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Northern Ireland disability discrimination law

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This page does not apply outside Northern Ireland.
Last updated 21st August 2019 (part update 7th January 2021).

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. Because Northern Ireland makes its own amendments to the DDA, significant 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. This means claimants often have to try and frame their claim as a failure to make reasonable adjustments instead. 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, and Northern Ireland continues to be bound by the minumum standards of EU discrimination law. 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

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 included within 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 by separate rules which took effect in September 2005, rather than the DDA.

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, namely 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 by the UK parliament 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 UK parliament (Westminster) 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.

Generally disability discrimination 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 body

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

Brexit

Under the Withdrawal Agreement, Northern Ireland discrimination law must continue to comply with the Framework Employment Directive, including any future amendments to it, even after the end of the implementation period on 31st December 2020. This is under Article 2(1) of the Protocol on Ireland/Northern Ireland which says:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the [Belfast Agreement 1998] entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.
Note: Article 2(1) is on page 297 of the Withdrawal Agreement, and Annex 1 is on page 325. One of the directives listed in Annex 1 is the Framework Employment Directive, which covers disability discrimination. The part of the Belfast Agreement referred to in Article 2(1) includes “the right to equal opportunity in all social and economic activity, regardless of … disability…”.

The UK government published an August 2020 Explainer document (gov.uk) about this Article 2(1) commitment and how it will be enforced. The explainer says among other things:

  • At paragraph 12: As well as Northern Ireland law continuing to comply with the directives in their current form, the UK government has also committed to update Northern Ireland law to reflect any future changes in EU law which give improved protection. “This will ensure that Northern Ireland will not fall behind minimum European standards in anti-discrimination law.” (Presumably this commitment is based on Article 13(3) of the Protocol which says that a reference to a Union act is to be read as referring to that act “as amended or replaced”.)
  • At paragraph 16: The Article 2(1) commitment will not lead to the direct application of EU law in Northern Ireland. “There will be no direct recourse to the EU Court of Justice (CJEU) in enforcing the commitment, and neither the European Commission nor any other body of the EU institutions will have a direct role in supervising the commitment.”
  • Paragraph 16 goes on to set out how UK courts must or may follow EU Court (CJEU) decisions after the end of 2020. I suggest that in the light of the Northern Ireland Protocol (including Article 13(2) on applying case law of the EU Court), UK courts interpreting Northern Ireland discrimination legislation will be all the more likely to exercise any discretion in favour of applying EU Court case law, even where the EU Court decision was after the end of 2020.
  • Paragraphs 17 to 26 address the “dedicated mechanism” for implementing the Article 2(1) commitment. This is to be a framework “comprising dedicated monitoring, advising, reporting and enforcement activities” of the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI). Also these bodies will work together with the Irish Human Rights and Equality Commission (IHREC) on issues that have an island of Ireland dimension. There are ECNI Press Releases: New human rights and equality oversight roles begin (pdf, equalityni.org), 4th January 2021 and Equality and Human Rights Protections post-Brexit (pdf, equalityni.org), 5th Dec 2020.
  • Paragraphs 27 to 29 talk about possible legal enforcement of the Article 2(1) commitment in the domestic courts (not in the EU Court), in particular through judicial review.

See also Brexit, EU law and disability discrimination under Equality Act 2010.

The European Convention on Human Rights

Broadly, the Human Rights Act 1998 also applies in Northern Ireland. Furthermore 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

20th anniversary of stammeringlaw, 1999-2019