1 a single equality bill for northern ireland the seb consultation paper: draft ecni response evelyn...
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A Single Equality Bill for Northern Ireland
The SEB Consultation Paper: Draft ECNI Response
Evelyn CollinsChief ExecutiveEquality Commission for Northern Ireland
21 October 2004
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IntroductionIntroduction
ECNI Position Papers:www.equalityni.org/ Recent
Publications/Single Equality BillDraft Response Paper agreed on
08.09.04Final Response Paper to be agreed
27.10.04promotion of recommendations until
mid-November
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IntroductionIntroduction
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 implementationSEB: 2005-06 SEA: 2007prospects for a GB SEA?
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The EU dimensionThe 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)
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The EU dimensionThe 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
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NI RegulationsNI 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)?
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The NI + Irish dimensionsThe 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/NIHRCEmployment Equality Act 1998 +
Equal Status Act 2000 (RoI)
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2: Purpose and principles 2: Purpose and principles
‘mainstreaming’ of equality through ‘common template’
common and effective conceptscommon 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
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2: Purpose and principles 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
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3: Grounds3: 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
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3: Grounds3: Grounds
additional grounds:? socio-economic status? past convictions? victims? trans issues? genetic disposition? Language other status
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4: Scope4: Scopewide definition of ‘employment
relationship’volunteers – clear definition –
substantial and well-established extension of regimes to GFS + small
premises/private clubsperformance of public functions –
good relations?education (including SENDO)social protection + advantagesequal pay
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5: Definitions - Direct discrimination
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
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5: Definitions - Harassment5: 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
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5: Definitions - Harassment5: Definitions - Harassment
disjunctive approach as in Amendment Regulations
comparators a question of ‘proof, not necessity’
so also with definition of victimisation
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5: Definitions - Indirect discrimination
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:
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An effective concept of indirect discrimination?
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
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5: Definitions - Reasonable accommodation
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
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An effective concept of ‘reasonable accommodation’?
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?
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6: Exceptions6: 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
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6: Exceptions6: 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’ ORalso a ‘genuine service requirement’
(GSR)ECNI: general GOR/GSR – give examples
in SEA and subject to Code of Practice
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6: Exceptions6: Exceptions
‘organised religion’ exception could be example
‘teachers’ exemption’ restricted to primary school teachers
some autonomous subject-specific exceptions (eg on age?)
remainder repealed
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6: Exceptions6: Exceptions
‘exceptional circumstances’ in relation to age
sensitive re-examination of health and safety protection
clear delineation of ‘loyalty’ criterionunconvinced by ‘financial planning’
criterion‘necessary’ continuation of legislative
age limits
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7: Goods, facilities and services
7: Goods, facilities and services
presumption in favour of GFSdefinition by way of examplessupported by Code of Practicepublic and contracted-out GFS
included‘unconvinced’ on need for staging
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8: Addressing under-representation
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
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8: Addressing under-representation
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
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8: Addressing under-representation
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
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9: ECNI functions and powers9: 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
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9: ECNI functions and powers9: 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
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10: Courts and tribunals10: Courts and tribunals
Single Equality Tribunalgoverning all equality issues,
including GFSlegal aidcase managementtime limits
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10: Courts and tribunals10: 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.
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10: Courts and tribunals10: 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
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10: Courts and tribunals10: 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
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10: Courts and tribunals10: 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?
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11: Alternative dispute resolution
11: Alternative dispute resolution
conciliation: extension of DDA approach to GFS cases
mediation (eg RoI experience)arbitration; in some cases but
doubts about others
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ConclusionConclusion
opportunity to create coherent, consistent and effective equality law system
choreography between EU implementation, enactment of BoRTs, enactment of SEA and possible GB agenda