Select Committee on Northern Ireland Affairs Minutes of Evidence


Examination of Witnesses (Qustions 340 - 359)

MONDAY 19 APRIL 1999

MR IAN SAVAGE and MR JULIAN CROZIER

  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 you, Chairman.

Chairman:  Mr Robinson?

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 it?
  (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 employment case.

  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.

Chairman

  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. Mr McCabe?

Mr McCabe

  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 guidelines—and 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 impose—if 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 to it?
  (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 delays?
  (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 very much.

Chairman

  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 Ireland?
  (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?

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 Ireland?
  (Mr Savage)  As the Institute of Directors?

  358.  Yes.
  (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 bodies—equal opportunities, race, disability and fair employment organisations.

Mr Grogan:  Thank you very much.

Chairman:  Mr Beggs?


 
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