GB, if it was discrimination arising from a disability, then all they would have to prove is that the reason for their dismissal was the absence, and the absence arose in consequence of the disability. And so, therefore, it is discrimination arising from disability. So it makes it much more easy. You don't have to compare yourself to anyone.

I hope that clarifies it. It's an enormously complex couple of cases, and I'm conscious we're out of time. But I hope that gives you some sense of the difference that that makes in the law here compared to in GB.

Barry:  Thank you, Ciara. That does clarify things. Thank you. Very useful, indeed.

Just one very quick question, and this is as follows. Does this bill require all cross-party support? And I think the question really is, "Is it a mainstream process that would need to be used going through Stormont, or could it start and finish its life as a Private Members' Bill?" Roisin, is that something you'd like to comment on?

Roisin: Well, it'll have to follow the same process as any other bill in terms of level of support, but I think it would certainly be helpful to get it across the line if there was clear political commitment and consensus across the main parties.

It would be complex, though, and therefore helpful to have a consensus across the main parties. That's not to say it couldn't be done by way of a Private Members' Bill, but as I say, there is a value in having a political consensus across the board.

I should also just mention there are some areas that are not devolved, such as, for example, in the area of immigration, which are outside devolved matters that need changes as well. So there is this slightly wider complication of bringing about changes to non-devolved areas.

Barry:  Okay. Thank you. I did promise we would try and wrap up by 1:00. It's now seven minutes past and the sun is still shining, so we do need to grab our lunch and to run out, look for a bit of green grass, and enjoy ourselves for lunchtime.

So it just leads me to thank Roisin Mallon from the Equality Commission. Thank you so much for your contribution today. Also to Ciara Fulton.

I look forward to seeing everybody again on 12 June, when we'll be looking at the "Power and Potential of Employment Charters".

So thank you to our contributors and thank you to everybody who attended today. Thank you.

Ciara:  Thank you.

Roisin: Thank you.

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