Memorandum from the Institute of Directors
(Northern Ireland Division)
1. The Institute endorses fully the principles
of equality of opportunity in all aspects of employment and public
life in general.
2. It also accepts in principle that it is necessary
to ensure, and to demonstrate, that the economic and social benefits
of living in Northern Ireland are fairly distributed on the basis
of merit and that disadvantage does not bear disproportionately
on one section of the community more than another.
3. In particular the Institute accepts in principle
that no one should be disadvantaged in the pursuit of employment,
job training or career progression on account of their religious
beliefs or political opinions.
4. The Institute, therefore, supports the fair
employment legislation, including monitoring and the inherent
concept of "affirmative action"; encouraging its members
to do so and to observe the requirements of the legislation and
to follow the guidelines on employment practice which have been
produced under the Acts. The Institute welcomes such progress
in ensuring fair outcomes as the legislation has evidently brought
5. Nonetheless the operation of the legislation
has been burdensome to employers and is anomalous in a number
of respects. For example:
(a) The interpretation of the legislation,
in broad and somewhat flexible terms, has brought about effects,
and brought within its scope areas of activity, which we suspect
were not envisaged when the legislation was enacted.
(b) An apparently tolerant approach by industrial
tribunals and the courts has encouraged excessive litigation and
a tendency to use the legislation to pursue grievances which have
little or nothing to do with the purposes it was designed to serve.
(c) Partly for that reason Industrial Tribunals
have been heavily overloaded. There have often been long backlogs
of cases and extensive delays. Thus complaints are not dealt with
expeditiously as was originally intended and grievances are left
unresolved, continuing to fester in the workplace.
(d) What was intended to be a system through
which redress could be secured through a relatively straight forward
process comprehensible to and usable by the layman has become
a "legal mine-field" requiring the employment of lawyers.
Process is not only time consuming but expensive.
(c) Employers have little effective means
through which they can recover the costs (in time and money) of
complaints not seriously founded on the legislation.
(f) The requirements of the employment guidelines
(e.g., the implied discouragement of "head hunting"
and "cold calling"), restrict, to a degree, employers'
ability to meet their labour demands efficiently effectively and
quickly. They can also impede people taking the initiative to
find work or better jobs.
(g) For some employers, monitoring and the
publication of results can be intimidating and conducive not so
much to affirmative action as to reverse discrimination. The line
between the latter two concepts is a thin one and the difference
is not always clearly understood.
(h) From an employer's point of view, the
role of the Fair Employment Commission seems to concentrate on
policing legislation rather than providing support, encouragement
and advice to companies. For this reason, the Commission is often
regarded with trepidation rather than as an ally in creating a
more efficient organisation with transparent equality of opportunity.
(i) The potential for the FEC to take on
an arbitration and negotiation role has not been exploited. The
Institute would recommend that greater emphasis is placed on this
role. This type of approach has been successful in creating more
harmony in the workplace in respect of industrial relations.
(j) Frivolous cases are often taken because
claims are supported by the agencies. Such actions should be deterred
by ensuring that the risk is placed on the claimant and not the
6. Up to a point we would agree that such difficulties
must be accepted as the inevitable consequence of a determined
approach to fair employment and as part of the price of social
progress and of the political stability on which employers depend.
7. We fear however that the difficulties will
be increased in consequence of the strong focus (e.g., through
the recent White Paper) which now exists on equality of opportunity
in an ever widening field and on Human Rights in general. It is
difficult for employees to make their case at times when they
risk being seen as not "politically correct".
8. However, if real progress is to be made in
Northern Ireland, adequate regard must also be given to allowing
employers to run competitive wealth-creating businesses which
can sustain the local economy, rather than creating administrative
and regulatory burdens which impede such activity.
9. We hope therefore that any review of the
legislation will take our concerns into account and that a serious
effort will be made to reduce, if not to eliminate, the kinds
of anomalies to which we have referred, whilst in no way limiting
the effectiveness of the legislation in achieving the objectives
at which it is aimed.
10. The Institute has long supported the concept
of a "one-stop shop" for advice, information and support
in relation to providing an equal opportunity workplace. The amalgamation
of fair employment, equal opportunities, race relations and disability
agencies into one body is therefore welcomed.
11. Members would, however, wish to see the
legislation governing all four agencies redrafted to draw together
common aspects of the relevant regulations, whilst clearly identifying
where there are differences.
12. Monitoring and reporting paperwork should
be reduced as a result of the amalgamation, so that companies
can produce one set of data for the new Equality Commission, thus
lessening the administrative burden on business, particularly
for the smaller organisation for whom the process is cumbersome
13. The advisory/negotiation role of the Commission
should be emphasised over the policing/monitoring role. Ideally
the two roles would be separate, perhaps with the Labour Relations
Agency being given a role in the process.
14. The Institute supports the objective of
the equality legislation to produce a workplace where recruitment
and progression is based on merit. In achieving this objective,
the ability of business to create the wealth on which this community
survives should not be constrained by overly burdensome regulation.
4 November 1998