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Employment: disability discrimination in Northern Ireland

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This page does not apply outside Northern Ireland.
Last updated 19th August 2019 (part update 18th October 2019).

Guidance on employment

The Equality Commission for Northern Ireland has guidance at www.equalityni.org/Individuals/I-have-a-work-related-problem/Disability.

The website suggests contacting them if you want information or advice.

There is also a Disability Code of Practice: Employment and Occupation (pdf), which may need to be taken into account by courts. This came into effect in 2005 through SR 2005/293, but there is a non-statutory 2013 update (including for the Malcolm case) at pages 2 to 6 of the Code. The 2013 updates are not incorporated into the main text of the Code.

Employment rules in Northern Ireland

The Disability Discrimination Act 1995 (DDA) as amended still applies. Accordingly the main issue, as with NI disability discrimination law generally, is that the scope of disability-related discrimination seems to be limited to direct discrimination, because of the Malcolm case in 2008: see Types of discrimination are more limited in Northern Ireland. Even so it may be prudent to claim disability-related discrimination, in case.

Also because the Equality Act 2010 does not include Northern Ireland, you cannot claim ‘discrimination arising from disability’ or ‘indirect discrimination’ for disability.

Therefore you normally have to try and frame your claim as a failure to make reasonable adjustments, unless it is harassment or direct discrimination. See further Types of discrimination are more limited in Northern Ireland.

The reasonable adjustment duty does very much apply in Northern Ireland (ss.3A(2) and 4A DDA). There are examples of possible adjustments for stammering at Reasonable adjustments: employment. Like in the rest of the UK (on which see Knowledge of disability), the employer is not liable if it does not know, and could not reasonably be expected to know, of the disability and the substantial disadvantage (s.4A(3) DDA).

Example: It may be a reasonable adjustment to allow a job applicant who stammers longer for an interview. Other adjustments may also be appropriate.
More: Examples of reasonable adjustments: Recruitment.

Example: It may be reasonable to reallocate duties so that someone else answers the telephone if the person who stammers does not wish to do it. There are also other possible adjustments regarding phone calls.
More: Examples of reasonable adjustments: In the job>Telephone.

A 2019 Northern Ireland Court of Appeal case (on reasonable adjustments to a test at recruitment) confirmed that as in the rest of the UK, provided the “lack of knowledge” defence above does not apply, the reasonable adjustment duty is not subject to the job applicant or employee suggesting a reasonable adjustment (British Telecommunications v Meier (pdf, www.equalityni.org). In practice of course it will probably be a good idea for the individual to suggest adjustments if possible.

Direct discrimination may be helpful particularly where the employer etc has made a stereotypical assumption about the disability. Harassment would include bullying related to the stammer.

“A man with a stammer feels he is being harassed because his manager makes constant jokes about people with speech impairments. He asks his manager to stop doing this, but the manager says he is being ‘oversensitive’ as he habitually makes jokes in the office about many different sorts of people. This is likely to amount to harassment because making remarks of this kind should reasonably be considered as having either of the effects mentioned above [ie violating the disabled person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her].”
Para 4.39, NI Employment Code of Practice, linked above at Guidance on employment.

Unlike the Equality Act 2010, Northern Ireland legislation does not prohibit pre-employment enquiries on disability.

There may also be a claim for victimisation because, even if there is no legal claim for the discrimination itself, the person may have been treated less favourably for complaining.

Resolving disputes

Claims go to the industrial tribunal. However it is good practice to attempt to resolve disputes within the workplace (making sure one does not miss the time limit for submitting a tribunal claim), and there are provisions under which compensation may be reduced or increased if the claimant or employer fails to following ‘statutory procedures’ to resolve disputes internally. The Labour Relations Agency offers concilation services (lra.org.uk).

Northern Ireland is to introduce rules for mandatory early conciliation from January 2020: see Early conciliation set to extend Tribunal time limits (worthingtonslaw.co.uk).

See the guidance linked above.

Scope of employment protection, eg gig economy, work experience

‘Employment’ (and ’employee’) is defined in s.68 DDA. It is likely to include ‘workers’, in accordance with cases on the Equality Act 2010 for the rest of the UK: see Employers, workers and beyond. Accordingly it will extend to some self-employed people who are not ‘genuinely self-employed’ but are really part of someone else’s business.

Various provisions of the DDA extend protection to people who are not ’employees’ within s.68. For example ss.14C-14D apply to a “work placement” if it is not employment or otherwise protected. A work placement is defined as “practical work experience undertaken for a limited period for the purposes of a person’s vocational training”. This could apply, for instance, to student work experience if not otherwise protected.

S.4B DDA applies to contract workers. This is broadly where the company you actually do work for is different from your contractual ’employer’. On the equivalent provisions for the rest of the UK, which may have differences, see Contract workers.

Employment services

S.21A DDA sets out special rules on employment services such as careers guidance. Employment services include vocational guidance, vocational training, and services to assist a person to obtain or retain employment (or to establish himself as self-employed). The Code of Practice has an example on speech impairments:

“A disabled person with a speech impairment requests job advice from his local careers guidance service; he is asked to return next week when there is more time available to meet his needs, although other people, who do not have speech impairments, are being seen there and then. This is likely to be unlawful.”
Para 11.5, NI Employment Code of Practice, linked above at Guidance on employment.

Exclusion of armed forces

As in the rest of the UK, service in the armed forces is excluded from protection (s.64(7) DDA). However support is available: the Defence Stammering Network covers all members of the UK Armed Forces and MOD Civil Servants. See, on the rest of the UK Exclusions>Armed forces.

Link

There is an organisation ‘Employers for Disability NI’: www.efdni.org

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