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Equality and diversity: Improving the working lives of doctors

Research undertaken for BMA Northern Ireland
April 2006

2 Legislative context
2.1 Northern Ireland equality legislation
Northern Ireland equality legislation exists to protect individuals and groups of individuals from discrimination on the grounds of gender, race, religious belief and/or political opinion, disability and sexual orientation in the areas of employment and vocational training and in the provision of goods, facilities and services (with the exception of the sexual orientation regulations). Northern Ireland equality legislation includes: [Go to note 3]

• Equal Pay Act (Northern Ireland) 1970 (as amended)
• Sex Discrimination (Northern Ireland) Order 1976 (as amended)
• Race Relations (Northern Ireland) Order 1997 (as amended)
• Fair Employment and Treatment (Northern Ireland) Order 1998 (as amended)
• Disability Discrimination Act 1995
• Equality (Disability, etc) (Northern Ireland) Order 2000
• Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003
• Section 75 and Schedule 9 to the Northern Ireland Act 1998

This report focuses on six main areas of discrimination – sex, race, religious and political, disability, sexual orientation and Section 75 of the Northern Ireland Act 1998.

The Equality Commission for Northern Ireland (the Commission) produces a range of advisory materials including Codes of Practice to assist employers to comply with their legislative obligations. The Commission states that ‘the responsibility for providing equality of opportunity rests with ... the employer’ [Go to note 4]. While Codes of Practice do not impose legal obligations in themselves, provision within the Codes, where considered relevant, can be used in evidence in legal proceedings which are brought before the courts and the industrial tribunals and the Fair Employment Tribunal [Go to note 5, 6 and 7]. In order that staff are aware of their legal rights and responsibilities and in seeking to promote equality of opportunity, the Codes of Practice promote, as good practice, the provision of equality training and guidance for staff [Go to note 8]. The Code of Practice for the Disability Discrimination Act and the guidance issued for the Sexual Orientation Regulations are more comprehensive in this regard and state that this training should be ‘regular, relevant and up to date’ [Go to notes 9 and 10]. These Codes of Practice and advisory materials have been used to inform this exercise.

2.2 Direct discrimination and harassment – definitions
There are various forms of unlawful discrimination and for this purpose the following definitions of direct discrimination and harassment shall be employed.

Direct discrimination
Direct discrimination occurs when a person is treated less favourably than someone else is or would be treated:

• on the grounds of their disability and the treatment is given for a reason relating to the person’s disability and cannot be justified or a reasonable adjustment has not been made (paraphrased) [Go to note 11]
• on religious or political grounds [Go to note 12]
• on racial grounds [Go to note 13]
• when ‘a person of one sex is treated less favourably than a person of another sex and the sex of that person is the reason for the unfavourable treatment’ [Go to note 14]; and
• ‘on grounds of sexual orientation’ [Go to note 15] in such areas as recruitment and selection for employment, promotion and training, terms and conditions, pay and other employment opportunities and benefits.

Harassment
Employees have the right to work within a safe, healthy and harmonious working environment, free from discrimination, bullying and harassment where each individual feels equally valued. Harassment is legally defined as ‘unwanted conduct related to age, disability, marital or family status, sex, sexual orientation, race or ethnic origin, religious belief or political opinion affecting the dignity of women and men at work or creating an intimidating, hostile, humiliating, disturbing or offensive environment’ and can include ‘unwelcome physical, verbal or non-verbal conduct’ [Go to note 16]. Examples of harassment can include jokes, racist remarks, homophobic comments, letters, emails, visual displays such as graffiti, flags, obscene gestures and isolation or non-cooperation at work or exclusion from social activities (this is not an exhaustive list). It is not the intent of the perpetrator which constitutes harassment,
but the effect of such behaviour upon the individual [Go to note 17].

Individuals, who believe they have experienced discrimination within their employment on one or more of the above grounds, may pursue a case against their employer under specific conditions.

2.3 Section 75 of the Northern Ireland Act 1998
Section 75 of the Northern Ireland Act 1998, places a positive duty on designated public authorities to promote equality of opportunity between nine specific categories of individuals and to ‘have due regard to the desirability to promote good relations between persons of different religious belief, political opinion or racial group’ [Go to note 18]. This legislation, when introduced, was more robust than any comparable legislation in Great Britain and placed Northern Ireland in a unique position with regards to promotion of equality of opportunity in public sector organisations [Go to note 19]. As a positive duty, Section 75 requires designated public authorities to be proactive in mainstreaming equality into their daily policies, practices and procedures.

Section 75 specifies that a public authority must have due regard to the need to promote equality of opportunity between the following nine categories of individuals:

• persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation
• between men and women generally
• between persons with a disability and persons without; and
• between persons with dependants and persons without’ [Go to note 20] and ‘in carrying out its functions, to have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group’ [Go to note 21].

A designated public authority must produce an equality scheme, which outlines how that authority proposes to meet its obligations under Section 75. Schedule 9 to the Northern Ireland Act 1998, outlines the components which must be included in such a scheme. One of the components of the scheme must be ‘the authority’s arrangements for training staff on issues relevant to the duties; Schedule 9 paragraph 4 (e)’ [Go to note 22]. Training staff in relation to this duty is therefore a legislative requirement. Once approved by the Commission, the public authority must comply with its own scheme. If it does not and a complaint is made by an individual, under Schedule 9 paragraph 10, the Commission can investigate such a complaint providing certain conditions have been satisfied [Go to note 23]. Once a complaint against a public authority has been investigated and recommendations made by the Commission without satisfactory resolution, then the Commission can bring the matter before the Secretary of State [Go to note 24]. Public authorities designated include the Department of Health, Social Services and Public Safety, Health Trusts, Boards, Councils and Agencies [Go to note 25].

This is a very brief outline of the legislative context which was used to inform the design of this research. The primary concern for the BMA(NI) in this regard, is that its members are aware of their rights and their responsibilities in relation to equality and moreover to identify and challenge discrimination faced by its membership.

2.4 Other considerations
On 1 October 2006, the government will introduce the first anti-discrimination legislation relating to age, the Employment Equality (Age) Regulations 2006, which will make discrimination on the grounds of age in the areas of employment and vocational training unlawful [Go to note 26]. Hence, the inclusion of ‘age’ as a basis for less favourable treatment was considered to be an important aspect to be included in this research, given the new legislation.

In 2000, the Department of Health launched the ‘Improving Working Lives Standard’. This standard outlined best practice in contemporary human resource policies and practices to aid staff in achieving an appropriate balance between work and personal responsibilities. Included in the standard are comprehensive examples of work life balance practices such as flexible working, valuing diversity, childcare provision and support for carers in the workplace, flexible careers, flexible retirement, training and development, healthy working, staff involvement and communications. This standard also promotes the right of employees to work for an employer committed to ‘tackling discrimination, harassment and bullying’ [Go to note 27].