Examination of Witnesses (Questions 100
WEDNESDAY 16 DECEMBER 1998
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
(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.
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
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
(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.
110. There is.
(Mrs Stewart) There is; well, I suppose, on the
basis of consistency, we would want that as well.
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.
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
(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.