UK Offence Report

Employment agencies, careers guidance etc

regulation 20(5) of Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

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 commits an offence, and shall be liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
making a false or misleading statement
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (knowingly, knowingly or recklessly, recklessly).

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly, recklessly, knowingly or recklessly.

What would breach regulation 20(5)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person knowingly or recklessly makes a statement such as is referred to in paragraph (4)(a) which in a material respect is false or misleading.
  2. Entering a figure on a form or return that is known to be wrong under the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003.
  3. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  4. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
1 December 2003
In force from
2 December 2003
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations.) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which are made under section 2(2) of the European Communities Act 1972 (c. 68), implement (in Northern Ireland) Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment (O.J. No. L303, 2.12.2000, p. 16) so far as it relates to discrimination on grounds of sexual orientation. The Regulations make it unlawful to discriminate on grounds of sexual orientation in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation and harassment. Sexual orientation is defined in regulation 2 as meaning a sexual orientation towards persons of the same sex, persons of the opposite sex, or to both persons of the same sex and of the opposite sex. Direct discrimination, defined in regulation 3(1)(a), occurs where a person is treated less favourably than another on grounds of sexual orientation. Indirect discrimination, defined in regulation 3(1)(b), occurs where a provision, criterion or practice, which is applied generally, puts persons of a particular sexual orientation at a disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim. Victimisation, defined in regulation 4, occurs where a person receives less favourable treatment than others by reason of the fact that he has brought (or given evidence in) proceedings, made an allegation or otherwise done anything under or by reference to the Regulations. Harassment, defined in regulation 5, occurs where a person is subjected to unwanted conduct on grounds of sexual orientation with the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Regulations 6 to 23 prohibit discrimination, victimisation and harassment in the fields of employment and vocational training. In particular, they protect employees (regulation 6), contract workers (regulation 9), office-holders (including constables) (regulations 12, 13 and 14), and partners in firms (regulation 16). They not only prohibit discrimination etc by employers, but also by trustees and managers of occupational pension schemes (regulation 11 and Schedule 1), trade organisations (regulation 17), bodies conferring professional and trade qualifications (regulation 18), training providers (regulation 19), employment agencies (regulation 20), and further and higher education institutions (regulation 22). By virtue of regulation 23, discrimination, victimisation or harassment occurring after the relevant relationship has ended is unlawful if it arises out of, and is closely connected to, the relationship. The Regulations also apply to Crown servants (regulation 43). Regulation 42 and Schedule 4 address the validity of discriminatory terms in contracts and collective agreements. Not all differences of treatment on grounds of sexual orientation are unlawful. There are exceptions in regulations 26 to 29 for differences of treatment related to safeguarding national security or protecting public order or public safety, to benefits which are dependent on marital status, and positive action. Regulation 8 provides an exception where being of a particular sexual orientation is a genuine and determining occupational requirement for a post, if it is proportionate to apply the requirement in the particular case. Regulation 8 also provides an exception for employment for purposes of an organised religion, where a requirement related to sexual orientation is applied so as to comply with the doctrines of the religion or to avoid conflicting with the religious convictions of its followers. Regulations 30 to 32 confer powers and duties on the Equality Commission for Northern Ireland in relation to the ground of sexual orientation. Regulation 30 confers a general duty of working towards the elimination of discrimination, promoting equality of opportunity between persons of differing sexual orientations and keeping the Regulations under review. Regulation 31 permits the Commission to undertake research or educational activities, and Regulation 32 permits it to issue codes of practice in the field of employment. Regulations 33 to 41 provide remedies for individuals, including compensation, by way of proceedings in industrial tribunals and in the county courts. There are special provisions about the burden of proof in those cases in regulations 35 and 38, which transfer the burden to a respondent to a case once a complainant has established facts from which a court or tribunal could conclude, in the absence of an adequate explanation, that an act of discrimination or harassment has been committed by the respondent. Regulation 39 and Schedules 2 and 3 include a questionnaire procedure to assist complainants in obtaining information from respondents, and regulation 40 enables the Commission at its discretion to assist individuals in the preparation and presentation of their complaints under the Regulations where there is some special reason for affording assistance. A Regulatory Impact Assessment in relation to these Regulations has been placed in the Library of the Northern Ireland Assembly. A copy may be obtained from: Anti Discrimination Division, Office of the First Minister and deputy First Minister, Room E3.18, Castle Buildings, Stormont, Belfast BT4 3SR.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person “commits an offence”; the provision states liability on summary conviction; the provision states a penalty in older drafting
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source