Examination of Witnesses (Questions 60
WEDNESDAY 16 DECEMBER 1998
60. Good afternoon, Mrs Stewart, and welcome
to our Committee. You mention, in your written evidence, that
there are costs associated with the implementation of the legislation.
Could you provide the Committee with more information on these
(Mrs Stewart) I know that this was an issue that
came up when Mr Ingram appeared before you, actually, and I was
interested to see his answer. We have tried to do an exercise
on this and found this to be very, very difficult, in terms of
trying to put specific costs on it, because I noticed that actually
he was not able to do that precisely either. Although I am aware
that there has been a figure of half a million used, in terms
of the additional requirements under the new legislation, but,
to the best of my knowledge, I do not think that figurecertainly
I am not aware of anybody having done any detailed work on costs,
I suspect because it is so difficult to do. So I am afraid I cannot
be more specific on that.
61. And are you saying you have not made
any assessment then of the burden which is expected to arise from
the new Fair Employment and Treatment Order?
(Mrs Stewart) No, we have not done that.
Chairman: I should
perhaps say, so that we do not give any impression that we are
luring Mrs Stewart into an ambush, that Mr Ingram has not yet
written to us, in the way that he said he would, arising out of
the evidence he gave before.
62. Is your evidence then entirely based
on self-reporting by companies replying to your questionnaires,
or is there any more objective research available, as far as you
(Mrs Stewart) As far as we know, unless other
organisations, of which I am unaware, have done something more
recently, there is nothing. As I said, we did the two exercises,
in 1993 and 1995; the 1995 one in advance of the employment equality
review, which was just starting at that stage, and, as far as
I am aware, no, I do not believe there has been anything else
done, to the best of my knowledge there has not been anything
else done since then.
63. On the question of costs and benefits
of the legislation, how far do you consider that the benefits
outweigh the costs?
(Mrs Stewart) That is quite difficult, because,
although we have referred to the benefits of having objective
and, if you like, standard recruitment selection procedures, it
is obviously very hard to put a figure on that. I suppose the
way you could turn it round is that, by an employer, hopefully,
having such procedures, they will be making it less likely, not,
of course, fully protecting themselves but making it less likely,
that they will end up in a tribunal, or in a situation where they
have to appear before the Fair Employment Tribunal, where, of
course, the costs can be substantial. But, apart from that, it
is very difficult to put a cost on, or put a figure on, the benefits
of having good recruitment selection procedures, again.
64. Thank you. Finally, what evidence, if
any, do you have that the Fair Employment Commission has supported
frivolous cases being taken to the Fair Employment Tribunal?
(Mrs Stewart) We have no evidence that they have
done that. I understand that there is a procedure, an in-house
procedure, within the Commission, whereby they decide which cases
they will support, and that goes through their internal procedures.
And I suspect that, obviously, because their own funding is not
unlimited, they have to make a decision on the basis of their
own agenda, if I can put it that way, in terms of which cases
they support. But we have no specific evidence of them supporting
65. Good afternoon, Mrs Stewart. Could you
tell us, first of all, just so that we can get a bit of a handle
on this, in terms of the number of businesses that would be registered
with the Fair Employment Commission, and we see their reports,
which give us some analysis of the monitoring returns, what percentages
of those businesses would be CBI businesses?
(Mrs Stewart) We have 300 companies in direct
membership, but then, as I said, there are a substantial number
of other companies who are members, if you like, at a remove,
through the trade associations which I mentioned. I could not
be more precise, in terms of that analysis, because that analysis
has not been done. We could probably provide that, at a later
date, if that was an issue that you were particularly interested
66. I would be interested to see it, Mrs
Stewart, because I think it is a fairly small percentage, is it
(Mrs Stewart) As I said at the beginning, we did
actually do an exercise, not in terms of the people registered
with the Fair Employment Commission, that is true, but in response
to a question which was raised with ourselves a number of years
ago, in terms of our representative nature. We did do this analysis,
and that is where the figure of the 80,000 employees in the private
sector came from, which we would say is a fair proportion of those
in private sector employment in Northern Ireland. Obviously, I
know that the FEC registration applies to all those who employ
more than ten, and I think that is in the region of about 6,000
67. The reason I ask, Mrs Stewart, is that
I just cannot believe what you are telling me, because it is so
out of kilter with anything that I hear from the business community
in Northern Ireland. The business community in Northern Ireland
that I speak to do not have anything good to say about the Fair
Employment Commission, they indicate that it is costing them jobs.
In fact, only two weeks ago I came over in the plane with a businessman
who was so successful he was wanting to open up another plant,
and was going to put it in the North of England, for two reasons,
one was electricity costs and the other was fair employment. So,
effectively, the business community is telling me that it is costing
jobs in Northern Ireland, and you are telling me it is the greatest
thing since sliced pan?
(Mrs Stewart) We have never, I think, made light
of the fact that there are costs associated with the legislation,
we have said that, quite clearly, and there are things, even in
the new legislation, that we did not particularly want to see,
in terms of the increase in monitoring, because we accept that,
particularly for the smaller companies, there are costs involved.
But I think, on the other hand, the legislation is there, and,
realistically, employers have to work with it. And, from our membership,
what we are actually hearing in more recent years is not, interestingly
enough, so much about the problems associated with fair employment
but more, in fact, the problems associated with the equal opportunities
legislation, which, obviously, we do not want to get into here.
But I think that seems to be in terms of our contact with members,
and we make a specific effort to visit quite a large proportion
of our members every year, on a one-to-one basis, when we ask
about this issue, and we always do when we visit them, it tends
to be the subject, in terms of employment law, that is coming
up, rather than the fair employment side. That was the case, more
so, I think, perhaps, in the early nineties, in the first few
years of the legislation, but it seems not to be so much the case
now. So we can only speak as we find, and that, I think, is the
way we find the situation at the moment. Again, that could change,
possibly, in the future.
68. In reading your submission, I notice,
in paragraph 1.1, in singing the praises of this piece of legislation,
you are showing how great a success it has been, that in eight
years it has improved Catholic employment by 1 per cent, you think
that is a remarkable achievement, and it cannot actually even
be identified as being the legislation that has caused that increase?
(Mrs Stewart) In terms of you looking at the figures
as they were since 1990 and the figures as they are in the last
FEC Annual Report, I think actually the figures are slightly better
now, because, unfortunately, the latest report was not available
to us when we were putting this together. It seems like a small
increase. I think the other side of the issue is the unemployment
differential, but that is a completely different topic, and the
figures there do look quite different. But we have been quite
careful to differentiate between the ability of the legislation
to impact on that unemployment differential, rather than those
in employment, and we have actually made the point, in this submission,
that there are other supplyside issues, if I can call them
that, in terms of skills, and so on, which also impact on the
69. Can I ask you about your own personal
position. Have you ever been hands-on, in terms of dealing with
fair employment issues and the monitoring and returns, and so
forth? How close do you get to that?
(Mrs Stewart) In terms of my current post, and
in terms of the nature of how
70. As the Chairman would say, there is
no edge to this question, it is not a trick question in any way?
(Mrs Stewart) No, we do not; we are primarily
a lobbying organisation, so we tend to work, if you like, at the
macro level, we do not tend to get down into very specific situations,
in terms of individual companies. Certainly for member companies,
we will try our best to assist them; quite often, that consists
of signposting them to others, just because of our resource situation.
But, actually, in terms of my previous employment, I actually
worked for the Fair Employment Agency, as it then was, for five
71. That is interesting. Would that have
coloured your view, do you think, on your great welcome for the
fair employment legislation; it would not have had any impact?
(Mrs Stewart) No; because when I came into CBI,
it was actually at the beginning of 1992, so the arguments, if
you like, about the legislation were over, and I think that the
situation then was that, to be quite frank, I was actually surprised
at the positive attitudes that I experienced among CBI members
at that time, because, as I explained earlier, I think once the
legislation came into place the feeling among employers was that
this was now law, so basically they had to work with it.
72. I may have been tempted to ask you if
you were in a position that I faced not so long ago, to win a
case against the Fair Employment Commission, who took up the case
of a particular person, it cost £40,000 to win the case,
do you think that an employer, who probably needs whatever profits
he can get out of his business, should be asked to carry that
kind of burden for cases that the Fair Employment Commission take
up, which you say you have no evidence that any of them might
(Mrs Stewart) This is an issue that we have addressed,
not in this particular submission, but we have addressed in the
past, and we have actually made the point, in terms of the situation,
in terms of costs, and so on, we were very strongly against legal
aid being extended to fair employment applicants, which, of course,
did not happen, but it was mooted, I think, by SACHR. But, certainly,
there is a penalty even for, if you like, the winners of the case,
but, of course, there are a relatively small number of cases which
actually go through to the tribunal stage. On the other hand,
of course, there are costs associated before they actually reach
the tribunal, and I think, again, in the past, we have urged that
there be a better use of the existing powers of the tribunal to
sift cases, because there are powers that the tribunal can use
before a case actually gets to a hearing.
73. If I make an allegation against the
Chairman, it ends up in court, if I cannot sustain that allegation
in the courts not only do I lose but I would have to pay the Chairman's
legal costs. Why should not the Fair Employment Commission be
paying the costs to employers who are able to rebut the allegations
that are made against them, when the Fair Employment Commission
have taken up the case on behalf of the person who has made the
(Mrs Stewart) That is a point that we have referred
to in the past, not in this particular submission, but the issue
of costs is one where we have actually supported that view.
74. Just one last question, and it might
actually be useful, the fact that you have been an employee of
the Fair Employment Commission's predecessor. It is fair, is it
not, to say that there are, effectively, two different roles for
the Commission; one of them is the monitoring role, the other
being taking actual cases against those it is alleged have discriminated?
If we were to wipe out the monitoring role and increase significantly
the penalties for those who do discriminate, do you think that
there would be any difference in the outcome, though clearly it
would reduce very considerably the cost to employers?
(Mrs Stewart) You are now looking at unlimited
awards anyway, in discrimination cases, and I think fair employment
awards always have been substantially bigger than, for example,
equal opportunity awards, I think you can see that when you look
back to the early nineties. So I think there always has been a
premium, if you like, if I can put it that way, in terms of the
awards made at the Fair Employment Tribunal. I think there are
two issues here. There is the issue that an employer can monitor
and have very good procedures, and so on; they may still find
themselves susceptible to an individual complaint, and, of course,
those with below ten employees, who are not actually having to
monitor, can still find themselves being susceptible to a complaint
anyway. So that really, I suppose, leaves it very much down to
the individual whether an individual proceeds with a complaint.
I suspect that the Government policy was that it was felt that
that was not an adequate deterrent, if you like, in terms of what
was required of employers. I would not be privy to that thinking,
but I suspect that was the idea behind introducing the monitoring
Chairman: As Mr Robinson
chose to make me an actor in his hypothetical case, I should perhaps
put on record, for the general interest of the Committee, that
I have only once been involved in a legal case of any sort; it
was, in fact, an industrial relations tribunal. My counsel was
the present Lord Chancellor, and his pupil, who was, in fact,
the present Prime Minister. Mr Robinson: Did you win?
Chairman: It was around
20 years ago. I dare say, they would be more expensive today than
they were on that occasion. But I am delighted to report that
we won the case.
Mr Beggs: Chairman,
can I just put in a little supplementary at this stage?
Chairman: Of course.
75. Mrs Stewart, is there any evidence,
or have you any record of the number of out of court settlements
that would be made to avoid the legal costs?
(Mrs Stewart) The FEC, in their Annual Report,
actually give an analysis of this. I have not seen the latest
Report. They do not actually give, unfortunately, the reasons
why it is only raw figures, if I can put it that way, but, certainly,
if my memory serves me right, the last figure I remember seeing
was that it was something in the region of ten times as many cases
settled as proceeded. But there is no analysis of why those cases
are settled; it may be because the applicant withdraws, or whatever.
Mr Robinson: Can I
just add a supplementary to the supplementary, Mr Chairman, just
to put on record that legal counsel's advice in the case that
I referred to was that "We will win this case but we advise
you to settle." We decided to fight the case as a deterrent
to others, but that is the advice that legal counsel are giving
in most cases, simply "Get it out of your hair, pay up front
and get rid of the problem."
76. Mrs Stewart, you are very welcome, and
you are, in particular, welcome because of your five years' experience
in the then Agency. I certainly welcome that experience being
put before this Committee. Two questions, if I may; one historical,
the other looking to the future. The first is about delays in
the Fair Employment Tribunal. Concerns have been expressed by
some that there is a backlog of cases, resulting in unacceptable
delays in the Fair Employment Tribunal. What hard evidence, if
any, do you have to support this concern; do you consider that
further resources should be provided to the Tribunal to reduce
(Mrs Stewart) The Tribunal office themselves would
accept that. I am actually a member of a group called the Industrial
Tribunals User Group, which meets about twice a year, and I actually
sit on the Employers Panel for industrial tribunals, not fair
employment tribunals, and I can say now, through that, that the
backlog, or the time to hearing for ordinary, I suppose we should
call them Employment Tribunal cases now, is getting to be about
six months, and actually the fair employment delay is two years;
that is an accepted fact, I do not think anybody would dispute
that in Northern Ireland. We have suggested various things, we
have suggested recruiting more full-time chairmen, there is a
difficulty in terms of that; there is also a difficulty in terms
of accommodation, to the extent that Longbridge House, which is
the main centre for tribunals, in Belfast, is actually being partitioned,
the rooms are actually being partitioned, to increase the number
of rooms that they have, because, obviously, there is no point
in having more time if there are no rooms to hear the tribunals
in. And then the other issue is, I think, the listing system.
From my personal experience, in employment tribunals, and, again,
this is back to the earlier points, I think, it is quite common
to be rung at four o'clock in the afternoon, before a tribunal,
where you have set aside a day, or whatever, to be told that the
tribunal has been settled, and therefore probably that is a lost
day, in the sense that it is a lost day to the panel members,
but it is also a lost day in terms of it is too late to get anything
else on for that day. So there are problems, I think, in terms
of those issues, which the tribunal people, if I can call them
that, are very well aware of. And we actually, in 1995, the CBI,
when there was a review of the industrial tribunal system, made
all these points, and I think what came out of that was that we
now have the employment dispute resolution legislation, which
has been passed; now we are waiting to see what the practical
effects of that will be. What I would also say is that, since
1995, we have had an increase in the jurisdiction of tribunals
as well, and, of course, now we have race relations and we have
disability cases as well; so the problem will probably get worse,
unless it is tackled.
77. In terms of listing, on this side of
the water, it is common to have what is called floating cases,
or reserve cases, in any given tribunal; in any given tribunal
there is one case listed with two others behind it, in case it
collapses. Is that not the case?
(Mrs Stewart) It is; but, even allowing for that,
the last case I was involved in there were three or four cases
listed, when we arrived in the morning, I think, two of them had
been settled, and there were two to go, so obviously, yes, that
is built into the system. But even apart from that, it still seems
to be just a practical problem, in terms of how you actually organise
these things and how you overcome the problems, if you like, of
these last-minute settlements.
78. In terms of ordinary Employment Tribunal
cases, and Fair Employment Tribunal cases, what would your best
guesstimate be as to the length of cases, how long do they normally
take, these things?
(Mrs Stewart) We were recently asked to nominate,
by the Department of Economic Development, four panel members
for both the Employment and the Fair Employment Tribunal, and
I think they, in their guidance literature, said that really anybody
putting themselves forward for a Fair Employment Tribunal had
to be in the situation that they would be able to deal with a
case lasting perhaps four or five consecutive days. Anecdotally,
a lot of them do last a lot longer, ten, 15 days.
79. When you say "they", there
are two; which lasts longer?
(Mrs Stewart) The Fair Employment ones.