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Northern Ireland disability discrimination law

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This page does not apply outside Northern Ireland.
Last updated 18th August 2019.

This part of the website deals with the position in Northern Ireland as I understand it. This rest of the website focuses on Equality Act 2010 which does not apply in Northern Ireland.

Summary

  • The Disability Discrimination Act 1995 (DDA) still applies in Northern Ireland, not the Equality Act 2010. Since 1998, equal opportunities law has been devolved to Northern Ireland. Northern Ireland makes its own amendments to the DDA, so differences have developed compared with the rest of the UK. Below DDA applies, but with differences.
  • Education is covered by a separate 2005 Order rather than the DDA.
  • The most important difference from the rest of the UK is that in Northern Ireland claims for less favourable treatment are still restricted by the 2008 Malcolm decision. Claimants often have to try and frame their claim as a failure to make reasonable adjustments. See separate page Types of discrimination are limited in Northern Ireland.
  • Northern Ireland has broadly the same definition of disability as Equality Act 2010. However the UK’s 2011 statutory guidance, with its helpful example on stammering avoidance strategies being taken into account, does not apply in Northern Ireland. See separate page Definition of disability: Northern Ireland.
  • After Brexit, the DDA 1995 continues but can potentially be amended without regard to EU law. Pre-exit day decisions of the EU Court of Justice will still normally be binding. Below Brexit.
  • The Equality Commission for Northern Ireland (ECNI), www.equalityni.org, has guidance on its website and an advice service. More: Equality Commission for Northern Ireland (below).

Limited types of discrimination

The key point is that you cannot claim ‘discrimination arising from disability’ or ‘indirect discrimination’ for disability in Northern Ireland.

Instead you normally have to try and frame your claim as a failure to make reasonable adjustments, unless it is direct discrimination or harassment. This is because of the 2008 House of Lords decision in Malcolm. The effects of that decision were rectified by Equality Act 2010 in the rest of the UK, but not in Northern Ireland.

See Types of discrimination are limited in Northern Ireland.

Meaning of ‘disability’

The Disability Discrimination Act 1995 as it applies in Northern Ireland has broadly the same definition of disability as the Equality Act 2010 applying to the rest of the UK.

The main difference is not in the legislation itself, but the fact that the 2011 statutory guidance for the rest of the UK does not apply in Northern Ireland. That 2011 guidance has a helpful example on stammering and hidden effects at para D17. Even so there is a strong argument that hidden effects of stammering, eg avoiding words or difficult speaking situations, or speaking less, should be taken into account in Northern Ireland in deciding whether a stammer has a substantial adverse effect

More: Definition of disability: Northern Ireland.

Employment

On employment, the key point is as above, that you often have to try and frame your claim as a failure to make reasonable adjustments.

There a Code of Practice as well as guidance published by the Equality Commission for Northern Ireland.

See Employment: disability discrimination in Northern Ireland.

Goods and services

Broadly, service providers are required not to treat disabled people less favourably, and to make reasonable adjustments. There is an exception for aircraft and ships, but for example airports, ferry ports and booking facilities are covered by the DDA.

Public authorities are generally covered by the DDA even when they are not service providers, eg police arresting someone or investigating a crime. There are also rules on private clubs etc.

See Services (including transport): disability discrimination in Northern Ireland.

Education

With the exception of professional exams (covered by the DDA), disability discrimination by education providers is dealt with not by the DDA but by separate rules which took effect in September 2005.

These rules extend to schools, further and higher education institutions and qualifications bodies. There is also a Special Educational Needs (SEN) regime for schools.

Unlike the rest of the UK, it is unclear whether protection applies to discriminatory competence standards in exams.

See Education: disability discrimination in Northern Ireland.

Obligations on public authorities

Public authorities are subject to the normal rules (above) on employment, provision of services, and education. ‘Public functions’ such as questioning by the police are also subject to the DDA.

Public authorities also have further duties to take disability into account, the Disability Equality Duty and section 75 Northern Ireland Act.

See Public authorities: disability discrimination in Northern Ireland.

DDA applies, but with differences

The Disability Discrimination Act (DDA) as originally passed in 1995 also applied in Northern Ireland, subject to certain adaptations.

However for more than twenty years disability discrimination law in Northern Ireland has been devolved, and is a matter for the Northern Ireland Assembly (niassembly.gov.uk). Under the Northern Ireland Act 1998 equal opportunity matters are among the ‘transferred matters’ taken over by the Assembly.

This means that amendments made to the DDA by the Westminster Parliament from 1998 onwards did not apply in Northern Ireland. Also the Equality Act 2010 passed in Westminster does not apply in Northern Ireland (with minor exceptions). Northern Ireland has replicated quite a few changes made in the rest of the UK, often with a delay. However Northern Ireland has not made changes to reflect the Equality Act 2010. An important result is that disability discrimination claims in Northern Ireland are still limited by the 2008 House of Lords decision in Malcolm: see Types of discrimination are more limited in Northern Ireland.

More generally, the legislation in the rest of the UK has now diverged somewhat from that in Northern Ireland. I put it that way round (rather than saying Northern Ireland law has diverged) because it is the legislation in the rest of the UK which tends to have changed. Northern Ireland legislation is often what used to apply in the rest of the UK.

For education Northern Ireland has a separate 2005 Order rather than the DDA.

Proposals for reform

Equality Commission for Northern Ireland

This Commission (ECNI) – www.equalityni.org – has a role on disability discrimination matters in Northern Ireland equivalent to that of the Equality and Human Rights Commission in England, Scotland and Wales

See above on Proposals for reform made by the Commission.

Human rights

There is also a Northern Ireland Human Rights Commission (external link).

Brexit

Northern Ireland’s disability discrimination legislation continues after Brexit. However, subject to any agreement with the EU 27, it will be possible to amend it without being bound by the EU Framework employment directive. It seems that the Westminster government could if it wished make regulations providing that even after Brexit any changes made by Northern Ireland must comply with EU law (s.6A Northern Ireland Act 1998, inserted by s.12(6) EU (Withdrawal) Act 2018). However the default, in the absence of regulations or agreement with the EU 27, is presumably that changes made by Northern Ireland need not comply with EU law.

Broadly, the employment provisions of DDA 1995 in Northern Ireland should be ‘retained EU law’ within the EU (Withdrawal) Act 1998, on the basis that they implement EU law. Accordingly pre-exit day decisions by the EU Court of Justice, or by domestic courts on EU law, must still be followed by Northern Ireland courts, subject to an exception for the Supreme Court. Also it seems that (subject to future amendments) DDA 1995 will still have to be interpreted so as to comply with EU law so far as possible.

See also Brexit and disability discrimination under Equality Act 2010.

The European Convention on Human Rights

Broadly, the Human Rights Act 1998 also applies in Northern Ireland. However, beyond that, the legislation establishing the Northern Ireland Assembly says that the Assembly has no power to enact legislation with contravenes the European Convention on Human Rights.

For more, see Human Rights Act 1998/ European Convention.

Other areas of law

There are likely to be other ways in which relevant Northern Ireland law differs from English law.

Further information