Select Committee on Northern Ireland Affairs Minutes of Evidence


Examination of Witnesses (Questions 100 - 120)

WEDNESDAY 16 DECEMBER 1998

MRS DEIRDRE STEWART

  100.  So my presentation might have been a bit unfair to you. I would like to move on and ask something about Section 31 reviews, which you have mentioned once or twice in response to other Members. I understand that, whilst monitoring takes place annually, the full review takes place every three years. To what extent are employers currently consulting with trade unions when they are involved in reviews under Section 31?
  (Mrs Stewart)  The short answer to that is I do not know, because it is not something that we have collected any information on. There was an issue, in terms of the requirement to consult, which was put forward, as I am sure you are aware, in SACHR's Employment Equality Review document. Among our members there was opposition to that, in terms of that there was a statutory right, if you like, to be consulted on the Section 31 review. Again, because we do not tend to get down into the individual trade union issues on a company by company basis, I cannot give you any information in terms of how much consultation is going on, because, obviously, a lot of our members probably would not, maybe not a lot of our members but a number of our members would not have any recognised trade unions. But I cannot be any more specific than that.

  101.  You may not have experience of it, but are trade unions keen to get themselves involved in these types of areas and keen to have their own views on anti-discrimination in employment produced for employers, or have you got a bit of a feeling that they might be a bit reluctant to get involved in those areas?
  (Mrs Stewart)  I do not know whether there has been any union input into this process here. I am not sure where the idea, or the proposal for statutory consultation came from into SACHR, I presume it came from the union movement, I am not sure. So, on the basis of that alone, I suppose there must be some willingness to get involved in the process, but it is not something that either we have particularly asked about or that our members have given us any information on.

  102.  Again, from the replies you have given, it may be something that is a bit unfair to ask, because the information might not be there, but how would the CBI feel if a duty was placed upon employers for employees to be consulted in these areas, to consult with the trade unions?
  (Mrs Stewart)  We are on record as opposing that, we did oppose that, when that was put forward.

  103.  So on what grounds would you oppose it, being as you are indicating there is not all that much evidence that is held, centrally?
  (Mrs Stewart)  Because we actually went through the SACHR proposals, line by line, in a consultation, our response to them, and among our members that had some that obviously were working in the unionised environment. I think they felt that there was a legal issue in terms of the fact that the employers were actually responsible for their Section 31 reviews, they were responsible to the FEC for submitting them and for what was in them; that was one aspect. And also that it was probably, it could be not particularly productive, in terms of good industrial relations for this to be imposed on employers. So I think they were the two bases on which that opposition came.

Mr McCabe

  104.  Good afternoon, Mrs Stewart. Can we go back to the legislation for a second. I want really to ask about its effect, and really what I want to ask is, is there any evidence that this legislation has led to reverse discrimination; what I am really asking is, is there any evidence that it has improved or enhanced employment opportunities for Roman Catholics?
  (Mrs Stewart)  I think the evidence is in the figures, and it was said 1 per cent does not actually seem a great increase, but I think the proportions, if you like, are moving up so that the proportion of Catholics employed is closer to their proportion of the economically active population; there is still a difference but it is smaller than it was before the legislation was brought in. So on that basis I think we have to say, yes, it is improving. The other side, to which I referred earlier, is, of course, the unemployment differential, which is quite a different issue.

  105.  But in terms of employment, you think the changes are directly attributable to the full legislation?
  (Mrs Stewart)  I think they are largely attributable, because I would suspect a lot of the changes are due to improved procedures, our recruitment selection procedures, particularly, that you have a lot. And, again, when the Minister was here last week, I think there was some discussion in terms of how, when a company, particularly in a certain location, has an employment record which is either one way or the other, it is quite easy for that to be perpetuated, without perhaps any maybe great intent to perpetuate that, but if you carry on, where you have had the situation in the past, where perhaps relatives have got employment in a company, and obviously they are going to be of one religion, and that situation tends to be perpetuated. So when you change your procedures, when you adopt a lot more open advertisement, when you make specific efforts to attract underrepresented communities, that really should, all other things being equal, and maybe all other things are not equal, but all other things being equal, that should start to change the situation. The other side, of course, which we have also referred to, is that it is much easier in a situation where you have a buoyant employment situation and you have, well, not only new jobs but you have more of a turnover, it is much easier to change the figures, and I think, probably, we have had a sort of mixed picture over the Nineties, in terms of that. The other sort of thing, I think, in Northern Ireland, is that there tends to be quite a tendency for people to stay in jobs perhaps somewhat longer than elsewhere, so it is maybe slower to change than perhaps might be expected.

  106.  I was asking particularly if it had led to benefits for Roman Catholics, but I suppose I should also ask what about the other side of the coin, is there evidence that amongst large or predominantly Catholic employers it is opening the door for Protestant employees?
  (Mrs Stewart)  I think, in the specific investigations that the FEC have carried out, and you get down to the level of individual companies, I think you can see that there have been companies where that has been the case, and even though perhaps the change is slow because the recruitment perhaps is not that great, the turnover is not particularly great, or whatever, that when employers do change the way they go about recruiting and selecting people, yes, that change can work the other way too. I think there is some evidence of that on a company by company basis.

  107.  I wonder if I can turn now to the question of the Employment Appeals Tribunal, and you obviously have some fairly strong views on that, in the evidence that you have already submitted. I suppose the first thing I would really like to ask is that I think I am right in saying that you said previously that you think an Employment Appeals Tribunal would speed up the appeals process, and I just wondered why you think that should be the case?
  (Mrs Stewart)  Because at the moment, we are advised by our members who are involved in quite a lot of cases, that you actually have to go to the Court of Appeal at the moment on a point of law, which is quite a lengthy process. Obviously, the idea of the tribunal process, when it was initially set up, was that it would be a speedy and informal process, as I think we have discussed earlier; that has maybe not been so much the case now. But that is linked with all the other problems that we talked about before; but, ideally, a tribunal process should be speedy.

  108.  Right; so that would be your hope or expectation?
  (Mrs Stewart)  Yes.

  109.  Do you envisage that the Court of Appeal would not have any further role, if there was an Employment Appeals Tribunal, or would the Court of Appeal still be able to hear appeals from the tribunal?
  (Mrs Stewart)  I am not quite sure what way it works here, whether there is another bite of the cherry, if I can put it that way, in terms of an appeal from an Employment Appeal Tribunal here.

Mr Hesford

  110.  There is.
  (Mrs Stewart)  There is; well, I suppose, on the basis of consistency, we would want that as well.

Mr McCabe

  111.  On that basis, what would you say to the argument that, rather than speed it up, what you are actually doing is just inserting another tier, or level, of appeals, which would suggest it might take longer rather than be more speedy?
  (Mrs Stewart)  I think there is some evidence, in terms of the figures, I think there have been relatively few appeals to the Court of Appeal, and there may be various reasons for that. So therefore what we are left with is a lot of decisions at the moment basically from a court of first instance, a tribunal, so there are issues there in terms of the precedent value of those, and so on. I would have thought, in terms of the development of the law alone, it would be quite healthy to have perhaps a greater number of appeals to strengthen or develop the area of law that we have, because I think there has been an argument, I am not saying it is a CBI argument, but I have heard arguments that since 1990, and of course there were legal problems, as you know, at the beginning of the legislation, but we have had a volume of tribunals, FET decisions, most of them are just tribunal decisions, not a lot of appeals or development from them. So there is a danger that maybe these can be, if you like, extrapolated from too much, it might actually be quite healthy to have another layer in there, that people perhaps, employers, or even employees, indeed, felt more inclined to use.

  112.  Can I just ask about one last part of the earlier submissions you made about the appeals tribunal. I think I am right in saying that, at paragraph 4.4 of the memorandum, you say, in the last sentence, that there can be no appeal on the question of damages without the establishment of an appeals tribunal. Why do you say that?
  (Mrs Stewart)  Because that is our understanding of the position. The appeal to the Court of Appeal is on a point of law alone. There is a limited appeal, I think, in terms of penalties under the new Order, there is a limited appeal, I think, under Article 17, in terms of what penalties the tribunal can give, but that only relates to that, and our understanding is that there is no appeal on the quantum.

  113.  I have to say that that was not my understanding, I understood that the Court of Appeal could actually hear appeals on the quantum of damages at present, but are you saying that is not how you understand it?
  (Mrs Stewart)  That is not our understanding, no.

Mr McCabe:  I think, on that basis, Chairman, I will just have to leave it at that, but maybe we need to clarify that at some stage, but there certainly seems to be a different understanding there. I think I should leave it there. Thank you very much, Mrs Stewart.

Chairman

  114.  Mrs Stewart, as you have clearly taken the trouble to read the evidence that we took last week, you will recall that on that occasion also I delegated the task of opening the questions to others in the Committee and then did a sweep-up role at the end. I have done the same today, and I will complete the process. I am very conscious that we are now down to our minimum quorum, and therefore, out of courtesy to my colleagues, I shall be extremely brisk, and I shall invite you to be brisk, too, but there are questions I do want to ask. First, I want to revert to the answers you gave to Mr Robinson, who was following a particular line of questioning, perhaps at a slightly more academic level, a more general and academic level than Mr Robinson was pursuing. What evidence, if any, do you have that the fair employment legislation restricts employers' ability to meet labour demands efficiently?
  (Mrs Stewart)  This is something, again, that we asked about when we carried out those earlier surveys, which we referred to in the memorandum. I think the evidence we were getting there was that, because of the good procedures that are required under the Code of Practice, and so on, if, for example, an employer is in the situation where they need people perhaps very quickly, because of an increased demand for production, or whatever, it can be difficult to fulfil that. Now I know there are ways around that, you can build up a bank, or whatever, but unless you are in a situation where you can predict that, which sometimes is not always so predictable, and an employer actually is in a situation where he would need a lot of extra people very quickly, that can, following the procedures, inhibit their ability to do that. So that would be the one that most immediately springs to mind. The other side of it, which is the redundancy side, I think, is a separate issue, because there are specific protections, as you know, for redundancies, following on from the experience of Shorts, for example, who had that particular problem, in terms of last in, first out, and so on. So I think just in terms of the fact that the recruitment process can be quite a lengthy process, that can inhibit flexibility.

  115.  It is another side of the same coin. Have the duties on employers, imposed under the fair employment legislation, affected job creation either positively or negatively?
  (Mrs Stewart)  There would be a level of anecdotal evidence, which Mr Robinson referred to earlier, in terms of employers perhaps being somewhat reluctant to go above the ten threshold, because of the fact that that brings them into the monitoring net, and so on. There has been some anecdotal evidence of that. I cannot say any more than that: it is something that has been said to me in terms of a specific company. How great that is, I cannot say.

  116.  This is a slightly different question. Are you surprised, in the light of the concern about the combined investigation/advice functions, that the private sector has not established a private advice-giving body, rather than a Government body?
  (Mrs Stewart)  I suppose that the private sector would use bodies such as the Labour Relations Agency for general advice, and certainly we would, again, as I was saying earlier, signpost quite a lot of people to the Labour Relations Agency, because they do a lot of work in terms of helping companies set up procedures, and so on. And, indeed, particularly over the last few years, companies moving into Northern Ireland from, for example, the Republic of Ireland, where they have a somewhat different structure of labour law, and we would get queries on that. I suppose the other sort of aspect is that companies would want specific advice; there would be solicitors who would be quite well experienced in specific employment law areas, and I suspect they are, and would be, recognised as such, and they would be being used by the private sector.

  117.  I am now reverting to the questions which Mr McCabe asked you. Do you consider that the changes in Catholic participation are as a result of unlawful, reverse discrimination?
  (Mrs Stewart)  We have no evidence of that.

  118.  Finally, and I say this as an encouragement to my colleagues, as well as to you, on the conciliation of individual complaints, regarding conciliation of individual complaints of discrimination, could you expand on the reasons why you consider the existing procedure is unsatisfactory, and what would you want to put in its place?
  (Mrs Stewart)  I think we are on record as seeing an increased role for the Labour Relations Agency, or perhaps a stronger role for conciliation generally. I think this point has maybe been partly answered by the employment resolution legislation, but we will have to see what the practical effects of that are, and I see that we, in the new Order, do have the arbitration schemes which the LRA can set up, and that that is maybe somewhat different. I think our view was that perhaps there had not been enough emphasis put on the possibilities for conciliation under the legislation, that it seemed to be perhaps maybe a bit of an afterthought, if I can put it that way. The LRA have a remit, which I accept, but sometimes we hear, again anecdotally, that perhaps they are not always used as much as they might be. So it would be a question of how best they could fulfil that function, and whether that has to be done through legislation or not we are not quite sure. But I just think, in terms of sort of problems that we were talking about earlier on, in terms of cases and the very substantial costs that could be incurred, and so on, it would only seem sensible that if there is a way of stopping cases reaching that stage that it must be sensible to foresee that.

  119.  Should I infer, from your last answer, that the LRA themselves regard themselves as a suitable body?
  (Mrs Stewart)  I could not say that. We have talked in sort of general terms to the Labour Relations Agency about this. I think, when the legislation came in, because it was something they had never been involved in themselves, they had a particular sort of process to go through as well, in terms of getting involved in an area that really they, because, as you know, before the legislation, the 1989 Act, complaints, and so on, were handled in a different way, so they had to get themselves accustomed to being involved in an area that they had not been involved in before. In terms of how they would see themselves, I think they quite welcome the arbitration side role that they are being given, under the employment dispute resolution legislation, but, in terms of the conciliation, I am not aware of what their view is, specifically.

  120.  We have set you a fairly comprehensive examination this afternoon, and thank you very much indeed for the way you have responded to it. Is there any question which you are surprised we have not asked you?
  (Mrs Stewart)  We did try to do some second-guessing, but I think most of them have actually come up, in one shape or form, perhaps not in the order that I would have expected, but I think you have actually taken in most of what we would have expected; so, no, I do not think so, thanks.

Chairman:  Thank you very much indeed for coming and giving us evidence, and I think the least I can do, at this moment in the proceedings, is to wish not only you but also my colleagues a very happy Christmas.


 
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