Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2)(a) and (b) of the European Communities Act 1972 and come into operation on 5th October 2005, implement, in Northern Ireland, Council Directive 2002/73/EC of 23 September 2002 (“the Directive”) and include provision for matters arising out of or relating to such implementation. The Directive is concerned with the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions.

The Directive necessitates amendment of the Sex Discrimination Order (Northern Ireland) 1976 (“the 1976 Order”), in particular to reflect the provisions of the Directive which deal with the definition of indirect discrimination, harassment, and genuine occupational requirements, and also necessitates amendments to the 1976 Order making it clear that discrimination on the grounds of pregnancy and maternity leave is unlawful sex discrimination.

Regulation 3 makes certain amendments to the interpretation provisions of the 1976 Order. It also makes a consequential amendment.

Regulation 4 sets out a revised definition of indirect discrimination, on grounds of sex, in those areas with which the Directive is concerned. It also applies the amended definition to indirect discrimination against married persons.

Regulation 5 sets out a definition of discrimination on the grounds of pregnancy and maternity leave.

Regulation 6 sets out a definition of harassment, including sexual harassment, on the grounds of a person’s sex, or on the grounds of gender reassignment, which will apply in the areas with which the Directive is concerned. It also provides that a person may not be treated less favourably because of their submission to or rejection of conduct amounting to harassment.

Regulation 7 makes it unlawful for an employer to subject to harassment an employee or an applicant for employment.

Regulation 8 sets out the extent to which it is discriminatory to deprive a woman of the benefit of her terms and conditions of employment during maternity leave. These provisions do not apply to pay (the payment of money regulated by the contract of employment) as this is dealt with in the Equal Pay Act (Northern Ireland) 1970 – see regulation 32.

Regulation 9 makes it unlawful for persons with statutory power to select employees for others to subject a person to harassment.

Regulation 10 modifies the genuine occupational qualification exception which allows gender reassignment discrimination in cases where the jobholder is liable to be called upon to perform intimate physical searches pursuant to statutory powers.

Regulation 11 makes it unlawful for a principal to subject a contract worker to harassment.

Regulation 12 contains an expanded definition of “work at an establishment in Northern Ireland”.

Regulation 13 extends the 1976 Order to office holders.

Regulation 14 makes it unlawful for partnerships to subject to harassment partners or applicants for partnership and removes the exception allowing partnerships to discriminate in the provision of death or retirement benefits.

Regulation 15 makes it unlawful for trades unions to subject to harassment members or applicants for membership and removes the exception allowing trades unions to discriminate in the provision of death or retirement benefits.

Regulation 16 makes it unlawful for qualifying bodies to subject persons to harassment.

Regulation 17 amends the provisions relating to vocational training and makes it unlawful for training providers to subject persons to harassment.

Regulation 18 makes it unlawful for employment agencies to subject persons to harassment.

Regulation 19 replaces Article 21 of the 1976 Order which permits certain discrimination in relation to employment and qualifications for purposes of an organised religion where the discrimination is necessary for limited religious reasons.

Regulations 20 and 23 provide that, where there has been a relationship in which certain acts of discrimination, or harassment, would have been unlawful, it is also unlawful to subject a person to harassment after that relationship has ended. Regulation 20 applies to relationships which are governed by Part III of the 1976 Order (for example, an employment relationship), and regulation 23 applies to relationships to which certain provisions of Part IV of the 1976 Order apply.

Regulation 21 makes it unlawful for institutions of further and higher education to discriminate in respect of selection arrangements and to subject persons to harassment.

Regulation 22 removes the exception allowing discrimination in physical education training courses.

Regulation 24 makes it the duty of the Equality Commission for Northern Ireland (ECNI) to work towards the elimination of harassment (in addition to its existing duty in respect of discrimination), adds harassment to the matters which can be the subject of a code of practice and adds harassment to the matters in respect of which the ECNI can require information for the purposes of a formal investigation.

Regulation 25 adds harassment to the claims which may be presented to an industrial tribunal.

Regulation 26 ensures that the burden of proof in harassment claims heard in the industrial tribunal is the same as that for discrimination claims heard there.

Regulation 27 adds harassment to the claims which may be presented to a county court.

Regulation 28 ensures that the burden of proof in harassment claims heard in the county court is the same as that for discrimination claims heard there, in areas with which the Directive is concerned.

Regulation 29 ensures that, in certain cases, respondents must reply to a claimant’s preliminary questions within eight weeks of being served with them.

Regulation 30 removes the exception allowing discrimination in admission to cadet forces.

Regulation 31 extends the Equal Pay Act (Northern Ireland) 1970 to office-holders.

Regulation 32 amends the Equal Pay Act (Northern Ireland) 1970 to set out the extent to which it is discriminatory to pay a woman less than she would otherwise have been paid due to pregnancy or maternity leave.

A Regulatory Impact Assessment of the effect these Regulations will have on business costs has been placed in the Library of the Northern Ireland Assembly. A copy may be obtained from : Equality and Rights Division, Office of the First Minister and deputy First Minister, Room E3.18, Castle Buildings, Stormont, Belfast BT4 3SR, or on the Department’s website at www.ofmdfmni.gov.uk/sex-discrimination-and-equal-pay.htm