Fair Employment Legislation and its effect on recruitment practices in Northern Ireland
The legislation is contained in the Fair Employment Acts (NI) 1976 and 1989. These Acts deal with:
Direct discrimination - this consists of treating a person on religious or political grounds less favourably than others are or would be treated in the same circumstances
Indirect discrimination - this is the application of a requirement or condition that has an adverse impact on a religious or political group which cannot objectively be justified, and which causes a detriment.
Victimisation - this consists of treating a person less favourably than others are or would be treated in the same circumstances because that person intends to, or is suspected of having done something by reference to the Fair Employment Acts e.g. made a complaint of discrimination or given evidence as a witness for the complainant in the proceedings.
N.B. Notes on the effects of the legislation on recruitment practices in Northern Ireland appear in italics.
Under the Acts all employers with more than 10 employees working in Northern Ireland must register with the Fair Employment Commission.
The Code of Practice recommends employers prepare a Job Description that describes the tasks and responsibilities that make up the job. It is also recommended that employers prepare a Personnel Specification that sets out the qualities and abilities required of the successful candidate. The Personnel Specification should contain criteria that are:
· Job related
· Ability based
· Objectively weighted
The Fair Employment (NI) Act 1989 places a legal duty on all registered employers to monitor the religious composition of their workforce.
Monitoring of job applicants takes the form of questionnaires, which ask:
· Name and address of primary school attended in Northern Ireland or,
· Name and addresses of the primary and secondary schools attended, or
· A written statement made by the individual that he /she is a member of the Protestant or Roman Catholic community.
N.B. A monitoring questionnaire should be a separate document from the application form. The person(s) responsible for the selection exercise should not be aware of the information on the monitoring form. For this reason applicants for a job should not disclose the name of the school(s) they attended on the application form.
Newspapers - employers must make sure that advertising of job vacancies is not limited to publications which are likely to be read mainly by one section of the community.
Local offices of the Training and Employment Agency - if appropriate.
Employment Agencies. Agencies must ensure that the vacancy is advertised in such a way that it is equally likely to be seen by both sections of the community. In this regard Queen's Careers Service is treated as a recruitment agency. To ensure compliance with the Acts, employers contacting Queen's Careers Service are advised to advertise their graduate vacancies with the Careers Service of the University of Ulster as well.
Another effect of the Acts has been a growth in the number and size of local recruitment agencies. With local management of schools and health service management coming under privatised trusts, some agencies have been able to offer a service monitoring and short-listing teachers and nurses in compliance with the legislation. To the principal of a small school or the human resources manager of a privatised health service provider, this can seem an attractive option, greatly reducing the bureaucracy involved in ensuring compliance with the Acts.
University Careers Services are party to a Code of Practice with the Association of Graduate Employers and the National Union of Students, which requires that we ascertain the identity of the employer an agency is recruiting for. Some agencies are reluctant to reveal the name of their client company, although most accept our need to know. Failure to operate this safeguard could result in the situation where a company is recruiting graduates both directly itself and indirectly through an agency at the same time!
The FEC Code of Practice recommends that job advertisements state the essential criteria that will be applied in selecting the best applicant and also, wherever possible, the desirable criteria. This has the effect, in practice, of employers being prepared to consider only those candidates who match the published criteria precisely, even when this means rejecting an otherwise well qualified applicant. This has led to undue stress on formal qualifications, which can be precisely stated, while experience and skills may not be given sufficient recognition because they are more difficult to measure objectively.
The Code of Practice strongly recommends that employers should ensure that all short-listing, interviewing and selection panels comprise two or more people. The job description and personnel specification should be used to develop short-listing criteria. In shortlisting it is often necessary to treat desirable qualifications as essential in order to reduce the number short-listed to a manageable size.
Prior to interview
The selection panel should meet to prepare their approach to the interview. The Code recommends the following checklist.
· Identify factors (e.g. relevant experience, special aptitudes etc.) which should relate to the job description, personnel specification and any additional short-listing criteria.
· Rank in order of importance each key factor identified.
· Prepare the questions to be asked by whom and in what order.
· Clarify the responses that should be given, (particularly in technical areas).
In scoring an interview the Code of Practice strongly recommends the use of weighting, with extra weight given to the most important key factors in terms of ability to carry out the job effectively.
The Sex Discrimination Acts 1975 and 1986 make it unlawful to treat anyone, on the grounds of sex, less favourably than a person of the opposite sex; it protects both men and women. It is also unlawful to discriminate against people because they are married. The Acts apply to advertising, recruitment and selection, promotion and access to training.
There are two kinds of sex discrimination:
Direct discrimination – involves treating a woman less favourably than a man because she is a woman. (Discrimination against pregnant women is now considered to be direct).
Indirect discrimination – means that conditions are applied to all which favour one sex but which cannot be justified. For example, more men than women are over 6’ tall and therefore it is indirect discrimination to make 6’ in height a requirement.
Section 6(1) of the Act makes it unlawful for an employer to discriminate in recruitment:
Section 38 of the Act states:
“ It is unlawful to publish, or cause to be published, an advertisement which indicates or might reasonably be understood as indicating an intention by a person to do an act of discrimination……”. For example, use of a job description with a sexual connotation such as “waiter”, “salesgirl”, “postman” or “stewardess” shall be taken as indicating an intention to discriminate unless the advertisement contains an indication to the contrary.
Agencies, including university Careers Services, share with employers the responsibility for ensuring that advertisements do not indicate any intention to discriminate unlawfully. If a member of the agencies staff complies with an unlawful discriminatory instruction from any employer, the agency and the member of staff may both be breaking the law.
Questions such as:
Do you have a boyfriend/marriage plans?
Are you planning a family?
Are discriminatory even if all applicants are asked, because there is no point in asking questions if the answers are not the basis of selection.
Some questions imply that it’s not a woman’s job, and that the interviewer thinks your sex will make you less effective, such as:
How would you cope with male subordinates?
How would you react to “girlie” calendars in the site office?
Show that you understand the nature of the work and that you have the temperament to be successful; examples of parallel experiences will help. Men can be similarly disadvantaged, with questions such as:
“How would you feel about having a woman manager?”
Taking legal action can be very expensive and the legislation can be difficult to enforce in practice. If, however, you feel you have been unfairly treated because of your sex, you have the right to take your complaint to an industrial tribunal within three months. Your Careers Adviser might be able to help in the first instance, and would most certainly wish to know about incidents of apparent discrimination.
The Disability Discrimination Act 1995 seeks to end unfair discrimination against disabled people. The thinking behind the Act is that, looking at the individuals situation, a disability should not bar a person from employment unless it would genuinely and significantly impede that person from doing the work in question, and there is nothing the employer can reasonably be expected to do to overcome this. The Act applies to employers who employ fifteen or more staff.
Under the Act a person is treated as having a disability if she/he has a "physical or mental impairment which has a substantial and long term adverse effect on his or her inability to carry out normal day to day activities". The Act covers:
· Sensory impairments
· Physical impairments
· Mental illness
· Learning difficulties
· Impairments controlled by medication or a prosthesis
· Hearing loss, even if a hearing aid is used
· Severe disfigurement
· Recurrent conditions
· Progressive conditions
Many students do not recognise how common disability can be. Deafness is not immediately apparent and someone who is vision impaired may be able to see well enough to manage without a white stick! Conditions such as M.E. are surprisingly common among the young and epilepsy can afflict students in higher education as much as anyone else. Even a relatively minor disorder like dyslexia can put a job applicant at a disadvantage.
There are no clear answers to the question "should I disclose my disability, and if so, at what stage?" In some cases disclosure is required eg if there are health and safety implications, or the need for work-place adaptation. You may be asked to make a statement about your fitness for work on an application form, if so you must do so truthfully. Disclosure can take place at any stage in the selection process. The British Epilepsy Association suggests that if the application form requires disclosure then it would be advisable to include a letter from a doctor, explaining the epilepsy and the person's fitness for the job. If the information is not revealed on the application form then such a letter should be taken to the interview and given to the Personnel Officer. At interview it is important to reveal the epilepsy, as rejection or dismissal may be justified it if comes to light that a candidate or employee has knowingly given false information or withheld information about a medical condition.
A student with a disability may wish to discuss their approach with their Careers Adviser or the Queen's University's Disability Services Co-ordinator. More information about support for disabled students is available from: http://www.qub.ac.uk/du/disability.html.
Applies to the use of personal data i.e. date relating to an identifiable living individual. The 1998 Act defines eight principles covering the way in which personal data must be processed:
Students on placement are treated as employees of the company and are expected to behave accordingly. This includes ensuring that you are able to arrive at work in good time and do not leave before the official going home time. Lunch and coffee breaks should not be extended. If you need to take days off because of illness, you should inform the company. Most employers will require a medical certificate if you are absent from work for longer than two days.
The dress code varies between different employers but you should aim to conform to whatever is the norm. This does not necessarily mean buying a suit but does mean dressing to fit in i.e. jacket, shirt and tie rather than a casual T-shirt. Some companies have a casual dress day, usually on Friday.
Harassment is unacceptable behaviour at work that can result in disciplinary action including dismissal where appropriate. Harassment can be divided into two categories:
1. Where the harassment is on the grounds of sex, race, sexual orientation, disability, religious belief or political opinion. Some examples of harassment are included here although this is not an exhaustive list.
· Verbal and written harassment through jokes, offensive language, gossip and slander, sectarian or racist songs, threats, letters.
· Visual displays of posters, graffiti, obscene gestures, flags, bunting or emblems
· Isolation or non-co-operation at work, exclusion from social activities
· Undignified treatment, ridicule, marginalisation of an individual because of their disability
2. As outlined in the Protection from Harassment (NI) 1997. Order
· Under the second category harassment is more than one incident of conduct which has caused distress or alarm and which a reasonable person would regard as harassment. The exact interpretation of what amounts to harassment will be for the courts: however, it may be seen to include bullying, threatening, abusive or insulting words or behaviour, or the display of any writing, sign or other visible representation which is threatening, abusive or insulting.
· Employers may be liable for employees wrongful actions. They are likely therefore to take a very dim view of such behaviour.
Any company with more than five employees must draw up a health and safety policy statement which should be brought to your attention. You should familiarise yourself with it, especially any instructions relating to fire drill.
· Check that your employer allows e-mail for personal use
· If allowed, confine your use to your own personal time i.e. out of core office hours
· Never access any other users personal files without authorisation
· Never transmit any company documentation or files to anyone outside the company without authorisation
· Never modify any other users personal files
· Never impersonate anyone else on e-mail
· It is unlawful to send any message by e-mail that is racist, sexist or contrary to the provisions of the Fair Employment Act.
· Check any e-mail attachments you receive for viruses before distributing them to anyone else
· Be especially careful what you say when communicating externally with mailing lists, chat groups
· Take care when sending replying to a message sent to a mail list, that you only reply to the individual who sent the original message, unless you want it to go to everyone
· N.B. Many firms have the technology to log and monitor data transmissions
· Do not download unlicensed software for use on the company resources
· Do not download software onto another users machine
· If you download software onto your own machine, check that you are not infringing copyright i.e. audio/music files such as those stored in MP3 format
· If you create a web site be aware that the laws on libel, defamation, harassment and pornography apply just as much to information transmitted via data networks as they do to traditional paper media or telephone calls.
· N.B. All communications made via the Internet or WAN connections can be traced to source because of information contained in the underlying network traffic.