It is unlawful to discriminate on the grounds of:

• sex
• pregnancy and maternity leave
• being married or in a civil partnership
• gender reassignment
• disability
• race
• age
• sexual orientation
• religious belief, similar philosophical belief or political opinion
• trade union membership or non-membership
• status as a fixed-term or part-time worker

Who the legislation applies to

The equality laws ban discrimination by all employers, regardless of their size, and offer protection against unlawful discrimination to:

• job applicants
• employees
• contract workers

In the field of employment and occupation the laws also ban discrimination by some service providers against their service users or prospective users, such as:

• institutions of further and higher education
• employment agencies
• providers of vocational training
• providers of vocational qualifications

The laws also ban discrimination by a number of other occupational bodies, such as:

• trade associations and trade unions against their members or prospective members
• the trustees and managers of occupational pension schemes against members or prospective members
• partnerships against their partners or prospective partners

The types of discrimination

There are generally four types of discrimination:

• direct discrimination - treating somebody less favourably on the grounds of sex, race, religion etc. This can also include treating somebody less favourably because of their association with a person who has a particular characteristic, eg a disabled person or a gay person, etc
• indirect discrimination - applying a rule to all individuals equally but which in practice causes greater disadvantage for members of one group compared to those in another, eg women compared to men, black people compared to white people, and which cannot be justified
• harassment - see bullying and harassment
• victimisation - treating someone unfairly because, for example, they plan to raise, or have raised, a discrimination-related grievance or they have supported someone else in raising such a grievance

The Equality Commission website provides further information about the definitions of discrimination.

Although some of the above also apply to discrimination against disabled people, there are also some other special types of disability discrimination - see discrimination against disabled people.

Is discrimination always unlawful?

The types of discrimination known as harassment and victimisation are always unlawful.

A decision that is directly discriminatory will normally be unlawful unless:

(a) in an age discrimination case, the decision can be objectively justified,

or

(b) in any other case, an employer can rely on a statutory exception, such as-

• a genuine occupational requirement exception where the job needs to be done by a person who has a particular characteristic (eg the job holder needs to be a woman in order to preserve the decency and privacy of women service-users who may be undressed)
• a positive action exception where an employer is taking action to encourage members of an under-represented or disadvantaged group to apply for work with them (eg by adding the following statement to a job advertisement: "we would particularly welcome applications from Roman Catholics and women").

A rule or practice (eg a job selection criterion) that is indirectly discriminatory will normally be unlawful unless it can be objectively justified or is permitted by another statutory exception (eg an exception for positive action).

For example, if an employer has a general rule that puts women or people with a particular religious belief at a greater disadvantage compared to others but the reason for applying that rule is reasonably necessary and genuinely helps the employer to meet a legitimate aim, then the rule may be justified and lawful.

Where discrimination can occur

The equality legislation affects all areas of employment including:

• recruitment
• terms and conditions
• promotions and transfers
• the provision of training
• the provision of pay and benefits
• dismissal, retirement or redundancy
• occupational pensions
• work placement opportunities
• disciplinary procedures
• performance and attendance management procedures
• the way the work is arranged and performed
• the physical features of an employer's premises
• how employees behave towards one another (eg harassment and bullying)

Discrimination can also occur after an employment contract has ended, eg a former employee can bring a discrimination claim after they have left if they get an unfavourable reference because they threatened to bring a discrimination claim.

Industrial tribunal claims and discrimination

Aggrieved individuals have the right to bring their complaints of alleged discrimination in employment to the Fair Employment Tribunal, in the case of complaints of religious, similar philosophical belief or political discrimination, or to an industrial tribunal, in the case of all other equality grounds.

Any claim to an industrial tribunal will normally have to be brought by the claimant concerned within three months of the alleged discriminatory act occurring. However, in cases of religious, similar philosophical belief, or political discrimination, claims in the Fair Employment Tribunal normally have to be brought within three months of the claimant's date of knowledge of the alleged act of discrimination or within six months of the date of the alleged act, whichever is the earlier.

Mandatory Early Conciliation

Any person who is considering bringing a claim to a tribunal must first make an application to the Labour Relations Agency for Early Conciliation, giving the latter an opportunity to try to resolve the matter. When a person makes an Early Conciliation notification the normal tribunal time-limit clock will stop for a period up to one calendar month during which conciliation can take place. The Conciliation Officer will also have the power to extend for a further 14 days providing there is a reasonable prospect of an agreement and that both parties agree.

Furthermore, in the case of current employees, the tribunal would expect them to raise a formal grievance with you before bringing the claim. See managing conflict. If they fail to do so, it may reduce the amount of any compensation it may award to the employee by up to 50%.

Read more on handling grievances.

There are no length-of-service or age requirements for bringing a discrimination claim and claimants do not need to have left your employment nor even to be your employee (eg an unsuccessful job applicant may bring a complaint).

For their claim to succeed, the claimant will first need to prove the existence of facts from which the tribunal could conclude that you have committed an act of unlawful discrimination.

If the claimant is able to do this, you must prove to the tribunal that you did not commit the unlawful act.

If an industrial or fair employment tribunal does in fact find that unlawful discrimination has occurred, penalties can be high, since there is no statutory cap on compensation levels.

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring - see monitoring equality and diversity - employer responsibilities and promoting equality and diversity.

You must avoid discrimination during the recruitment and selection process. This is a legal requirement and also gives you the best chance of getting the right person for the job.

Fair recruitment and selection process

Remember that job applicants - ie people you don't actually employ - might be able to make an industrial tribunal claim against you if they believe you didn't select them for a job because you discriminated against them unlawfully.

When defending discrimination complaints, those employers who can provide evidence that demonstrates that they properly followed fair recruitment procedures will greatly increase their chances of persuading a tribunal that they did not discriminate unlawfully when making their selection decisions.

Detailed guidance on fair recruitment and selection

For detailed guidance on how to adopt and follow fair recruitment and selection procedures, download the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 443K).

Monitoring during recruitment

Note that businesses in Northern Ireland with more than ten employees (working 16 or more hours per week) must register with the Equality Commission and thereafter conduct monitoring of the community background and sex of their job applicants during recruitment. For this purpose, community background is a reference to whether people are members of the Protestant or Roman Catholic communities in Northern Ireland.

Download an Equality Commission step-by-step guide to fair employment monitoring (PDF, 410K).

Businesses meeting the above criteria are not required to monitor their job applicants under any other of the equality categories (such as race, disability, age, sexual orientation, etc.), but it is good practice to do this too and the Equality Commission encourages employers to do it.

For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB). 

Job descriptions and personnel specification

The Equality Commission strongly recommends that you prepare job descriptions and personnel specifications for the jobs in your organisation. These will help you to select the best person for each job and to explain your decisions in non-discriminatory terms, if you are later challenged.

When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need. Job descriptions should accurately describe the genuinely essential duties of the post.

Personnel specifications should accurately describe the relevant, non-discriminatory, and objectively justifiable requirements to be met by the post-holder. The specification should not have any requirements that are not directly related to the job.

For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential for the job. However, in an editorial or administrative role this would be reasonable criterion.

Job advertisements

Employers should advertise all posts widely to ensure that as many eligible and suitably qualified candidates as possible have an opportunity to apply. It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc - unless being of that gender, race, etc is a genuine occupational requirement. The circumstances in which an employer can rely on a genuine occupational requirement are narrowly defined. If you wish to rely on one, you should contact the Equality Commission for advice.

It is good practice to place an equal opportunities statement in job advertisements. You can find example statements in Chapter 10C of the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 410K).

Disability discrimination

It is unlawful to publish job advertisements that state or imply that any candidate's success depends to any extent on them not having, or not having had, a disability, or indicate the employer's reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.

However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants. See discrimination against disabled people.

Age discrimination

To avoid age discrimination it is advisable not to use such phrases as "young and dynamic", "would suit someone who has just qualified", "minimum of ten years' experience" or "must be educated to degree level" unless the criterion or statement can be justified by the genuine needs of the job. If you are in doubt about being able to justify this, it would be better not to include or apply the criterion or statement. You could also contact the Equality Commission for advice.

Genuine occupational requirements

In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.

For example, it may be possible to set the following job criteria, so long as they are genuine:

• That only women can do a particular nursing or caring job because there is a need to preserve privacy or decency in situations where the job-holder will be in physical contact with other women who might reasonably object to men doing the job (eg helping patients to use toilet facilities, wash or dress themselves).
• In a religious organisation, it may be possible to require a job holder to be heterosexual, but only where the nature of the particular job and the context in which it is carried out requires this in order to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. So, the requirement might apply to a job in which the post-holder teaches Bible classes, but is unlikely to apply where there is no genuine religious aspect to the post-holder's job (eg they are a caretaker or book-keeper).

Job application forms

Employers should draft structured application forms for use in all recruitment exercises. If you use application forms, you should only ask applicants to provide relevant personal details that are relevant to the job selection criteria and to the administration of the selection process eg name, address etc.

See recruitment forms and templates.

However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.

You should invite disabled applicants to indicate any relevant effects of their disability and to suggest adjustments that might help them overcome any disadvantages they might expect to encounter in the recruitment process.

If the applicant's response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Disability Discrimination Act 1995. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests. Read Equality Commission guidance on recruiting people with disabilities.

If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.

It is good practice to omit from application forms questions that relate to religious or similar philosophical belief, political opinion, race or ethnicity, nationality, marital, civil partnership or family status, age, sex or gender reassignment, and sexual orientation. Questions about job applicants' health or medical history should not be included in the application form. You may, however, seek and consider such information in appropriate circumstances.

For example, it is good practice to include questions about personal characteristics that are being collected wholly for equal opportunities monitoring purposes, such as sex, community background, race etc, on a diversity monitoring form that you can separate from the main application. Selectors should never be provided with this information.

Interviewing candidates

You should ensure that individuals who are called on to serve as interview panel members have received appropriate equal opportunities training. When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership, or has plans to have children.

If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.

Job interviews should be constructed in a structured and systematic way. The interview panel members should meet prior to the interview stage to agree and set:

• selection criteria and relative weightings, which are objectively justifiable and which directly and clearly correspond to the criteria described in the job description and personnel specification
• suitable interview questions which directly and clearly correspond to the criteria described in the job description and the personnel specification
• standardised system of scoring for use throughout the process

Read Equality Commission guidance on shortlisting and interviewing.

Selection testing

You should only use selection tests that provide relevant, reliable, and valid assessments of the applicant's abilities to perform the duties of the job, and which have been assessed as having no discriminatory impact on any of the statutory equality grounds.

You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English - although you could justify this if having good written English was necessary for the job.

You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared with a non-disabled person, eg by giving an applicant who is disabled due to dyslexia more time to complete it.

Recruitment record-keeping

You must always be able to justify your decision to recruit a particular person. Therefore, you should document the recruitment process as much as possible. Documentation should be retained for at least twelve months.

This will help you provide evidence to an industrial or fair employment tribunal if you are faced with a claim of unlawful discrimination.

The anti-discrimination laws make it unlawful for you to discriminate against job seekers on the grounds of age, sex, pregnancy and maternity leave, gender reassignment, sexual orientation, married/civil partnership status, disability, race, religious or similar philosophical belief and political opinion.

The general rule is that it is unlawful for you to make recruitment decisions on any of these grounds unless you can rely on a statutory exception as a defence, such as where the characteristic in question is a genuine occupational requirement, or, in cases of age discrimination, where the age criterion is justified, ie where it is shown to be a proportionate means of achieving a legitimate aim.

Outreach positive action

If your analysis of monitoring data reveals imbalances in applicant or staff numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement should still state that the final recruitment decision will be based solely on merit.

You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age or sexual orientation, etc even if that particular group is under-represented in your workforce, this would be considered direct discrimination and is likely to be unlawful.

It is, however, permissible to treat disabled people more favourably than non-disabled people when making selection decisions.

View Equality Commission guidance on taking positive action when recruiting people with disabilities.

View Equality Commission employer guidance on positive action in relation to all other equality grounds.

Checking the right to work in the UK

You must be sure that your chosen candidate has the right to work in the UK - see ensuring your workers are eligible to work in the UK.

However, you must take care to avoid race discrimination while carrying out the necessary checks.

As well as outlawing discrimination against both men and women on the grounds of sex, the sex equality legislation also bans discrimination against women on the grounds of pregnancy and maternity leave.

Direct sex discrimination

Direct sex discrimination would occur if, for example, an employer refused to recruit a woman merely because she has two young children but where he would not refuse to recruit a man merely because he has two children of the same age.

Equally, direct sex discrimination against a man would occur if, for example, an employer refused to recruit or dismissed a man merely because he is a man.

Note that it may sometimes be permissible to state that a job holder must be male or female where being of that sex is a genuine occupational requirement - see discrimination during the recruitment process.

Direct pregnancy or maternity leave discrimination would occur if, for example, an employer dismissed a woman merely because she is pregnant, or because she asked to take maternity leave, or is exercising or has exercised her statutory right to take maternity leave.

Indirect sex discrimination

Indirect sex discrimination might occur if, for example, an employer stated that a job could only be done by someone willing to spend long periods of time away from home. This potentially discriminates against women who generally have greater childcare responsibilities than men and who, as a result, are likely to find it more difficult to spend time away from home. However, this kind of job criterion or condition would be lawful if it can be justified, for example, if the job was for a salesperson who had to go abroad to meet customers face to face, then there may be no reasonably alternative way of doing the job.

Access Equality Commission and Labour Relations Agency employer guidance on pregnancy and maternity at work.

Sexual harassment

The law also makes sexual harassment - and harassment related to sex - explicitly unlawful in employment or vocational training. Sexual harassment can include inappropriate touching, requests for sexual favours, insensitive jokes of a sexual nature, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It also includes the circulation of lewd emails, even if this is not actually sent to the person being harassed. See sexual harassment guidance from the Labour Relations Agency.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

In Northern Ireland, there is an ongoing gender gap in the science, technology, engineering and mathematics (STEM) industries.

The Equality Commission is working with the Department for the Economy (DfE) and the STEM Business Group to address this gender imbalance.

Benefits of promoting gender balance

Promoting diversity and enhancing the advancement of women can bring many benefits to your business including:

• a solution to skills shortages
• access to a broader base of talent
• increased innovation potential
• stronger financial performance

How you can improve gender balance

There are a number of ways that you can improve gender balance in your business.

If you are able to offer a placement or apprenticeship to a young person, they will gain important skills and improve the knowledge of their industry. Read more on providing work experience opportunities and training and development programmes.

In addition, you could sign up to the STEM Charter, which enables STEM businesses to demonstrate their commitment to equality of opportunity for women in employment.

You could also join the STEM Employers Equality Network, which brings employers together to discuss common employment issues, share good practice and identify challenges.

Read guidance from the Equality Commission about these STEM initiatives.

Case study

See how Belfast-based business Exploristics Ltd has addressed gender imbalance in the STEM industry.

The Equal Pay Act (NI) 1970 promotes the principle that men and women should receive equal pay for equal work.

The Act aims to achieve its objective by incorporating an equality clause into all contracts of employment. The effect of this is to give each employee a contractual right to receive equal pay with any employee of the opposite sex who is doing:

(a) work that is the same or broadly similar (ie 'like work'); or
(b) work which is different, but which is of equal value in terms of the demands of the jobs (ie 'work of equal value'); or
(c) work which has been rated as equivalent under a job evaluation scheme (ie 'work rated as equivalent').

'Pay' includes not only wages/salary but also all other contractual terms and conditions.

Therefore, even if you pay men and women the same basic pay for the same job, their pay may still be unequal if other benefits, eg a company car and private healthcare, are different for men and women.

Work may be different from that of a colleague of the opposite sex but it can be considered of equal value if it is similar or the same in terms of the demands of the job, or if it has been rated as equivalent under a job evaluation scheme.

Read more on equal pay - the law and best practice.

Claiming for equal pay

The law provides a procedure by which an employee can take a claim for equal pay to an industrial tribunal. In the course of an equal pay claim, you may be called upon to explain and justify your pay practices and arrangements.

Pay systems review is the most appropriate method of ensuring that a pay system delivers equal pay free from sex bias.

Download the Equality Commission code of practice on equal pay (PDF, 538K).

You may be able to justify differences in pay as long as you can show that gender was not a factor, eg you could pay more to employees who:

• work in an area where the cost of living is higher
• you want to retain as you would find it difficult to replace them

Gender pay gap reporting

Some large employers in Great Britain, ie those who employ more than 250 employees, are obliged to publish annually a report outlining information about the pay received by their male and female employees, such as the average differences between the pay that each group receives.

Employers in Northern Ireland are not yet obliged by law to do the same in respect of their employees here. However, it is anticipated that a similar duty will be imposed on some employers here at some future, but as yet unknown, date.

The Equality Commission would encourage employers to begin preparing for this now. Further advice can be obtained by contacting the Equality Commission directly.

The Sex Discrimination (NI) Order 1976 makes it unlawful to discriminate against a job seeker or employee on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.

'Gender reassignment' means a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process.

If an employee is absent from work as a result of undergoing gender reassignment, it's also unlawful to treat that employee less favourably because of those absences than you would treat another employee who is off sick for another reason and a similar period.

Someone undergoing gender reassignment (a 'trans person') is likely at some stage in the process to be living or to begin living, as a member of the opposite sex. Inevitably this may entail a wish on their part to use the appropriate toilet or changing room facilities of their acquired sex.

As an employer, you will therefore need to make arrangements for this. It would be best to begin that process by discussing with the individual when they wish to change from using one set of facilities to the other and obtain their views about how they would like the issue to be handled. This will probably be during the 'social gender' transition when they present as members of the adopted sex even though they may not have completed the gender reassignment process.

Other employees may object to sharing facilities in these circumstances. While you may take account of their reasonable sensibilities, you should remind objectors that their feelings do not over-ride the legal rights of trans employees and, also, that a failure to treat others with dignity and respect could be seen as a breach of your equality policy and could amount to a disciplinary issue For advice on managing the situation where an individual is undergoing gender reassignment, you can call the Equality Commission Employer Helpline on Tel 028 90 500 600.

Once a trans person's gender reassignment has progressed far enough, they can eventually apply for a gender recognition certificate (GRC).

Once they have a GRC, they will be issued with a new birth certificate in the acquired gender. Where a full GRC is issued, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman). This would mean that you would have to treat a male-to-female trans person with a GRC as a woman and, for example, change your personnel records to reflect this.

You must not discriminate against a job seeker or employee because they are married or in a civil partnership.

Note that you must treat married employees and employees in civil partnerships in the same way. This means that any benefit such as private healthcare that is available to the spouses of employees should also be made available to employees' civil partners.

However, you can give benefits to employees who are married or in civil partnerships, but not to those who are unmarried or not in civil partnerships.

It is generally unlawful for an employer to discriminate on the grounds of age - ie to treat individuals of any age less favourably than others on the grounds of age.

Age discrimination exceptions

There are limited circumstances when age discrimination can be lawful - for example:

• if there is a genuine occupational requirement - ie if you are producing a play that has parts for older or younger characters
• if there are legal reasons - ie where people must be at least 18 years old to serve alcohol
• if there is an objective justification - ie the employer must show real evidence that they are pursuing a legitimate aim and that the age restriction is a proportionate means of achieving that aim

Exceptions to age discrimination are rare and any should be considered carefully. Unjustified age discrimination can be challenged and there is no statutory limit on how much an industrial tribunal can award.

Direct age discrimination

Direct age discrimination would occur if, for example, an employer refused to employ people under the age of 30, believing them to be unreliable (as such a reason, being nothing more than a negative stereotype, is unlikely to be justifiable). It would also be direct age discrimination to have, without lawful justification, a compulsory retirement age for your employees (no matter whether it is set at 55, 60, 65 or 70 years old or at any other age).

Indirect age discrimination

Indirect age discrimination would occur if, for example, an employer for recruitment purposes only advertised jobs in magazines aimed at young people - this may discriminate against older people as they are less likely to subscribe to the magazine; or introduced a benefit only for employees with more than ten years' service - fewer younger employees are likely to have enough service to qualify. However, it might be possible to justify this type of discrimination if it was reasonably necessary to do it in order to achieve some legitimate business aim, such as rewarding staff experience or encouraging staff retention.

Note that it may be possible to state that a job holder must be of a certain age where being of that age is a genuine occupational requirement - see discrimination during the recruitment process.

For more information on these and other forms of discrimination, see equality law and types of discrimination.

Avoiding age discrimination

You should check that your recruitment process is non-discriminatory, eg aim to place advertisements in publications read by a range of age groups, and avoid using terms which imply a particular age group, such as 'mature', 'enthusiastic', 'highly experienced' or 'recent graduate'.

See discrimination during the recruitment process.

You must also make sure that your redundancy procedures are based on business needs rather than age, eg it could be discriminatory to select employees for redundancy solely on the basis of 'last in, first out'.

Download an Equality Commission guide for employers on age discrimination in Northern Ireland (PDF, 2.3MB).

Under the Disability Discrimination Act 1995, it amounts to unlawful disability discrimination if an employer:

• Treats a disabled employee or job applicant less favourably than others because of their disability eg an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
• Treats an employee or job-seeker less favourably than an appropriate comparator for a reason related to their disability eg an employer dismisses an employee primarily because of their high long-term absence levels but in a situation where the absence is related to their disability. This is referred to as disability-related discrimination. The appropriate comparator in these cases is a non-disabled person who is otherwise in a similar position to the disabled employee (e.g. a non-disabled employee with a similar absence record). However, the employer may be able to justify this type of discrimination in certain circumstances. This type of discrimination cannot arise if the employer didn't know and couldn't reasonably have been expected to know that the person had the disability.
• Fails to comply with its duty to make a reasonable adjustment for a disabled employee/job applicant. This type of discrimination cannot be justified and will be unlawful. However, the employer is not required to make reasonable adjustments if the employer doesn't know - or could not reasonably be expected to know - that the employee/applicant is disabled and is likely to be placed at a substantial disadvantage compared with non-disabled people. However, the employer must do all it can reasonably be expected to do to find out whether this is the case.
• Subjects a disabled employee to disability-related harassment eg making derogatory comments about disabled people generally, or making fun of an employee's particular disability.

Victimisation

Victimisation is also unlawful discrimination under the Act, ie it is unlawful for an employer to treat an employee (the victim - whether a disabled or non-disabled person) unfairly because they have, or the employer believes they have:

• brought proceedings, or given evidence or information in connection with proceedings brought under the Act
• done anything else under the Act
• alleged someone has contravened the Act

For example, a disabled employee alleges discrimination because his employer refuses to promote him. A colleague gives evidence at the tribunal on the disabled employee's behalf and, as a result, the employer makes the colleague redundant. This amounts to unlawful victimisation (as well as unfair dismissal).

The law also makes it unlawful to discriminate against a person because they associate with someone who is disabled.

See equality law and types of discrimination.

What counts as a disability?

In general, the Disability Discrimination Act 1995 considers someone to be disabled for the purposes of the Act if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

However, there are special rules for assessing whether people with progressive or recurring conditions meet the definition. Also, some people are automatically deemed to be disabled people, ie but only those with HIV infection, cancer, and multiple sclerosis and those with severe disfigurements.

Certain conditions are not regarded as impairments for the purposes of the Act, eg drug or alcohol addiction or a tendency to start fires, steal or physically abuse others, or visual impairments that are easily correctable by wearing glasses or contact lenses. The rule excluding drug addiction does not, however, exclude addiction to properly prescribed medications.

Read Equality Commission guidance on the different types of discrimination.

For more on discrimination law in general, see equality law and types of discrimination.

Reasonable adjustments

Employers have a legal duty to make reasonable adjustments to any provision, criterion or practice, or to physical features of their premises, to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers.

Reasonable adjustments often involve little or no cost to your business. See how to provide access and facilities for disabled people.

You can also download the Equality Commission disability code of practice (PDF, 635K).

In addition, Disability Action's Hard at Work report highlights key actions needed to increase equality in employment for disabled people in Northern Ireland.

It's unlawful for an employer to discriminate against a job seeker or employee on the grounds of:

• race
• national origin
• ethnic origin
• colour
• nationality, including citizenship

It is deemed to be discrimination on the grounds of race to discriminate against a person because they are a member of the Irish Traveller Community.

Segregation of employees on the grounds of race is also unlawful.

Direct discrimination would occur if, for example, an employer refused to employ someone because they were not white or because they were English.

Indirect discrimination would potentially occur if, for example, an employer refused to employ people who could not write in English. That job criterion would not be unlawful, however, if it could be justified by reference to the needs of the job, for example, where an ability to read and write in English was necessary for the job.

Note that you may be able to state in a person specification that the job holder must be of a particular race, national origin, etc where being of that race, national origin etc is an occupational requirement - see discrimination during the recruitment process.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

It is unlawful for an employer to discriminate against someone on the grounds of:

• religious belief
• similar philosophical belief
• political opinion

Discrimination on any of these grounds may include discriminating against a person because they do not hold a particular religious or similar philosophical belief or political opinion (eg discriminating against a person because they are an atheist) or because you believe that they may hold a particular belief or political opinion (eg discriminating against a person because you think, perhaps wrongly, that they are an atheist or a Protestant or a Catholic).

Discrimination on religious grounds

'Religious belief' for the purposes of equality law covers any religious belief or the absence of one (eg atheism).

Direct discrimination on religious grounds would occur if, for example, an employer-paid Christians more than non-Christians or dismissed a Christian (or an atheist) because they are married to a Muslim.

Indirect discrimination on religious grounds would potentially occur if a requirement for working in a butcher's shop was that employees had to handle pork and pork products. This would potentially indirectly discriminate against employees who are observant Muslims and Jews, who regard pork meat as unclean. However, this job duty might be justified if the butcher could show that it was reasonably necessary for all his employees to perform it, such as, for example, where there is no practicable way to arrange the work so that this one employee does not have to perform the job duty.

Furthermore, the law would not require the butcher to cease selling pork.

Discrimination on similar philosophical belief

Case law indicates that the phrase 'similar philosophical belief' covers beliefs about weighty and substantial aspects of human life and behaviour. They must also attain certain levels of cogency, seriousness, cohesion, and importance; and be worthy of respect in a democratic society, be not incompatible with human dignity, and be not in conflict with the fundamental rights of others. Examples might include humanism, pacifism, veganism, spiritualism.

Discrimination due to political opinion

Political opinion for the purposes of equality law covers any lawful political opinion and includes long-established opinions such as Communism, Socialism, Conservatism, Ulster Unionism, Irish Nationalism, and more recent ones such as being in favour of, or opposed to, gay marriage. However, the protection of the law does not apply to any political opinion supporting or accepting the use of violence for political ends connected with the affairs of Northern Ireland or for putting the public, or a section of the public, in fear.

Note that you may be able to state that a job holder must be of a particular religion or belief where being of that religion or belief is a genuine occupational requirement - see discrimination when recruiting staff.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

It is unlawful to discriminate against a job seeker or employee on the grounds of sexual orientation.

The term 'sexual orientation' means a sexual orientation towards:

• people of the same sex, ie gays and lesbians
• the opposite sex, ie heterosexuals
• the same and opposite sex, ie bisexuals

Direct discrimination would occur if, for example, an employer refused to employ a gay man because he is gay or a heterosexual woman because the employer believes wrongly that she is gay or bisexual.

Indirect discrimination would potentially occur if, for example, an employer is willing to accept applications for a job vacancy from all persons, regardless of their sexual orientation, but then only places the job advertisement in newspapers and magazines aimed at people who are gay or lesbian. As heterosexuals tend not to read such publications, they may be less likely to know that they can apply for the vacancy. The employer's action will be unlawful unless it can be objectively justified.

Note that you may be able to state that a job holder must be of a particular sexual orientation where being of that sexual orientation is a genuine occupational requirement - see discrimination during the recruitment process.

Read Equality Commission guidance on sexual orientation discrimination law.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

Refusal to employ

Employees have the right not to be refused employment because they:

• are or are not a member of a trade union
• used to be or used not to be a member of a trade union
• are planning to join or are refusing to join a trade union

Any withholding of a job offer for membership or non-membership of a trade union could lead to a claim at an industrial or fair employment tribunal. However, unlike other forms of unlawful discrimination, there is a limit of the amount of compensation that a tribunal can award.

Unfair treatment during employment

An employer must not treat workers - ie not just employees - unfairly during their employment where the treatment aims to prevent the worker:

• becoming a member of or leaving a trade union
• carrying out trade union activities at an appropriate time
• making use of trade union services at an appropriate time

'Trade union activities' includes voting in a trade union ballot but doesn't include taking industrial action.

An 'appropriate time' may be, for instance, outside working hours, during an employee's lunch break, or at a time when the employer has agreed that they may take part in trade union activities.

This unfair treatment could be, for example, threats of dismissal or refusal to promote.

Unfair dismissal

It is automatically unfair to dismiss an employee on trade union membership grounds, eg because they refused to leave a trade union.

For more on automatically unfair dismissals, see dismissing employees.

Monitoring community background and sex

Employers with more than 10 employees, each working 16 or more hours per week, must register with the Equality Commission and must thereafter monitor the community background composition and sex of their job applicants and employees. They must also submit that information in a report to the Equality Commission every 12 months.

Furthermore, they must review that information every three years with a view to determining whether they are providing fair participation in employment to members of the Protestant and Roman Catholic communities in Northern Ireland. Where they determine that they are not providing such fair participation, they must consider taking affirmative action.

Read Equality Commission guidance about your monitoring duty.

Monitoring other equality grounds

For many employers, ie those in the private and voluntary sectors in particular, it is not, subject to the above, mandatory to monitor the other equality characteristics of your workforce, such as race, disability, age, or sexual orientation.

However, equal opportunities monitoring is an important means of demonstrating and implementing your commitment to promoting equality of opportunity on all equality grounds. It can assist you in identifying barriers that prevent access to employment and career development for certain groups of people and develop solutions, such as positive action plans or alternative policies and practices.

Therefore, it is good practice to monitor whether your equality policy is working effectively on all equality grounds.

For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB).

If you find that it isn't working, ie you find that your workforce is not as diverse as it should be, it would be good practice to find out why and take action to improve the effectiveness of the policy.

For example, if you find that non-white people are underrepresented in your workforce, you could take positive action, eg include text in job advertisements encouraging members of minority ethnic groups to apply - see promoting equality and diversity.

In order to demonstrate your commitment to promoting equality of opportunity, you should develop a number of key policies and procedures in important areas. The Equality Commission recommends that you have written policies covering the following areas, at least:

• an equal opportunities policy
• a harassment policy and procedure
• a grievance procedure
• a recruitment and selection policy and procedure
• a maternity policy
• a flexible working policy and procedure
• an equal pay policy

The Equality Commission has developed model policies in relation to these matters and they are available, free-of-charge, to download from the Commission's website.

Putting your policies into practice - acting like an equal opportunities employer

Having such written policies is not enough. You must also implement them and continually take reasonably practicable steps to fulfil the commitments expressed in them. Declare your commitment by stating that your organisation is an equal opportunities employer and promoting this. Fulfil your commitment to equality by acting like like an equal opportunities employer by:

• developing employment policies that reflect the equality codes of practice
• having recruitment practices that are systematic, fair and objective
• training staff to make them aware of the policies and how they should apply them
• ensuring policies and practices are followed consistently across the organisation
• making reasonable adjustments for people that need them
• appointing the best person for a job role

You should also consider carrying out an equal pay review to assure yourself that your organisation is providing men and women with equal pay for equal work.

Equality and diversity policies

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring.

One of the main ways of doing this is to have equality and diversity policies of the kinds noted above, backed up by an action plan to promote the policies and ensure that they are understood and followed across the business.

Your policies should set out your commitment to promote equality and diversity in areas such as recruitment, the working environment, and pay to tackle discrimination.

It should also:

• help your employees understand what you expect of them, eg to treat their colleagues and clients with dignity and respect
• set out your employees' legal rights and obligations

Read more on equality and diversity policies.

Employment equality plan

The employment equality plan is a tool that you can use to audit your employment and service provision policies and to plan what further work you will undertake to promote good practice. It may also show up areas of your work where you are not currently meeting the requirements of the law.

Read more on how to implement an equality plan.

Equal pay reviews

Many companies have instituted equal pay reviews which aim to ensure that their male and female staff enjoy equal pay for equal work.

Equal pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists.

Download the Equality Commission code of practice on equal pay (PDF, 538K).

You can also see how to set the right pay rates.

Positive action during recruitment

If your analysis of your monitoring data reveals imbalances in applicant or employee numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement must still state that the final recruitment decision will be based solely on merit.

You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age, or sexual orientation, even if that particular group is under represented in your workforce, this is direct discrimination and is likely to be unlawful.

View Equality Commission guidance on taking positive action when recruiting people with disabilities.

View Equality Commission employer guidance on positive action in relation to all other equality grounds.

When carrying out their functions, almost all public-sector bodies, eg Northern Ireland Executive departments, local councils, health, and social care trusts, the NI Housing Executive and housing associations, the Education Authority, and others, are obliged to have due regard to the need to promote equality of opportunity between nine categories of people (ie between men and women generally, between people of different religious belief, political opinion, race, age, sexual orientation, marital status and between people who have dependants and those who do not and between people who are disabled and those who are not).

This duty is called Section 75, Northern Ireland Act 1998.

The Section 75 duty does not apply to private businesses in Northern Ireland.

However, the relevant public authorities will be considering it when awarding tenders and contracts for the supply of goods and services. If you are seeking to win such contracts, the relevant body may ask you to prove that you are an equal opportunities employer. They may do this by requesting that you provide them with a copy of your equality and diversity policy or prove that you are registered with the Equality Commission (if you are obliged to be registered) and that you have not been disqualified from seeking such contracts

Therefore you may have a competitive advantage if you already have good equality and diversity practices in place. It will certainly make it easier for you to answer questions about this if asked.

Note that if you have a contract with a public body, the duty to comply with Section 75 remains with that body. But, the contract might include a term or condition that requires you to periodically show that you continue to be an equal opportunities employer and service provider and that you are continually making good faith efforts to comply with your duties under equality law.

It is unlawful to discriminate on the grounds of:

• sex
• pregnancy and maternity leave
• being married or in a civil partnership
• gender reassignment
• disability
• race
• age
• sexual orientation
• religious belief, similar philosophical belief or political opinion
• trade union membership or non-membership
• status as a fixed-term or part-time worker

Who the legislation applies to

The equality laws ban discrimination by all employers, regardless of their size, and offer protection against unlawful discrimination to:

• job applicants
• employees
• contract workers

In the field of employment and occupation the laws also ban discrimination by some service providers against their service users or prospective users, such as:

• institutions of further and higher education
• employment agencies
• providers of vocational training
• providers of vocational qualifications

The laws also ban discrimination by a number of other occupational bodies, such as:

• trade associations and trade unions against their members or prospective members
• the trustees and managers of occupational pension schemes against members or prospective members
• partnerships against their partners or prospective partners

The types of discrimination

There are generally four types of discrimination:

• direct discrimination - treating somebody less favourably on the grounds of sex, race, religion etc. This can also include treating somebody less favourably because of their association with a person who has a particular characteristic, eg a disabled person or a gay person, etc
• indirect discrimination - applying a rule to all individuals equally but which in practice causes greater disadvantage for members of one group compared to those in another, eg women compared to men, black people compared to white people, and which cannot be justified
• harassment - see bullying and harassment
• victimisation - treating someone unfairly because, for example, they plan to raise, or have raised, a discrimination-related grievance or they have supported someone else in raising such a grievance

The Equality Commission website provides further information about the definitions of discrimination.

Although some of the above also apply to discrimination against disabled people, there are also some other special types of disability discrimination - see discrimination against disabled people.

Is discrimination always unlawful?

The types of discrimination known as harassment and victimisation are always unlawful.

A decision that is directly discriminatory will normally be unlawful unless:

(a) in an age discrimination case, the decision can be objectively justified,

or

(b) in any other case, an employer can rely on a statutory exception, such as-

• a genuine occupational requirement exception where the job needs to be done by a person who has a particular characteristic (eg the job holder needs to be a woman in order to preserve the decency and privacy of women service-users who may be undressed)
• a positive action exception where an employer is taking action to encourage members of an under-represented or disadvantaged group to apply for work with them (eg by adding the following statement to a job advertisement: "we would particularly welcome applications from Roman Catholics and women").

A rule or practice (eg a job selection criterion) that is indirectly discriminatory will normally be unlawful unless it can be objectively justified or is permitted by another statutory exception (eg an exception for positive action).

For example, if an employer has a general rule that puts women or people with a particular religious belief at a greater disadvantage compared to others but the reason for applying that rule is reasonably necessary and genuinely helps the employer to meet a legitimate aim, then the rule may be justified and lawful.

Where discrimination can occur

The equality legislation affects all areas of employment including:

• recruitment
• terms and conditions
• promotions and transfers
• the provision of training
• the provision of pay and benefits
• dismissal, retirement or redundancy
• occupational pensions
• work placement opportunities
• disciplinary procedures
• performance and attendance management procedures
• the way the work is arranged and performed
• the physical features of an employer's premises
• how employees behave towards one another (eg harassment and bullying)

Discrimination can also occur after an employment contract has ended, eg a former employee can bring a discrimination claim after they have left if they get an unfavourable reference because they threatened to bring a discrimination claim.

Industrial tribunal claims and discrimination

Aggrieved individuals have the right to bring their complaints of alleged discrimination in employment to the Fair Employment Tribunal, in the case of complaints of religious, similar philosophical belief or political discrimination, or to an industrial tribunal, in the case of all other equality grounds.

Any claim to an industrial tribunal will normally have to be brought by the claimant concerned within three months of the alleged discriminatory act occurring. However, in cases of religious, similar philosophical belief, or political discrimination, claims in the Fair Employment Tribunal normally have to be brought within three months of the claimant's date of knowledge of the alleged act of discrimination or within six months of the date of the alleged act, whichever is the earlier.

Mandatory Early Conciliation

Any person who is considering bringing a claim to a tribunal must first make an application to the Labour Relations Agency for Early Conciliation, giving the latter an opportunity to try to resolve the matter. When a person makes an Early Conciliation notification the normal tribunal time-limit clock will stop for a period up to one calendar month during which conciliation can take place. The Conciliation Officer will also have the power to extend for a further 14 days providing there is a reasonable prospect of an agreement and that both parties agree.

Furthermore, in the case of current employees, the tribunal would expect them to raise a formal grievance with you before bringing the claim. See managing conflict. If they fail to do so, it may reduce the amount of any compensation it may award to the employee by up to 50%.

Read more on handling grievances.

There are no length-of-service or age requirements for bringing a discrimination claim and claimants do not need to have left your employment nor even to be your employee (eg an unsuccessful job applicant may bring a complaint).

For their claim to succeed, the claimant will first need to prove the existence of facts from which the tribunal could conclude that you have committed an act of unlawful discrimination.

If the claimant is able to do this, you must prove to the tribunal that you did not commit the unlawful act.

If an industrial or fair employment tribunal does in fact find that unlawful discrimination has occurred, penalties can be high, since there is no statutory cap on compensation levels.

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring - see monitoring equality and diversity - employer responsibilities and promoting equality and diversity.

You must avoid discrimination during the recruitment and selection process. This is a legal requirement and also gives you the best chance of getting the right person for the job.

Fair recruitment and selection process

Remember that job applicants - ie people you don't actually employ - might be able to make an industrial tribunal claim against you if they believe you didn't select them for a job because you discriminated against them unlawfully.

When defending discrimination complaints, those employers who can provide evidence that demonstrates that they properly followed fair recruitment procedures will greatly increase their chances of persuading a tribunal that they did not discriminate unlawfully when making their selection decisions.

Detailed guidance on fair recruitment and selection

For detailed guidance on how to adopt and follow fair recruitment and selection procedures, download the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 443K).

Monitoring during recruitment

Note that businesses in Northern Ireland with more than ten employees (working 16 or more hours per week) must register with the Equality Commission and thereafter conduct monitoring of the community background and sex of their job applicants during recruitment. For this purpose, community background is a reference to whether people are members of the Protestant or Roman Catholic communities in Northern Ireland.

Download an Equality Commission step-by-step guide to fair employment monitoring (PDF, 410K).

Businesses meeting the above criteria are not required to monitor their job applicants under any other of the equality categories (such as race, disability, age, sexual orientation, etc.), but it is good practice to do this too and the Equality Commission encourages employers to do it.

For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB). 

Job descriptions and personnel specification

The Equality Commission strongly recommends that you prepare job descriptions and personnel specifications for the jobs in your organisation. These will help you to select the best person for each job and to explain your decisions in non-discriminatory terms, if you are later challenged.

When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need. Job descriptions should accurately describe the genuinely essential duties of the post.

Personnel specifications should accurately describe the relevant, non-discriminatory, and objectively justifiable requirements to be met by the post-holder. The specification should not have any requirements that are not directly related to the job.

For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential for the job. However, in an editorial or administrative role this would be reasonable criterion.

Job advertisements

Employers should advertise all posts widely to ensure that as many eligible and suitably qualified candidates as possible have an opportunity to apply. It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc - unless being of that gender, race, etc is a genuine occupational requirement. The circumstances in which an employer can rely on a genuine occupational requirement are narrowly defined. If you wish to rely on one, you should contact the Equality Commission for advice.

It is good practice to place an equal opportunities statement in job advertisements. You can find example statements in Chapter 10C of the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 410K).

Disability discrimination

It is unlawful to publish job advertisements that state or imply that any candidate's success depends to any extent on them not having, or not having had, a disability, or indicate the employer's reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.

However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants. See discrimination against disabled people.

Age discrimination

To avoid age discrimination it is advisable not to use such phrases as "young and dynamic", "would suit someone who has just qualified", "minimum of ten years' experience" or "must be educated to degree level" unless the criterion or statement can be justified by the genuine needs of the job. If you are in doubt about being able to justify this, it would be better not to include or apply the criterion or statement. You could also contact the Equality Commission for advice.

Genuine occupational requirements

In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.

For example, it may be possible to set the following job criteria, so long as they are genuine:

• That only women can do a particular nursing or caring job because there is a need to preserve privacy or decency in situations where the job-holder will be in physical contact with other women who might reasonably object to men doing the job (eg helping patients to use toilet facilities, wash or dress themselves).
• In a religious organisation, it may be possible to require a job holder to be heterosexual, but only where the nature of the particular job and the context in which it is carried out requires this in order to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. So, the requirement might apply to a job in which the post-holder teaches Bible classes, but is unlikely to apply where there is no genuine religious aspect to the post-holder's job (eg they are a caretaker or book-keeper).

Job application forms

Employers should draft structured application forms for use in all recruitment exercises. If you use application forms, you should only ask applicants to provide relevant personal details that are relevant to the job selection criteria and to the administration of the selection process eg name, address etc.

See recruitment forms and templates.

However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.

You should invite disabled applicants to indicate any relevant effects of their disability and to suggest adjustments that might help them overcome any disadvantages they might expect to encounter in the recruitment process.

If the applicant's response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Disability Discrimination Act 1995. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests. Read Equality Commission guidance on recruiting people with disabilities.

If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.

It is good practice to omit from application forms questions that relate to religious or similar philosophical belief, political opinion, race or ethnicity, nationality, marital, civil partnership or family status, age, sex or gender reassignment, and sexual orientation. Questions about job applicants' health or medical history should not be included in the application form. You may, however, seek and consider such information in appropriate circumstances.

For example, it is good practice to include questions about personal characteristics that are being collected wholly for equal opportunities monitoring purposes, such as sex, community background, race etc, on a diversity monitoring form that you can separate from the main application. Selectors should never be provided with this information.

Interviewing candidates

You should ensure that individuals who are called on to serve as interview panel members have received appropriate equal opportunities training. When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership, or has plans to have children.

If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.

Job interviews should be constructed in a structured and systematic way. The interview panel members should meet prior to the interview stage to agree and set:

• selection criteria and relative weightings, which are objectively justifiable and which directly and clearly correspond to the criteria described in the job description and personnel specification
• suitable interview questions which directly and clearly correspond to the criteria described in the job description and the personnel specification
• standardised system of scoring for use throughout the process

Read Equality Commission guidance on shortlisting and interviewing.

Selection testing

You should only use selection tests that provide relevant, reliable, and valid assessments of the applicant's abilities to perform the duties of the job, and which have been assessed as having no discriminatory impact on any of the statutory equality grounds.

You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English - although you could justify this if having good written English was necessary for the job.

You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared with a non-disabled person, eg by giving an applicant who is disabled due to dyslexia more time to complete it.

Recruitment record-keeping

You must always be able to justify your decision to recruit a particular person. Therefore, you should document the recruitment process as much as possible. Documentation should be retained for at least twelve months.

This will help you provide evidence to an industrial or fair employment tribunal if you are faced with a claim of unlawful discrimination.

The anti-discrimination laws make it unlawful for you to discriminate against job seekers on the grounds of age, sex, pregnancy and maternity leave, gender reassignment, sexual orientation, married/civil partnership status, disability, race, religious or similar philosophical belief and political opinion.

The general rule is that it is unlawful for you to make recruitment decisions on any of these grounds unless you can rely on a statutory exception as a defence, such as where the characteristic in question is a genuine occupational requirement, or, in cases of age discrimination, where the age criterion is justified, ie where it is shown to be a proportionate means of achieving a legitimate aim.

Outreach positive action

If your analysis of monitoring data reveals imbalances in applicant or staff numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement should still state that the final recruitment decision will be based solely on merit.

You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age or sexual orientation, etc even if that particular group is under-represented in your workforce, this would be considered direct discrimination and is likely to be unlawful.

It is, however, permissible to treat disabled people more favourably than non-disabled people when making selection decisions.

View Equality Commission guidance on taking positive action when recruiting people with disabilities.

View Equality Commission employer guidance on positive action in relation to all other equality grounds.

Checking the right to work in the UK

You must be sure that your chosen candidate has the right to work in the UK - see ensuring your workers are eligible to work in the UK.

However, you must take care to avoid race discrimination while carrying out the necessary checks.

As well as outlawing discrimination against both men and women on the grounds of sex, the sex equality legislation also bans discrimination against women on the grounds of pregnancy and maternity leave.

Direct sex discrimination

Direct sex discrimination would occur if, for example, an employer refused to recruit a woman merely because she has two young children but where he would not refuse to recruit a man merely because he has two children of the same age.

Equally, direct sex discrimination against a man would occur if, for example, an employer refused to recruit or dismissed a man merely because he is a man.

Note that it may sometimes be permissible to state that a job holder must be male or female where being of that sex is a genuine occupational requirement - see discrimination during the recruitment process.

Direct pregnancy or maternity leave discrimination would occur if, for example, an employer dismissed a woman merely because she is pregnant, or because she asked to take maternity leave, or is exercising or has exercised her statutory right to take maternity leave.

Indirect sex discrimination

Indirect sex discrimination might occur if, for example, an employer stated that a job could only be done by someone willing to spend long periods of time away from home. This potentially discriminates against women who generally have greater childcare responsibilities than men and who, as a result, are likely to find it more difficult to spend time away from home. However, this kind of job criterion or condition would be lawful if it can be justified, for example, if the job was for a salesperson who had to go abroad to meet customers face to face, then there may be no reasonably alternative way of doing the job.

Access Equality Commission and Labour Relations Agency employer guidance on pregnancy and maternity at work.

Sexual harassment

The law also makes sexual harassment - and harassment related to sex - explicitly unlawful in employment or vocational training. Sexual harassment can include inappropriate touching, requests for sexual favours, insensitive jokes of a sexual nature, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It also includes the circulation of lewd emails, even if this is not actually sent to the person being harassed. See sexual harassment guidance from the Labour Relations Agency.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

In Northern Ireland, there is an ongoing gender gap in the science, technology, engineering and mathematics (STEM) industries.

The Equality Commission is working with the Department for the Economy (DfE) and the STEM Business Group to address this gender imbalance.

Benefits of promoting gender balance

Promoting diversity and enhancing the advancement of women can bring many benefits to your business including:

• a solution to skills shortages
• access to a broader base of talent
• increased innovation potential
• stronger financial performance

How you can improve gender balance

There are a number of ways that you can improve gender balance in your business.

If you are able to offer a placement or apprenticeship to a young person, they will gain important skills and improve the knowledge of their industry. Read more on providing work experience opportunities and training and development programmes.

In addition, you could sign up to the STEM Charter, which enables STEM businesses to demonstrate their commitment to equality of opportunity for women in employment.

You could also join the STEM Employers Equality Network, which brings employers together to discuss common employment issues, share good practice and identify challenges.

Read guidance from the Equality Commission about these STEM initiatives.

Case study

See how Belfast-based business Exploristics Ltd has addressed gender imbalance in the STEM industry.

The Equal Pay Act (NI) 1970 promotes the principle that men and women should receive equal pay for equal work.

The Act aims to achieve its objective by incorporating an equality clause into all contracts of employment. The effect of this is to give each employee a contractual right to receive equal pay with any employee of the opposite sex who is doing:

(a) work that is the same or broadly similar (ie 'like work'); or
(b) work which is different, but which is of equal value in terms of the demands of the jobs (ie 'work of equal value'); or
(c) work which has been rated as equivalent under a job evaluation scheme (ie 'work rated as equivalent').

'Pay' includes not only wages/salary but also all other contractual terms and conditions.

Therefore, even if you pay men and women the same basic pay for the same job, their pay may still be unequal if other benefits, eg a company car and private healthcare, are different for men and women.

Work may be different from that of a colleague of the opposite sex but it can be considered of equal value if it is similar or the same in terms of the demands of the job, or if it has been rated as equivalent under a job evaluation scheme.

Read more on equal pay - the law and best practice.

Claiming for equal pay

The law provides a procedure by which an employee can take a claim for equal pay to an industrial tribunal. In the course of an equal pay claim, you may be called upon to explain and justify your pay practices and arrangements.

Pay systems review is the most appropriate method of ensuring that a pay system delivers equal pay free from sex bias.

Download the Equality Commission code of practice on equal pay (PDF, 538K).

You may be able to justify differences in pay as long as you can show that gender was not a factor, eg you could pay more to employees who:

• work in an area where the cost of living is higher
• you want to retain as you would find it difficult to replace them

Gender pay gap reporting

Some large employers in Great Britain, ie those who employ more than 250 employees, are obliged to publish annually a report outlining information about the pay received by their male and female employees, such as the average differences between the pay that each group receives.

Employers in Northern Ireland are not yet obliged by law to do the same in respect of their employees here. However, it is anticipated that a similar duty will be imposed on some employers here at some future, but as yet unknown, date.

The Equality Commission would encourage employers to begin preparing for this now. Further advice can be obtained by contacting the Equality Commission directly.

The Sex Discrimination (NI) Order 1976 makes it unlawful to discriminate against a job seeker or employee on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.

'Gender reassignment' means a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process.

If an employee is absent from work as a result of undergoing gender reassignment, it's also unlawful to treat that employee less favourably because of those absences than you would treat another employee who is off sick for another reason and a similar period.

Someone undergoing gender reassignment (a 'trans person') is likely at some stage in the process to be living or to begin living, as a member of the opposite sex. Inevitably this may entail a wish on their part to use the appropriate toilet or changing room facilities of their acquired sex.

As an employer, you will therefore need to make arrangements for this. It would be best to begin that process by discussing with the individual when they wish to change from using one set of facilities to the other and obtain their views about how they would like the issue to be handled. This will probably be during the 'social gender' transition when they present as members of the adopted sex even though they may not have completed the gender reassignment process.

Other employees may object to sharing facilities in these circumstances. While you may take account of their reasonable sensibilities, you should remind objectors that their feelings do not over-ride the legal rights of trans employees and, also, that a failure to treat others with dignity and respect could be seen as a breach of your equality policy and could amount to a disciplinary issue For advice on managing the situation where an individual is undergoing gender reassignment, you can call the Equality Commission Employer Helpline on Tel 028 90 500 600.

Once a trans person's gender reassignment has progressed far enough, they can eventually apply for a gender recognition certificate (GRC).

Once they have a GRC, they will be issued with a new birth certificate in the acquired gender. Where a full GRC is issued, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman). This would mean that you would have to treat a male-to-female trans person with a GRC as a woman and, for example, change your personnel records to reflect this.

You must not discriminate against a job seeker or employee because they are married or in a civil partnership.

Note that you must treat married employees and employees in civil partnerships in the same way. This means that any benefit such as private healthcare that is available to the spouses of employees should also be made available to employees' civil partners.

However, you can give benefits to employees who are married or in civil partnerships, but not to those who are unmarried or not in civil partnerships.

It is generally unlawful for an employer to discriminate on the grounds of age - ie to treat individuals of any age less favourably than others on the grounds of age.

Age discrimination exceptions

There are limited circumstances when age discrimination can be lawful - for example:

• if there is a genuine occupational requirement - ie if you are producing a play that has parts for older or younger characters
• if there are legal reasons - ie where people must be at least 18 years old to serve alcohol
• if there is an objective justification - ie the employer must show real evidence that they are pursuing a legitimate aim and that the age restriction is a proportionate means of achieving that aim

Exceptions to age discrimination are rare and any should be considered carefully. Unjustified age discrimination can be challenged and there is no statutory limit on how much an industrial tribunal can award.

Direct age discrimination

Direct age discrimination would occur if, for example, an employer refused to employ people under the age of 30, believing them to be unreliable (as such a reason, being nothing more than a negative stereotype, is unlikely to be justifiable). It would also be direct age discrimination to have, without lawful justification, a compulsory retirement age for your employees (no matter whether it is set at 55, 60, 65 or 70 years old or at any other age).

Indirect age discrimination

Indirect age discrimination would occur if, for example, an employer for recruitment purposes only advertised jobs in magazines aimed at young people - this may discriminate against older people as they are less likely to subscribe to the magazine; or introduced a benefit only for employees with more than ten years' service - fewer younger employees are likely to have enough service to qualify. However, it might be possible to justify this type of discrimination if it was reasonably necessary to do it in order to achieve some legitimate business aim, such as rewarding staff experience or encouraging staff retention.

Note that it may be possible to state that a job holder must be of a certain age where being of that age is a genuine occupational requirement - see discrimination during the recruitment process.

For more information on these and other forms of discrimination, see equality law and types of discrimination.

Avoiding age discrimination

You should check that your recruitment process is non-discriminatory, eg aim to place advertisements in publications read by a range of age groups, and avoid using terms which imply a particular age group, such as 'mature', 'enthusiastic', 'highly experienced' or 'recent graduate'.

See discrimination during the recruitment process.

You must also make sure that your redundancy procedures are based on business needs rather than age, eg it could be discriminatory to select employees for redundancy solely on the basis of 'last in, first out'.

Download an Equality Commission guide for employers on age discrimination in Northern Ireland (PDF, 2.3MB).

Under the Disability Discrimination Act 1995, it amounts to unlawful disability discrimination if an employer:

• Treats a disabled employee or job applicant less favourably than others because of their disability eg an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
• Treats an employee or job-seeker less favourably than an appropriate comparator for a reason related to their disability eg an employer dismisses an employee primarily because of their high long-term absence levels but in a situation where the absence is related to their disability. This is referred to as disability-related discrimination. The appropriate comparator in these cases is a non-disabled person who is otherwise in a similar position to the disabled employee (e.g. a non-disabled employee with a similar absence record). However, the employer may be able to justify this type of discrimination in certain circumstances. This type of discrimination cannot arise if the employer didn't know and couldn't reasonably have been expected to know that the person had the disability.
• Fails to comply with its duty to make a reasonable adjustment for a disabled employee/job applicant. This type of discrimination cannot be justified and will be unlawful. However, the employer is not required to make reasonable adjustments if the employer doesn't know - or could not reasonably be expected to know - that the employee/applicant is disabled and is likely to be placed at a substantial disadvantage compared with non-disabled people. However, the employer must do all it can reasonably be expected to do to find out whether this is the case.
• Subjects a disabled employee to disability-related harassment eg making derogatory comments about disabled people generally, or making fun of an employee's particular disability.

Victimisation

Victimisation is also unlawful discrimination under the Act, ie it is unlawful for an employer to treat an employee (the victim - whether a disabled or non-disabled person) unfairly because they have, or the employer believes they have:

• brought proceedings, or given evidence or information in connection with proceedings brought under the Act
• done anything else under the Act
• alleged someone has contravened the Act

For example, a disabled employee alleges discrimination because his employer refuses to promote him. A colleague gives evidence at the tribunal on the disabled employee's behalf and, as a result, the employer makes the colleague redundant. This amounts to unlawful victimisation (as well as unfair dismissal).

The law also makes it unlawful to discriminate against a person because they associate with someone who is disabled.

See equality law and types of discrimination.

What counts as a disability?

In general, the Disability Discrimination Act 1995 considers someone to be disabled for the purposes of the Act if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

However, there are special rules for assessing whether people with progressive or recurring conditions meet the definition. Also, some people are automatically deemed to be disabled people, ie but only those with HIV infection, cancer, and multiple sclerosis and those with severe disfigurements.

Certain conditions are not regarded as impairments for the purposes of the Act, eg drug or alcohol addiction or a tendency to start fires, steal or physically abuse others, or visual impairments that are easily correctable by wearing glasses or contact lenses. The rule excluding drug addiction does not, however, exclude addiction to properly prescribed medications.

Read Equality Commission guidance on the different types of discrimination.

For more on discrimination law in general, see equality law and types of discrimination.

Reasonable adjustments

Employers have a legal duty to make reasonable adjustments to any provision, criterion or practice, or to physical features of their premises, to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers.

Reasonable adjustments often involve little or no cost to your business. See how to provide access and facilities for disabled people.

You can also download the Equality Commission disability code of practice (PDF, 635K).

In addition, Disability Action's Hard at Work report highlights key actions needed to increase equality in employment for disabled people in Northern Ireland.

It's unlawful for an employer to discriminate against a job seeker or employee on the grounds of:

• race
• national origin
• ethnic origin
• colour
• nationality, including citizenship

It is deemed to be discrimination on the grounds of race to discriminate against a person because they are a member of the Irish Traveller Community.

Segregation of employees on the grounds of race is also unlawful.

Direct discrimination would occur if, for example, an employer refused to employ someone because they were not white or because they were English.

Indirect discrimination would potentially occur if, for example, an employer refused to employ people who could not write in English. That job criterion would not be unlawful, however, if it could be justified by reference to the needs of the job, for example, where an ability to read and write in English was necessary for the job.

Note that you may be able to state in a person specification that the job holder must be of a particular race, national origin, etc where being of that race, national origin etc is an occupational requirement - see discrimination during the recruitment process.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

It is unlawful for an employer to discriminate against someone on the grounds of:

• religious belief
• similar philosophical belief
• political opinion

Discrimination on any of these grounds may include discriminating against a person because they do not hold a particular religious or similar philosophical belief or political opinion (eg discriminating against a person because they are an atheist) or because you believe that they may hold a particular belief or political opinion (eg discriminating against a person because you think, perhaps wrongly, that they are an atheist or a Protestant or a Catholic).

Discrimination on religious grounds

'Religious belief' for the purposes of equality law covers any religious belief or the absence of one (eg atheism).

Direct discrimination on religious grounds would occur if, for example, an employer-paid Christians more than non-Christians or dismissed a Christian (or an atheist) because they are married to a Muslim.

Indirect discrimination on religious grounds would potentially occur if a requirement for working in a butcher's shop was that employees had to handle pork and pork products. This would potentially indirectly discriminate against employees who are observant Muslims and Jews, who regard pork meat as unclean. However, this job duty might be justified if the butcher could show that it was reasonably necessary for all his employees to perform it, such as, for example, where there is no practicable way to arrange the work so that this one employee does not have to perform the job duty.

Furthermore, the law would not require the butcher to cease selling pork.

Discrimination on similar philosophical belief

Case law indicates that the phrase 'similar philosophical belief' covers beliefs about weighty and substantial aspects of human life and behaviour. They must also attain certain levels of cogency, seriousness, cohesion, and importance; and be worthy of respect in a democratic society, be not incompatible with human dignity, and be not in conflict with the fundamental rights of others. Examples might include humanism, pacifism, veganism, spiritualism.

Discrimination due to political opinion

Political opinion for the purposes of equality law covers any lawful political opinion and includes long-established opinions such as Communism, Socialism, Conservatism, Ulster Unionism, Irish Nationalism, and more recent ones such as being in favour of, or opposed to, gay marriage. However, the protection of the law does not apply to any political opinion supporting or accepting the use of violence for political ends connected with the affairs of Northern Ireland or for putting the public, or a section of the public, in fear.

Note that you may be able to state that a job holder must be of a particular religion or belief where being of that religion or belief is a genuine occupational requirement - see discrimination when recruiting staff.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

It is unlawful to discriminate against a job seeker or employee on the grounds of sexual orientation.

The term 'sexual orientation' means a sexual orientation towards:

• people of the same sex, ie gays and lesbians
• the opposite sex, ie heterosexuals
• the same and opposite sex, ie bisexuals

Direct discrimination would occur if, for example, an employer refused to employ a gay man because he is gay or a heterosexual woman because the employer believes wrongly that she is gay or bisexual.

Indirect discrimination would potentially occur if, for example, an employer is willing to accept applications for a job vacancy from all persons, regardless of their sexual orientation, but then only places the job advertisement in newspapers and magazines aimed at people who are gay or lesbian. As heterosexuals tend not to read such publications, they may be less likely to know that they can apply for the vacancy. The employer's action will be unlawful unless it can be objectively justified.

Note that you may be able to state that a job holder must be of a particular sexual orientation where being of that sexual orientation is a genuine occupational requirement - see discrimination during the recruitment process.

Read Equality Commission guidance on sexual orientation discrimination law.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

Refusal to employ

Employees have the right not to be refused employment because they:

• are or are not a member of a trade union
• used to be or used not to be a member of a trade union
• are planning to join or are refusing to join a trade union

Any withholding of a job offer for membership or non-membership of a trade union could lead to a claim at an industrial or fair employment tribunal. However, unlike other forms of unlawful discrimination, there is a limit of the amount of compensation that a tribunal can award.

Unfair treatment during employment

An employer must not treat workers - ie not just employees - unfairly during their employment where the treatment aims to prevent the worker:

• becoming a member of or leaving a trade union
• carrying out trade union activities at an appropriate time
• making use of trade union services at an appropriate time

'Trade union activities' includes voting in a trade union ballot but doesn't include taking industrial action.

An 'appropriate time' may be, for instance, outside working hours, during an employee's lunch break, or at a time when the employer has agreed that they may take part in trade union activities.

This unfair treatment could be, for example, threats of dismissal or refusal to promote.

Unfair dismissal

It is automatically unfair to dismiss an employee on trade union membership grounds, eg because they refused to leave a trade union.

For more on automatically unfair dismissals, see dismissing employees.

Monitoring community background and sex

Employers with more than 10 employees, each working 16 or more hours per week, must register with the Equality Commission and must thereafter monitor the community background composition and sex of their job applicants and employees. They must also submit that information in a report to the Equality Commission every 12 months.

Furthermore, they must review that information every three years with a view to determining whether they are providing fair participation in employment to members of the Protestant and Roman Catholic communities in Northern Ireland. Where they determine that they are not providing such fair participation, they must consider taking affirmative action.

Read Equality Commission guidance about your monitoring duty.

Monitoring other equality grounds

For many employers, ie those in the private and voluntary sectors in particular, it is not, subject to the above, mandatory to monitor the other equality characteristics of your workforce, such as race, disability, age, or sexual orientation.

However, equal opportunities monitoring is an important means of demonstrating and implementing your commitment to promoting equality of opportunity on all equality grounds. It can assist you in identifying barriers that prevent access to employment and career development for certain groups of people and develop solutions, such as positive action plans or alternative policies and practices.

Therefore, it is good practice to monitor whether your equality policy is working effectively on all equality grounds.

For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB).

If you find that it isn't working, ie you find that your workforce is not as diverse as it should be, it would be good practice to find out why and take action to improve the effectiveness of the policy.

For example, if you find that non-white people are underrepresented in your workforce, you could take positive action, eg include text in job advertisements encouraging members of minority ethnic groups to apply - see promoting equality and diversity.

In order to demonstrate your commitment to promoting equality of opportunity, you should develop a number of key policies and procedures in important areas. The Equality Commission recommends that you have written policies covering the following areas, at least:

• an equal opportunities policy
• a harassment policy and procedure
• a grievance procedure
• a recruitment and selection policy and procedure
• a maternity policy
• a flexible working policy and procedure
• an equal pay policy

The Equality Commission has developed model policies in relation to these matters and they are available, free-of-charge, to download from the Commission's website.

Putting your policies into practice - acting like an equal opportunities employer

Having such written policies is not enough. You must also implement them and continually take reasonably practicable steps to fulfil the commitments expressed in them. Declare your commitment by stating that your organisation is an equal opportunities employer and promoting this. Fulfil your commitment to equality by acting like like an equal opportunities employer by:

• developing employment policies that reflect the equality codes of practice
• having recruitment practices that are systematic, fair and objective
• training staff to make them aware of the policies and how they should apply them
• ensuring policies and practices are followed consistently across the organisation
• making reasonable adjustments for people that need them
• appointing the best person for a job role

You should also consider carrying out an equal pay review to assure yourself that your organisation is providing men and women with equal pay for equal work.

Equality and diversity policies

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring.

One of the main ways of doing this is to have equality and diversity policies of the kinds noted above, backed up by an action plan to promote the policies and ensure that they are understood and followed across the business.

Your policies should set out your commitment to promote equality and diversity in areas such as recruitment, the working environment, and pay to tackle discrimination.

It should also:

• help your employees understand what you expect of them, eg to treat their colleagues and clients with dignity and respect
• set out your employees' legal rights and obligations

Read more on equality and diversity policies.

Employment equality plan

The employment equality plan is a tool that you can use to audit your employment and service provision policies and to plan what further work you will undertake to promote good practice. It may also show up areas of your work where you are not currently meeting the requirements of the law.

Read more on how to implement an equality plan.

Equal pay reviews

Many companies have instituted equal pay reviews which aim to ensure that their male and female staff enjoy equal pay for equal work.

Equal pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists.

Download the Equality Commission code of practice on equal pay (PDF, 538K).

You can also see how to set the right pay rates.

Positive action during recruitment

If your analysis of your monitoring data reveals imbalances in applicant or employee numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement must still state that the final recruitment decision will be based solely on merit.

You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age, or sexual orientation, even if that particular group is under represented in your workforce, this is direct discrimination and is likely to be unlawful.

View Equality Commission guidance on taking positive action when recruiting people with disabilities.

View Equality Commission employer guidance on positive action in relation to all other equality grounds.

When carrying out their functions, almost all public-sector bodies, eg Northern Ireland Executive departments, local councils, health, and social care trusts, the NI Housing Executive and housing associations, the Education Authority, and others, are obliged to have due regard to the need to promote equality of opportunity between nine categories of people (ie between men and women generally, between people of different religious belief, political opinion, race, age, sexual orientation, marital status and between people who have dependants and those who do not and between people who are disabled and those who are not).

This duty is called Section 75, Northern Ireland Act 1998.

The Section 75 duty does not apply to private businesses in Northern Ireland.

However, the relevant public authorities will be considering it when awarding tenders and contracts for the supply of goods and services. If you are seeking to win such contracts, the relevant body may ask you to prove that you are an equal opportunities employer. They may do this by requesting that you provide them with a copy of your equality and diversity policy or prove that you are registered with the Equality Commission (if you are obliged to be registered) and that you have not been disqualified from seeking such contracts

Therefore you may have a competitive advantage if you already have good equality and diversity practices in place. It will certainly make it easier for you to answer questions about this if asked.

Note that if you have a contract with a public body, the duty to comply with Section 75 remains with that body. But, the contract might include a term or condition that requires you to periodically show that you continue to be an equal opportunities employer and service provider and that you are continually making good faith efforts to comply with your duties under equality law.

It is unlawful to discriminate on the grounds of:

• sex
• pregnancy and maternity leave
• being married or in a civil partnership
• gender reassignment
• disability
• race
• age
• sexual orientation
• religious belief, similar philosophical belief or political opinion
• trade union membership or non-membership
• status as a fixed-term or part-time worker

Who the legislation applies to

The equality laws ban discrimination by all employers, regardless of their size, and offer protection against unlawful discrimination to:

• job applicants
• employees
• contract workers

In the field of employment and occupation the laws also ban discrimination by some service providers against their service users or prospective users, such as:

• institutions of further and higher education
• employment agencies
• providers of vocational training
• providers of vocational qualifications

The laws also ban discrimination by a number of other occupational bodies, such as:

• trade associations and trade unions against their members or prospective members
• the trustees and managers of occupational pension schemes against members or prospective members
• partnerships against their partners or prospective partners

The types of discrimination

There are generally four types of discrimination:

• direct discrimination - treating somebody less favourably on the grounds of sex, race, religion etc. This can also include treating somebody less favourably because of their association with a person who has a particular characteristic, eg a disabled person or a gay person, etc
• indirect discrimination - applying a rule to all individuals equally but which in practice causes greater disadvantage for members of one group compared to those in another, eg women compared to men, black people compared to white people, and which cannot be justified
• harassment - see bullying and harassment
• victimisation - treating someone unfairly because, for example, they plan to raise, or have raised, a discrimination-related grievance or they have supported someone else in raising such a grievance

The Equality Commission website provides further information about the definitions of discrimination.

Although some of the above also apply to discrimination against disabled people, there are also some other special types of disability discrimination - see discrimination against disabled people.

Is discrimination always unlawful?

The types of discrimination known as harassment and victimisation are always unlawful.

A decision that is directly discriminatory will normally be unlawful unless:

(a) in an age discrimination case, the decision can be objectively justified,

or

(b) in any other case, an employer can rely on a statutory exception, such as-

• a genuine occupational requirement exception where the job needs to be done by a person who has a particular characteristic (eg the job holder needs to be a woman in order to preserve the decency and privacy of women service-users who may be undressed)
• a positive action exception where an employer is taking action to encourage members of an under-represented or disadvantaged group to apply for work with them (eg by adding the following statement to a job advertisement: "we would particularly welcome applications from Roman Catholics and women").

A rule or practice (eg a job selection criterion) that is indirectly discriminatory will normally be unlawful unless it can be objectively justified or is permitted by another statutory exception (eg an exception for positive action).

For example, if an employer has a general rule that puts women or people with a particular religious belief at a greater disadvantage compared to others but the reason for applying that rule is reasonably necessary and genuinely helps the employer to meet a legitimate aim, then the rule may be justified and lawful.

Where discrimination can occur

The equality legislation affects all areas of employment including:

• recruitment
• terms and conditions
• promotions and transfers
• the provision of training
• the provision of pay and benefits
• dismissal, retirement or redundancy
• occupational pensions
• work placement opportunities
• disciplinary procedures
• performance and attendance management procedures
• the way the work is arranged and performed
• the physical features of an employer's premises
• how employees behave towards one another (eg harassment and bullying)

Discrimination can also occur after an employment contract has ended, eg a former employee can bring a discrimination claim after they have left if they get an unfavourable reference because they threatened to bring a discrimination claim.

Industrial tribunal claims and discrimination

Aggrieved individuals have the right to bring their complaints of alleged discrimination in employment to the Fair Employment Tribunal, in the case of complaints of religious, similar philosophical belief or political discrimination, or to an industrial tribunal, in the case of all other equality grounds.

Any claim to an industrial tribunal will normally have to be brought by the claimant concerned within three months of the alleged discriminatory act occurring. However, in cases of religious, similar philosophical belief, or political discrimination, claims in the Fair Employment Tribunal normally have to be brought within three months of the claimant's date of knowledge of the alleged act of discrimination or within six months of the date of the alleged act, whichever is the earlier.

Mandatory Early Conciliation

Any person who is considering bringing a claim to a tribunal must first make an application to the Labour Relations Agency for Early Conciliation, giving the latter an opportunity to try to resolve the matter. When a person makes an Early Conciliation notification the normal tribunal time-limit clock will stop for a period up to one calendar month during which conciliation can take place. The Conciliation Officer will also have the power to extend for a further 14 days providing there is a reasonable prospect of an agreement and that both parties agree.

Furthermore, in the case of current employees, the tribunal would expect them to raise a formal grievance with you before bringing the claim. See managing conflict. If they fail to do so, it may reduce the amount of any compensation it may award to the employee by up to 50%.

Read more on handling grievances.

There are no length-of-service or age requirements for bringing a discrimination claim and claimants do not need to have left your employment nor even to be your employee (eg an unsuccessful job applicant may bring a complaint).

For their claim to succeed, the claimant will first need to prove the existence of facts from which the tribunal could conclude that you have committed an act of unlawful discrimination.

If the claimant is able to do this, you must prove to the tribunal that you did not commit the unlawful act.

If an industrial or fair employment tribunal does in fact find that unlawful discrimination has occurred, penalties can be high, since there is no statutory cap on compensation levels.

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring - see monitoring equality and diversity - employer responsibilities and promoting equality and diversity.

You must avoid discrimination during the recruitment and selection process. This is a legal requirement and also gives you the best chance of getting the right person for the job.

Fair recruitment and selection process

Remember that job applicants - ie people you don't actually employ - might be able to make an industrial tribunal claim against you if they believe you didn't select them for a job because you discriminated against them unlawfully.

When defending discrimination complaints, those employers who can provide evidence that demonstrates that they properly followed fair recruitment procedures will greatly increase their chances of persuading a tribunal that they did not discriminate unlawfully when making their selection decisions.

Detailed guidance on fair recruitment and selection

For detailed guidance on how to adopt and follow fair recruitment and selection procedures, download the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 443K).

Monitoring during recruitment

Note that businesses in Northern Ireland with more than ten employees (working 16 or more hours per week) must register with the Equality Commission and thereafter conduct monitoring of the community background and sex of their job applicants during recruitment. For this purpose, community background is a reference to whether people are members of the Protestant or Roman Catholic communities in Northern Ireland.

Download an Equality Commission step-by-step guide to fair employment monitoring (PDF, 410K).

Businesses meeting the above criteria are not required to monitor their job applicants under any other of the equality categories (such as race, disability, age, sexual orientation, etc.), but it is good practice to do this too and the Equality Commission encourages employers to do it.

For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB). 

Job descriptions and personnel specification

The Equality Commission strongly recommends that you prepare job descriptions and personnel specifications for the jobs in your organisation. These will help you to select the best person for each job and to explain your decisions in non-discriminatory terms, if you are later challenged.

When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need. Job descriptions should accurately describe the genuinely essential duties of the post.

Personnel specifications should accurately describe the relevant, non-discriminatory, and objectively justifiable requirements to be met by the post-holder. The specification should not have any requirements that are not directly related to the job.

For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential for the job. However, in an editorial or administrative role this would be reasonable criterion.

Job advertisements

Employers should advertise all posts widely to ensure that as many eligible and suitably qualified candidates as possible have an opportunity to apply. It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc - unless being of that gender, race, etc is a genuine occupational requirement. The circumstances in which an employer can rely on a genuine occupational requirement are narrowly defined. If you wish to rely on one, you should contact the Equality Commission for advice.

It is good practice to place an equal opportunities statement in job advertisements. You can find example statements in Chapter 10C of the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 410K).

Disability discrimination

It is unlawful to publish job advertisements that state or imply that any candidate's success depends to any extent on them not having, or not having had, a disability, or indicate the employer's reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.

However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants. See discrimination against disabled people.

Age discrimination

To avoid age discrimination it is advisable not to use such phrases as "young and dynamic", "would suit someone who has just qualified", "minimum of ten years' experience" or "must be educated to degree level" unless the criterion or statement can be justified by the genuine needs of the job. If you are in doubt about being able to justify this, it would be better not to include or apply the criterion or statement. You could also contact the Equality Commission for advice.

Genuine occupational requirements

In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.

For example, it may be possible to set the following job criteria, so long as they are genuine:

• That only women can do a particular nursing or caring job because there is a need to preserve privacy or decency in situations where the job-holder will be in physical contact with other women who might reasonably object to men doing the job (eg helping patients to use toilet facilities, wash or dress themselves).
• In a religious organisation, it may be possible to require a job holder to be heterosexual, but only where the nature of the particular job and the context in which it is carried out requires this in order to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. So, the requirement might apply to a job in which the post-holder teaches Bible classes, but is unlikely to apply where there is no genuine religious aspect to the post-holder's job (eg they are a caretaker or book-keeper).

Job application forms

Employers should draft structured application forms for use in all recruitment exercises. If you use application forms, you should only ask applicants to provide relevant personal details that are relevant to the job selection criteria and to the administration of the selection process eg name, address etc.

See recruitment forms and templates.

However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.

You should invite disabled applicants to indicate any relevant effects of their disability and to suggest adjustments that might help them overcome any disadvantages they might expect to encounter in the recruitment process.

If the applicant's response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Disability Discrimination Act 1995. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests. Read Equality Commission guidance on recruiting people with disabilities.

If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.

It is good practice to omit from application forms questions that relate to religious or similar philosophical belief, political opinion, race or ethnicity, nationality, marital, civil partnership or family status, age, sex or gender reassignment, and sexual orientation. Questions about job applicants' health or medical history should not be included in the application form. You may, however, seek and consider such information in appropriate circumstances.

For example, it is good practice to include questions about personal characteristics that are being collected wholly for equal opportunities monitoring purposes, such as sex, community background, race etc, on a diversity monitoring form that you can separate from the main application. Selectors should never be provided with this information.

Interviewing candidates

You should ensure that individuals who are called on to serve as interview panel members have received appropriate equal opportunities training. When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership, or has plans to have children.

If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.

Job interviews should be constructed in a structured and systematic way. The interview panel members should meet prior to the interview stage to agree and set:

• selection criteria and relative weightings, which are objectively justifiable and which directly and clearly correspond to the criteria described in the job description and personnel specification
• suitable interview questions which directly and clearly correspond to the criteria described in the job description and the personnel specification
• standardised system of scoring for use throughout the process

Read Equality Commission guidance on shortlisting and interviewing.

Selection testing

You should only use selection tests that provide relevant, reliable, and valid assessments of the applicant's abilities to perform the duties of the job, and which have been assessed as having no discriminatory impact on any of the statutory equality grounds.

You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English - although you could justify this if having good written English was necessary for the job.

You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared with a non-disabled person, eg by giving an applicant who is disabled due to dyslexia more time to complete it.

Recruitment record-keeping

You must always be able to justify your decision to recruit a particular person. Therefore, you should document the recruitment process as much as possible. Documentation should be retained for at least twelve months.

This will help you provide evidence to an industrial or fair employment tribunal if you are faced with a claim of unlawful discrimination.

The anti-discrimination laws make it unlawful for you to discriminate against job seekers on the grounds of age, sex, pregnancy and maternity leave, gender reassignment, sexual orientation, married/civil partnership status, disability, race, religious or similar philosophical belief and political opinion.

The general rule is that it is unlawful for you to make recruitment decisions on any of these grounds unless you can rely on a statutory exception as a defence, such as where the characteristic in question is a genuine occupational requirement, or, in cases of age discrimination, where the age criterion is justified, ie where it is shown to be a proportionate means of achieving a legitimate aim.

Outreach positive action

If your analysis of monitoring data reveals imbalances in applicant or staff numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement should still state that the final recruitment decision will be based solely on merit.

You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age or sexual orientation, etc even if that particular group is under-represented in your workforce, this would be considered direct discrimination and is likely to be unlawful.

It is, however, permissible to treat disabled people more favourably than non-disabled people when making selection decisions.

View Equality Commission guidance on taking positive action when recruiting people with disabilities.

View Equality Commission employer guidance on positive action in relation to all other equality grounds.

Checking the right to work in the UK

You must be sure that your chosen candidate has the right to work in the UK - see ensuring your workers are eligible to work in the UK.

However, you must take care to avoid race discrimination while carrying out the necessary checks.

As well as outlawing discrimination against both men and women on the grounds of sex, the sex equality legislation also bans discrimination against women on the grounds of pregnancy and maternity leave.

Direct sex discrimination

Direct sex discrimination would occur if, for example, an employer refused to recruit a woman merely because she has two young children but where he would not refuse to recruit a man merely because he has two children of the same age.

Equally, direct sex discrimination against a man would occur if, for example, an employer refused to recruit or dismissed a man merely because he is a man.

Note that it may sometimes be permissible to state that a job holder must be male or female where being of that sex is a genuine occupational requirement - see discrimination during the recruitment process.

Direct pregnancy or maternity leave discrimination would occur if, for example, an employer dismissed a woman merely because she is pregnant, or because she asked to take maternity leave, or is exercising or has exercised her statutory right to take maternity leave.

Indirect sex discrimination

Indirect sex discrimination might occur if, for example, an employer stated that a job could only be done by someone willing to spend long periods of time away from home. This potentially discriminates against women who generally have greater childcare responsibilities than men and who, as a result, are likely to find it more difficult to spend time away from home. However, this kind of job criterion or condition would be lawful if it can be justified, for example, if the job was for a salesperson who had to go abroad to meet customers face to face, then there may be no reasonably alternative way of doing the job.

Access Equality Commission and Labour Relations Agency employer guidance on pregnancy and maternity at work.

Sexual harassment

The law also makes sexual harassment - and harassment related to sex - explicitly unlawful in employment or vocational training. Sexual harassment can include inappropriate touching, requests for sexual favours, insensitive jokes of a sexual nature, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It also includes the circulation of lewd emails, even if this is not actually sent to the person being harassed. See sexual harassment guidance from the Labour Relations Agency.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

In Northern Ireland, there is an ongoing gender gap in the science, technology, engineering and mathematics (STEM) industries.

The Equality Commission is working with the Department for the Economy (DfE) and the STEM Business Group to address this gender imbalance.

Benefits of promoting gender balance

Promoting diversity and enhancing the advancement of women can bring many benefits to your business including:

• a solution to skills shortages
• access to a broader base of talent
• increased innovation potential
• stronger financial performance

How you can improve gender balance

There are a number of ways that you can improve gender balance in your business.

If you are able to offer a placement or apprenticeship to a young person, they will gain important skills and improve the knowledge of their industry. Read more on providing work experience opportunities and training and development programmes.

In addition, you could sign up to the STEM Charter, which enables STEM businesses to demonstrate their commitment to equality of opportunity for women in employment.

You could also join the STEM Employers Equality Network, which brings employers together to discuss common employment issues, share good practice and identify challenges.

Read guidance from the Equality Commission about these STEM initiatives.

Case study

See how Belfast-based business Exploristics Ltd has addressed gender imbalance in the STEM industry.

The Equal Pay Act (NI) 1970 promotes the principle that men and women should receive equal pay for equal work.

The Act aims to achieve its objective by incorporating an equality clause into all contracts of employment. The effect of this is to give each employee a contractual right to receive equal pay with any employee of the opposite sex who is doing:

(a) work that is the same or broadly similar (ie 'like work'); or
(b) work which is different, but which is of equal value in terms of the demands of the jobs (ie 'work of equal value'); or
(c) work which has been rated as equivalent under a job evaluation scheme (ie 'work rated as equivalent').

'Pay' includes not only wages/salary but also all other contractual terms and conditions.

Therefore, even if you pay men and women the same basic pay for the same job, their pay may still be unequal if other benefits, eg a company car and private healthcare, are different for men and women.

Work may be different from that of a colleague of the opposite sex but it can be considered of equal value if it is similar or the same in terms of the demands of the job, or if it has been rated as equivalent under a job evaluation scheme.

Read more on equal pay - the law and best practice.

Claiming for equal pay

The law provides a procedure by which an employee can take a claim for equal pay to an industrial tribunal. In the course of an equal pay claim, you may be called upon to explain and justify your pay practices and arrangements.

Pay systems review is the most appropriate method of ensuring that a pay system delivers equal pay free from sex bias.

Download the Equality Commission code of practice on equal pay (PDF, 538K).

You may be able to justify differences in pay as long as you can show that gender was not a factor, eg you could pay more to employees who:

• work in an area where the cost of living is higher
• you want to retain as you would find it difficult to replace them

Gender pay gap reporting

Some large employers in Great Britain, ie those who employ more than 250 employees, are obliged to publish annually a report outlining information about the pay received by their male and female employees, such as the average differences between the pay that each group receives.

Employers in Northern Ireland are not yet obliged by law to do the same in respect of their employees here. However, it is anticipated that a similar duty will be imposed on some employers here at some future, but as yet unknown, date.

The Equality Commission would encourage employers to begin preparing for this now. Further advice can be obtained by contacting the Equality Commission directly.

The Sex Discrimination (NI) Order 1976 makes it unlawful to discriminate against a job seeker or employee on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.

'Gender reassignment' means a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process.

If an employee is absent from work as a result of undergoing gender reassignment, it's also unlawful to treat that employee less favourably because of those absences than you would treat another employee who is off sick for another reason and a similar period.

Someone undergoing gender reassignment (a 'trans person') is likely at some stage in the process to be living or to begin living, as a member of the opposite sex. Inevitably this may entail a wish on their part to use the appropriate toilet or changing room facilities of their acquired sex.

As an employer, you will therefore need to make arrangements for this. It would be best to begin that process by discussing with the individual when they wish to change from using one set of facilities to the other and obtain their views about how they would like the issue to be handled. This will probably be during the 'social gender' transition when they present as members of the adopted sex even though they may not have completed the gender reassignment process.

Other employees may object to sharing facilities in these circumstances. While you may take account of their reasonable sensibilities, you should remind objectors that their feelings do not over-ride the legal rights of trans employees and, also, that a failure to treat others with dignity and respect could be seen as a breach of your equality policy and could amount to a disciplinary issue For advice on managing the situation where an individual is undergoing gender reassignment, you can call the Equality Commission Employer Helpline on Tel 028 90 500 600.

Once a trans person's gender reassignment has progressed far enough, they can eventually apply for a gender recognition certificate (GRC).

Once they have a GRC, they will be issued with a new birth certificate in the acquired gender. Where a full GRC is issued, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman). This would mean that you would have to treat a male-to-female trans person with a GRC as a woman and, for example, change your personnel records to reflect this.

You must not discriminate against a job seeker or employee because they are married or in a civil partnership.

Note that you must treat married employees and employees in civil partnerships in the same way. This means that any benefit such as private healthcare that is available to the spouses of employees should also be made available to employees' civil partners.

However, you can give benefits to employees who are married or in civil partnerships, but not to those who are unmarried or not in civil partnerships.

It is generally unlawful for an employer to discriminate on the grounds of age - ie to treat individuals of any age less favourably than others on the grounds of age.

Age discrimination exceptions

There are limited circumstances when age discrimination can be lawful - for example:

• if there is a genuine occupational requirement - ie if you are producing a play that has parts for older or younger characters
• if there are legal reasons - ie where people must be at least 18 years old to serve alcohol
• if there is an objective justification - ie the employer must show real evidence that they are pursuing a legitimate aim and that the age restriction is a proportionate means of achieving that aim

Exceptions to age discrimination are rare and any should be considered carefully. Unjustified age discrimination can be challenged and there is no statutory limit on how much an industrial tribunal can award.

Direct age discrimination

Direct age discrimination would occur if, for example, an employer refused to employ people under the age of 30, believing them to be unreliable (as such a reason, being nothing more than a negative stereotype, is unlikely to be justifiable). It would also be direct age discrimination to have, without lawful justification, a compulsory retirement age for your employees (no matter whether it is set at 55, 60, 65 or 70 years old or at any other age).

Indirect age discrimination

Indirect age discrimination would occur if, for example, an employer for recruitment purposes only advertised jobs in magazines aimed at young people - this may discriminate against older people as they are less likely to subscribe to the magazine; or introduced a benefit only for employees with more than ten years' service - fewer younger employees are likely to have enough service to qualify. However, it might be possible to justify this type of discrimination if it was reasonably necessary to do it in order to achieve some legitimate business aim, such as rewarding staff experience or encouraging staff retention.

Note that it may be possible to state that a job holder must be of a certain age where being of that age is a genuine occupational requirement - see discrimination during the recruitment process.

For more information on these and other forms of discrimination, see equality law and types of discrimination.

Avoiding age discrimination

You should check that your recruitment process is non-discriminatory, eg aim to place advertisements in publications read by a range of age groups, and avoid using terms which imply a particular age group, such as 'mature', 'enthusiastic', 'highly experienced' or 'recent graduate'.

See discrimination during the recruitment process.

You must also make sure that your redundancy procedures are based on business needs rather than age, eg it could be discriminatory to select employees for redundancy solely on the basis of 'last in, first out'.

Download an Equality Commission guide for employers on age discrimination in Northern Ireland (PDF, 2.3MB).

Under the Disability Discrimination Act 1995, it amounts to unlawful disability discrimination if an employer:

• Treats a disabled employee or job applicant less favourably than others because of their disability eg an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
• Treats an employee or job-seeker less favourably than an appropriate comparator for a reason related to their disability eg an employer dismisses an employee primarily because of their high long-term absence levels but in a situation where the absence is related to their disability. This is referred to as disability-related discrimination. The appropriate comparator in these cases is a non-disabled person who is otherwise in a similar position to the disabled employee (e.g. a non-disabled employee with a similar absence record). However, the employer may be able to justify this type of discrimination in certain circumstances. This type of discrimination cannot arise if the employer didn't know and couldn't reasonably have been expected to know that the person had the disability.
• Fails to comply with its duty to make a reasonable adjustment for a disabled employee/job applicant. This type of discrimination cannot be justified and will be unlawful. However, the employer is not required to make reasonable adjustments if the employer doesn't know - or could not reasonably be expected to know - that the employee/applicant is disabled and is likely to be placed at a substantial disadvantage compared with non-disabled people. However, the employer must do all it can reasonably be expected to do to find out whether this is the case.
• Subjects a disabled employee to disability-related harassment eg making derogatory comments about disabled people generally, or making fun of an employee's particular disability.

Victimisation

Victimisation is also unlawful discrimination under the Act, ie it is unlawful for an employer to treat an employee (the victim - whether a disabled or non-disabled person) unfairly because they have, or the employer believes they have:

• brought proceedings, or given evidence or information in connection with proceedings brought under the Act
• done anything else under the Act
• alleged someone has contravened the Act

For example, a disabled employee alleges discrimination because his employer refuses to promote him. A colleague gives evidence at the tribunal on the disabled employee's behalf and, as a result, the employer makes the colleague redundant. This amounts to unlawful victimisation (as well as unfair dismissal).

The law also makes it unlawful to discriminate against a person because they associate with someone who is disabled.

See equality law and types of discrimination.

What counts as a disability?

In general, the Disability Discrimination Act 1995 considers someone to be disabled for the purposes of the Act if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

However, there are special rules for assessing whether people with progressive or recurring conditions meet the definition. Also, some people are automatically deemed to be disabled people, ie but only those with HIV infection, cancer, and multiple sclerosis and those with severe disfigurements.

Certain conditions are not regarded as impairments for the purposes of the Act, eg drug or alcohol addiction or a tendency to start fires, steal or physically abuse others, or visual impairments that are easily correctable by wearing glasses or contact lenses. The rule excluding drug addiction does not, however, exclude addiction to properly prescribed medications.

Read Equality Commission guidance on the different types of discrimination.

For more on discrimination law in general, see equality law and types of discrimination.

Reasonable adjustments

Employers have a legal duty to make reasonable adjustments to any provision, criterion or practice, or to physical features of their premises, to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers.

Reasonable adjustments often involve little or no cost to your business. See how to provide access and facilities for disabled people.

You can also download the Equality Commission disability code of practice (PDF, 635K).

In addition, Disability Action's Hard at Work report highlights key actions needed to increase equality in employment for disabled people in Northern Ireland.

It's unlawful for an employer to discriminate against a job seeker or employee on the grounds of:

• race
• national origin
• ethnic origin
• colour
• nationality, including citizenship

It is deemed to be discrimination on the grounds of race to discriminate against a person because they are a member of the Irish Traveller Community.

Segregation of employees on the grounds of race is also unlawful.

Direct discrimination would occur if, for example, an employer refused to employ someone because they were not white or because they were English.

Indirect discrimination would potentially occur if, for example, an employer refused to employ people who could not write in English. That job criterion would not be unlawful, however, if it could be justified by reference to the needs of the job, for example, where an ability to read and write in English was necessary for the job.

Note that you may be able to state in a person specification that the job holder must be of a particular race, national origin, etc where being of that race, national origin etc is an occupational requirement - see discrimination during the recruitment process.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

It is unlawful for an employer to discriminate against someone on the grounds of:

• religious belief
• similar philosophical belief
• political opinion

Discrimination on any of these grounds may include discriminating against a person because they do not hold a particular religious or similar philosophical belief or political opinion (eg discriminating against a person because they are an atheist) or because you believe that they may hold a particular belief or political opinion (eg discriminating against a person because you think, perhaps wrongly, that they are an atheist or a Protestant or a Catholic).

Discrimination on religious grounds

'Religious belief' for the purposes of equality law covers any religious belief or the absence of one (eg atheism).

Direct discrimination on religious grounds would occur if, for example, an employer-paid Christians more than non-Christians or dismissed a Christian (or an atheist) because they are married to a Muslim.

Indirect discrimination on religious grounds would potentially occur if a requirement for working in a butcher's shop was that employees had to handle pork and pork products. This would potentially indirectly discriminate against employees who are observant Muslims and Jews, who regard pork meat as unclean. However, this job duty might be justified if the butcher could show that it was reasonably necessary for all his employees to perform it, such as, for example, where there is no practicable way to arrange the work so that this one employee does not have to perform the job duty.

Furthermore, the law would not require the butcher to cease selling pork.

Discrimination on similar philosophical belief

Case law indicates that the phrase 'similar philosophical belief' covers beliefs about weighty and substantial aspects of human life and behaviour. They must also attain certain levels of cogency, seriousness, cohesion, and importance; and be worthy of respect in a democratic society, be not incompatible with human dignity, and be not in conflict with the fundamental rights of others. Examples might include humanism, pacifism, veganism, spiritualism.

Discrimination due to political opinion

Political opinion for the purposes of equality law covers any lawful political opinion and includes long-established opinions such as Communism, Socialism, Conservatism, Ulster Unionism, Irish Nationalism, and more recent ones such as being in favour of, or opposed to, gay marriage. However, the protection of the law does not apply to any political opinion supporting or accepting the use of violence for political ends connected with the affairs of Northern Ireland or for putting the public, or a section of the public, in fear.

Note that you may be able to state that a job holder must be of a particular religion or belief where being of that religion or belief is a genuine occupational requirement - see discrimination when recruiting staff.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

It is unlawful to discriminate against a job seeker or employee on the grounds of sexual orientation.

The term 'sexual orientation' means a sexual orientation towards:

• people of the same sex, ie gays and lesbians
• the opposite sex, ie heterosexuals
• the same and opposite sex, ie bisexuals

Direct discrimination would occur if, for example, an employer refused to employ a gay man because he is gay or a heterosexual woman because the employer believes wrongly that she is gay or bisexual.

Indirect discrimination would potentially occur if, for example, an employer is willing to accept applications for a job vacancy from all persons, regardless of their sexual orientation, but then only places the job advertisement in newspapers and magazines aimed at people who are gay or lesbian. As heterosexuals tend not to read such publications, they may be less likely to know that they can apply for the vacancy. The employer's action will be unlawful unless it can be objectively justified.

Note that you may be able to state that a job holder must be of a particular sexual orientation where being of that sexual orientation is a genuine occupational requirement - see discrimination during the recruitment process.

Read Equality Commission guidance on sexual orientation discrimination law.

For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.

Refusal to employ

Employees have the right not to be refused employment because they:

• are or are not a member of a trade union
• used to be or used not to be a member of a trade union
• are planning to join or are refusing to join a trade union

Any withholding of a job offer for membership or non-membership of a trade union could lead to a claim at an industrial or fair employment tribunal. However, unlike other forms of unlawful discrimination, there is a limit of the amount of compensation that a tribunal can award.

Unfair treatment during employment

An employer must not treat workers - ie not just employees - unfairly during their employment where the treatment aims to prevent the worker:

• becoming a member of or leaving a trade union
• carrying out trade union activities at an appropriate time
• making use of trade union services at an appropriate time

'Trade union activities' includes voting in a trade union ballot but doesn't include taking industrial action.

An 'appropriate time' may be, for instance, outside working hours, during an employee's lunch break, or at a time when the employer has agreed that they may take part in trade union activities.

This unfair treatment could be, for example, threats of dismissal or refusal to promote.

Unfair dismissal

It is automatically unfair to dismiss an employee on trade union membership grounds, eg because they refused to leave a trade union.

For more on automatically unfair dismissals, see dismissing employees.

Monitoring community background and sex

Employers with more than 10 employees, each working 16 or more hours per week, must register with the Equality Commission and must thereafter monitor the community background composition and sex of their job applicants and employees. They must also submit that information in a report to the Equality Commission every 12 months.

Furthermore, they must review that information every three years with a view to determining whether they are providing fair participation in employment to members of the Protestant and Roman Catholic communities in Northern Ireland. Where they determine that they are not providing such fair participation, they must consider taking affirmative action.

Read Equality Commission guidance about your monitoring duty.

Monitoring other equality grounds

For many employers, ie those in the private and voluntary sectors in particular, it is not, subject to the above, mandatory to monitor the other equality characteristics of your workforce, such as race, disability, age, or sexual orientation.

However, equal opportunities monitoring is an important means of demonstrating and implementing your commitment to promoting equality of opportunity on all equality grounds. It can assist you in identifying barriers that prevent access to employment and career development for certain groups of people and develop solutions, such as positive action plans or alternative policies and practices.

Therefore, it is good practice to monitor whether your equality policy is working effectively on all equality grounds.

For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB).

If you find that it isn't working, ie you find that your workforce is not as diverse as it should be, it would be good practice to find out why and take action to improve the effectiveness of the policy.

For example, if you find that non-white people are underrepresented in your workforce, you could take positive action, eg include text in job advertisements encouraging members of minority ethnic groups to apply - see promoting equality and diversity.

In order to demonstrate your commitment to promoting equality of opportunity, you should develop a number of key policies and procedures in important areas. The Equality Commission recommends that you have written policies covering the following areas, at least:

• an equal opportunities policy
• a harassment policy and procedure
• a grievance procedure
• a recruitment and selection policy and procedure
• a maternity policy
• a flexible working policy and procedure
• an equal pay policy

The Equality Commission has developed model policies in relation to these matters and they are available, free-of-charge, to download from the Commission's website.

Putting your policies into practice - acting like an equal opportunities employer

Having such written policies is not enough. You must also implement them and continually take reasonably practicable steps to fulfil the commitments expressed in them. Declare your commitment by stating that your organisation is an equal opportunities employer and promoting this. Fulfil your commitment to equality by acting like like an equal opportunities employer by:

• developing employment policies that reflect the equality codes of practice
• having recruitment practices that are systematic, fair and objective
• training staff to make them aware of the policies and how they should apply them
• ensuring policies and practices are followed consistently across the organisation
• making reasonable adjustments for people that need them
• appointing the best person for a job role

You should also consider carrying out an equal pay review to assure yourself that your organisation is providing men and women with equal pay for equal work.

Equality and diversity policies

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring.

One of the main ways of doing this is to have equality and diversity policies of the kinds noted above, backed up by an action plan to promote the policies and ensure that they are understood and followed across the business.

Your policies should set out your commitment to promote equality and diversity in areas such as recruitment, the working environment, and pay to tackle discrimination.

It should also:

• help your employees understand what you expect of them, eg to treat their colleagues and clients with dignity and respect
• set out your employees' legal rights and obligations

Read more on equality and diversity policies.

Employment equality plan

The employment equality plan is a tool that you can use to audit your employment and service provision policies and to plan what further work you will undertake to promote good practice. It may also show up areas of your work where you are not currently meeting the requirements of the law.

Read more on how to implement an equality plan.

Equal pay reviews

Many companies have instituted equal pay reviews which aim to ensure that their male and female staff enjoy equal pay for equal work.

Equal pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists.

Download the Equality Commission code of practice on equal pay (PDF, 538K).

You can also see how to set the right pay rates.

Positive action during recruitment

If your analysis of your monitoring data reveals imbalances in applicant or employee numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement must still state that the final recruitment decision will be based solely on merit.

You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age, or sexual orientation, even if that particular group is under represented in your workforce, this is direct discrimination and is likely to be unlawful.

View Equality Commission guidance on taking positive action when recruiting people with disabilities.

View Equality Commission employer guidance on positive action in relation to all other equality grounds.

When carrying out their functions, almost all public-sector bodies, eg Northern Ireland Executive departments, local councils, health, and social care trusts, the NI Housing Executive and housing associations, the Education Authority, and others, are obliged to have due regard to the need to promote equality of opportunity between nine categories of people (ie between men and women generally, between people of different religious belief, political opinion, race, age, sexual orientation, marital status and between people who have dependants and those who do not and between people who are disabled and those who are not).

This duty is called Section 75, Northern Ireland Act 1998.

The Section 75 duty does not apply to private businesses in Northern Ireland.

However, the relevant public authorities will be considering it when awarding tenders and contracts for the supply of goods and services. If you are seeking to win such contracts, the relevant body may ask you to prove that you are an equal opportunities employer. They may do this by requesting that you provide them with a copy of your equality and diversity policy or prove that you are registered with the Equality Commission (if you are obliged to be registered) and that you have not been disqualified from seeking such contracts

Therefore you may have a competitive advantage if you already have good equality and diversity practices in place. It will certainly make it easier for you to answer questions about this if asked.

Note that if you have a contract with a public body, the duty to comply with Section 75 remains with that body. But, the contract might include a term or condition that requires you to periodically show that you continue to be an equal opportunities employer and service provider and that you are continually making good faith efforts to comply with your duties under equality law.