Select Committee on Northern Ireland Affairs Minutes of Evidence


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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