Employment brings work

Employment law is now recognised as one of the fastest developing specialist areas of law. Much of the impetus for change and the growth of legislation has undoubtedly emanated from Europe, and the substance of the legislation in the UK has many similarities.

The recognition of employment law as a specialist area has been marked in the UK by an increasing number of firms with distinct employment departments and the establishment of an Employment Lawyers' Association.

Similarly in Northern Ireland there is a recognition of the increasing importance of employment law. Last year saw the foundation of the Employment Lawyers' Group (NI).

The recent increase in outside investment in Northern Ireland has highlighted the need for specialist employment law advice, particularly in respect of discrimination law, which is the area of greatest disparity between Northern Irish employment law and employment law in the rest of the UK.

The protection of racial minorities has never been at the forefront of the political agenda in Northern Ireland, and this is reflected by the absence of any form of racial discrimination legislation.

However, religious discrimination is an issue central to Northern Ireland politics. It is the only jurisdiction in the UK with legislation specifically designed to prohibit this form of discrimination. The legislation is largely contained in the Fair Employment (NI) Acts 1976 and 1979. It is akin to the race and sex discrimination legislation in so much that it renders direct and indirect discrimination unlawful and prohibits victimisation in the employment sphere.

However, the legislation also imposes certain obligations on employers which are unique to the law relating to fair employment. Employers with more than 10 employees must register with the Fair Employment Commission. This body has investigative and regulatory powers, provides advice and legal assistance to individuals complaining of discrimination, and has responsibility for promoting equality of opportunity.

Employers are required to monitor the religious composition of their workforce, and larger employers must also monitor the religion of job applicants. Monitoring returns are to be submitted to the Commission on an annual basis.

In addition to the monitoring duty, at least once every three years employers are obliged to conduct detailed reviews of the composition of the workforce and their employment practices which are also to be returned to the commission. At the conclusion of an case involving an individual claim of unlawful discrimination, the commission, or the Fair Employment Tribunal, may direct an employer to undertake affirmative action measures where there appears to be a failure to provide fair participation.

The Fair Employment Tribunal has sole jurisdiction to hear complaints about unlawful religious and political discrimination. Hearings tend to be lengthy, often lasting for weeks rather than a few days.

Just as the upper limits on awards of compensation in cases of sex and race discrimination have been removed, there is now no cap on the compensation which may be awarded by the Fair Employment Tribunal. Furthermore, the potential cost of litigation to the employer cannot be measured purely in terms of the hearing time involved and the compensation which may be awarded. Religious discrimination cases often attract significant adverse publicity.

It is not surprising that solicitors specialising in employment law are increasingly requested to provide advice and training to managers with a view to protecting employers from successful claims of discrimination.

Just as employers in the UK are becoming aware of the benefits of implementing sexual harassment policies, employers in Northern Ireland must also consider the introduction of a sectarian harassment policy. Implementing such a policy will bring home to employees that sectarian harassment is unacceptable and provide an in-house procedure to resolve complaints. It will also serve as a defence for the employer faced with a claim of discrimination grounded on the employer's vicarious liability for the conduct of employees.

Further significant developments in employment law are on the horizon. The Disability Discrimination Act 1995 is awaiting implementation later this year and, at the European level, the Acquired Rights Directive is under review.

For employment lawyers in Northern Ireland there are likely to be further changes in the field of fair employment as an extensive review of the workings of the current legislation has been undertaken. The recommendations of the body responsible for the review have not yet been published.