Memorandum from the CBI Northern Ireland
INTRODUCTION
The Northern Ireland Affairs Committee has agreed
to examine the operation of the Fair Employment (Northern Ireland)
Act 1989, with a view to reporting in time for the Act's tenth
anniversary next year. The Committee has asked for the CBI Northern
Ireland's views on the extent to which the Act has succeeded in
it's objectives, the difficulties which have arisen in implementing
its provisions and the need for any reform of the Act in the light
of the experience of the past ten years. Views on the abolition
of the Fair Employment Commission and it's replacement with the
new Equality Commission have also been sought. The Committee will
be taking oral evidence in November, but in the meantime have
asked for a memorandum setting out CBI views on the matters within
the scope of the enquiry to be submitted by 1 October.
1. EXTENT TO
WHICH THE
ACT HAS
SUCCEEDED IN
ITS OBJECTIVES
1.1 CBI Northern Ireland believes that the current
fair employment legislation is working. It is comprehensive, fully
implemented and vigorously enforced. We believe that there are
encouraging signs that progress towards equality of opportunity
and fair participation is being achieved. The Fair Employment
Commision's (FEC) Annual Report for 1996-1997 states that Catholic
employment in the sectors monitored since 1990 has shown an overall
improvement of about 3.2 per cent. Since there has been an increase
of about 2 per cent in the proportion of Catholics in the labour
force during the same period, this means that the relative position
of Catholics in employment has improved by approximately 1 per
cent.
2. DIFFICULTIES WHICH
HAVE ARISEN
IN IMPLEMENTING
THE PROVISIONS
OF THE
FAIR EMPLOYMENT
LEGISLATION
2.1 There are costs associated with the implementation
of the legislation, and it does impact on the flexibility of the
labour market. However, the introduction of the 1989 Act led to
a welcome improvement in many companies' recruitment and selection
procedures, resulting in the best person being recruited or selected.
This should have a significant positive impact on the long-term
development of the local economy.
2.2 In 1993, CBI Northern Ireland circulated
a selection of 100 of its local member companies with a questionnaire
on how the FEC was implementing the fair employment legislation.
2.2 Some of the key points to emerge at that
time included:
(i) Most employers' experience was that the
FEC was unwilling to provide definitive written advice, or would
only do so when pressed. Written advice given tended to be in
the form of general guidance only. The conflicting role of the
Commission in terms of giving advice and information on the one
hand and supporting complaints on the other was identified as
a problem.
(ii) Legal costs quoted for cases not pursued,
either because the complainant dropped the complaint or, occasionally,
the FEC withdrew, were substantial. A two-year time lag between
the initiation of a complaint and it being heard by the Fair Employment
Tribunal seemed to be the average.
(iii) The costs involved in the provision
of information in relation to a complaint ranged from £300
to £500 up to £1,000 per complaint, because of the amount
of staff time involved.
(iv) The section 31 review was by far the
most costly and time-consuming exercise which had to be undertaken
by all companies. Figures such as £7,500 and £10,000
each time the review had to be completed were quoted. Time spent
ranged from three to four days to 14 man weeks for one of the
larger companies. Total costs per year ranged from one week's
salary for each staff member involved in monitoring for a smaller
employer to £30,000 per annum, plus overheads, for one of
the largest.
2.3 CBI Northern Ireland, in conjunction with
the Institute of Directors, the Construction Employers' Federation,
the Engineering Employers' Federation, the NI Textiles and Apparel
Association and the Software Industry Federation, commissioned
Coopers & Lybrand to carry out a survey of the members of
each organisation (allowing for overlapping membership covering
at least 500 companies) during November 1995. The survey covered
a number of issues relating to the fair employment legislation
in general, and the operation of the Fair Employment Commission
and the Fair Employment Tribunal in particular.
Some key findings included:
(i) Companies were still experiencing difficulties
in completing their section 31 review, and over half of those
who responded had not received any formal comments from the FEC
on it.
(ii) The FEC took more than a year to respond
to some 40 per cent of the companies who did receive a reply to
the section 31 review.
(iii) A majority of companies said that the
introduction of the fair employment legislation had had an impact
on their costs, with the extent of costs directly related to the
size of the company.
Apart from the surveys referred to above, another
area of difficulty highlighted by members is when the FEC insist
on a company advertising, even when it is reducing its numbers.
3. NEED FOR
REFORM OF
THE ACT
3.1 As early as the 1993 survey referred to
above, CBI Northern Ireland highlighted the need for the advice
and information function and the handling of individual complaints
to be properly separated, thus avoiding the conflict of interest
between these different departments in the FEC. Preferably, the
provision of information and advice should be handled by a separate
body, with the Labour Relations Agency (LRA) having been suggested.
However, the recommendation for a single Equality Commission (see
below) will transform the current situation, hopefully for the
better. CBI Northern Ireland recommended this in its initial submission
to SACHR on the employment equality review. CBI also recommended
at this stage an enhanced conciliation role for the LRA.
In its recent response to the "Partnership
for Equality" White Paper, CBI Northern Ireland proposed
that the LRA should establish a structure for conciliation, if
this is built in to procedures, while questioning the present
ability and resources of the Agency to handle such work. However,
CBI regards this as an important area in which progress needs
to be seen, and urged the Government to ensure that some less
burdensome procedures are developed as a matter of urgency, in
the interests of both employers and employees. Nationally, CBI
has supported the aims and objectives of the new Employment (Dispute
Resolution) Act, which will provide increased arbitration and
conciliation roles for ACAS, and could thus provide a useful model
to follow.
3.2 A further recommendation by CBI was that
the FEC should have a set of performance standards to which it
should adhere, and the continuing need for such standards cannot
be over-emphasised, particularly in the light of such developments
as the Citizens' Charter in recent years. These standards would
set out realistic timetables in relation to the conduct of individual
complaints of religious discrimination, section 11 investigations,
etc. The FEC should have targets, expressed as percentages, which
they should be making every effort to achieve, (eg, 95 per cent
of written enquiries to be responded to within two weeks). There
should also be guidelines available for employers in relation
to the documentation which may be asked for as part of the disclosure
procedure in individual complaints cases.
3.3 SACHR's recommendation that there should
be a Charter of Rights for Complainants and Employers, which was
"commended" by the Government to the FEC in the Partnership
for Equality White Paper, could address some of the posts made
in 3.2 above. The White Paper also states that "This [Charter]
could provide clarification of the Commission's dual role in enforcing
the Fair Employment legislation and advising employers".
4. REPLACEMENT OF
THE FAIR
EMPLOYMENT COMMISSION
WITH THE
EQUALITY COMMISSION
4.1 CBI is on record as supporting the concept
of a single organisation with responsibility for enforcing all
employment equality legislation from the time of its response
to the Employment Equality Review in 1996. In our response to
the Partnership for Equality White Paper, CBI reiterated the need
for a clear distinction between advice/education functions and
the handling of complaints. The 1995 joint survey referred to
above showed overwhelming support for the development of a single
organisation which could handle all aspects of equality. CBI also
considers that consolidation and clarification of all the relevant
legislation should be the long-term goal, as without this, there
could be some difficulties in relation to a single Commission.
The aspiration should be that a single call from an employer,
or indeed an employee, should be sufficient to get answers to
all queries on sex, religion, disability, age etc. discrimination.
4.2 The incorporation of the European Convention
on Human Rights into UK domestic law may herald in a few years'
time the need for a Human Rights Commission for Great Britain.
CBI could envisage such an institution with an overarching human
rights remit with specialist functions on race, gender and disability,
with integration of related services and funding.
4.3 It should also be remembered that the Amsterdam
Treaty gives competence in the broad brush of equality issues,
and it may well be that this will be tackled over time by a wide-ranging
Directive covering all the issues e.g, race, disability, sexual
orientation, political opinion. Such a development could only
reinforce the need for the UK to have an equality institution
functioning at the constitutional level to oversee human rights
and equality laws.
4.4 CBI Northern Ireland disagrees with SACHR
and the Government in their view that there is no need for an
Employment Appeals Tribunal (EAT) in Northern Ireland. Having
an EAT would speed up the appeals process, while being cheaper
for the employer and the claimant. The need for an EAT will become
more pressing in the medium-term as further anti-discrimination
legislation is introduced, along with the increasing complexities
of the EU interpretation of Equal Treatment and related Directives,
such as on part-time working, working time and contract work.
There is also the possibility of all-embracing anti-discrimination
measures emanating from the Amsterdam Treaty. CBI questions the
legitimacy of Northern Ireland remaining excluded from an EAT
process which is available in Scotland, Wales and England, which
seems to go against the move towards a common system of labour
legislation for the UK as a whole, and discriminates against employers
in Northern Ireland. Finally, the Government's White Paper "Fairness
at Work" proposes a number of measures which increase the
requirement for an EAT, eg, new parental leave rights and
the removal of limits on compensation for unfair dismissal. With
respect to the latter, under the current system—Northern
Ireland employers will be left with no system of appeal against
the quantum of damages awarded, only an appeal on points of law,
which surely cannot be equitable.
5. CONCLUSION
5.1 CBI Northern Ireland believes that there
is encouraging evidence that the legislation is helping to achieve
equality of opportunity and fair participation. However, other
important factors in accelerating fair participation include the
rate of employment creation, improvement in qualification levels
of Roman Catholics, tackling the skills gap, particularly in relation
to the unemployed, efficient job search and the benefits barrier,
all of which could be termed "supply side" measures,
and cannot be dealt with by fair employment legislation.
28 September 1998
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