Examination of Witnesses (Qustions 340
MONDAY 19 APRIL 1999
SAVAGE and MR
340. What was the result of that research?
(Mr Savage) The result of that research is that
we feel there is a number of frivolous cases backed by the tribunal.
341. And what was the quantum of the research?
(Mr Savage) Again it is impossible to quantify
it for you today. If you like we will provide some more written
submission as a result.
Mr McGrady: Thank
Chairman: Mr Robinson?
342. Thank you, Mr Chairman. Good afternoon,
gentlemen. When you are compiling your statistics on that, if
you want to contact Castlereagh Council they will give you a few
frivolous cases that cost us tens of thousands of pounds. I wonder
if I could take you back over some of the same ground. I notice
in 5(b) when you are making reference to the interpretation of
the legislation having been treated in a very wide and flexible
way, presumably by the tribunals, that it has brought within the
scope areas of activity that may not have been the intention originally.
Is that simply because compensation is paid at a higher level
for fair employment cases and that people think that whether it
is unfair dismissal or something else if they can actually get
latched on to fair employment they will get more money out of
(Mr Savage) Again, it is very difficult to answer
that. Everybody has a different motivation for taking a case to
a tribunal. Whether it is in the end substantiated or not substantiated,
it would be very difficult to say what motivates people to do
that. It is a case in point that there is more compensation available
but I cannot say that is the reason for somebody taking a fair
343. In 5(a) your reference does not specify
particular tribunals. It could well include the monitoring and
other activities of the Fair Employment Commission. Does it? Is
it intended to suggest that they perhaps have gone beyond what
we thought the legislation was originally intended to do?
(Mr Crozier) When we have talked about interpretation
we are referring to the interpretation mainly taken in the tribunals
and the court.
344. Can I then, Mr Chairman, deal with
the issue of frivolous cases. How sure are you that the causation
for frivolous cases is that the agency is providing the legal
back-up for the person who is taking the case?
(Mr Savage) We will do some further research to
put in a written submission. I think we will probably find there
are as many frivolous cases, probably a lot more frivolous cases
not backed by the Commission getting into tribunals than those
backed by the Commission.
345. Mr McGrady was indicating that you
have been fairly strong in the statement that you made. What you
are strong in is indicating that frivolous cases are often taken
because claims are supported by the agencies. It was you that
drew the link it was the claims being supported by agencies which
was the cause of frivolous cases been taken.
(Mr Savage) I did not state that. I said I could
not give an idea of what would motivate somebody to take a fair
employment case and whether a monetary aspect of a claim would
be a reason for that.
346. You did say, it is in your paper, item
(j): "Frivolous cases are often taken because claims are
supported by the agencies", so you are indicating in your
paper that the cause often is because the agencies are actually
providing the legal back up.
(Mr Savage) I think if the person feels they have
that kind of legal back up they will be more inclined to take
a case, yes.
347. Rather than pressing this any further,
like Mr McGrady I think it would be helpful if we could be provided
with what evidence you have both in terms of how you quantify
the number of frivolous cases and also the number of frivolous
cases which fall into the two categories, those which are supported
by the Fair Employment Commission and their legal teams, and those
which are not.
(Mr Savage) Yes.
348. We took that as assent.
(Mr Savage) As I said to Mr Donaldson earlier,
we do not have a full legal team backing us up in IoD headquarters
in Belfast. It may take a number of days if not weeks.
(Mr Crozier) We were discussing it briefly there
and I doubt we can provide the distinction Mr Robinson was asking
for in terms of the cases that were supported by the Commission
and the cases which were not. Quite a lot of the information on
which the IoD would proceed is in terms anecdotal comment from
its members and we were reflecting that comment. The Institute
obviously has a decision to make as to whether it says nothing
because it cannot quantify or whether it indicates a concern which
its members have put to us in terms of the way the fair employment
legislation is operating. We would need to look at what we can
provide before we can undertake to provide the information in
the form asked for or not.
Chairman: That gloss
is now on the record and we will look forward with interest to
see how it is resolved.
Mr Robinson: Mr Chairman,
I think it is worth also having on the record that when the IoD
make statements in their documentation, I do not think it is unreasonable
for us to ask what evidence they have to support the statements
that they have made.
Chairman: I think
your remark was addressed to them rather than to me but I think
it was understood from the previous exchanges that had occurred.
349. Thank you, Chairman. Good afternoon.
I would like to turn to this question of the impact of the Code
of Practice on efficiency and effectiveness and I am looking specifically
at paragraph 5(f) of your submission where you say that the requirements
of the employment guidelinesand I think we are talking
about the Code of Practice there, that is right, is it not?
(Mr Crozier) 5?
350. 5(f). I was really referring to this
bit, you argue that the requirements of the employment guidelines
"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." Really, what I wanted to ask was simply if you could
elaborate a bit on that statement. I am curious to know what is
behind that statement. Could you give some examples of the kind
of evidence you are using for that sort of statement?
(Mr Crozier) First of all, let me make clear we
are not saying the guidance should not be couched in the terms
it is. We are simply pointing out the restrictions. Restrictions
are restrictions and the more you imposeif you take, for
example, an employer who wishes to recruit somebody quickly, under
the fair employment guidance he would be expected to advertise
or publicise that appointment. We have no quarrel with that. But
it nevertheless can impede the quick recruitment of somebody suitable.
Likewise, the other point we made is if somebody is looking for
a job, for example, and he goes to an employer seeking a job,
the employer may or may not have a vacancy. If he has a vacancy
he will say, "I am sorry, you will have to wait until we
advertise this post." Both of those situations are not situations
we are necessarily complaining about. We are just saying that
please have regard, if you are reviewing the legislation, to the
degree to which any kind of regulation impacts upon an employer's
ability to operate an efficient company.
351. That is very helpful. Can I just be
clear that I have understood it then. It would be wrong for me
to interpret your statement as saying there is a wide number of
areas where the Code of Practice restricts employers or has this
other impact on people seeking jobs. What you are saying is the
fact there is a requirement to advertise will inevitably slow
down the process slightly and it is largely in that context that
your statement should be understood? There is no wider ramification
(Mr Crozier) We are simply giving you some examples
of the indications of some employers' experiences and it seems
important to do that at a time when there is a great deal of consideration
being given to the whole field of legislation, quite rightly,
and it seems to us important that consideration should be given
to balance in these things.
352. Absolutely, I would be only too happy
to accept that. I simply wanted to clarify we were not talking
about lots of examples where employers felt effectiveness and
efficiency, etcetera, had been impaired. What you are really saying
is this requirement to advertise is likely to have a bit of an
impact. Have I understood that correctly?
(Mr Crozier) Yes.
353. That is really helpful. Thank you very
much. Could I just ask on a slightly different note, we have heard
a number of comments from various sources about the delays in
the process of the tribunals. Is that your experience as well
that it is quite a lengthy and cumbersome process with lots of
(Mr Savage) I think it does take time to hear
a case at a tribunal, sometimes three years later. It can be difficult
for witnesses to give evidence as well as they may have done nearer
to the time.
354. Thank you. Given that, do you think
it would be appropriate to allocate further resources to the fair
employment tribunal in an effort to reduce these delays?
(Mr Crozier) In principle, yes, but I do not think
we are in a position to make any judgement about the quantum of
resources they have in relation to their workload. We do not have
that sort of information in relation to their staff resources.
There was a review of tribunals which looked at the situation
up to 1995, which reviewed the work of the tribunals, and which
showed substantial increases in workload. Some of them, looking
at the dates, seem to have been occasioned by the impact of the
1989 Act which of course changed the legislation so that complaints
could be made through tribunals rather than always having to be
made through what was then the Fair Employment Agency. There was
a very substantial increase in workload. Whether that has led
to some of the backlogs of which we are aware or whether there
has been a failure to respond in terms of the numbers of additional
staff of tribunals, we are not in a position to judge. All we
can say is that some of our members are saying there have been
very substantial delays in dealing with cases.
Mr McCabe: Thank you
355. When I was serving in the private sector
myself I was only once taken to an industrial tribunal. It was
a case we won in part because my counsel was the present Lord
Chancellor and the pupil who attended him was the present Prime
Minister! It was some years ago. Before I call Mr Grogan, I want
to interpolate one question which is a follow on from the questions
being asked by Mr McCabe. Does the IoD think there is any evidence
of fair employment legislation retarding economic growth either
by acting as a disincentive to inward investment or as a disincentive
to the creation of more jobs by firms already based in Northern
(Mr Savage) We have no evidence that it has done
that. We appreciate that inward investors, particularly from the
South of Ireland, may be concerned about the legislation, but
there is no evidence to suggest that it would have the negative
impact of them not coming here to invest. We have no evidence
of that at all.
Chairman: Mr Grogan?
356. Good afternoon. In your evidence, particularly
paragraph 5(h), you are quite critical of the FEC for the way
in which they supply information and advice to employers. I wonder
whether you yourselves try and fill this vacuum in any way. What
do you provide in the way of information on fair employment legislation?
(Mr Savage) We have worked with employers and
indeed solicitors and others and fed back to members in trying
to ensure that our members are fully briefed on the ins and outs
of the legislation and indeed the potential impact, both negative
and positive, of failing to comply with the legislation as much
as we can. As I say, as a small division of the IoD, we try and
get as much objective information as we can.
357. You refer to yourselves as a small
organisation. How many people do you employ as such in Northern
(Mr Savage) As the Institute of Directors?
(Mr Savage) We have three full-time staff.
359. So do you try and run conferences or
post leaflets or stage events on fair employment legislation or
refer people on to the Commission itself? How does it work?
(Mr Savage) We do both. We have worked in trying
to explain the intricacies within the Section 31 review, for example,
and changes in the way in which legislation is coming about. We
will probably do another seminar when the White Paper beds in
as legislation. Again, we are restricted in terms of resources.
We also do refer our members on to the various bodiesequal
opportunities, race, disability and fair employment organisations.
Mr Grogan: Thank you
Chairman: Mr Beggs?