Official Report: Minutes of Evidence

The Chairperson (Ms McLaughlin): I welcome, from the Equality Commission for Northern Ireland, Geraldine McGahey, chief commissioner, and Darren McKinstry, director of public policy and strategic engagement. The session is being reported by Hansard, and a transcript and video will be available on the Committee's web page.

Ms Geraldine McGahey (Equality Commission for Northern Ireland): Thank you, Madam Chair; we are delighted to be here. Thank you for the invitation to speak with you today on the Fair Employment (School Teachers) Bill. As you said, I am joined by Darren McKinstry, who is the commission's director of public policy and strategic engagement. With your permission, I intend to say just a few words about the commission's position, after which Darren and I will endeavour to answer your questions or address any concerns that you may have.

At the outset, I will say that the commission's long-standing view is that the exception in the employment provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 should be removed. We firmly believe that all teachers should be able to enjoy the same legislative protection as other workers and should also be included in the monitoring and review requirements, as indeed are other occupations.

By way of some background to this: you will be aware of the commission's statutory remit to keep the 1998 Order under review. In that context, the commission undertook a substantial review in 2004, the outcome of which was the commission's recommendation that the teachers' exception should be narrowed to restrict the exception to teachers in mainstream primary schools. At that time, the commission also set out its view that the long-term objective should be to include teachers in the religious discrimination provisions. The commission noted that, if the exception was to be retained in relation to recruitment of teachers in primary schools, that should merely be a staging post towards its eventual removal. That recommendation was further developed in 2009, when the commission further recommended that early consideration be given to removing the exception at primary-school level also.

Given the passage of time, however, since the commission's original recommendations, we believe that it is important that current considerations should take account of developments and research since then. An example of such change is that access to obtaining the certificate in religious education has widened substantially. It can be undertaken alongside initial teacher training education at Ulster University and Stranmillis University College in addition to the long-standing provision that is available at St Mary's University College.

It is fair to say that were the exception to be removed, like other employers, schools would no longer be able to lawfully discriminate on the grounds of religious belief or political opinion in the appointment of teachers, either in the initial recruitment or, indeed, in the case of a promotion. Like other employers with more than 10 employees, schools would be required, amongst other things, to monitor the community background of their teaching staff, to carry out article 55 reviews of their teaching workforces and reviews of the employment policies and practices that affect their teaching staff and to consider whether they are providing fair participation to members of the Protestant and Roman Catholic communities in relation to the employment of teachers. Existing provisions that provide genuine occupational requirements would also apply to the employment of teachers.

We very much welcome the suggested inclusion of an implementation date and the potential to allow for a staged approach. Such a staged approach would potentially allow for anti-discrimination provisions to come into force while the mechanisms for monitoring are put in place. As with commencement, there might be merit in setting timelines for each stage of the staged implementation in order to ensure that it is fully implemented.

It is important that the equality impacts of the Bill are considered at the outset. They should also be monitored over time and appropriate mitigations implemented.

The explanatory and financial memorandum of the Bill states:

It is the commission's view that the costs of implementation should be considered and provided for at the outset. We anticipate that there are likely to be administrative costs associated with the introduction of employment monitoring, the compilation and completion of annual reporting forms, the undertaking of triennial reviews and taking any appropriate affirmative actions. I should say that many schools with more than 10 non-teaching staff members already have such systems in place. Therefore, it would be a process of enlarging those systems and extending them to cover all the issues.

There would also be an additional resource implication for the commission's advice and compliance function, including monitoring, article 55 reviews, recruitment practices and any advice on the use of the genuine occupational requirements provision. Similarly, there is the potential for tribunal and conciliation costs associated with the introduction of a new right of action.

In conclusion, the commission is strongly of the view that teachers should be able to enjoy the same legislative protection as other workers. Teachers should be included in the monitoring and review arrangements that apply to all other occupations. Our long-standing recommendation is that the exception should be abolished.

Thank you for the opportunity to share the commission's position with you. Darren and I are more than happy to try to address any questions that you have or any issues that you want to discuss. Thank you for the opportunity.

The Chairperson (Ms McLaughlin): Geraldine, thank you for that. That was a strong endorsement for removal.

Will you outline whether there are any similar exemptions in other jurisdictions?

Ms McGahey: Darren might be best placed to address that. He is the director with responsibility.

Mr Darren McKinstry (Equality Commission for Northern Ireland): Thanks, Chair. Hello, members.

I am not specifically aware of such an exemption. An exemption was certainly written into EU law many years ago, but it was specifically written into EU law because of the exemption that was in place in Northern Ireland. Given that, it may be limited to Northern Ireland.

The Chairperson (Ms McLaughlin): OK.

Geraldine, in your presentation, you mentioned a staged approach, and consideration of that is definitely in the mix. Will you elaborate on how you see that staged approach taking place?

Ms McGahey: A lot of issues are being debated publicly at the moment. Having a staged approach, provided that start, middle and end points are defined in legislation, will take us along the road of removing the exception. Presently, there is no right of challenge to any decisions that are made about recruitment or promotion, and removing the exception would provide people with the opportunity to have the same protections as others.

It could be staged on the basis of removing the exception in post-primary schools initially, before its being expanded to other schools. That would allow for the whole sector to move gradually and for protections to be introduced while the monitoring process is developed. It would not be so much of a big bang but would allow for the outworkings of such an approach to be fully implemented and mitigated.

There could potentially be an issue for primary schools and the development of religious education etc. Having a staged approach would help to address some of those concerns. Primary school is where most educational development for religious sacraments takes place, although it would be for the Council for Catholic Maintained Schools (CCMS) to address that. There are movements in other jurisdictions. For example, the bishops in the Catholic Church in Dublin have decided that education on and preparation for the sacraments should take place between the parish and the family, outside school. That appears to be different from what is taking place in Northern Ireland. However, by having a staged approach, perhaps some of those issues could be addressed.

Darren wants to address that issue as well.

Mr McKinstry: There is one key area where a staged approach would help. It relates to the preparation for monitoring and review. You could choose to adopt an approach where the protections for individuals come in immediately but where there is a bit of lead-in time to allow for systems to be set up, should that be necessary, or for monitoring to get up and running. There is a process of registration for employers and one of monitoring of the workforce. Then, ultimately, every three years, there will be a process of reviewing that information. Therefore, a short, phased approach might allow for the protections first and the monitoring to follow.

The Chairperson (Ms McLaughlin): OK.

Would an impact assessment of removing that exemption not show that it would affect Catholics more than Protestants? Is that not something that the Equality Commission is concerned about from a policy or legislative point of view?

Ms McGahey: It is fair to say that, yes, we would be concerned. Mitigating factors would need to be considered as part of that equality impact assessment. The requirements for a certificate in religious education, Catholic ethos etc in schools all currently exist. This, for the first time, provides protection for all teachers. We need to monitor how that would roll out. There is also the issue of the general occupational requirement. At the moment, it is hard to see how that would be considered and developed. It must be a legitimate reason and be proportionate to the need. All those factors need to be considered and mitigations potentially introduced, depending on how the monitoring pans out. You would need to see how things would develop.

Darren, is there anything that you want to add to that? I have just given a very brief overview.

Mr McKinstry: Obviously, when the legislation would pass to the Department for implementation, it would be important that, under its duties, it undertake a full equality impact assessment. I am not particularly aware of the argument that it disadvantages those from a Catholic background. I do not have any evidence that the exemption is currently being used on a routine basis.

As Geraldine said, there are specific criteria in place for teaching jobs across all the sectors. Some relate to the religious education certificate, which is now more accessible than it was in the past, and some to ethos. It is worthwhile to consider what the outworkings of those requirements are, but it is not different from what is in place. I am not particularly aware of what the argument would be to say that Catholics would be disadvantaged.

The Chairperson (Ms McLaughlin): OK. Thank you very much.

Ms Sheerin: Thank you both for the presentation. Obviously, this legislation focuses on reconciliation between what we call "the two main communities". I want to hear your view on how important it is in the context of a more multicultural society, with more people in our education system than just those who identify as Catholic or Protestant.

Ms McGahey: It is fair to say that our society is becoming more diverse, as the population of ethnic minorities increases and we get a more diverse culture. The commission's view is that education should be shared. It should be the same for everyone, and it is an opportunity for communities to mix. This legislation has the potential to put all teachers on an even footing. It will be for schools to determine whether it will deliver a more diverse education system. This is purely about the recruitment of teachers, but the more diverse a teaching staff can be, the more diverse the educational experience of children will be. I do not want to stray into the Integrated Education Bill that is currently being discussed, because that is a separate issue. Our focus with this legislation is on ensuring that all teachers have the same opportunities and the same equality opportunity as any other occupation in Northern Ireland. I would be straying into another piece of legislation if I were to go further than that. Darren wants to come in on that.

Mr McKinstry: Yes, thank you. I have a point to add. Although the fair employment legislation is generically titled, it is specifically about community background, and the teachers exception exists only in that legislation. It does not exist in the legislation on the other grounds, so there is protection for teachers on race, gender etc. The specific issue here is on the grounds of religion and political opinion and making the protection the same. The protections are there on the other grounds already.

Ms Sheerin: Thanks, Geraldine and Darren. The Bill is fairly straightforward in that it just removes the exemption. Do you think that the fair treatment legislation from 1998 and 2003 will be enough to enable schools to do the equality monitoring? Is that enough training for them?

Ms McGahey: Darren, do you want to come in on the practicalities of that?

Mr McKinstry: Yes, certainly. With any amendment to legislation, there are overheads. As Geraldine touched on earlier, teachers are not typically appointed through the schools themselves but through bodies such as the Education Authority. Those bodies are already registered and specified under the fair employment legislation, so they already have the training, are delivering and have the systems. It is potentially an issue of upscaling those systems, maybe by increasing the capacity and maybe by having some training at the coalface for teachers and those in schools who are either filling in or compiling monitoring forms. We absolutely see that there is some overhead involved and some training required, but it is not potentially on the scale of 11,000 individual schools, for example.

Ms Sheerin: Thank you.

The Chairperson (Ms McLaughlin): I have a final question. Geraldine, you referred to mitigations and mitigation processes and procedures, particularly if it was being phased in, in the nature that you spoke about. What specific type of mitigations are you thinking about?

Ms McGahey: That falls out of the equality impact assessment and how the new requirement or the new challenges might affect one section of the community more than another. At the moment, it would be hard to put any substance to that, because we do not have any information on the recruitment and promotion of teachers in schools. With issues such as pastoral care, ethos and the certificate of religious education, it is hard to see how that might pan out, but they need to be monitored, and then, depending on the information that comes to light, mitigating factors should be introduced to address that. That might involve a more specific and more detailed analysis of what school ethos might be and how that might be addressed in relation to perhaps even the certificate of religious education and assisting schools and boards of governors in the appointment process. Does that help to answer your question?

The Chairperson (Ms McLaughlin): Yes. It is very hard to be clear about it at this juncture, but, yes, you can foresee what kind of processes would need to be looked at.

No other members have indicated that they want to ask a question, which is probably a good sign that you have explained yourselves well. Thank you, Geraldine and Darren, for your contribution this afternoon and for your briefing to the Committee.

Ms McGahey: Thank you very much for the opportunity.

Mr McKinstry: Thank you.