The Fair Employment and Treatment (Northern Ireland) Order 1998

• Citation: S.I. 1998/3162 (N.I.)
• Sections: 156

Section 1 Title and commencement

(1) This Order may be cited as the Fair Employment and Treatment (Northern Ireland) Order 1998.

(2) This Order comes into operation on such day or days as the Secretary of State may by order appoint .

Section 2 General interpretation

(1) Subject to Articles 102 and 103, the Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to an Act of the Northern Ireland Assembly.

(2) In this Order—

“access” shall be construed in accordance with paragraphs (7) and (8);

“act” includes a deliberate omission;

“advertisement” includes every form of advertisement or notice, whether to the public or not;

“affirmative action” has the meaning given in Article 4;

“the Agency” means the Labour Relations Agency;

“benefits” , except in Article 25A, includes all opportunities, services and facilities and, in particular, includes opportunities for training, transfer or promotion, for betterment of any kind (including more attractive terms or conditions of work) or for any financial advantage (including bonuses, advances of money and preferential terms for acquiring property of any kind);

“the Commission” means the Equality Commission for Northern Ireland established by section 73 of the Northern Ireland Act 1998;

“complainant” means a person making a complaint that unlawful discrimination or unlawful harassment has been committed against him;

“complaint” means a complaint of unlawful discrimination or unlawful harassment made to the Tribunal under Article 38;

“confer”, in relation to a qualification, includes renew and extend;

“contract” includes any contract, whether in writing or oral, express or implied;

“costs” includes expenses;

“the Department” means the Department of Economic Development;

“detriment” does not include conduct of a nature such as to constitute harassment;

“discrimination” and “discriminate” shall be construed in accordance with Article 3;

“employer” (except in Part VII) means—

in relation to apersonwho isseekingemployment, anybody who has employment available;

in relation to a person employed under a contract of service or of apprenticeship or a contract personally to execute any work or labour, the person entitled to the benefit of the contract;

in relation to a person who has ceased to be in employment, his former employer;

and “employee”, correspondingly, means (except in that Part) such a person as is first mentioned in sub-paragraph (a), (b) or (c) of this definition;

“employment” (except in Part VII) means employment under—

a contract of service or apprenticeship; or

a contract personally to execute any work or labour;

“employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers;

“employment in Northern Ireland” shall be construed in accordance with Article 6;

“equality of opportunity” shall be construed in accordance with Article 5;

“government department” means a Northern Ireland department or a department of the Government of the United Kingdom;

“harassment” shall be construed in accordance with Article 3A;

“member”

in relation to a vocational organisation, includes (except in Article 23) a person seeking to become a member and a person who has ceased to be a member; and

in relation to such an organisation (other than an organisation of workers or employers) also includes any person belonging to a class of person recognised by the organisation as having any particular status in connection with an employment or occupation for the purposes of which the organisation exists, including students and associates,

and “membership” shall be construed accordingly;

“Northern Ireland” includes such of the territorial waters of the United Kingdom as are adjacent to Northern Ireland;

“Northern Ireland Minister” includes the First Minister and deputy First Minister acting jointly;

“notice” means notice in writing;

“occupation” means any trade, business, profession or vocation, but not any employment;

“occupation in Northern Ireland” shall be construed in accordance with Article 6;

“organisation” includes any society or association, whether corporate or unincorporate;

“practices” includes procedures and arrangements;

“premises” includes land of any description;

“the President” means the President of the Industrial Tribunals and the Fair Employment Tribunal;

“provision, criterion or practice” includes requirement or condition;

“qualification” includes authorisation, recognition, registration, enrolment, approval and certification;

“religious belief” in relation to discrimination or harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) includes any religion or similar philosophical belief;

“the respondent”

in relation to a complaint, has the meaning given by Article 38(1); and

in relation to a claim under Article 40, has the meaning given by Article 40(1);

“school” has the same meaning as in the Education and Libraries (Northern Ireland) Order 1986;

“statutory body” means a body established by a statutory provision;

“statutory office” means an office established by a statutory provision;

“statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954;

“training” includes any form of education or instruction, except that in Articles 5(4)(b)(ii), 11(1)(e) and 24, it does not include education provided by—

a school;

an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997 or an institution providing further education in respect of which grants are paid under Article 5(1) of that Order;

a college of education within the meaning of the Education and Libraries (Northern Ireland) Order 1986; or

a university;

“the Tribunal” means the Fair Employment Tribunal for Northern Ireland;

“unlawful discrimination” shall be construed in accordance with Article 3(7);

“unlawful harassment” shall be construed in accordance with Article 3A(3);

“the Vice-President” means the Vice-President of the Industrial Tribunals and the Fair Employment Tribunal;

“vocational organisation” means—

an organisation of workers;

an organisation of employers;

any other organisation of persons engaged in a particular employment or occupation, or employments or occupations of any class, for the purposes of which the organisation exists.

“vocational training” and “vocational guidance” have the same meaning as in Article 3 of Council Directive 2000/78/ EC ;

(3) In this Order references to a person's religious belief or political opinion include references to—

(a) his supposed religious belief or political opinion; and

(b) the absence or supposed absence of any, or any particular, religious belief or political opinion.

(4) In this Order any reference to a person's political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.

(5) For the purposes of this Order a person is seeking employment if he is available for employment, whether or not he is aware of the existence of an opportunity for any particular employment.

(6) References in this Order to submitting a person for consideration for employment include references to making available to an employer in any way relevant particulars relating to him.

(7) References in this Order to the affording by any person of access to benefits are not limited to benefits provided by that person himself, but include any means by which it is in that person's power to facilitate access to benefits provided by any other person (the “actual provider”).

(8) Where by any provision of this Order the affording by any person of access to benefits in a discriminatory way is in certain circumstances prevented from being unlawful, the effect of the provision shall extend also to the liability under this Order of the actual provider.

(9) Subject to paragraph (10), in this Order references (however expressed) to acts done or to power to do any acts include references to acts done or power to do the acts outside Northern Ireland.

(10) Paragraph (9)—

(a) is without prejudice to Article 6 or any order under paragraph (3) of that Article;

(b) is subject to any other provision of this Order which is by its express terms limited to acts done in Northern Ireland; and

(c) does not apply to references to acts which may be the subject of criminal proceedings under this Order.

(11) References in this Order to a contract include references to a contract which is not governed by the law of Northern Ireland.

(12) References in this Order to the Crown are to the Crown in right of the Government of the United Kingdom and in right of the Government of Northern Ireland.

Section 3 “Discrimination” and “unlawful discrimination”

(1) In this Order “discrimination” means—

(a) discrimination on the ground of religious belief or political opinion; or

(b) discrimination by way of victimisation;

and “discriminate” shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applies, if—

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.

(2A) A person also discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B) if—

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which puts or would put persons of the same religious belief or of the same political opinion as that other at a particular disadvantage when compared with other persons;

(ii) which puts that other at that disadvantage; and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

(2B) The provisions mentioned in paragraph (2A) are—

(a) Part III;

(b) Article 27, so far as it applies to vocational training or vocational guidance;

(c) Article 32; and

(d) Part V, in its application to the provisions referred to in sub-paragraphs (a) to (c).

(3) A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) or (2A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(4) A person ( “A”) discriminates by way of victimisation against another person ( “B”) in any circumstances relevant for the purposes of this Order if—

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

(b) he does so for a reason mentioned in paragraph (5).

(5) The reasons are that—

(a) B has—

(i) brought proceedings against A or any other person under this Order; or

(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

(7) For the purposes of this Order a person commits unlawful discrimination against another if—

(a) he does an act other than an act of harassment in relation to that other which is unlawful by virtue of any provision of Part III or IV ; or

(b) he is treated by virtue of any provision of Part V as doing such an act.

Section 3A “Harassment” and “unlawful harassment”

(1) A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of—

(a) violating B's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

(3) For the purposes of this Order a person subjects another to unlawful harassment if he engages in conduct in relation to that other which is unlawful by virtue of any provision mentioned in Article 3(2B).

Section 4 “Affirmative action”

(1) In this Order “affirmative action” means action designed to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in Northern Ireland by means including—

(a) the adoption of practices encouraging such participation; and

(b) the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation.

(2) In the application of this Article for the purposes of Part VII, references to employment are references to employment within the meaning of that Part.

Section 5 “Equality of opportunity”

(1) In this Order “equality of opportunity” means equality of opportunity between persons of different religious beliefs.

(2) For the purposes of this Order a person of any religious belief has equality of opportunity with a person of any other religious belief if, being—

(a) a person who is seeking employment or is in employment; or

(b) a person who is seeking to become engaged in, or is engaged in, any occupation,

he has in any circumstances the same opportunity of a kind mentioned in paragraph (4) as that other person has or would have in those circumstances, due allowance being made for any material difference in their suitability.

(3) For the purposes of paragraph (2), a person is not to be treated as not having the same opportunity as another person has or would have by reason only of anything lawfully done in pursuance of affirmative action.

(4) The kinds of opportunity referred to in paragraph (2) are—

(a) in relation to an employment, the opportunity to be considered, and to be submitted for consideration, for the employment and to have and to hold it on any terms, with access to all benefits connected with it and without being subjected to any detriment; and

(b) in relation to an employment oran occupation—

(i) the opportunity to become, and remain, on any terms a member of any vocational organisation which exists for purposes of the employment or the occupation (or for purposes of employments or occupations of any class which includes the employment or occupation), with access to all benefits of membership and without being subjected to any detriment; and

(ii) where services in connection with training for the employment are provided by a person other than the employer, or where services in connection with training for the occupation are provided by any person, the opportunity to have those services on any terms, with access to all benefits connected with them; and

(iii) the opportunity to have conferred on him, and to hold, on any terms any qualification which is needed for, or facilitates, his engagement in the employment or the occupation.

(5) Any reference in this Order to the promotion of equality of opportunity includes a reference to the promotion of affirmative action and, accordingly, any reference to action for promoting equality of opportunity includes a reference to affirmative action.

Section 6 “Employment in Northern Ireland” and “occupation in Northern Ireland”

(1) For the purposes of this Order, employment is to be regarded as being employment in Northern Ireland if the employee—

(a) does his work wholly or partly in Northern Ireland; or

(b) does his work wholly outside Northern Ireland and paragraph (1A) applies.

(1A) This paragraph applies if—

(a) the employer has a place of business at an establishment in Northern Ireland;

(b) the work is for the purposes of the business carried on at that establishment; and

(c) the employee is ordinarily resident in Northern Ireland—

(i) at the time when he applies for or is offered the employment, or

(ii) at any time during the course of the employment.

(2) The reference to "employment" in paragraph (1) includes—

(a) employment on board a ship registered at a port of registry in Northern Ireland; and

(b) employment on aircraft or hovercraft registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland.

(3) In relation to employment concerned with exploration of the sea bed or subsoil or the exploitation of their natural resources, the Department may by order provide that—

(a) paragraph (1) shall have effect as if the references to Northern Ireland in sub-paragraphs (a) and (b) included any area for the time being designated under section 1(7) of the Continental Shelf Act 1964, or any part of such an area, in which the law of Northern Ireland applies; and

(b) paragraph (2) shall have effect as if the last reference to Northern Ireland included such an area, or any part of such an area.

(4) An order under paragraph (3) may provide that, in relation to employment to which the order applies, this Order is to have effect with such modifications as are specified in the order.

(5) In this Article references to the work an employee does include—

(a) in relation to a person who is seeking employment, references to the work he would do if employed; and

(b) in relation to a person who has ceased to be in employment, references to the work he did when employed.

(6) This Article has effect for construing references in this Order to a person's being engaged, or seeking to become engaged, in an occupation in Northern Ireland as if references in this Article to employment were references to an occupation and references to an employee were references to a person engaged, or seeking to become engaged, in an occupation.

(7) In the application of this Article for the purposes of Part VII, references to employment are references to employment within the meaning of that Part.

Section 7 General duty of Commission

It shall be the duty of the Commission—

(a) to promote equality of opportunity in Northern Ireland;

(b) to promote affirmative action;

(c) to work for the elimination of unlawful discrimination and unlawful harassment ; and

(d) to keep under review the working of this Order and, when it is so required by the Department or otherwise thinks it necessary, draw up and submit to the Department proposals for amending this Order,

and for the purposes of discharging that duty the Commission shall have the functions conferred on it by this Order.

Section 8 Educational and advisory functions

(1) In order to assist the Commission in discharging its duty under Article 7 the Commission may—

(a) establish services for giving advice on matters connected with equality of opportunity;

(b) provide training courses;

(c) hold conferences;

(d) undertake research which appears to the Commission to be necessary or expedient for the purposes of its functions; and

(e) disseminate (subject to the safeguard in Article 18(1)) information about the Commission's activities or anything to which those activities relate;

or it may arrange for, or assist (financially or otherwise), any of those things to be done.

(2) The Commission may advise the Department on—

(a) any matter relating to the duty of the Commission under Article 7; or

(b) any other matter specified by the Department.

(3) The Commission may make charges for training or other facilities or services made available by it under paragraph (1).

Section 9 Codes of practice

(1) The Commission shall continue to maintain a code of practice containing such practical guidance as the Commission thinks fit for the promotion of equality of opportunity, including the elimination of discrimination and harassment which is unlawful by virtue of any provision of Part III.

(2) Where the Commission in carrying out its functions under this Order is considering whether or not action is required for promoting equality of opportunity, it shall have such regard to the recommendations contained in the code of practice under paragraph (1) as it considers proper in all the circumstances.

(3) The Commission may issue a code of practice containing such practical guidance as the Commission thinks fit for the elimination of discrimination and harassment which is unlawful by virtue of any provision of Part IV.

(4) Part I of Schedule 1 shall apply in relation to the issue of a code of practice under paragraph (3) and Part II of that Schedule shall apply in relation to all codes of practice under this Article.

Section 10 Identification of patterns and trends of employment, etc.

(1) It shall be the duty of the Commission to identify and keep under review patterns and trends of employment in Northern Ireland and of occupations in Northern Ireland for the purposes of—

(a) considering whether they reveal the existence or absence of equality of opportunity; and

(b) assisting the Commission in forming an opinion about—

(i) the manner in which equality of opportunity can best be achieved; or

(ii) where such equality is absent, the reasons for its absence.

(2) It shall also be the duty of the Commission to keep itself informed about proceedings on complaints under Article 38.

Section 11 Investigation of practices

(1) The Commission may conduct the investigations mentioned in paragraph (2) for the purpose of assisting it in considering what, if any, action for promoting equality of opportunity ought to be taken by any of the following persons, that is to say—

(a) any employer;

(b) any person who is empowered by virtue of any statutory provision to select or nominate another person for employment by a third person;

(c) any employment agency;

(d) any vocational organisation;

(e) any person who provides services in connection with training for employment in any capacity or for a particular employment (not being services provided by the employer of a person who is seeking to obtain or is receiving those services) or in connection with training for a particular occupation; and

(f) any person who has power to confer a qualification that is needed for, or facilitates, engagement in employment in any capacity, or in a particular employment or occupation.

(2) The investigations referred to in paragraph (1) are investigations—

(a) into the composition, by reference to religious beliefs, of any of the following classes of person (or any class of person within such a class), that is to say—

(i) the employees of, or other persons who have applied for employment by, any employer or employers of any class;

(ii) the persons who have applied for or obtained the services of any employment agency;

(iii) the members of, or other persons who have applied for membership of, any vocational organisation or such an organisation of any class;

(iv) the persons who have sought (or on whose behalf there have been sought) or who have obtained the services of a person such as is mentioned in paragraph (1)(e); or

(v) the persons who have applied to have, or have had, conferred on them any qualification such as is mentioned in paragraph (1)(f); and

(b) into practices—

(i) affecting the recruitment, admission to membership or access to benefits of persons belonging to any class referred to in sub-paragraph (a) or the terms of employment or membership or provision of benefits applicable to such persons;

(ii) involving any detriment to such persons; or

(iii) affecting the conferring or holding of any qualification such as is mentioned in paragraph (1)(f),

including practices discontinued before the time of the investigation so far as relevant for explaining the composition of the class of persons in question at that time.

(3) Schedule 2 has effect with respect to the conduct of investigations under this Article.

Section 12 Undertaking following investigation under Article 11

(1) The following provisions of this Article apply where, following an investigation under Article 11, the Commission is of the opinion that any of the persons mentioned in paragraph (1) of that Article ought to take action for promoting equality of opportunity.

(2) The Commission shall use its best endeavours—

(a) to ensure that the person concerned takes such action for promoting equality of opportunity as is, in all the circumstances, reasonable and appropriate; and

(b) where appropriate, to secure a satisfactory written undertaking by him that such action will be taken.

(3) Where the Commission asks the person concerned for an undertaking, on such terms as appear satisfactory to the Commission, to take such action as is mentioned in paragraph (2)(a), then—

(a) if the undertaking is not given, the Commission shall serve on the person concerned a notice containing directions such as are mentioned in Article 14(1); and

(b) if the undertaking, although given, is not complied with, the Commission shall either—

(i) serve on him such a notice containing such directions (which shall supersede the undertaking); or

(ii) make an application to the Tribunal under Article 16 for enforcement of the undertaking.

(4) Paragraph (3) does not apply in any case where the Commission decides that no further action by it is appropriate.

Section 13 Voluntary undertakings

(1) Any of the persons mentioned in Article 11(1) may give a written undertaking to the Commission if the Commission informs him—

(a) that, in exercising its functions under this Order, the Commission has formed the opinion that he ought to take action for promoting equality of opportunity; or

(b) that it appears to the Commission from any decision of the Tribunal in proceedings under Part VI, or from any evidence given in such proceedings, that he ought to take such action.

(2) An undertaking under this Article shall be in such terms as appear satisfactory to the Commission for the purpose of ensuring that the person giving it takes such action for promoting equality of opportunity as is, in all the circumstances, reasonable and appropriate.

(3) If an undertaking given by a person under this Article is not complied with, the Commission shall either—

(a) serve on him a notice containing directions (which shall supersede the undertaking) such as are mentioned in Article 14(1); or

(b) make an application to the Tribunal under Article 16 for enforcement of the undertaking.

(4) Paragraph (3) does not apply in a case where the Commission decides that no further action by it is appropriate.

(5) Paragraph (3) does not apply in relation to an undertaking given by any of the authorities specified in paragraph (1) of Article 95, but where an undertaking given under this Article by such an authority is not complied with the Commission shall send a report of the circumstances of the failure to comply with it to the person to whom a report under paragraph (2) of that Article following an investigation relating to the authority would be sent.

Section 14 Directions under Articles 12 and 13

(1) The directions contained in a notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) shall be those which the Commission considers to be, in all the circumstances, reasonable and appropriate for promoting equality of opportunity, and the directions may in particular include—

(a) directions for the abandonment, or for the modification in accordance with any instructions given in the directions, of any practice or for the substitution or adoption of new practices specified by the Commission; and

(b) such directions as the Commission considers necessary to ensure that other directions are duly carried out,

but the terms of the directions contained in a notice under Article 12(3)(b)(i) or 13(3)(a) shall be such as, in the opinion of the Commission, are not substantially more onerous than the terms of the undertaking which they supersede.

(2) The directions contained in a notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) shall not require any person—

(a) to apply a provision, criterion or practice described in paragraph (1) of Article 75; or

(b) to do any act described in Article 76(1).

(3) A notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) shall inform the person on whom it is served of the right of appeal against the directions which is conferred by Article 15.

(4) The Commission, on the written application of the person on whom a notice under Article 12(3)(a) or (b)(i) or Article 13(3)(a) is served, may—

(a) revoke all of the directions; or

(b) modify the directions in accordance with the application—

(i) by revoking any of them; or

(ii) by substituting new directions for all or any of them,

and, in substitution for any directions which are revoked under sub-paragraph (a), may accept from that person an undertaking such as is mentioned in Article 12(2)(b) or 13(2).

(5) The Commission shall serve notice of the revocation or modification on the person concerned.

(6) The directions—

(a) are binding on the person concerned (except to the extent that they are quashed, or other directions are substituted for them, by the Tribunal under Article 15); and

(b) are enforceable only in accordance with Article 16.

Section 15 Appeal to Tribunal against directions under Article 12 or 13

(1) Where under Article 12(3) or 13(3)(a), the Commission serves on a person a notice containing directions (not being directions substituted for others in accordance with an application made by him under Article 14(4)), he may within 21 days from the date of service appeal to the Tribunal against the directions.

(2) The appeal may be brought on any of the following grounds—

(a) that in all the circumstances it is unreasonable to expect the appellant to comply with the directions;

(b) that in all the circumstances the directions are not appropriate for promoting equality of opportunity; or

(c) that the appellant is already affording equality of opportunity and taking any appropriate action to promote equality of opportunity and the directions are, therefore, unnecessary.

(3) On hearing the appeal the Tribunal may—

(a) dismiss the appeal; or

(b) quash the directions or any of them; or

(c) substitute for the directions or any of them such other directions (of a kind that the Commission could have given) as the Tribunal considers reasonable and appropriate in all the circumstances.

(4) Directions substituted under paragraph (3)(c) are binding on the appellant and are enforceable only in accordance with Article 16.

Section 16 Order of Tribunal to enforce undertaking or directions

(1) Where—

(a) an undertaking to take action for promoting equality of opportunity—

(i) which has been given to the Commission under Article 12(2) or 13 and has not been superseded by directions given by the Commission; or

(ii) which has been given to the Commission under Article 14(4),

has not been complied with within such period as the Commission considers reasonable;

(b) directions given by the Commission or substituted by the Tribunal under Article 15 for directions given by the Commission have not been complied with within such period as the Commission considers reasonable; or

(c) steps have not been taken to the Commission's satisfaction within such period as the Commission considers reasonable to comply with the undertaking or directions,

the Commission may, subject to paragraph (2), make an application to the Tribunal under this Article for enforcement of the undertaking or directions.

(2) An application for the enforcement of directions shall not be made—

(a) until the end of the period of 21 days within which an appeal may be brought to the Tribunal under Article 15; or

(b) if such an appeal is brought, until—

(i) the appeal is abandoned; or

(ii) the appeal is determined and the period within which notice of an appeal to the Court of Appeal under Article 90 may be given has expired; or

(c) if notice of an appeal to the Court of Appeal under that Article is given within that period, until the appeal is abandoned or determined.

(3) On an application under paragraph (1) the Tribunal—

(a) may make such order as it thinks fit for the purpose of giving effect to the undertaking or directions; and

(b) whether or not it makes such an order, may order that the whole or part of the undertaking or directions shall cease to have effect.

(4) An order under paragraph (3)(a)—

(a) shall specify the steps to be taken by the person by whom the undertaking was given or to whom the directions were given;

(b) may specify the time within which each step is to be taken; and

(c) may require a specified person to attend before the Tribunal at a specified time to report to the Tribunal on the extent to which those steps have been taken.

(5) The terms of an order under paragraph (3)(a) (except so far as it requires attendance before the Tribunal) shall be such as, in the opinion of the Tribunal, are not substantially more onerous than the terms of the undertaking or directions.

(6) An order under paragraph (3)(a) shall not require any person—

(a) to apply a provision, criterion or practice described in paragraph (1) of Article 75; or

(b) to do any act described in Article 76(1).

(7) The Commission—

(a) is entitled to appear and be heard when a person attends before the Tribunal in pursuance of an order under paragraph (3)(a); and

(b) may itself apply to the Tribunal for the enforcement of such an order.

(8) Subject to paragraphs (5) and (6), the Tribunal may at any time revoke or vary the terms of an order under paragraph (3)—

(a) on an application by the Commission or by the person in relation to whom the order was made; or

(b) where a person attends before the Tribunal in pursuance of an order under paragraph (3)(a) or on an application by the Commission under paragraph (7)(b).

Section 17 Failure to comply with order of Tribunal

(1) Paragraph (3) applies where the Tribunal determines that a person (in this Article referred to as “the respondent”)—

(a) has failed to comply with a requirement to attend before the Tribunal included in an order under Article 16(3)(a); or

(b) has failed to comply to the satisfaction of the Tribunal with any term included in such an order by virtue of Article 16(4)(a) or (b).

(2) The Tribunal shall not make a determination under paragraph (1) until the end of the period within which notice of an appeal to the Court of Appeal under Article 90 against the order in question may be given or, if notice of such an appeal is given within that period, until the appeal is abandoned or determined.

(3) Where this paragraph applies, the President or Vice-President may—

(a) certify the failure to the High Court; or

(b) require the respondent to pay to the Department a pecuniary penalty of an amount not exceeding £40,000.

(4) Where the President or Vice-President has certified a failure under paragraph (3)(a), the High Court may deal with the respondent as if the relevant order of the Tribunal had been an order of the High Court.

(5) The Judgments Enforcement (Northern Ireland) Order 1981 shall apply with the necessary modifications in relation to a penalty imposed under paragraph (3)(b) as it applies to a sum due to the Crown under a money judgment (within the meaning of that Order).

(6) If it appears to the Department that there has been a change in the value of money since the relevant date, it may by order substitute for the sum for the time being specified in paragraph (3)(b) such other sum as appears to it to be justified by the change.

(7) In paragraph (6) “the relevant date” means—

(a) in relation to the first order under that paragraph, the coming into operation of this Article; and

(b) in relation to each subsequent order, the last occasion when the sum specified in paragraph (3)(b) was altered.

(8) The Department shall pay into the Consolidated Fund any sums received in respect of penalties under this Article.

Section 18 Restriction on disclosure of information

(1) No information in the Commission's possession which discloses, or from which there can be deduced, the religious belief of any identifiable individual shall, without the written consent of that individual, be disclosed by a person who is, or has been, a member or officer of the Commission to a person who is not associated with the Commission, except so far as such disclosure—

(a) is necessary or expedient for the proper discharge of the functions of the Commission or is necessary to comply with any obligation imposed by or under any statutory provision (including this Order); or

(b) is made for the purpose of, or in connection with—

(i) any actual or prospective proceedings before the Tribunal or an industrial tribunal; or

(ii) any actual or prospective civil or criminal proceedings before a court.

(2) For the purposes of paragraph (1) a person is associated with the Commission if—

(a) he is a member or officer of the Commission; or

(b) his services have been made available to the Commission for the purpose of the exercise of any of its functions.

(3) Paragraph (4) applies to any information supplied to the Commission—

(a) in the course of an investigation under Article 11 ...; or

(b) in pursuance of a requirement under Article 67.

(4) No information to which this paragraph applies shall be disclosed by a person who is, or has been, a member or officer of the Commission to a person who is not a member or officer of the Commission, except so far as such disclosure—

(a) is relevant for the purposes of Article 8(1) or ... of this Order or paragraph 5 of Schedule 8 to the Northern Ireland Act 1998 and is not prohibited by paragraph (1);

(b) is made as mentioned in paragraph (1)(b); or

(c) is permitted by paragraph (5) or required by paragraph (6).

(5) Where it is necessary or expedient to do so for the proper discharge of the functions of the Commission, a member or officer of the Commission may—

(a) disclose to an employer any information in the Commission's possession which relates to his employees or to other persons who have applied for employment by him;

(b) disclose to a principal (within the meaning of Article 20) any information in the Commission's possession which relates to contract workers whose services are or have been available to him;

(c) disclose to any person who is empowered by virtue of any statutory provision to select or nominate another person for employment by a third person any information in the Commission's possession which relates to a person who has applied for the employment in question;

(d) disclose to an employment agency any information in the Commission's possession which relates to a person who has applied for or obtained the services of the agency;

(e) disclose to a vocational organisation any information in the Commission's possession which relates to members of that organisation;

(f) disclose to a person who provides services in connection with the training of persons for employment in any capacity, or for a particular employment or occupation, any information in the Commission's possession which relates to a person who has sought, or on whose behalf it has been sought, to obtain those services, or who has obtained those services; or

(g) disclose to a person who has power to confer a qualification such as is mentioned in Article 25 any information in the Commission's possession which relates to a person who has applied to have, or has had, that qualification conferred on him.

(6) The Commission shall supply to the Department any information in the Commission's possession, the supply of which is, in the opinion of the Department, necessary for the proper discharge of the Department's functions.

(7) Any person who discloses any information in contravention of any provision of this Article is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(8) It is a defence for a person charged with contravening paragraph (1) or (4) to show that before the disclosure in question was made he had also obtained the information otherwise than in his capacity as a member or officer of the Commission.

Section 19 . . . applicants and employees

(1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland,—

(a) where that person is seeking employment—

(i) in the arrangements the employer makes for the purpose of determining who should be offered employment; or

(ii) in the terms on which he offers him employment; or

(iii) by refusing or deliberately omitting to offer that person employment for which he applies; or

(b) where that person is employed by him—

(i) in the terms of employment which he affords him; or

(ii) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

(iii) by dismissing him or by subjecting him to any other detriment.

(1A) It is unlawful for an employer, in relation to employment by him in Northern Ireland, to subject to harassment a person whom he employs or who has applied to him for employment.

(2) Paragraph (1)(b) does not apply to benefits of any description if the employer is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public comprising the employee in question, unless—

(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or

(b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

(c) the benefits relate to training.

(3) In paragraph (1)(b)(iii) reference to the dismissal of a person from employment includes reference—

(a) to the termination of that person's employment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment is renewed on the same terms; and

(b) to the termination of that person's employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.

Section 20 . . . contract workers

(1) This Article applies to any work for a person ( “the principal”) which is available to be done by individuals ( “contract workers”)—

(a) who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal; and

(b) who, if they were instead employed by the principal to do that work, would be in his employment in Northern Ireland.

(2) It is unlawful for the principal, in relation to work to which this Article applies, to discriminate against a contract worker—

(a) in the terms on which he allows him to do that work; or

(b) by not allowing him to do it or continue to do it; or

(c) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

(d) by subjecting him to any other detriment.

(2A) It is unlawful for the principal, in relation to work to which this Article applies, to subject a contract worker to harassment.

(3) Paragraph (2)(c) does not apply to benefits of any description if the principal is concerned with the provision (for payment or not) of benefits of that description to the public, or to a section of the public to which the contract worker in question belongs, unless that provision differs in a material respect from the provision of the benefits by the principal to his contract workers.

Section 20A Office-holders etc.

(1) It is unlawful for a relevant person, in relation to an appointment to an office or post to which this Article applies, to discriminate against a person—

(a) in the arrangements which he makes for the purpose of determining to whom the appointment should be offered;

(b) in the terms on which he offers him the appointment; or

(c) by refusing to offer him the appointment.

(2) It is unlawful, in relation to an appointment to an office or post to which this Article applies and which is an office or post referred to in paragraph (8)(b), for a relevant person on whose recommendation (or subject to whose approval) appointments to the office or post are made, to discriminate against a person—

(a) in the arrangements which he makes for the purpose of determining who should be recommended or approved in relation to the appointment; or

(b) in making or refusing to make a recommendation, or giving or refusing to give an approval, in relation to the appointment.

(3) It is unlawful for a relevant person, in relation to a person who has been appointed to an office or post to which this Article applies, to discriminate against him—

(a) in the terms of the appointment;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit, or by refusing to afford him any such opportunity;

(c) by terminating the appointment; or

(d) by subjecting him to any other detriment in relation to the appointment.

(4) It is unlawful for a relevant person, in relation to an office or post to which this Article applies, to subject to harassment a person—

(a) who has been appointed to the office or post;

(b) who is seeking or being considered for appointment to the office or post; or

(c) who is seeking or being considered for a recommendation or approval in relation to an appointment to an office or post referred to in paragraph (8)(b).

(5) Paragraphs (1) and (3) do not apply to any act in relation to an office or post where, if the office or post constituted employment, that act would be lawful by virtue of Article 70 and paragraph (2) does not apply to any act in relation to an office or post where, if the office or post constituted employment, it would be lawful by virtue of Article 70 to refuse to offer the person such employment.

(6) Paragraph (3) does not apply to benefits of any description if the relevant person is concerned with the provision (for payment or not) of benefits of that description to the public, or a section of the public to which the person appointed belongs, unless—

(a) that provision differs in a material respect from the provision of the benefits by the relevant person to persons appointed to offices or posts which are the same as, or not materially different from, that which the person appointed holds; or

(b) the provision of the benefits to the person appointed is regulated by the terms and conditions of his appointment; or

(c) the benefits relate to training.

(7) In paragraph (3)(c) the reference to the termination of the appointment includes a reference—

(a) to the termination of the appointment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the appointment is renewed on the same terms and conditions; and

(b) to the termination of the appointment by any act of the person appointed (including the giving of notice) in circumstances such that he is entitled to terminate the appointment without notice by reason of the conduct of the relevant person.

(8) This Article applies to—

(a) any office or post to which persons are appointed to discharge functions personally under the direction of another person, and in respect of which they are entitled to remuneration; and

(b) any office or post to which appointments are made by (or on the recommendation of or subject to the approval of) a Minister of the Crown, a Northern Ireland Minister, the Assembly or a government department,

but not a political office or a case where Article 19, 20, 21, 26 or 32 applies, or would apply but for the operation of any other provision of this Order.

(9) For the purposes of paragraph (8)(a) the holder of an office or post—

(a) is to be regarded as discharging his functions under the direction of another person if that other person is entitled to direct him as to when and where he discharges those functions;

(b) is not to be regarded as entitled to remuneration merely because he is entitled to payments—

(i) in respect of expenses incurred by him in carrying out the functions of the office or post, or

(ii) by way of compensation for the loss of income or benefits he would or might have received from any person had he not been carrying out the functions of the office or post.

(10) In this Article—

(a) appointment to an office or post does not include election to an office or post;

(b) “political office” means—

(i) any office of the House of Commons held by a member of it,

(ii) a life peerage within the meaning of the Life Peerages Act 1958, or any office of the House of Lords held by a member of it,

(iii) any office of the Assembly held by a member of it,

(iv) any office of a district council held by a member of it, or

(v) any office of a political party.

(c) “relevant person”, in relation to an office or post, means—

(i) any person with power to make or terminate appointments to the office or post, or to determine the terms of appointment,

(ii) any person with power to determine the working conditions of a person appointed to the office or post in relation to opportunities for promotion, a transfer, training or for receiving any other benefit; and

(iii) any person or body referred to in paragraph (8)(b) on whose recommendation or subject to whose approval appointments are made to the office or post;

(d) references to making a recommendation include references to making a negative recommendation; and

(e) references to refusal include references to deliberate omission.

Section 21 . . . persons with statutory power to select employees for others

(1) It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to discriminate against a person, . . .

(a) by refusing or deliberately omitting to select or nominate him for employment; or

(b) where candidates are selected or nominated in order of preference, by selecting or nominating him lower in order than any other who is selected or nominated.

(2) It is unlawful for a person who is empowered by virtue of a statutory provision to select or nominate another person for employment by a third person to subject that other to harassment.

Section 22 . . . employment agencies

(1) It is unlawful for an employment agency to discriminate against a person, . . .

(a) in the terms on which the agency offers to provide any of its services; or

(b) by refusing or deliberately omitting to provide any of its services; or

(c) in the way it provides any of its services.

(1A) It is unlawful for an employment agency, in relation to the provision of its services, to subject to harassment a person to whom it provides such services or who requests the provision of such services.

(2) References in paragraphs (1) and (1A) to the services of an employment agency include guidance on careers and any other services related to employment.

(3) Paragraph (1) does not apply if the discrimination only concerns employment which the employer could lawfully refuse to offer the person concerned.

(4) An employment agency shall not be subject to any liability under paragraph (1) if it proves—

(a) that it acted in reliance on a statement made to it by the employer to the effect that, by reason of the operation of paragraph (3), its action would not be unlawful; and

(b) that it was reasonable for it to rely on the statement.

(5) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (4)(a) which in a material respect is false or misleading shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Section 23 Vocational organisations

(1) It is unlawful for a vocational organisation to discriminate against a person—

(a) who is not a member of the organisation—

(i) in the terms on which it is prepared to admit him to membership of the organisation; or

(ii) by refusing to accept, or deliberately not accepting, his application for membership; or

(b) who is a member of the organisation—

(i) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

(ii) by depriving him of membership, or varying the terms on which he is a member; or

(iii) by subjecting him to any other detriment.

(2) It is unlawful for a vocational organisation, in relation to a person's membership or application for membership of that organisation, to subject that person to harassment.

Section 24 . . . persons providing training services

(1) It is unlawful for a person who provides services in connection with the training of persons for employment in any capacity, or for a particular employment or occupation, . . . to discriminate against another person—

(a) where that other person is seeking to obtain those services or they are sought to be obtained on his behalf—

(i) by refusing or deliberately omitting to provide those services; or

(ii) in the terms on which the person offers to provide those services; or

(b) where that other person is receiving those services—

(i) in the way the person provides those services; or

(ii) in the way he affords him access to benefits connected with the services or by refusing or deliberately omitting to afford him access to them; or

(iii) by withdrawing those services from him or varying the terms on which they are provided; or

(iv) by subjecting him to any other detriment.

(1A) It is unlawful for a person who provides services in connection with training to which paragraph (1) applies, to subject to harassment a person to whom he provides such services or who is seeking to obtain such services.

(2) In paragraphs (1) and (1A) “services”, in relation to training for employment, means services provided otherwise than by the employer of the person who is seeking to obtain or is receiving the services.

(3) Paragraphs (1) and (1A) do not apply to discrimination or, as the case may be, harassment—

(a) which is rendered unlawful by Article 27; or

(b) which would be rendered unlawful by Article 27 but for the operation of any other provision of this Order.

Section 24A Assisting persons to obtain employment etc.

(1) It is unlawful for the Department for Communities or the Department for the Economy to discriminate against any person by subjecting him to a detriment, or to subject a person to harassment, in the provision of facilities or services under section 1 of the Employment and Training Act (Northern Ireland) 1950 (general functions of the Department for Communities or the Department for the Economy as to employment and training for employment).

(2) This Article does not apply in a case where—

(a) the Department for Communities or the Department for the Economy is acting as an employment agency, or

(b) Article 24 applies, or would apply but for the operation of any other provision of this Order.

Section 25 . . . persons with power to confer qualifications

(1) It is unlawful for a person who has power to confer on another a qualification which is needed for, or facilitates, his engagement in employment in any capacity, or in a particular employment or occupation, . . . to discriminate against him—

(a) by refusing or deliberately omitting to confer that qualification on him on his application; or

(b) in the terms on which the person is prepared to confer it; or

(c) by withdrawing it from him or varying the terms on which he holds it.

(1A) It is unlawful for a person who has the power referred to in paragraph (1), in relation to a qualification conferred by him, to subject to harassment another who holds or applies for such a qualification.

(2) Paragraphs (1) and (1A) do not apply to discrimination or, as the case may be, harassment which is rendered unlawful by Article 27.

Section 25A Trustees and managers of occupational pension schemes

(1) It is unlawful, except in relation to rights accrued or benefits payable in respect of periods of service prior to 10th December 2003, for the trustees or managers of an occupational pension scheme to discriminate against a member or prospective member of the scheme in carrying out any of their functions in relation to it (including in particular their functions relating to the admission of members to the scheme and the treatment of members of it).

(2) It is unlawful for the trustees or managers of an occupational pension scheme, in relation to the scheme, to subject to harassment a member or prospective member of it.

(3) Schedule 2A shall have effect for the purposes of:—

(a) defining terms used in this Article and in that Schedule;

(b) treating every occupational pension scheme as including a non-discrimination rule;

(c) giving trustees or managers of an occupational pension scheme power to alter the scheme so as to secure conformity with the non-discrimination rule;

(d) making provision in relation to the procedures, and remedies which may be granted, on certain complaints relating to occupational pension schemes presented to the Tribunal under Article 38.

Section 26 . . . partnerships

(1) It is unlawful for a firm . . . , in relation to a position as partner in the firm, to discriminate against a person—

(a) in the arrangements they make for the purpose of determining who should be offered that position; or

(b) in the terms on which they offer him that position; or

(c) by refusing or deliberately omitting to offer him that position; or

(d) in a case where the person already holds that position—

(i) in the way they afford him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

(ii) by expelling him from that position, or subjecting him to any other detriment.

(1A) It is unlawful for a firm, in relation to a position as a partner in the firm, to subject to harassment a person who holds or has applied for that position.

(2) Paragraphs (1) and (1A) shall apply in relation to persons proposing to form themselves into a partnership as it applies in relation to a firm.

(3) Paragraph (1)(a) and (c) do not apply to a position as partner where, if it were employment, the essential nature of the job would require it to be done by a person holding, or not holding, a particular religious belief or political opinion.

(4) In this Article—

(a) “firm” has the meaning given by section 4 of the Partnership Act 1890; and

(b) references to a partner shall, in the case of a limited partnership, be construed as references to a general partner as defined in section 3 of the Limited Partnerships Act 1907.

(5) The reference in paragraph (1)(d)(ii) to the expulsion of a person from a position as partner includes a reference—

(a) to the termination of that person's partnership by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the partnership is renewed on the same terms; and

(b) to the termination of that person's partnership by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the other partners.

Section 27 . . . bodies in charge of further and higher educational establishments

(1) It is unlawful, in relation to an educational establishment falling within paragraph (2), for the governing body of that establishment to discriminate against a person—

(a) in the terms in which it offers to admit him to the establishment as a student; or

(b) by refusing or deliberately omitting to accept an application for his admission to the establishment as a student; or

(c) where he is a student of the establishment—

(i) in the way it affords him access to any benefits or by refusing or deliberately omitting to afford him access to them; or

(ii) by excluding him from the establishment or subjecting him to any other detriment.

(1A) It is unlawful for the governing body of an educational establishment falling within paragraph (2) to subject to harassment—

(a) a person who applies for admission to the establishment as a student; or

(b) a student of the establishment.

(2) The educational establishments falling within this paragraph are—

(a) a university;

(b) an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997 or an institution providing further education in respect of which grants are paid under Article 5(1) of that Order.

(3) In this Article “student” includes any person who receives education at an establishment falling within paragraph (2).

Section 28 Discrimination in provision of goods, facilities or services

(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services—

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the same quality, in the same manner and on the same terms as are normal in his case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.

(2) The following are examples of the facilities and services mentioned in paragraph (1)—

(a) access to and use of any place which members of the public are permitted to enter;

(b) accommodation in a hotel, boarding house or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit or finance;

(d) facilities for training;

(e) facilities for entertainment, recreation or refreshment;

(f) facilities for transport or travel;

(g) the services of any profession, trade or business, or any local or other public authority.

Section 29 Discrimination in disposal or management of premises

(1) It is unlawful for a person with power to dispose of any premises to discriminate against another—

(a) in the terms on which he offers him those premises; or

(b) by refusing his application for those premises; or

(c) in his treatment of him in relation to any list of persons in need of premises of that description.

(2) Paragraph (1) does not apply to a person who owns an estate in the premises and wholly occupies them unless, for the purpose of disposing of the premises, he—

(a) uses the services of an estate agent; or

(b) publishes an advertisement or causes an advertisement to be published.

(3) It is unlawful for a person managing any premises to discriminate against a person occupying those premises—

(a) in the way he affords him access to any benefits, or by refusing or deliberately omitting to afford him access to them; or

(b) by evicting him, or subjecting him to any other detriment.

(4) It is unlawful for any person whose licence or consent is required for the disposal of any premises comprised in a tenancy to discriminate against a person by withholding his licence or consent for the disposal of the premises to that person.

(5) Paragraph (4) applies to tenancies created before as well as after the coming into operation of this Article.

(6) In this Article—

“dispose”, in relation to premises, includes granting a right to occupy the premises, and, in relation to premises comprised in a tenancy, includes—

assigning the tenancy, and

sub-letting or parting with possession of the premises or any part of the premises;

and “disposal” shall be construed accordingly;

“estate agent” means a person who, by way of profession or trade, provides services for the purpose of finding premises for persons seeking to acquire them or assisting in the disposal of premises; and

“tenancy” means a tenancy created—

by a lease or sub-lease,

by an agreement for a lease or sub-lease,

by a tenancy agreement, or

in pursuance of any statutory provision.

(7) This Article applies only in relation to premises in Northern Ireland.

Section 30 Exception from Articles 28(1) and 29; small dwellings

(1) Where the conditions mentioned in paragraph (2) are satisfied—

(a) Article 28(1) does not apply to the provision by a person of accommodation in any premises;

(b) Article 29(1) does not apply to the disposal by a person of any premises;

(c) Article 29(4) does not apply to the withholding of any consent or licence.

(2) The conditions are that—

(a) the relevant occupier resides, and intends to continue to reside, on the premises;

(b) the relevant occupier shares accommodation on the premises with persons who reside on the premises and are not members of his household;

(c) the shared accommodation is not storage accommodation or a means of access; and

(d) the premises are small premises.

(3) For the purposes of this Article, premises are “small premises” if they fall within paragraph (4) or (5).

(4) Premises fall within this paragraph if—

(a) only the relevant occupier and members of his household reside in the accommodation occupied by him;

(b) the premises comprise, in addition to the accommodation occupied by the relevant occupier, residential accommodation for at least one other household;

(c) the residential accommodation for each other household is let, or available for letting, on a separate tenancy or similar agreement; and

(d) there are not normally more than two such other households.

(5) Premises fall within this paragraph if there is not normally residential accommodation on the premises for more than 6 persons in addition to the relevant occupier and any members of his household.

(6) For the purposes of this Article “the relevant occupier” means—

(a) in a case falling within Article 28(1), the person providing the accommodation or a near relative of his;

(b) in a case falling within Article 29(1), the person with power to dispose of the premises, or a near relative of his;

(c) in a case falling within Article 29(4), the person whose licence or consent is required for the disposal of the premises, or a near relative of his.

(7) For the purposes of this Article “near relative” means a person's spouse or civil partner , parent, child, grandparent, grandchild, or brother or sister (whether of full or half blood or by marriage or civil partnership) .

Section 31 Further exceptions from Articles 28(1) and 29

(1) Articles 28(1) and 29 do not apply—

(a) to discrimination which is rendered unlawful by any provision of Part III or Article 27; or

(b) to discrimination which would be rendered unlawful by any provision of Part III but for Article 22(3) or 70(1)(b).

(2) Article 28(1) does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.

(3) So far as it relates to discrimination on the grounds of religious belief, Article 28(1) does not apply to goods, facilities or services provided by, or on behalf of, a religious denomination where the essential nature of the goods, facilities or services requires them to be provided—

(a) only to persons holding or not holding a particular religious belief; or

(b) in a manner or on terms which, apart from this paragraph, would be unlawful by virtue of this Order.

(4) So far as it relates to discrimination on the grounds of political opinion, Article 28(1) does not apply to goods, facilities or services provided by, or on behalf of, a party registered under the Registration of Political Parties Act 1998 where the essential nature 1998 c. of the goods, facilities or services requires them to be provided—

(a) only to persons holding or not holding a particular political opinion; or

(b) in a manner or on terms which, apart from this paragraph, would be unlawful by virtue of this Order.

(5) Article 28(1) does not apply to any goods, facilities or services provided by—

(a) the Board of Governors or proprietor of a school;

(b) the governing body of a college of education; or

(c) a person providing training in connection with any employment or occupation as a clergyman or minister of religion.

(6) Where premises fall within paragraph (7)—

(a) Article 29(2) does not apply to the disposal by a person of those premises;

(b) Article 29(4) does not apply to the withholding of any consent or licence in relation to those premises.

(7) Premises fall within this paragraph if the premises are—

(a) a school;

(b) a college of education; or

(c) premises comprising an establishment providing training in connection with any employment or occupation as a clergyman or minister of religion.

Section 32 . . . barristers

(1) It is unlawful for a barrister, in relation to taking any person as his pupil, to discriminate against a person—

(a) in the arrangements which he makes for the purpose of determining whom he will take as his pupil;

(b) in respect of any terms on which he offers to take any person as his pupil; or

(c) by refusing, or deliberately omitting, to take a person as his pupil.

(2) It is unlawful for a barrister, in relation to a person who is his pupil, to discriminate against him—

(a) in respect of any terms applicable to him as his pupil;

(b) in the opportunities for training, or gaining experience, which are afforded or denied to him;

(c) in the benefits which are afforded or denied to him; or

(d) by terminating the relationship or by subjecting him to any pressure to terminate the relationship or other detriment.

(2A) It is unlawful for a barrister to subject to harassment a person who is, or has applied to be, his pupil.

(3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to a barrister, to discriminate against any person or to subject any person to harassment .

(4) In this Article “pupil” has the meaning commonly associated with its use in the context of a person training as a barrister.

Section 33 Extent of Part IV

(1) Article 27 does not apply to benefits outside Northern Ireland except—

(a) travel on a ship registered at a port of registry in Northern Ireland; and

(b) benefits provided on a ship so registered.

(2) Article 28(1)—

(a) does not apply to goods, facilities or services outside Northern Ireland except as provided in paragraphs (3) and (4); and

(b) does not apply to facilities by way of banking or insurance or for grants, loans, credit or finance, where the facilities are for a purpose to be carried out, or in connection with risks wholly or mainly arising, outside Northern Ireland.

(3) Article 28(1) applies to the provision of facilities for travel outside Northern Ireland where the refusal or omission occurs in Northern Ireland or on a ship, aircraft or hovercraft within paragraph (4).

(4) Article 28(1) applies on and in relation to—

(a) any ship registered at a port of registry in Northern Ireland; and

(b) any aircraft or hovercraft registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland other than an aircraft or hovercraft while operated in pursuance of a contract with a person who has his principal place of business, or is ordinarily resident, outside the United Kingdom,

even if the ship, aircraft or hovercraft is outside Northern Ireland.

(5) This Article shall not render unlawful an act done in or over a country outside the United Kingdom, or in or over that country's territorial waters, for the purpose of complying with the laws of that country.

Section 33A Relationships which have come to an end

(1) In this Article a "relevant relationship" is a relationship during the course of which, by virtue of any provision referred to in Article 3(2B), taken with Article 3(2A), or (as the case may be) by virtue of Article 3A—

(a) an act of discrimination by one party to the relationship ("the relevant party") against another party to the relationship, or

(b) harassment of another party to the relationship by the relevant party,

is unlawful.

(2) Where a relevant relationship has come to an end it is unlawful for the relevant party—

(a) to discriminate against another party by subjecting him to a detriment, or

(b) to subject another party to harassment

where the discrimination or harassment arises out of and is closely connected to that relationship.

(3) In paragraph (1) reference to an act of discrimination or harassment which is unlawful includes in the case of a relationship which has come to an end before 10th December 2003, reference to such an act which would, after that date, be unlawful.

(4) For the purposes of any proceedings in respect of an unlawful act under paragraph (2) that act shall be treated as falling within circumstances relevant for the purposes of such of the provisions referred to in paragraph (1) as determine most closely the nature of the relevant relationship.

Section 34 Discriminatory advertisements

(1) It is unlawful to publish, or cause to be published, an advertisement which indicates, or could reasonably be understood as indicating, an intention by a person to do an act which is unlawful by virtue of any provision of Part III or IV.

(2) Paragraph (1) does not apply if the intended act would be prevented from being unlawful by any provision of this Order.

(3) Paragraph (1) does not apply to the publisher of an advertisement in respect of the publication of the advertisement if the intended act would not be unlawful by virtue of any provision of Part III or IV but for Article 3(2)(b) or 3(2A)(b) .

(4) The publisher of an advertisement which is unlawful by virtue of paragraph (1) shall not be subject to any liability under that paragraph in respect of the publication of the advertisement if he proves—

(a) that the advertisement was published in reliance on a statement made to him by the person who caused it to be published to the effect that, by reason of the operation of paragraph (2), the publication would not be unlawful; and

(b) that it was reasonable for him to rely on the statement.

(5) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (4)(a) which in a material respect is false or misleading shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Section 35 Accessories and incitement

(1) Any person who—

(a) knowingly aids or incites; or

(b) directs, procures or induces,

another to do an act which is unlawful by virtue of any provision of Part III or IV or Article 34 shall be treated for the purposes of this Order as if he, as well as that other, had done that act.

(2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under Article 36 (or would be so liable but for Article 36(4)) shall be taken to have aided the employer or principal to do the act.

(3) A person does not under this Article knowingly aid another to do an unlawful act if—

(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Order, the act which he aids would not be unlawful; and

(b) it is reasonable for him to rely on the statement.

(4) A person who knowingly or recklessly makes a statement such as is referred to in paragraph (3)(a) which in a material respect is false or misleading shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) An inducement consisting of an offer of benefit or a threat of detriment is not prevented from falling within paragraph (1) because the offer or threat was not made directly to the person in question.

Section 36 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Order as done by that other person as well as by him.

(3) Paragraph (2) applies whether the authority was—

(a) express or implied; or

(b) given before or after the act in question was done.

(4) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description.

Section 37 Restriction on proceedings for breach of this Order

(1) Except as provided by this Order or regulations thereunder, no proceedings whether civil or criminal shall be brought against any person in respect of a contravention of any provision of this Order or of such regulations.

(2) Nothing in paragraph (1) prevents any application for judicial review or the investigation or determination of any matter in accordance with Part X (investigations: the Pensions Ombudsman) of the Pension Schemes (Northern Ireland) Act 1993 by the Pensions Ombudsman .

Section 38 Complaint to Tribunal

(1) A complaint by any person ( “the complainant”) that another person ( “the respondent”)—

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of any provision of Part III; or

(b) by virtue of Article 35 or 36 is to be treated as having committed such an act of discrimination or harassment against the complainant,

may be presented to the Tribunal.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Tribunal shall not consider a complaint relating to an act which is unlawful by virtue of Article 25 if the act is one in respect of which an appeal, or proceedings in the nature of an appeal, may be brought to a court under any statutory provision.

Section 38A Burden of proof: Tribunal

Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant,

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.

Section 39 Remedies on complaint under Article 38

(1) Where the Tribunal finds that a complaint presented to it under Article 38 is well-founded, the Tribunal shall make such of the following as it considers just and equitable—

(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court to pay to the complainant if the complaint had fallen to be dealt with under Article 40;

(c) a recommendation that the respondent take within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any unlawful discrimination or unlawful harassment to which the complaint relates;

(d) a recommendation that the respondent take within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on a person other than the complainant of any unlawful discrimination or unlawful harassment to which the complaint relates.

(2) In applying Article 40 for the purposes of paragraph (1)(b), no account shall be taken of paragraph (3) of that Article.

(3) As respects an act of unlawful discrimination falling within Article 3(2A)(b) , if the respondent proves that the provision, criterion or practice in question was not applied with the intention of treating the complainant unfavourably on the ground of his religious belief or political opinion as the case may be, an order may be made under paragraph (1)(b) only if the Tribunal—

(a) makes such order under paragraph (1)(a) and such recommendation under paragraph (1)(c) (if any) as it would have made if it had no power to make an order under paragraph (1)(b); and

(b) (where it makes an order under paragraph (1)(a) or a recommendation under paragraph (1)(c) or both) considers that it is just and equitable to make an order under paragraph (1)(b) as well.

(4) Compensation awarded to a person under paragraph (1)(b) may include compensation for injury to feelings whether or not it includes compensation under any other head.

(5) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by the Tribunal under paragraph (1)(c), then, if it considers it just and equitable to do so—

(a) the Tribunal may increase the amount of any compensation required to be paid to the complainant in respect of the complaint by an order made under paragraph (1)(b); or

(b) if an order under paragraph (1)(b) was not made, the Tribunal may make such an order.

(6) Where compensation falls to be awarded in respect of any act both under the provisions of this Article and under any other statutory provision, the Tribunal shall not award compensation under this Article in respect of any loss or other matter which has been taken into account under that other statutory provision by a court or tribunal in awarding compensation in an action or complaint in respect of that act.

(7) The Department may by order make provision—

(a) for enabling the Tribunal, where an amount of compensation falls to be awarded under paragraph (1)(b) to include in the award interest on that amount; and

(b) specifying, for cases where the Tribunal decides that an award is to include an amount in respect of interest, the manner in which and the periods and rate by reference to which the interest is to be determined.

(8) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by the Tribunal under paragraph (1)(d), the President or Vice-President may—

(a) certify the failure to the High Court; or

(b) require the respondent to pay to the Department a pecuniary penalty of an amount not exceeding £40,000.

(9) Where the President or Vice-President has certified a failure under paragraph (8)(a), the High Court may deal with the respondent as if the recommendation of the Tribunal had been an order of the High Court.

(10) The Judgments Enforcement (Northern Ireland) Order 1981 shall apply with the necessary modifications in relation to a penalty imposed under paragraph (8)(b) as it applies to a sum due to the Crown under a money judgment (within the meaning of that Order).

(11) If it appears to the Department that there has been a change in the value of money since the relevant date, it may by order substitute for the sum for the time being specified in paragraph (8)(b) such other sum as appears to it to be justified by the change.

(12) In paragraph (11) “the relevant date” means—

(a) in relation to the first order under that paragraph, the coming into operation of this Article; and

(b) in relation to each subsequent order, the last occasion when the sum specified in paragraph (8)(b) was altered.

(13) The Department shall pay into the Consolidated Fund any sums received in respect of penalties under this Article.

(14) This Article has effect subject to paragraph 7 of Schedule 2A.

Section 40 Claims under Part IV

(1) A claim by any person ( “the claimant”) that another person ( “the respondent”)—

(a) has committed an act . . . against the claimant which is unlawful by virtue of any provision of Part IV other than Article 32 ; or

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act . . . against the claimant,

may be made the subject of civil proceedings in like manner as any other claim in tort for breach of statutory duty.

(2) Proceedings under paragraph (1) shall be brought only in a county court; but all such remedies shall be obtainable in such proceedings as, apart from this paragraph and Article 37, would be obtainable in the High Court.

(3) As respects an act of unlawful discrimination falling within Article 3(2)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on the ground of religious belief or political opinion.

(4) Damages in respect of an act of unlawful discrimination or unlawful harassment may include compensation for injury to feelings whether or not they include compensation under any other head.

(5) Civil proceedings in respect of a claim by any person that he has been discriminated against in contravention of Article 27 by a governing body of an establishment falling within paragraph (2)(b) of that Article, shall not be instituted unless the claimant has given notice of the claim to the Department of Education.

(6) Nothing in paragraph (5) applies to a counterclaim.

(7) For the purposes of proceedings under paragraph (1)—

(a) Article 33(1) (power of judge to appoint assessors) of the County Courts (Northern Ireland) Order 1980 shall apply with the omission of the words “on the application of any party”, and

(b) the remuneration of assessors appointed under that Article shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and may be defrayed as part of the expenses of the Lord Chancellor.

(8) A county court shall have jurisdiction to entertain proceedings under paragraph (1) with respect to an act done on a ship, aircraft or hovercraft ..., including such an act done outside Northern Ireland.

Section 40A Burden of proof: county court

(1) This Article applies where a claim is brought under Article 40 and the claim is that the respondent—

(a) has committed an act of discrimination which is unlawful by virtue of any provision referred to in Article 3(2B)(b), or Part V in its application to that provision, or

(b) has committed an act of harassment which is unlawful by virtue of Article 27(1A).

(2) Where on the hearing of the claim, the claimant proves facts from which the court could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

(a) has committed such an act of discrimination or harassment against the claimant, or

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant,

the court shall uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.

Section 41 Persistent discrimination

(1) If, during the period of 5 years beginning on the date on which a finding by the Tribunal or a court under Article 38 or 40 that he has committed an act of unlawful discrimination or unlawful harassment becomes final in respect of any person, it appears to the Commission that unless restrained that person is likely to commit one or more such acts the Commission may apply to a county court for an injunction restraining him from doing so; and the court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

(2) For the purposes of this Article and Article 42 a finding by a court or the Tribunal becomes final when—

(a) an appeal against the finding is abandoned or determined; or

(b) the time for appealing expires without an appeal having been brought.

Section 42 Enforcement of Article 34

(1) Proceedings in respect of a contravention of Article 34 shall be brought only by the Commission in accordance with the following provisions of this Article.

(2) The proceedings shall be—

(a) an application for a decision whether the alleged contravention occurred; or

(b) an application under paragraph (4),

or both.

(3) An application under paragraph (2)(a) shall be made—

(a) in a case based on any provision of Part III or Article 32 , to the Tribunal; and

(b) in any other case, to a county court.

(4) If it appears to the Commission—

(a) that a person has done an act which by virtue of Article 34 was unlawful; and

(b) that unless restrained he is likely to do further acts which by virtue of that Article are unlawful,

the Commission may apply to a county court for an injunction restraining him from doing such acts; and the court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

(5) In proceedings under paragraph (4) the Commission shall not allege that the person to whom the proceedings relate has done an act which is unlawful by virtue of Article 34 and within the jurisdiction of the Tribunal unless a finding by the Tribunal under paragraph (3)(a) that he did that act has become final.

(6) In paragraph (5), the acts “within the jurisdiction of the Tribunal” are those in respect of which such jurisdiction is conferred by Article 38.

Section 43 Undertakings by persons contravening Part IV

(1) This Article applies to an act contravening any provision of Part IV and so applies whether or not proceedings have been brought in respect of the act.

(2) If the Commission is satisfied that a person is committing or has committed any such act the Commission may, for the purpose of preventing the commission by that person of any further such act, seek to obtain from that person an undertaking—

(a) that he will do, or refrain from doing, certain acts specified in the undertaking;

(b) that he will institute certain practices so specified; or

(c) that he will change his existing practices in a manner so specified.

(3) An undertaking given by any person under this Article shall—

(a) be in writing;

(b) be in such terms as may be agreed between that person and the Commission;

(c) contain such terms as appear to the Commission to be necessary or appropriate for the purpose mentioned in paragraph (2); and

(d) have effect for such period as may be specified therein.

(4) If it appears to the Commission that a person who has given an undertaking under this Article has, at any time within the period specified therein by virtue of paragraph (3)(d), failed to comply with the undertaking, the Commission may apply to the county court for a decision as to whether that person has failed to comply with the undertaking.