FAIR EMPLOYMENT PART I INTRODUCTION Citation and commencement 1 These Regulations may be cited as the Fair Employment (Monitoring) Regulations (Northern Ireland) 1999 and shall come into operation on 1st January 2001. Interpretation 2 1 In these Regulations— “determination” means a determination of the community to which a person is to be treated as belonging for the purposes of monitoring; “employee” in relation to the concern of a public authority includes any person who, by virtue of the Fair Employment (Specification of Public Authorities) Order (Northern Ireland) 1989 , is treated for the purposes of Articles 52 to 61 as an employee of the authority; “prescribed information” means the information which an employer is required by virtue of regulation 5 to give in a monitoring return; “Protestant” means belonging to the Protestant community in Northern Ireland; “public authority” means a person who, by virtue of Fair Employment (Specification of Public Authorities) Order (Northern Ireland) 1989 is such an authority for the purposes of Articles 52 to 61; “registered concern” includes the concern of a public authority; and “Roman Catholic” means belonging to the Roman Catholic community in Northern Ireland. 2 Any reference in these Regulations to a numbered Article shall be construed as a reference to the Article so numbered in the Fair Employment and Treatment (Northern Ireland) Order 1998 . 3 For the purposes of these Regulations “promotion” in relation to an employee in a registered concern means that— a the employee has moved from one situation to another within the concern; b in doing so he did not fill a vacancy in the concern for which persons not already employed in the concern could apply; and c as a direct result of his move there was, for the calendar year in which the move took place, an increase in the remuneration (excluding expenses) to which he was entitled from the concern, and “promotee” shall be construed accordingly. Revocation 3 1 Subject to paragraph (2), the Fair Employment (Monitoring) Regulations (Northern Ireland) 1989 and the Fair Employment (Monitoring) (Amendment) Regulations (Northern Ireland) 1991 are hereby revoked. 2 The Regulations referred to in paragraph (1) shall continue to apply in relation to any monitoring return prepared for any year beginning before 1st January 2001 as if these Regulations had not been made. Application 4 These Regulations shall apply in relation to any monitoring return prepared for any year beginning on or after 1st January 2001. PART II MONITORING RETURNS Prescribed information 5 1 For the purposes of Article 52(1)(a) a monitoring return shall, subject to paragraph (4), contain the information about employees prescribed by— a Part I of Schedule 1; and b in the case of a return in respect of a registered concern to which Article 52(3) or (4) applies, Part II of Schedule 1. 2 For the purposes of Article 52(1)(b) a monitoring return shall, subject to paragraph (4), contain the information about applicants for employment prescribed by Part III of Schedule 1. 3 A monitoring return in respect of a registered concern to which Article 52(3) or (4) applies shall, for the purposes of those paragraphs, subject to paragraph (4), contain the information about former employees prescribed by Part IV of Schedule 1. 4 Paragraphs (1)(b), (2) and (3) shall not have effect in relation to the first monitoring return prepared in respect of any registered concern. Date or period to which prescribed information relates 6 1 The prescribed information about employees in a registered concern shall relate to the first day of the year for which the monitoring return containing the information is to be prepared. 2 Without prejudice to paragraph (1), the information about employees which is prescribed by paragraph 2 of Part I of Schedule 1 and by Part II of Schedule 1 shall relate to the twelve months ending on the first day of the year for which the monitoring return containing that information is to be prepared. 3 The prescribed information about applicants for employment in a registered concern shall relate to the twelve months ending on the first day of the year for which the monitoring return containing that information is to be prepared. 4 The prescribed information about former employees in a registered concern to which Article 52(3) or (4) applies shall relate to the twelve months ending on the first day of the year for which the monitoring return containing that information is to be prepared and that shall be the period prescribed for the purposes of determining under Article 52(4) whether that paragraph applies to a registered concern. 5 For the avoidance of doubt, it is hereby declared that nothing in paragraph (2) shall require an employer to include in any monitoring return information about a person who was not an employee on the day prescribed by paragraph (1) in relation to that return. Period within which prescribed information shall be obtained 7 1 The prescribed information insofar as it relates to each employee in a registered concern shall be obtained— a in the case of the first year for which a monitoring return is to be prepared in respect of the concern, within the first three months of that year; and b in the case of any subsequent year, within the first month of that year. 2 The prescribed information insofar as it relates to each applicant for employment or former employee in a registered concern shall be obtained within the first two months after the date of his application, or the date on which he ceased to be employed, as the case may be. 3 In this regulation, “obtain” means obtain in accordance with these Regulations. Principal method of making a determination in respect of employees 8 1 For the purposes of preparing a monitoring return in respect of a registered concern, an employer shall, subject to paragraph (2)— a determine the community to which he will treat each employee as belonging by using the principal method prescribed by Part I of Schedule 2; and b subject to regulation 11(1), where the use of that method does not enable him to treat any employee as belonging to a particular community, treat him as if the community to which he belongs cannot be determined. 2 Where for the purpose of preparing any monitoring return in respect of a registered concern— a an employer under and in accordance with paragraph (1) or regulation 8(1) of the Fair Employment (Monitoring) Regulations (Northern Ireland) 1989 treats an employee as belonging to a particular community; and b that information is contained in a monitoring return served under Article 52(1) or section 27(1) of the Fair Employment (Northern Ireland) Act 1989 , he shall continue to treat the employee as belonging to that community for the purposes of preparing any subsequent monitoring return in respect of the concern and, accordingly, paragraph (1) shall not apply to such an employee in relation to that subsequent return. Principal method of making a determination in respect of applicants 9 For the purposes of preparing a monitoring return in respect of a registered concern an employer shall— a determine the community to which he will treat each applicant for employment in the concern as belonging by using the principal method prescribed by Part II of Schedule 2; and b subject to regulation 11(2), where the use of that method does not enable him to treat any such applicant as belonging to a particular community, treat him as if the community to which he belongs cannot be determined. Determinations in respect of former employees 10 1 For the purposes of preparing a monitoring return in respect of a registered concern to which Article 52(3) or (4) applies, an employer shall treat— a each former employee of the concern to whom paragraph (2) or (3) applies as belonging to a community in accordance with the paragraph which applies to him; and b any other former employee in the concern as if the community to which he belongs cannot be determined. 2 Where— a for the purpose of preparing a monitoring return the employer in a registered concern treated an employee in that concern as belonging to a particular community (“the relevant community”); b that information is contained in the return when it was served under Article 52(1); and c the employer is required to include in the next monitoring return information about the same person as a former employee, then the employer shall, for that purpose, treat the former employee as belonging to the relevant community. 3 Where— a for the purpose of preparing a monitoring return the employer in a registered concern treated an applicant for employment in that concern as belonging to a particular community (“the relevant community”); b the employer is required to include in a subsequent return information about the same person as a former employee; and c paragraph (2) does not apply in the case of that former employee, then the employer shall, for that purpose, treat the former employee as belonging to the relevant community. Residuary methods of making a determination 11 1 Where an employee in a registered concern who, but for this paragraph, would fall within regulation 8(1)(b) has provided his employer, in writing, with any relevant information about himself then, notwithstanding that sub-paragraph, the employer may for the purposes of preparing a monitoring return in relation to that concern— a treat that employee as belonging to the community with which the information shows that he has a connection; and b if the information tends to show that he has a connection with both communities, treat him as belonging to the community with which, in general, it tends to show he has the stronger connection. 2 Where an applicant for employment in a registered concern who, but for this paragraph, would fall within regulation 9(b) has provided his employer, in writing, with any relevant information about himself then, notwithstanding that paragraph, the employer may for the purposes of preparing a monitoring return in relation to that concern— a treat the applicant as belonging to the community with which the information shows he has a connection; and b if the information tends to show that he has a connection with both communities, treat him as belonging to the community with which, in general, it tends to show he has the stronger connection. 3 For the purposes of this regulation, the following is relevant information about a person, that is to say— a his surname and other names; b his address; c the schools attended by him (whether in Northern Ireland or elsewhere); d any course that he has undertaken in preparation for any recognized award or any examination conducted by the Department of Education under Article 110 of the Education and Libraries (Northern Ireland) Order 1986 ; e his sporting or other leisure pursuits or interests; f the clubs, societies or other organisations to which he belongs; g the occupation as a clergyman or minister of a particular religious denomination or as a teacher in any particular school, of any referee nominated by him when he applied for his employment. 4 Schedule 3 shall have effect for the purposes of this regulation. Disclosure to employees 12 1 An employer shall, not less than two weeks before serving a monitoring return on the Commission, give to each employee to whom this regulation applies a notice in writing which discloses to the employee— a the community to which he is to be treated as belonging for the purposes of that return; or b that he is to be treated as if that community cannot be determined for those purposes, as the case may be. 2 This regulation applies to any employee who, for the purposes of the monitoring return concerned, was treated— a as belonging to a particular community under regulation 8(1)(a); or b under regulation 8(1)(b) as if the community to which he belongs cannot be determined. Correcting inaccuracies 13 1 Where it appears to an employee in a registered concern to whom a notice has been given under regulation 12(1) that, from the terms of that notice, the employer in the concern has incorrectly treated the employee under regulation 8(1)— a as belonging to a particular community; or b as if the community to which he belongs cannot be determined, for the purposes of any monitoring return, the employee may, within seven days of the date of that notice, inform the employer of the fact. 2 Where an employer has been given information under paragraph (1) and from that information it appears to the employer that he has incorrectly treated the employee under regulation 8(1)— a as belonging to a particular community; or b as if the community to which he belongs cannot be determined, for the purposes of any monitoring return, the employer shall, for the purposes of preparing that return, treat the employee in the way he would have treated him if he had treated the employee correctly under that paragraph. 3 Under this regulation a reference to the way in which an employee was treated for the purposes of any monitoring return under regulation 8(1) includes a reference to such treatment by the methods prescribed in that regulation as applied in compliance with any direction given under regulation 14. Directions by the Commission 14 Where the Commission directs the employer of a registered concern to apply the methods prescribed by regulation 8(1) or 11(1) for making a determination in the case of an employee in a manner different from that authorized or required by those regulations, then so long as the direction remains in force— a the employer shall comply with it; and b in the case of any employee to whom the direction relates— i regulation 8(2) shall not have effect; and ii regulations 8(1) and 11(1) shall have effect subject to the direction, for the purposes of preparing any monitoring return. Interpretation of Part II 15 In this Part— a any reference to an employee in a registered concern, in relation to any monitoring return prepared in respect of that concern, shall be construed as a reference to a person who was employed in that concern on the date to which the prescribed information in that return about employees must relate by virtue of regulation 6(1); b any reference to an appointee in a registered concern, in relation to any monitoring return prepared in respect of that concern, shall be construed as a reference to an employee in the concern who filled a vacancy for employment in the period to which the prescribed information in that return about employees must relate by virtue of regulation 6(2); c any reference to a promotee in a registered concern, in relation to any monitoring return prepared in respect of that concern, shall be construed as a reference to an employee who was promoted within that concern in the period to which the prescribed information in that return about employees must relate by virtue of regulation 6(2); d any reference to an applicant for employment in a registered concern, in relation to any monitoring return prepared in respect of that concern, shall be construed as a reference to a person who applied to fill a vacancy for employment in that concern in the period to which the prescribed information in that return about such applicants must relate by virtue of regualtion 6(3); e any reference to a former employee in a registered concern to which Article 52(3) or (4) applies, in relation to any monitoring return prepared in respect of that concern, shall be construed as a reference to a person who ceased to be employed in that concern in the period to which the prescribed information in that return about such persons must relate by virtue of regulation 6(4). PART III OBTAINING AND RETAINING MONITORING INFORMATION AND OFFENCES Confidentiality of monitoring information 16 1 This regulation applies to— a information about an employee in a registered concern which is obtained in response to a question asked in pursuance of paragraph 2 of Part I of Schedule 2; b information about an applicant for employment in a registered concern which is obtained in response to a question asked in pursuance of paragraph 5 of Part II of Schedule 2; c the determination by an employer of the community to which any employee or applicant for employment or former employee in a registered concern is to be treated as belonging for the purposes of monitoring; and d information obtained in pursuance of regulation 18(1). 2 Any person who discloses information which— a he holds or has held in his capacity as a person who is employed in a registered concern or as the employer; and b is information to which this regulation applies or has applied, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale. 3 Nothing in this regulation applies to the disclosure of information— a to the Commission or the Labour Relations Agency; or b to any person— i who is employed in the registered concern in question; ii whose services have been made available for the purposes of the concern; or iii is an official of a trade union, members of which are employed in the concern, if the nature of his duties renders it reasonable for the disclosure to be made to him; or c for the purposes 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; or d to the person to whom it relates, whether under regulation 12 or otherwise; or e where an employee or applicant for employment or former employee to whom the information relates has given his consent in writing to the disclosure. 4 In paragraph (3)(b) “official” has the same meaning as in the Trade Union and Labour Relations (Northern Ireland) Order 1995 and “trade union” has the same meaning as in the Industrial Relations (Northern Ireland) Order 1992 . 5 It is a defence for a person charged with an offence under paragraph (2) to show that before the disclosure in question was made he had also obtained the information otherwise than in his capacity as an employee in the concern of the employer. Records about employees and offences in respect of those records 17 1 An employer in a registered concern shall retain— a written information obtained by him (whether in pursuance of these Regulations or otherwise) about an employee in the concern which might be used if any of the methods prescribed by these Regulations for making a determnation were applied to that person; and b a record of the determination made by him in respect of any such person, until the expiration of three years from the date on which the person to whom the information or determination relates ceases to be employed in the concern. 2 Any person who, without reasonable excuse, fails to comply with the requirements of this regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. Information about applicants and offences in respect of that information 18 1 An employer in a registered concern shall, for the purposes of Article 54(1), seek to obtain from each applicant for employment in the concern, his surname and other names and his address. 2 An employer in a registered concern shall retain— a any information— i which he has obtained in pursuance of paragraph (1); or ii which he used in applying any of the methods prescribed by these Regulations for making a determination in the case of any applicant for employment in the concern; and b a record of the determination made by him in respect of any such person as is mentioned in sub-paragraph (a)(ii), until the expiration of three years from the date of the application of the person to whom the information or determination relates. 3 Any person who without reasonable excuse fails to comply with paragraph (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. 4 Any person who— a knowingly gives false information to another who is seeking to obtain information in pursuance of paragraph (1); or b knowingly includes any false information in any records kept in pursuance of paragraph (2)(a), shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. Offence of employer serving a return not in accordance with Regulations 19 An employer who, without reasonable excuse, serves on the Commission a monitoring return which is not prepared in accordance with these Regulations or does not contain the prescribed information shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £10,000. Offence of giving and including in returns false information 20 If a person— a knowingly gives any false information to another who, with a view to including any information on a monitoring return to be served on the Commission, is seeking information; or b without reasonable excuse, knowingly includes any false information in such a monitoring return, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. Interpretation of Part III 21 In this Part— a any reference to an applicant for employment in relation to any registered concern means a person who applied to fill a vacancy for employment in that concern whether or not that person is already an employee in that concern; and b any reference to a former employee in relation to any registered concern means a person who has ceased to be employed in that concern. Sealed with the Official Seal of the Department of Economic Development on 25th March 1999. G. I. O'Doherty Assistant Secretary