The Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004

PART I INTRODUCTORY

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004.

(2) These Regulations shall come into operation on the day after that on which they are made so far as enabling anything to be done for the purposes of preparing and bringing into operation on or after 1st October 2004 a code of practice under section 54A(1) of the Act concerning any provision of the Act as it will have effect on or after that date by virtue of these Regulations.

(3) Except as provided by paragraph (2), these Regulations shall come into operation on 1st October 2004.

(4) In these Regulations –

“the Act” means the Disability Discrimination Act 1995(2); and

“the Order” means the Equality (Disability, etc.) (Northern Ireland) Order 2000(3).

(5) The Interpretation Act (Northern Ireland) 1954(4) shall apply to these Regulations as it applies to an Act of the Assembly.

Transitional provisions

2.—(1) Subsection (1B) of section 17A(5) of the Act (as inserted by regulation 9(2)(c)) applies in relation to a complaint presented to an industrial tribunal before the commencement date, as well as one presented on or after that date; but it does not affect any case in which a complaint was determined by an industrial tribunal before the commencement date.

(2) The amendment made to section 56(3) of the Act by regulation 22(c) shall not apply in the case of a question served on a respondent before the commencement date.

(3) In paragraph (2), “question” and “respondent” shall be construed in accordance with section 56 of the Act.

(4) In this regulation, “the commencement date” means 1st October 2004.

Amendment of the Act and other legislation

3.—(1) The amendments to the Act set out in Part II shall have effect.

(2) The amendments set out in Part III (in relation to the Order and other legislation) shall have effect.

PART II AMENDMENTS TO THE ACT

Meaning of “discrimination” and “harassment”

4.—(1) In the heading to Part II of the Act, for “EMPLOYMENT” substitute “THE EMPLOYMENT FIELD”.

(2) After that heading, and before section 4, insert the following sections –

“Meaning of “discrimination” and “harassment”

Meaning of “discrimination”

3A.— (1) For the purposes of this Part, a person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

Meaning of “harassment”

3B.— (1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of –

(a) violating the disabled person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”.

Employment, contract workers, office-holders, occupational pension schemes and repeal of sections 5, 6 and 17

5.—(1) For section 4 (and the preceding cross-heading), substitute the following sections –

“Employment

4.    Employers: discrimination and harassment

(1) It is unlawful for an employer to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering, him employment.

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment.

(3) It is also unlawful for an employer, in relation to employment by him, to subject to harassment –

(a) a disabled person whom he employs; or

(b) a disabled person who has applied to him for employment.

(4) Subsection (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless –

(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees;

(b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

(c) the benefits relate to training.

(5) The reference in subsection (2)(d) to the dismissal of a person includes a reference –

(a) to the termination of that person’s employment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment is renewed on the same terms; and

(b) to the termination of that person’s employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.

(6) This section applies only in relation to employment at an establishment in Northern Ireland.

4A.    Employers: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In subsection (1), “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is –

(i) an applicant for the employment concerned, or

(ii) an employee of the employer concerned.

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

Contract workers

4B.    Contract workers

(1) It is unlawful for a principal, in relation to contract work, to discriminate against a disabled person who is a contract worker (a “disabled contract worker”) –

(a) in the terms on which he allows him to do that work;

(b) by not allowing him to do it or continue to do it;

(c) in the way he affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

(d) by subjecting him to any other detriment.

(2) It is also unlawful for a principal, in relation to contract work, to subject a disabled contract worker to harassment.

(3) Subsection (1) does not apply to benefits of any description if the principal is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the contract worker in question, unless that provision differs in a material respect from the provision of the benefits by the principal to contract workers.

(4) This subsection applies to a disabled contract worker where, by virtue of –

(a) a provision, criterion or practice applied by or on behalf of all or most of the principals to whom he is or might be supplied, or

(b) a physical feature of premises occupied by such persons,

he is likely, on each occasion when he is supplied to a principal to do contract work, to be placed at a substantial disadvantage in comparison with persons who are not disabled which is the same or similar in each case.

(5) Where subsection (4) applies to a disabled contract worker, his employer must take such steps as he would have to take under section 4A if the provision, criterion or practice were applied by him or on his behalf or (as the case may be) if the premises were occupied by him.

(6) Section 4A applies to any principal, in relation to contract work, as if he were, or would be, the employer of the disabled contract worker and as if any contract worker supplied to do work for him were an employee of his.

(7) However, for the purposes of section 4A as applied by subsection (6), a principal is not required to take a step in relation to a disabled contract worker if under that section the disabled contract worker’s employer is required to take the step in relation to him.

(8) This section applies only in relation to contract work done at an establishment in Northern Ireland (the provisions of section 68 about the meaning of “employment at an establishment in Northern Ireland” applying for the purposes of this subsection with the appropriate modifications).

(9) In this section –

“principal” means a person (“A”) who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A;

“contract work” means work so made available; and

“contract worker” means any individual who is supplied to the principal under such a contract.

Office-holders

4C.    Office-holders: introductory

(1) Subject to subsection (5), sections 4D and 4E apply to an office or post if –

(a) no relevant provision of this Part applies in relation to an appointment to the office or post; and

(b) one or more of the conditions specified in subsection (3) is satisfied.

(2) The following are relevant provisions of this Part for the purposes of subsection (1)(a): section 4, section 4B, section 6A, section 7A and section 14C.

(3) The conditions specified in this subsection are that –

(a) the office or post is one to which persons are appointed to discharge functions personally under the direction of another person, and in respect of which they are entitled to remuneration;

(b) the office or post is one to which appointments are made by a Minister of the Crown, a Northern Ireland Minister or a government department;

(c) the office or post is one to which appointments are made on the recommendation of, or subject to the approval of, a body or person referred to in paragraph (b) or the Assembly.

(4) For the purposes of subsection (3)(a) the holder of an office or post –

(a) is to be regarded as discharging his functions under the direction of another person if that other person is entitled to direct him as to when and where he discharges those functions;

(b) is not to be regarded as entitled to remuneration merely because he is entitled to payments –

(i) in respect of expenses incurred by him in carrying out the functions of the office or post, or

(ii) by way of compensation for the loss of income or benefits he would or might have received from any person had he not been carrying out the functions of the office or post.

(5) Sections 4D and 4E do not apply to –

(a) any office of the House of Commons held by a member of it;

(b) a life peerage within the meaning of the Life Peerages Act 1958(6), or any office of the House of Lords held by a member of it;

(c) any office mentioned in Schedule 2 (Ministerial offices) to the House of Commons Disqualification Act 1975(7);

(d) any office of the Assembly held by a member of it;

(e) any office of a district council held by a member of it; or

(f) any office of a political party.

4D.    Office-holders: discrimination and harassment

(1) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this section applies, to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining who should be offered the appointment;

(b) in the terms on which he offers him the appointment; or

(c) by refusing to offer him the appointment.

(2) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this section applies and which satisfies the condition set out in section 4C(3)(c), to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining who should be recommended or approved in relation to the appointment; or

(b) in making or refusing to make a recommendation, or giving or refusing to give an approval, in relation to the appointment.

(3) It is unlawful for a relevant person, in relation to a disabled person who has been appointed to an office or post to which this section applies, to discriminate against him –

(a) in the terms of the appointment;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit, or by refusing to afford him any such opportunity;

(c) by terminating the appointment; or

(d) by subjecting him to any other detriment in relation to the appointment.

(4) It is also unlawful for a relevant person, in relation to an office or post to which this section applies, to subject to harassment a disabled person –

(a) who has been appointed to the office or post;

(b) who is seeking or being considered for appointment to the office or post; or

(c) who is seeking or being considered for a recommendation or approval in relation to an appointment to an office or post satisfying the condition set out in section 4C(3)(c).

(5) Subsection (3) does not apply to benefits of any description if the relevant person is concerned with the provision (for payment or not) of benefits of that description to the public, or a section of the public to which the disabled person belongs, unless –

(a) that provision differs in a material respect from the provision of the benefits to persons appointed to offices or posts which are the same as, or not materially different from, that to which the disabled person has been appointed;

(b) the provision of the benefits to the person appointed is regulated by the terms and conditions of his appointment; or

(c) the benefits relate to training.

(6) In subsection (3)(c) the reference to the termination of the appointment includes a reference –

(a) to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and

(b) to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment by reason of the conduct of the relevant person.

(7) In this section –

(a) references to making a recommendation include references to making a negative recommendation; and

(b) references to refusal include references to deliberate omission.

4E.    Office-holders: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of a relevant person, or

(b) any physical feature of premises –

(i) under the control of a relevant person, and

(ii) at or from which the functions of an office or post to which this section applies are performed,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the relevant person to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section, “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining who should be appointed to, or recommended or approved in relation to, an office or post to which this section applies, any disabled person who –

(i) is, or has notified the relevant person that he may be, seeking appointment to, or (as the case may be) seeking a recommendation or approval in relation to, that office or post, or

(ii) is being considered for appointment to, or (as the case may be) for a recommendation or approval in relation to, that office or post;

(b) in any other case, a disabled person –

(i) who is seeking or being considered for appointment to, or a recommendation or approval in relation to, the office or post concerned, or

(ii) who has been appointed to the office or post concerned.

(3) Nothing in this section imposes any duty on the relevant person in relation to a disabled person if the relevant person does not know, and could not reasonably be expected to know –

(a) in the case of a person who is being considered for, or is or may be seeking, appointment to, or a recommendation or approval in relation to, an office or post, that the disabled person concerned –

(i) is, or may be, seeking appointment to, or (as the case may be) seeking a recommendation or approval in relation to, that office or post, or

(ii) is being considered for appointment to, or (as the case may be) for a recommendation or approval in relation to, that office or post; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

4F.    Office-holders: supplementary

(1) In sections 4C to 4E, appointment to an office or post does not include election to an office or post.

(2) In sections 4D and 4E, “relevant person” means –

(a) in a case relating to an appointment to an office or post, the person with power to make that appointment;

(b) in a case relating to the making of a recommendation or the giving of an approval in relation to an appointment, a person or body referred to in section 4C(3)(b) with power to make that recommendation or (as the case may be) to give that approval;

(c) in a case relating to a term of an appointment, the person with power to determine that term;

(d) in a case relating to a working condition afforded in relation to an appointment –

(i) the person with power to determine that working condition; or

(ii) where there is no such person, the person with power to make the appointment;

(e) in a case relating to the termination of an appointment, the person with power to terminate the appointment;

(f) in a case relating to the subjection of a disabled person to any other detriment or to harassment, any person or body falling within one or more of paragraphs (a) to (e) in relation to such cases as are there mentioned.

(3) In subsection (2)(d), “working condition” includes –

(a) any opportunity for promotion, a transfer, training or receiving any other benefit; and

(b) any physical feature of premises at or from which the functions of an office or post are performed.

Occupational pension schemes

4G.    Occupational pension schemes: non-discrimination rule

(1) Every occupational pension scheme shall be taken to include a provision (“the non-discrimination rule”) containing the following requirements –

(a) a requirement that the trustees or managers of the scheme refrain from discriminating against a relevant disabled person in carrying out any of their functions in relation to the scheme (including in particular their functions relating to the admission of members to the scheme and the treatment of members of the scheme);

(b) a requirement that the trustees or managers of the scheme do not subject a relevant disabled person to harassment in relation to the scheme.

(2) The other provisions of the scheme are to have effect subject to the non-discrimination rule.

(3) It is unlawful for the trustees or managers of an occupational pension scheme –

(a) to discriminate against a relevant disabled person contrary to requirement (a) of the non-discrimination rule; or

(b) to subject a relevant disabled person to harassment contrary to requirement (b) of the non-discrimination rule.

(4) The non-discrimination rule does not apply in relation to rights accrued, or benefits payable, in respect of periods of service prior to the coming into operation of this section (but it does apply to communications with members or prospective members of the scheme in relation to such rights or benefits).

(5) The trustees or managers of an occupational pension scheme may, if –

(a) they do not (apart from this subsection) have power to make such alterations to the scheme as may be required to secure conformity with the non-discrimination rule, or

(b) they have such power but the procedure for doing so –

(i) is liable to be unduly complex or protracted, or

(ii) involves the obtaining of consents which cannot be obtained, or can only be obtained with undue delay or difficulty,

by resolution make such alterations to the scheme.

(6) The alterations referred to in subsection (5) may have effect in relation to a period before the alterations are made (but may not have effect in relation to a period before the coming into operation of this section).

4H.    Occupational pension schemes: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice (including a scheme rule) applied by or on behalf of the trustees or managers of an occupational pension scheme, or

(b) any physical feature of premises occupied by the trustees or managers,

places a relevant disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the trustees or managers to take such steps as it is reasonable, in all the circumstances of the case, for them to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) The making of alterations to scheme rules is (in addition to the examples set out in section 18B(2)) an example of a step which trustees or managers may have to take in order to comply with the duty set out in subsection (1).

(3) Nothing in subsection (1) imposes any duty on trustees or managers in relation to a disabled person if they do not know, and could not reasonably be expected to know –

(a) that the disabled person is a relevant disabled person; or

(b) that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

4I.    Occupational pension schemes: procedure

(1) Where under section 17A a relevant disabled person presents a complaint to an industrial tribunal that the trustees or managers of an occupational pension scheme have acted in relation to him in a way which is unlawful under this Part, the employer in relation to that scheme shall, for the purposes of the rules governing procedure, be treated as a party and be entitled to appear and be heard in accordance with those rules.

(2) In this section, “employer”, in relation to an occupational pension scheme, has the meaning given by Article 121(1) of the Pensions (Northern Ireland) Order 1995(8) as at the date of coming into operation of this section.

4J.    Occupational pension schemes: remedies

(1) This section applies where –

(a) under section 17A a relevant disabled person presents to an industrial tribunal a complaint that –

(i) the trustees or managers of an occupational pension scheme have acted in relation to him in a way which is unlawful under this Part; or

(ii) an employer has so acted in relation to him;

(b) the complaint relates to –

(i) the terms on which persons become members of an occupational pension scheme, or

(ii) the terms on which members of the scheme are treated;

(c) the disabled person is not a pensioner member of the scheme; and

(d) the tribunal finds that the complaint is well-founded.

(2) The tribunal may, without prejudice to the generality of its power under section 17A(2)(a), make a declaration that the complainant has a right –

(a) (where subsection (1)(b)(i) applies) to be admitted to the scheme in question; or

(b) (where subsection (1)(b)(ii) applies) to membership of the scheme without discrimination.

(3) A declaration under subsection (2) –

(a) may be made in respect of such period as the declaration may specify (but may not be made in respect of any period before the coming into operation of this section);

(b) may make such provision as the tribunal considers appropriate as to the terms upon which, or the capacity in which, the disabled person is to enjoy such admission or membership.

(4) The tribunal may not award the disabled person any compensation under section 17A(2)(b) (whether in relation to arrears of benefits or otherwise) other than –

(a) compensation for injury to feelings;

(b) compensation pursuant to section 17A(5).

4K.    Occupational pension schemes: supplementary

(1) In their application to communications, sections 4G to 4J apply in relation to a disabled person who is –

(a) entitled to the present payment of dependants' or survivors' benefits under an occupational pension scheme; or

(b) a pension credit member of such a scheme,

as they apply in relation to a disabled person who is a pensioner member of the scheme.

(2) In sections 4G to 4J and in this section –

“active member”, “deferred member”, “managers”, “pension credit member”, “pensioner member” and “trustees or managers” have the meanings given by Article 121(1) of the Pensions (Northern Ireland) Order 1995(9) as at the date of coming into operation of this section;

“communications” includes –

(i)

the provision of information, and

(ii)

the operation of a dispute resolution procedure;

“member”, in relation to an occupational pension scheme, means any active, deferred or pensioner member;

“non-discrimination rule” means the rule in section 4G(1);

“relevant disabled person”, in relation to an occupational pension scheme, means a disabled person who is a member or prospective member of the scheme; and

“prospective member” means any person who, under the terms of his contract of employment or the scheme rules or both –

(i)

is able, at his own option, to become a member of the scheme,

(ii)

will become so able if he continues in the same employment for a sufficiently long period,

(iii)

will be admitted to it automatically unless he makes an election not to become a member, or

(iv)

may be admitted to it subject to the consent of his employer.”.

(2) Sections 5 (meaning of “discrimination”), 6 (duty of employer to make adjustments) and 17 (occupational pension schemes) and the preceding cross-heading are repealed.

Partnerships

6.  After section 4K (as substituted by regulation 5), insert the following sections –

“Partnerships

Partnerships: discrimination and harassment

6A.— (1) It is unlawful for a firm, in relation to a position as partner in the firm, to discriminate against a disabled person –

(a) in the arrangements which they make for the purpose of determining who should be offered that position;

(b) in the terms on which they offer him that position;

(c) by refusing or deliberately omitting to offer him that position; or

(d) in a case where the person already holds that position –

(i) in the way they afford him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

(ii) by expelling him from that position, or subjecting him to any other detriment.

(2) It is also unlawful for a firm, in relation to a position as partner in the firm, to subject to harassment a disabled person who holds or has applied for that position.

(3) Subsection (1) does not apply to benefits of any description if the firm are concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the partner in question, unless that provision differs in a material respect from the provision of the benefits to other partners.

(4) The reference in subsection (1)(d)(ii) to the expulsion of a person from a position as partner includes a reference –

(a) to the termination of that person’s partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the partnership is renewed on the same terms; and

(b) to the termination of that person’s partnership by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the other partners.

Partnerships: duty to make adjustments

6B.— (1) Where –

(a) a provision, criterion or practice applied by or on behalf of a firm, or

(b) any physical feature of premises occupied by the firm,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the firm to take such steps as it is reasonable, in all the circumstances of the case, for them to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section, “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining to whom the position of partner should be offered, any disabled person who is, or has notified the firm that he may be, a candidate for that position;

(b) in any other case, a disabled person who is –

(i) a partner, or

(ii) a candidate for the position of partner.

(3) Nothing in this section imposes any duty on a firm in relation to a disabled person if the firm do not know, and could not reasonably be expected to know –

(a) in the case of a candidate or potential candidate, that the disabled person concerned is, or may be, a candidate for the position of partner; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

(4) Where a firm are required by this section to take any steps in relation to the disabled person concerned, the cost of taking those steps shall be treated as an expense of the firm; and the extent to which such cost should be borne by that person, where he is or becomes a partner in the firm, shall not exceed such amount as is reasonable, having regard in particular to the proportion in which he is entitled to share in the firm’s profits.

Partnerships: supplementary

6C.— (1) Sections 6A(1)(a) to (c) and (2) and section 6B apply in relation to persons proposing to form themselves into a partnership as they apply in relation to a firm.

(2) Sections 6A and 6B apply to a limited liability partnership as they apply to a firm; and, in the application of those sections to a limited liability partnership, references to a partner in a firm are references to a member of the limited liability partnership.

(3) In the case of a limited partnership, references in sections 6A and 6B to a partner shall be construed as references to a general partner as defined in section 3 of the Limited Partnerships Act 1907(10).

(4) In sections 6A and 6B and in this section, “firm” has the meaning given by section 4 of the Partnership Act 1890(11).”.

Repeal of exemption for small businesses

7.  Section 7 (exemption for small businesses) is repealed.

Barristers

8.  After section 6C (as inserted by regulation 6), insert the following sections –

“Barristers

Barristers: discrimination and harassment

7A.— (1) It is unlawful for a barrister, in relation to taking any person as his pupil, to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining whom he will take as his pupil;

(b) in respect of any terms on which he offers to take the disabled person as his pupil; or

(c) by refusing, or deliberately omitting, to take the disabled person as his pupil.

(2) It is unlawful for a barrister, in relation to a disabled person who is a pupil, to discriminate against him –

(a) in respect of any terms applicable to him as a pupil;

(b) in the opportunities for training, or gaining experience, which are afforded or denied to him;

(c) in the benefits which are afforded or denied to him;

(d) by terminating the relationship or by subjecting him to any pressure to leave; or

(e) by subjecting him to any other detriment.

(3) It is unlawful for a barrister, in relation to taking any person as his pupil, to subject to harassment a disabled person who is, or has applied to be taken as, his pupil.

(4) It is also unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against a disabled person or to subject him to harassment.

(5) In this section and section 7B “pupil” has the meaning commonly associated with its use in the context of a person training as a barrister.

Barristers: duty to make adjustments

7B.— (1) Where –

(a) a provision, criterion or practice applied by or on behalf of a barrister, or

(b) any physical feature of premises occupied by, and under the control of, a barrister,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the barrister to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section, “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining whom he will take as his pupil, any disabled person who has applied, or has notified the barrister that he may apply, to be taken as a pupil;

(b) in any other case, a disabled person who is –

(i) an applicant to be taken as the barrister’s pupil, or

(ii) a pupil.

(3) Nothing in this section imposes any duty on a barrister in relation to a disabled person if he does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, applying to be taken as his pupil; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”.

Enforcement

9.—(1) Move section 8 (enforcement, remedies and procedure), and the preceding cross-heading, to immediately precede section 18, and renumber the section as section 17A.

(2) In that section –

(a) in subsection (1)(a), after “discriminated against him” insert “, or subjected him to harassment,”;

(b) in subsection (1)(b), for “discriminated against him in such a way”, substitute “done so”;

(c) after subsection (1), insert the following subsections –

“(1A) Subsection (1) does not apply to a complaint under section 14A(1) or (2) about an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment.

(1B) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.”;

(d) for subsection (3), substitute –

“(3) Where a tribunal orders compensation under subsection (2)(b), the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims in tort for breach of statutory duty.”;

(e) for subsection (7), substitute –

“(7) Regulations may modify the operation of any order made under Article 16 of the Industrial Tribunals (Northern Ireland) Order 1996(12) (power to make provision as to interest on sums payable in pursuance of industrial tribunal decisions) to the extent that it relates to an award of compensation under subsection (2)(b).”.

Repeal of section 9

10.  Section 9 (validity of certain agreements) is repealed.

Repeal of section 10

11.  Section 10 (charities and support for particular groups of persons) is repealed.

Repeal of sections 11 and 12

12.  Section 11 (advertisements suggesting that employers will discriminate against disabled persons) and section 12 (discrimination against contract workers) are repealed.

Trade and professional bodies; qualifications bodies; practical work experience

13.  For sections 13 to 15, substitute the following sections –

“Trade and professional bodies

13.    Trade organisations: discrimination and harassment

(1) It is unlawful for a trade organisation to discriminate against a disabled person –

(a) in the arrangements which it makes for the purpose of determining who should be offered membership of the organisation;

(b) in the terms on which it is prepared to admit him to membership of the organisation; or

(c) by refusing to accept, or deliberately not accepting, his application for membership.

(2) It is unlawful for a trade organisation, in the case of a disabled person who is a member of the organisation, to discriminate against him –

(a) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them;

(b) by depriving him of membership, or varying the terms on which he is a member; or

(c) by subjecting him to any other detriment.

(3) It is also unlawful for a trade organisation, in relation to membership of that organisation, to subject to harassment a disabled person who –

(a) is a member of the organisation; or

(b) has applied for membership of the organisation.

(4) In this section and section 14 “trade organisation” means –

(a) an organisation of workers;

(b) an organisation of employers; or

(c) any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.

14.    Trade organisations: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of a trade organisation, or

(b) any physical feature of premises occupied by the organisation,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the organisation to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining to whom membership should be offered, any disabled person who is, or has notified the organisation that he may be, an applicant for membership;

(b) in any other case, a disabled person who is –

(i) a member of the organisation; or

(ii) an applicant for membership of the organisation.

(3) Nothing in this section imposes any duty on an organisation in relation to a disabled person if the organisation does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for membership of the organisation; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

14A.    Qualifications bodies: discrimination and harassment

(1) It is unlawful for a qualifications body to discriminate against a disabled person –

(a) in the arrangements which it makes for the purpose of determining upon whom to confer a professional or trade qualification;

(b) in the terms on which it is prepared to confer a professional or trade qualification on him;

(c) by refusing or deliberately omitting to grant any application by him for such a qualification; or

(d) by withdrawing such a qualification from him or varying the terms on which he holds it.

(2) It is also unlawful for a qualifications body, in relation to a professional or trade qualification conferred by it, to subject to harassment a disabled person who holds or applies for such a qualification.

(3) In determining for the purposes of subsection (1) whether the application by a qualifications body of a competence standard to a disabled person constitutes discrimination within the meaning of section 3A, the application of the standard is justified for the purposes of section 3A(1)(b) if, but only if, the qualifications body can show that –

(a) the standard is, or would be, applied equally to persons who do not have his particular disability; and

(b) its application is a proportionate means of achieving a legitimate aim.

(4) For the purposes of subsection (3) –

(a) section 3A(2) (and (6)) does not apply; and

(b) section 3A(4) has effect as if the reference to section 3A(3) were a reference to subsection (3) of this section.

(5) In this section and section 14B –

“qualifications body” means any authority or body which can confer a professional or trade qualification, but it does not include –

(a)

a board;

(b)

the Board of Governors of a grant-aided school;

(c)

the proprietor of an independent school;

(d)

the Council for Catholic Maintained Schools;

(e)

the governing body of a university;

(f)

the governing body of an instutution of further education;

(g)

the managers of a college of education;

(h)

the governing body of the College of Agriculture, Food and Rural Enterprise;

“confer” includes renew or extend;

“professional or trade qualification” means an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular profession or trade;

“competence standard” means an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.

(6) Words and expressions used in the definition of “qualifications body” in subsection (5) to which a meaning is assigned by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986(13) have the same meaning as in that Order.

14B.    Qualifications bodies: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body; or

(b) any physical feature of premises occupied by a qualifications body,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the qualifications body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining on whom a professional or trade qualification is to be conferred, any disabled person who is, or has notified the qualifications body that he may be, an applicant for the conferment of that qualification;

(b) in any other case, a disabled person who –

(i) holds a professional or trade qualification conferred by the qualifications body, or

(ii) applies for a professional or trade qualification which it confers.

(3) Nothing in this section imposes a duty on a qualifications body in relation to a disabled person if the body does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the conferment of a professional or trade qualification; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

Practical work experience

14C.    Practical work experience: discrimination and harassment

(1) It is unlawful, in the case of a disabled person seeking or undertaking a work placement, for a placement provider to discriminate against him –

(a) in the arrangements which he makes for the purpose of determining who should be offered a work placement;

(b) in the terms on which he affords him access to any work placement or any facilities concerned with such a placement;

(c) by refusing or deliberately omitting to afford him such access;

(d) by terminating the placement; or

(e) by subjecting him to any other detriment in relation to the placement.

(2) It is also unlawful for a placement provider, in relation to a work placement, to subject to harassment –

(a) a disabled person to whom he is providing a placement; or

(b) a disabled person who has applied to him for a placement.

(3) This section and section 14D do not apply to –

(a) anything made unlawful by section 4 or any provision of Part III; or

(b) anything which would be unlawful under that section or any such provision but for the operation of any other provision of this Act.

(4) In this section and section 14D –

“work placement” means practical work experience undertaken for a limited period for the purposes of a person’s vocational training;

“placement provider” means any person who provides a work placement to a person whom he does not employ.

(5) This section and section 14D do not apply to a work placement undertaken in any of the naval, military and air forces of the Crown.

14D.    Practical work experience: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of a placement provider, or

(b) any physical feature of premises occupied by the placement provider,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the placement provider to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In this section, “the disabled person concerned” means –

(a) in the case of a provision, criterion or practice for determining to whom a work placement should be offered, any disabled person who is, or has notified the placement provider that he may be, an applicant for that work placement;

(b) in any other case, a disabled person who is –

(i) an applicant for the work placement concerned, or

(ii) undertaking a work placement with the placement provider.

(3) Nothing in this section imposes any duty on a placement provider in relation to the disabled person concerned if he does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the work placement; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”.

Alterations to premises occupied under leases

14.—(1) Omit the cross-heading preceding section 16 (alterations to premises occupied under leases).

(2) Move section 16 to follow section 18 and renumber it as section 18A.

(3) In that section –

(a) in subsection (1)(a), for “an employer or trade organisation” substitute “a person to whom a duty to make reasonable adjustments applies”;

(b) in subsection (1)(c), for “a section 6 duty or section 15 duty” substitute “that duty”.

Other unlawful acts

15.  After section 16, insert the following sections –

“Other unlawful acts

Relationships which have come to an end

16A.— (1) This section applies where –

(a) there has been a relevant relationship between a disabled person and another person (“the relevant person”), and

(b) the relationship has come to an end.

(2) In this section a “relevant relationship” is –

(a) a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship by the other party to it is unlawful under any preceding provision of this Part; or

(b) a relationship between a person providing employment services (within the meaning of Part III) and a person receiving such services.

(3) It is unlawful for the relevant person –

(a) to discriminate against the disabled person by subjecting him to a detriment, or

(b) to subject the disabled person to harassment,

where the discrimination or harassment arises out of and is closely connected to the relevant relationship.

(4) This subsection applies where –

(a) a provision, criterion or practice applied by the relevant person to the disabled person in relation to any matter arising out of the relevant relationship, or

(b) a physical feature of premises which are occupied by the relevant person,

places the disabled person at a substantial disadvantage in comparison with persons who are not disabled, but are in the same position as the disabled person in relation to the relevant person.

(5) Where subsection (4) applies, it is the duty of the relevant person to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, practice or criterion, or feature, having that effect.

(6) Nothing in subsection (5) imposes any duty on the relevant person if he does not know, and could not reasonably be expected to know, that the disabled person has a disability and is likely to be affected in the way mentioned in that subsection.

(7) In subsection (2), reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before the commencement of this section, reference to such an act which would, after the commencement of this section, be unlawful.

Discriminatory advertisements

16B.— (1) It is unlawful for a person, in relation to a relevant appointment or benefit which he intends to make or confer, to publish or cause to be published an advertisement which –

(a) invites applications for that appointment or benefit; and

(b) indicates, or might reasonably be understood to indicate, that an application will or may be determined to any extent by reference to –

(i) the applicant not having any disability, or any particular disability, or

(ii) any reluctance of the person determining the application to comply with a duty to make reasonable adjustments or (in relation to employment services) with the duty imposed by section 21(1) as modified by section 21A(6).

(2) Subsection (1) does not apply where it would not in fact be unlawful under this Part or, to the extent that it relates to the provision of employment services, Part III for an application to be determined in the manner indicated (or understood to be indicated) in the advertisement.

(3) In subsection (1), “relevant appointment or benefit” means –

(a) any employment, promotion or transfer of employment;

(b) membership of, or a benefit under, an occupational pension scheme;

(c) an appointment to any office or post to which section 4D applies;

(d) any partnership in a firm (within the meaning of section 6A);

(e) any pupillage (within the meaning of section 7A);

(f) any membership of a trade organisation (within the meaning of section 13);

(g) any professional or trade qualification (within the meaning of section 14A);

(h) any work placement (within the meaning of section 14C);

(i) any employment services (within the meaning of Part III).

(4) In this section, “advertisement” includes every form of advertisement or notice, whether to the public or not.

Instructions and pressure to discriminate

16C.— (1) It is unlawful for a person –

(a) who has authority over another person, or

(b) in accordance with whose wishes that other person is accustomed to act,

to instruct him to do any act which is unlawful under this Part or, to the extent that it relates to the provision of employment services, Part III, or to procure or attempt to procure the doing by him of any such act.

(2) It is also unlawful to induce, or attempt to induce, a person to do any act which contravenes this Part or, to the extent that it relates to the provision of employment services, Part III by –

(a) providing or offering to provide him with any benefit, or

(b) subjecting or threatening to subject him to any detriment.

(3) An attempted inducement is not prevented from falling within subsection (2) because it is not made directly to the person in question, if it is made in such a way that he is likely to hear of it.”.

Enforcement of sections 16B and 16C; validity of contracts, collective agreements and rules of undertakings

16.—(1) After section 17A (enforcement), the former section 8 moved, renumbered and amended by regulation 9, insert the following sections –

“Enforcement of sections 16B and 16C

17B.— (1) Only the Commission may bring proceedings in respect of a contravention of section 16B (discriminatory advertisements) or section 16C (instructions and pressure to discriminate).

(2) The Commission shall bring any such proceedings in accordance with subsection (3) or (4).

(3) The Commission may present to an industrial tribunal a complaint that a person has done an act which is unlawful under section 16B or 16C; and if the tribunal finds that the complaint is well-founded it shall make a declaration to that effect.

(4) Where –

(a) a tribunal has made a finding pursuant to subsection (3) that a person has done an act which is unlawful under section 16B or 16C,

(b) that finding has become final, and

(c) it appears to the Commission that, unless restrained, he is likely to do a further act which is unlawful under that section,

the Commission may apply to a county court for an injunction restraining him from doing such an act; and the court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

(5) A finding of a tribunal under subsection (3) in respect of any act shall, if it has become final, be treated as conclusive by a county court upon an application under subsection (4).

(6) A finding of a tribunal becomes final for the purposes of this section when an appeal against it is dismissed, withdrawn or abandoned or when the time for appealing expires without an appeal having been brought.

(7) An industrial tribunal shall not consider a complaint under subsection (3) unless it is presented before the end of the period of six months beginning when the act to which it relates was done; and a county court shall not consider an application under subsection (4) unless it is made before the end of the period of five years so beginning.

(8) A court or tribunal may consider any such complaint or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(9) The provisions of paragraph 3(3) and (4) of Schedule 3 apply for the purposes of subsection (7) as they apply for the purposes of paragraph 3(1) of that Schedule.

(10) In this section “the Commission” means the Equality Commission for Northern Ireland.

Validity of contracts, collective agreements and rules of undertakings

17C.   Schedule 3A shall have effect.”.

(2) After Schedule 3, insert the Schedule set out in the Schedule to these Regulations.

Supplementary and general; charities etc.

17.—(1) In Part II of the Act, before section 18, insert the following cross-heading –

“Supplementary and general”.

(2) In Part II of the Act, after section 18A (alterations to premises occupied under leases), the former section 16 moved, renumbered and amended by regulation 14, insert the following sections –

“Reasonable adjustments: supplementary

18B.— (1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to –

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) where the step would be taken in relation to a private household, the extent to which taking it would –

(i) disrupt that household, or

(ii) disturb any person residing there.

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –

(a) making adjustments to premises;

(b) allocating some of the disabled person’s duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support.

(3) For the purposes of a duty to make reasonable adjustments, where under any binding obligation a person is required to obtain the consent of another person to any alteration of the premises occupied by him –

(a) it is always reasonable for him to have to take steps to obtain that consent; and

(b) it is never reasonable for him to have to make that alteration before that consent is obtained.

(4) The steps referred to in subsection (3)(a) shall not be taken to include an application to a court or tribunal.

(5) In subsection (3), “binding obligation” means a legally binding obligation (not contained in a lease (within the meaning of section 18A(3)) in relation to the premises, whether arising from an agreement or otherwise.

(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

Charities and support for particular groups of persons

18C.— (1) Nothing in this Part –

(a) affects any charitable instrument which provides for conferring benefits on one or more categories of person determined by reference to any physical or mental capacity; or

(b) makes unlawful any act done by a charity in pursuance of any of its charitable purposes, so far as those purposes are connected with persons so determined.

(2) Nothing in this Part prevents –

(a) a person who provides supported employment from treating members of a particular group of disabled persons more favourably than other persons in providing such employment; or

(b) the Department for Employment and Learning from agreeing to arrangements for the provision of supported employment which will, or may, have that effect.

(3) In this section –

“charitable instrument” means an enactment or other instrument (whenever taking effect) so far as it relates to charitable purposes;

“charitable purposes” means purposes which are exclusively charitable according to the law of Northern Ireland;

“charity” has the same meaning as in Charities Act (Northern Ireland) 1964(14); and

“supported employment” means facilities provided, or in respect of which payments are made, under section 15 of the Disabled Persons (Employment) Act (Northern Ireland) 1945(15).”.

Interpretation of Part II

18.  In Part II of the Act, after section 18C (charities), insert the following section –

“Interpretation of Part II

18D.— (1) Subject to any duty to make reasonable adjustments, nothing in this Part is to be taken to require a person to treat a disabled person more favourably than he treats or would treat others.

(2) In this Part –

• “benefits”, except in sections 4G to 4K, includes facilities and services;

• “detriment”, except in section 16C(2)(b), does not include conduct of the nature referred to in section 3B (harassment);

• “discriminate”, “discrimination” and other related expressions are to be construed in accordance with section 3A;

• “duty to make reasonable adjustments” means a duty imposed by or under section 4A, 4B(5) or (6), 4E, 4H, 6B, 7B, 14, 14B, 14D or 16A(5);

• “employer” includes a person who has no employees but is seeking to employ another person;

• “harassment” is to be construed in accordance with section 3B;

• “physical feature”, in relation to any premises, includes any of the following (whether permanent or temporary) –

  (a)

  any feature arising from the design or construction of a building on the premises,

  (b)

  any feature on the premises of any approach to, exit from or access to such a building,

  (c)

  any fixtures, fittings, furnishings, furniture, equipment or material in or on the premises,

  (d)

  any other physical element or quality of any land comprised in the premises;

• “provision, criterion or practice” includes any arrangements.”.

Amendments to Part III

19.—(1) After section 21 insert the following section –

“Employment services

21A.— (1) In this Part, “employment services” means –

(a) vocational guidance;

(b) vocational training; or

(c) services to assist a person to obtain or retain employment, or to establish himself as self-employed.

(2) It is unlawful for a provider of employment services, in relation to such services, to subject to harassment a disabled person –

(a) to whom he is providing such services, or

(b) who has requested him to provide such services;

and section 3B (meaning of “harassment”) applies for the purposes of this subsection as it applies for the purposes of Part II.

(3) In their application to employment services, the preceding provisions of this Part have effect as follows.

(4) Section 19 has effect as if –

(a) after subsection (1)(a), there were inserted the following paragraph –

“(aa) in failing to comply with a duty imposed on him by subsection (1) of section 21 in circumstances in which the effect of that failure is to place the disabled person at a substantial disadvantage in comparison with persons who are not disabled in relation to the provision of the service;”;

(b) in subsection (1)(b), for “section 21” there were substituted “subsection (2) or (4) of section 21”;

(c) in subsection (2), for “sections 20 and 21” there were substituted “sections 20, 21 and 21A”.

(5) Section 20 has effect as if –

(a) after subsection (1), there were inserted the following subsection –

“(1A) For the purposes of section 19, a provider of services also discriminates against a disabled person if he fails to comply with a duty imposed on him by subsection (1) of section 21 in relation to the disabled person.”;

(b) in subsection (2)(a), for “a section 21 duty imposed” there were substituted “a duty imposed by subsection (2) or (4) of section 21”;

(c) after subsection (3), there were inserted the following subsection –

“(3A) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within section 3A(5).”.

(6) Section 21 has effect as if –

(a) in subsection (1), for “makes it impossible or unreasonably difficult for disabled persons to make use of” there were substituted “places disabled persons at a substantial disadvantage in comparison with persons who are not disabled in relation to the provision of”;

(b) after subsection (1), there were inserted the following subsection –

“(1A) In subsection (1), “practice, policy or procedure” includes a provision or criterion.”.”.

(2) In section 19(5), for “sections 20 and 21” substitute “sections 20 to 21A”.

(3) In section 25 (enforcement), at the end add the following subsections –

“(7) Subsection (1) does not apply in relation to a claim by a person that another person –

(a) has discriminated against him or subjected him to harassment in relation to the provision of employment services in a way which is unlawful under this Part; or

(b) is by virtue of section 57 or 58 to be treated as having discriminated against him or subjected him to harassment in such a way.

(8) A claim of the kind referred to in subsection (7) may be presented as a complaint to an industrial tribunal.

(9) Section 17A(1A) to (7) and paragraphs 3 and 4 of Schedule 3 apply in relation to a complaint under subsection (8) as if it were a complaint under section 17A(1) (and paragraphs 6 to 8 of Schedule 3 do not apply in relation to such a complaint).”.

(4) In section 26 (validity and revision of certain agreements), after subsection (1) insert –

“(1A) Subsection (1) does not apply to any term in a contract, or other agreement, for the provision of employment services.”.

Codes of Practice

20.  In Part VII of the Act, in section 54A(16) (codes of practice) –

(a) in subsection (1) for “discrimination” substitute “acts which are unlawful under those Parts”;

(b) in subsection (9), omit the definition of “discrimination”.

Victimisation

21.  In section 55 (victimisation), at the end, add the following subsections –

“(5) In the case of an act which constitutes discrimination by virtue of this section, sections 4, 4B, 4D, 4G, 6A, 7A, 13, 14A, 14C and 16A also apply to discrimination against a person who is not disabled.

(6) For the purposes of Part II and, to the extent that it relates to the provision of employment services, Part III, subsection (2)(a)(iii) has effect as if there were inserted after “under” “or by reference to”.”.

Help for persons suffering discrimination

22.  In section 56 (help for persons suffering discrimination) –

(a) after “Part II” (in each place it occurs) insert “or, to the extent that it relates to the provision of employment services, Part III”;

(b) in subsection (1)(a), after “discriminated against” insert “or subjected to harassment”;

(c) in subsection (3)(b)(i), for “a reasonable period” substitute “the period of eight weeks beginning with the day on which the question was served on him”.

Statutory authority and national security etc.

23.  In section 59 (statutory authority and national security etc.) –

(a) after subsection (2), insert the following subsection –

“(2A) Nothing in –

(a) Part II, or

(b) Part III to the extent that it relates to the provision of employment services,

makes unlawful any act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose.”;

(b) in subsection (3), after “Nothing in” insert “any other provision of”.

Application to the Crown etc.

24.  In Part VIII of the Act, in section 64(17) –

(a) in subsection (2), omit “Subject to subsection (5),”;

(b) after subsection (2), insert the following subsection –

“(2A) Subsections (1) and (2) have effect subject to section 64A and section 64B.”;

(c) omit subsections (5) and (6);

(d) in subsection (7), omit “It is hereby declared (for the avoidance of doubt) that”;

(e) in subsection (8), omit the definitions of “fire brigade”, “Ministry of Defence Police”, “prison officer” (and “and” after the definition of “statutory office”).

Police

25.  After section 64, insert the following sections –

“Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve

64A.— (1) For the purposes of Part II, the holding of the office of constable as a police officer shall be treated as employment –

(a) by the Chief Constable as respects any act done by him in relation to that office or a holder of it;

(b) by the Policing Board as respects any act done by it in relation to that office or the holder of it.

(2) For the purposes of section 58 –

(a) the holding of the office of constable as a police officer shall be treated as employment by the Chief Constable (and as not being employment by any other person); and

(b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(3) There shall be paid out of funds put at the disposal of the Chief Constable under section 10(5) of the Police (Northern Ireland) Act 2000(18) –

(a) any compensation, damages or costs awarded against the Chief Constable in any proceedings brought against him under Part II, and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b) any sum required by the Chief Constable for the settlement of any claim made against him under Part II if the settlement is approved by the Policing Board.

(4) The Chief Constable may, in such cases and to such extent as appear to him to be appropriate, pay –

(a) any compensation, damages or costs awarded in proceedings under Part II against a police officer;

(b) any costs incurred and not recovered by a police officer in such proceedings; and

(c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings if the settlement is approved by the Policing Board.

(5) The Chief Constable may make arrangements for the legal representation of a police officer in any proceedings mentioned in subsection (4).

(6) This section –

(a) applies in relation to a person serving with the Police Service of Northern Ireland by virtue of section 98 of the Police Act 1996(19) or section 23 of the Police Act 1997(20) as it applies in relation to a police officer;

(b) applies in relation to a police officer who by virtue of paragraph 7(2)(a) or 8(4)(a) of Schedule 3 to the Police (Northern Ireland) Act 1998(21) is under the direction and control of the Police Ombudsman for Northern Ireland as if –

(i) in subsection (1) the reference to the Chief Constable included a reference to the Ombudsman;

(ii) in subsections (2), (4) and (5) the references to the Chief Constable were references to the Ombudsman.

Other police bodies

64B.— (1) For the purposes of Part II, the holding of the office of constable otherwise than as a police officer shall be treated as employment –

(a) by the chief officer of police as respects any act done by him in relation to that office or a holder of it;

(b) by the police authority as respects any act done by it in relation to that office or the holder of it;

(2) For the purposes of section 58 –

(a) the holding of the office of constable otherwise than as a police officer shall be treated as employment by the chief officer of police (and as not being employment by any other person); and

(b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.

(3) There shall be paid out of the police fund –

(a) any compensation, damages or costs awarded against a chief officer of police in any proceedings brought against him under Part II, and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and

(b) any sum required by a chief officer of police for the settlement of any claim made against him under Part II if the settlement is approved by the police authority.

(4) A police authority may, in such cases and to such extent as appear to it to be appropriate, pay out of the police fund –

(a) any compensation, damages or costs awarded in proceedings under Part II against a person under the direction and control of the chief officer of police;

(b) any costs incurred and not recovered by such a person in such proceedings; and

(c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.

(5) A police authority may make arrangements for the legal representation of any person under the direction and control of the chief officer of police in any proceedings mentioned in subsection (4).

(6) Subject to subsection (8), in this section –

“chief officer of police” means –

(a)

in relation to the National Criminal Intelligence Service, the Director General of that Service;

(b)

in relation to any other body of constables, the person who has the direction and control of the body in question;

“police authority” means –

(a)

in relation to the National Criminal Intelligence Service, the Service Authority for the National Criminal Intelligence Service;

(b)

in relation to any other body of constables, the authority by which the members of the body are paid;

“police fund” means –

(a)

in relation to the National Criminal Intelligence Service, the service fund under section 16 of the Police Act 1997;

(b)

in relation to any other body of constables, money provided by the authority by which the members of the body are paid.

(7) Nothing in subsections (3) to (6) applies in relation to the police.

(8) In relation to a constable of a force who is not under the direction and control of the chief officer of police for that force, references in this section to the chief officer of police are references to the chief officer of the force under whose direction and control he is, and references in this section to the police authority are references to the relevant police authority for that force.”.

Repeal of section 66

26.  Section 66 (government appointments outside Part II) is repealed.

Interpretation

27.  In section 68(22) –

(a) in subsection (1) –

(i) omit the definitions of “benefits”, “section 6 duty” and “section 15 duty”;

(ii) for the definition of “employment at an establishment in Northern Ireland” substitute –

• ““employment at an establishment in Northern Ireland” is to be construed in accordance with subsections (2) to (4)”;

(iii) for the definition of “Minister of the Crown” substitute –

• ““Minister of the Crown” includes the Treasury and the Defence Council”;

(iv) in the definition of “regulations” –

(aa) for paragraph (a) substitute –

“(a) in section 17A, regulations made by the Department for Employment and Learning;”;

(bb) for paragraph (c) substitute –

“(c) in any other provision of this Act, regulations made by the Office of the First Minister and deputy First Minister:”;

(b) for subsections (2)(23) and (3), substitute the following subsections –

“(2) Employment (including employment on board a ship to which subsection (2B) applies or on an aircraft or hovercraft to which subsection (2C) applies) is to be regarded as being employment at an establishment in Northern Ireland if the employee –

(a) does his work wholly or partly in Northern Ireland; or,

(b) does his work wholly outside Northern Ireland and subsection (2A) applies.

(2A) This subsection applies if –

(a) the employer has a place of business at an establishment in Northern Ireland;

(b) the work is for the purposes of the business carried on at the establishment; and

(c) the employee is ordinarily resident in Northern Ireland –

(i) at the time when he applies for or is offered the employment, or

(ii) at any time during the course of the employment.

(2B) This subsection applies to a ship if –

(a) it is registered at a port of registry in Northern Ireland; or

(b) it belongs to or is possessed by Her Majesty in right of the Government of the United Kingdom.

(2C) This subsection applies to an aircraft or hovercraft if –

(a) it is –

(i) registered in the United Kingdom, and

(ii) operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland; or

(b) it belongs to or is possessed by Her Majesty in right of the Government of the United Kingdom.

(2D) The following are not to be regarded as being employment at an establishment in Northern Ireland –

(a) employment on board a ship to which subsection (2B) does not apply;

(b) employment on an aircraft or hovercraft to which subsection (2C) does not apply.”;

(c) omit subsection (5).

Amendments to Schedules 2, 3, 4 and 8

28.—(1) In Schedule 2 (past disabilities) –

(a) after paragraph 2, insert the following paragraph –

“2A.   In section 3A(5), after “not having that particular disability” insert “and who has not had that particular disability”.”;

(b) for paragraph 3, substitute –

“3.   In sections 4A(1), 4B(4), 4E(1), 4H(1), 6B(1), 7B(1), 14(1), 14B(1), 14D(1) and 16A(4), section 21A(4)(a) (in the words to be read as section 19(1)(aa)) and section 21A(6)(a) (in the words to be substituted in section 21(1)), after “not disabled” (in each place it occurs) insert “and who have not had a disability”.”;

(c) for paragraph 4, substitute –

“4.   In sections 4A(3)(b), 4E(3)(b), 4H(3)(b), 6B(3)(b), 7B(3)(b), 14(3)(b), 14B(3)(b), 14D(3)(b) and 16A(6), for “has” (in each place it occurs) substitute “has had”.”.

(2) In Schedule 3(24) (enforcement and procedure) –

(a) in the side note, for “8(8)” substitute “17A(8)”;

(b) for paragraph 2(1), substitute –

“(1) Except as provided by Part II, no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under that Part.”;

(c) in paragraph 2(2), at the end add “or the investigation or determination of any matter in accordance with the Part X (investigations: the Pensions Ombudsman) of the Pension Schemes (Northern Ireland) Act 1993(25) by the Pensions Ombudsman”;

(d) in paragraph 3(1), for “section 8” substitute “section 17A or 25(8)”;

(e) in paragraph 3(3)(a), omit “of discrimination”;

(f) in paragraph 4(1)(26), for “section 8” substitute “section 17A or 25(8)”.

(3) In Schedule 4 (premises occupied under leases) –

(a) in the side note, for “16(5)” substitute “18A(5)”;

(b) in the heading to Part I of the Schedule, for “EMPLOYER OR TRADE ORGANISATION” substitute “EMPLOYER etc.”;

(c) in paragraph 1, for “the section 6 or section 15 duty” substitute “any duty to make reasonable adjustments”;

(d) in the cross-heading preceding paragraph 2, for “section 8” substitute “section 17A or 25(8)”;

(e) in paragraph 2(1) –

(i) for “section 8” substitute “section 17A or 25(8)”;

(ii) for “section 16” substitute “section 18A”;

(f) in paragraph 2(8) and (9), for “section 8(2)” substitute “section 17A(2)”;

(g) in paragraphs 3 and 4, for “section 16” substitute “section 18A”.

(4) In Schedule 8 (modification of this Act in its application to Northern Ireland), omit paragraphs 3, 4(1), 5, 6(1), 7, 8 and 44(3), (4)(c) and (d).

PART III CONSEQUENTIAL AMENDMENTS TO THE ORDER AND OTHER LEGISLATION

Consequential amendments to the Order

29.  In the Order –

(a) in Article 4 (general functions of Commission) –

(i) in paragraph (1)(a), after “discrimination against” insert “and harassment of”;

(ii) in paragraph (5), in the appropriate place, insert the following –

““harassment” means anything which is harassment for the purposes of any provision of Part II or III of the 1995 Act;”;

(b) in paragraph (5) of Article 6 (non-discrimination notices), omit “discrimination”;

(c) in paragraph (11) of Article 7 (agreements in lieu of enforcement action), omit “discrimination”;

(d) in Article 8 (persistent discrimination) –

(i) in paragraph (1)(b), for “section 8” substitute “section 17A”;

(ii) in paragraph (4), after “unlawful discrimination” insert “or harassment”;

(e) in paragraph (1)(a) of Article 9 (assistance in relation to proceedings) –

(i) for “section 8” substitute “section 17A”;

(ii) after “unlawful discrimination” insert “or harassment”;

(f) omit Article 13 (procedure for amending section 7(1) of the 1995 Act);

(g) in paragraph 3(10) of Schedule 1 (investigation of unlawful acts etc.), omit “discrimination”.

Consequential amendments to other legislation

30.—(1) In Articles 14(1) (restriction of publicity in disability cases) and 20(1)(a)(iii) (conciliation) of the Industrial Tribunals (Northern Ireland) Order 1996(27), for “section 8” substitute “section 17A or 25(8)”.

(2) In the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996(28), Schedule 1, in rule 14(1A), for “section 8” substitute “section 17A or 25(8)”.

(3) In the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998(29), Articles 9(3), 10(2)(c) and 11(2)(c) and paragraph 6 of Schedule 1 are repealed.

(4) In the Fair Employment and Treatment (Northern Ireland) Order 1998(30), Article 85(1)(a)(ii), omit “of discrimination”.

(5) In the Employment (Northern Ireland) Order 2003(31), in Schedules 2, 3 and 4 for “Section 8 of the Disability Discrimination Act 1995” (in each place it occurs) substitute “Section 17A of the Disability Discrimination Act 1995”.

Sealed with the Official Seal of the Office of the First Minister and deputy First Minister on 20th February 2004.

L.S.

P. McAuley

A Senior Officer of the Office of the First Minister and deputy First Minister