Examination of Witnesses (Qustions 314
- 339)
MONDAY 19 APRIL 1999
MR IAN
SAVAGE and MR
JULIAN CROZIER
Chairman
314. Mr Savage, Mr Crozier, you are most
welcome. Thank you very much indeed for coming to give evidence
to us today. One or two simple, and possibly familiar, ground
rules. We will endeavour to make the questions that we ask you
follow a logical order rather than an illogical one. One of the
consequences of that will be that our questions may come from
different corners of the horseshoe and will not sequentially go
round the horseshoe. If at any stage you wanted to gloss any answer
you have given, either at the time or in writing later, please
do not hesitate to do so and we will similarly retain the freedom
conceivably to send you written supplementaries after the event
if such a thought occurs to us. Is there anything you would like
to say of a preliminary nature before we embark on questioning?
(Mr Savage) No.
Chairman: Mr Donaldson?
Mr Donaldson
315. Gentlemen, you are very welcome to
the Committee. The first question I have is of a general nature
and relates to the IoD itself. Could you tell the Committee what
percentage of businesses in the private sector in Northern Ireland
covered by the fair employment legislation are connected with
the Institute of Directors (Northern Ireland Division)?
(Mr Savage) We could not give you an exact percentage
of that. We represent a wide body of industry. The majority of
industry is small to medium-sized enterprises. We do represent
the major employers. I would say the vast majority of those who
are currently being monitored would fall within the remit of the
IOD.
316. Are you saying then that IoD would
represent mainly the larger employers in the area covered by the
fair employment legislation rather than the small and medium-sized
enterprises?
(Mr Savage) We have a very wide representation.
It would be difficult to say, but we represent both small, medium
and large enterprises.
317. In terms of the issue of fair employment,
how has the IoD formulated its views on the operation of the legislation
to date? Has it taken surveys of its members or has it used any
other methodology to gain its impressions of the problems mentioned
in your written submission to the Committee?
(Mr Savage) We have taken both formal and informal
feedback from members both through consistent mail-shotting of
members as well as open fora over the years. In addition to that
we also have a policy committee from which this particular document
has emanated.
318. And in terms of the evidence that you
have gathered, is that anecdotal evidence or have you asked your
members to provide you with specific information where, for example,
a member has found him or herself in a situation where they are
faced with a case brought by an employee under the terms of the
fair employment legislation or indeed by a prospective employee?
(Mr Savage) We have a lot of anecdotal evidence
but we also have taken evidence over the years to see the type
of cases that have gone through and the type of cases that have
been dismissed and they are all on record in the fair employment
tribunal library.
319. Does the IoD itself maintain a record
of these cases? Do you have any system for monitoring situations,
cases where your members find themselves under investigation,
for example, and, indeed, do you provide any assistance to your
members in respect of circumstances where they find themselves
under investigation?
(Mr Savage) We do not have a formal system of
keeping records. You understand we have a limited resource in
Northern Ireland and it would be very difficult. It would need
two or three full-time people to keep that resource going. From
a national point of view as IoD we have a legal helpline that
employers can ring to discuss all matters relating to employment
law, not simply fair employment and employers have the right as
part of their membership to utilise that as much or as little
as they wish.
320. On the point of that helpline to what
extent, given that it is a national service, would the advisers
who provide assistance on that helpline be au fait with
employment legislation in Northern Ireland?
(Mr Savage) Over the past number of years more
than they were before because a lot of case law has gone into
European legislation and they are a lot more aware of that. There
is no substitute for somebody locally and we appreciate that.
Again from a resource point of view most employers have their
own legal representatives, their own insurers and often chose
to use their own solicitors. In a situation where the helpline
would not be able to cover some aspect of legislation we would
then go back to the employer and the onus would be on the employer
to go and get legal representation or advice legally.
321. Does the Northern Ireland Division
get any feedback from those who operate the helpline in terms
of the kind of advice that is sought by members in Northern Ireland
and the kind of issues that arise?
(Mr Savage) Again probably more anecdotal than
anything else. Maybe initially when the legislation began it was
more of a very specific nature because everybody was learning
about the legislation, but I think now any type of advice that
is given is based on "This has happened", whether it
is a dismissal or a selection, and they would go through the process
of it, but we have no evidence that has been collated to give
us an idea of any matters that may have emerged.
Mr Donaldson: Thank
you.
Chairman: Mr Salter?
Mr Salter
322. I just want to explore some of the
statements that you have made in your notes to us. You talk about
merit in a number of places within the document, for example in
paragraph 2 you use the term "merit". "It also
accepts in principle"—this is the IoD—"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." You then go on to say in paragraph
14: "The Institute supports the objective of the equality
legislation to produce a workplace where recruitment and progression
is based on merit." What do you mean by "merit"
in that context?
(Mr Savage) Merit in that context means it is
open equally to all participants within society based on merit,
ie, their ability to do the job.
323. For the record you would say that merit
would mean the ability to do the job that is required of them?
If you had a Catholic and a Protestant candidate who on the basis
of a free and fair interview came out as equally meritorious,
would you support your members then looking at the composition
of that particular workforce and its relation to the wider community
and perhaps opt for the candidate in those set of circumstances
that was from the community, whichever one it was, that was under-represented?
(Mr Savage) No, we would not.
324. What would you do in those circumstances?
(Mr Savage) Like any interview process, and I
have been in many because I am in recruitment as a job, very few
interviewees come out as equal. We get to the point once we have
come through quite an objective personal specification marking
system where it is down to how the interview panel feels on the
day. If they are still not happy that one is more qualified over
the other they would consider going back and readvertising the
position. We would not agree to somebody taking that decision
because as far as we were concerned it would be bringing in something
other than merit into the decision.
325. So from your point of view on the one
hand you are saying you support the thrust behind the legislation,
but on the other hand you are saying that the overarching principle
is merit and merit alone?
(Mr Savage) That is correct.
326. You do not see any contradiction in
that position?
(Mr Savage) We do not see any contradiction in
that, no. The legislation as it exists is accepted by employers
on the basis that it is not an affirmative action, ie, choosing
one member of the community over another on that basis alone.
If we are to move away from that, the actual legislation will
not be accepted to the extent that is required by employers. That
is why we would not accept that. It has to be based on merit and
merit alone.
327. Just for the record, in the view of
the IoD affirmative action would not be an acceptable road to
go down?
(Mr Crozier) Could I just intervene there. I think
we need to make a distinction between affirmative action and the
concept of discrimination. What you are suggesting, as I understand
it, is in terms of if you have people equal and making a choice
between one or the other on the basis of their religious belief,
as I understand it, which would be contrary to the definition
of discrimination in the legislation which is cast in terms which
involve treating somebody less favourably on the grounds of their
religion. That is a different concept from affirmative action
which involves the development of employment practices which enable
people to compete on the basis of equality of opportunity and
I am quite sure the IoD would support that.
328. Thank you for clarifying that. Your
colleague defined that as affirmative action.
(Mr Savage) Positive discrimination, yes.
Mr Salter: Okay, we
have got that on the record fine.
Chairman: Mr McGrady?
Mr McGrady
329. Thank you, Chairman. Good afternoon,
gentlemen. In your submission in paragraph 5(b) you refer to "excessive
legislation" and "a tendency to use the legislation
to pursue grievances which have little or nothing to do [with]
the purposes for which it was designed to serve." Could you
tell me two things about that statement. Firstly, what is your
perception of the purpose for which the legislation was designed?
Secondly, could you give us some examples of the use of legislation
to pursue the purposes which go beyond that which were sought
to be addressed by the legislation?
(Mr Savage) I think a definition of the legislation
is well documented within the legislation itself and we would
agree with that interpretation.
330. The reason I ask that is in response
to the Institute's previous attitude and that is you agree with
the principle but you oppose the detail of the legislation, as
I remember. In that context, what do you think the legislation
was designed to do that you disagree with?
(Mr Savage) Whenever the legislation was put in
place from 1989 onwards, the tribunals were there to really sort
out differences without necessarily getting into a legalistic
domain. That has changed considerably over the years to the point
where there would be very few cases not basically pushing towards
some sort of case law on the matter and we are concerned that
the legislation is maybe not covering initially what it was designed
to serve and that was creating a Labour Relations Agency trying
to make concessions between the two sides.
(Mr Crozier) The legislation clearly was designed
to provide equality of opportunity as between the representative
communities of Northern Ireland, but there is a lack of legislation
which deals with other kinds of employment practice in the workforce
for people who feel they have been treated unfairly on other grounds,
and what we are suggesting is there is occasionally a tendency
to use the legislation as a basis for presenting that kind of
abuse and to represent something as a complaint on the grounds
of religious belief or political opinion which is in fact a grievance
on something else.
331. The second part of the question concerns
examples of experiences that go beyond the purposes of the legislation
as described.
(Mr Crozier) If you take a case for example of
unfair dismissal, there is a provision in the legislation for
dealing with unfair dismissal on the grounds of religious belief
or political opinion. If you take somebody who is disappointed
in relation to their promotion, for example, they have redress
on grounds of religious belief or political opinion but they do
not have redress on other grounds when they disagree in terms
of whether they were more able or the person concerned was fairly
disposed towards them or other considerations, personality or
whatever, and so we are simply pointing to that possibility and
the work that it imposes on employers in that context.
332. I am slightly confused about what you
are saying to me. Are you saying that this legislation was not
required to serve the purposes of employers and that there are
other methods of doing it which obviously failed in the past?
(Mr Crozier) No, we are saying that this legislation
is designed to deal with fair employment in terms of equality
of opportunity for people in the absence of discrimination for
people of differing religious beliefs or political opinions and
that is the limit of it. There is a tendency, we suggest, for
some people to make use of the fair employment legislation as
a basis for putting forward a complaint which is based on grounds
other than that. We do not want to overstate that point but we
think there is that possibility. You can obviously make a case
for having legislation which goes more extensively than that but
if you make such a case then that is an issue for Parliament to
consider in the context of the case that is made.
333. That is a very interesting proposition—that
the IOD would support the extension of fair employment legislation
in other areas.
(Mr Crozier) I thought I phrased it in more neutral
terms than that. I thought I was saying you could make a case.
334. I have a second question. In paragraph
5(j) of your submission to us you make the comment, "Frivolous
cases are often taken because claims are supported by the agencies."
Could you say a little more about this and give some evidence
upon which you draw this conclusion or this argument, bearing
in mind that a body not unlike your own, the CBI, stated quite
clearly that there is no evidence that the FEC had supported frivolous
cases in the past.
(Mr Savage) I cannot speak for the CBI.
335. I give you that advance warning of
alternative evidence we have received.
(Mr Savage) We feel that there is evidence that
frivolous cases have been backed in the past by the agencies and
I think that is borne out in tribunal situations. I think that
has happened in the past. Probably the main point we would have
is we do support the legislation but whilst complainants can be
backed by the agencies, employers regardless of whether they win
or lose a case have to pay legal costs as well, whether they have
had to fight a frivolous case or not and we feel that frivolous
cases have been taken up by the agencies.
336. You say that you "feel" there
is evidence. Do you know? There will obviously be a number of
frivolous cases in any area of legislation and complaints, but
it is the pattern which is important, the quantum which is important.
Are you saying they are a big number, a small number? How do you
quantify this? Can you give us any degree to which you find frivolity
is entering into the application of these fair employment requirements?
(Mr Savage) I think if you look for evidence,
as my colleague said earlier, there are many cases in the unfair
dismissal situation where there would be an application not only
to the unfair employment tribunal but an industrial tribunal with
the net result being, "I was sacked because I was Protestant
or Catholic." A lot of those cases are not followed through
or do not win. I do not know whether it is large or small. I do
not think we can put a number on it, but we feel that there has
been evidence in the past that that has happened.
337. You made a fairly strong statement
in that respect and I assumed you would have a reasonable degree
of record and evidence to back up the statement.
(Mr Savage) It is a matter of public record from
the tribunals.
338. You have not analysed that public record?
(Mr Savage) We have not had time to analyse it
before appearing today.
339. You have made these statements in the
past as well, not just today, we have heard them before from the
IoD, so you must have researched it before.
(Mr Savage) We have researched it before.
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