Select Committee on Northern Ireland Affairs Fourth Report


ASSESSING THE POSITION TO DATE

Introduction

37. From this brief description, and drawing from the evidence presented to us, it is clear that any assessment of the effectiveness of the legislation and Government policy more broadly in the area will involve examination of the extent to which:

  • unlawful discrimination has actually declined and, equally, has been perceived to have declined;
  • segregation in the employment context has been reduced;
  • there has been a reduction in the under-representation of the Catholic community in employment overall, and in the under-representation of Protestants and Catholics in specific areas;
  • the unemployment differential between Roman Catholics and Protestants has been reduced;[84]
  • employers have complied with the regulatory requirements of the legislation, such as monitoring and periodic review requirements; and
  • the benefits of the legislation have been achieved without incurring unacceptable levels of costs, either generally to society, or specifically to any one section of society.

We will consider each issue, briefly, in the following paragraphs.

Progress against the criteria

DECLINE IN UNLAWFUL DISCRIMINATION

38. We are reassured by the general view from all the witnesses we heard that unlawful employment discrimination on the grounds of religious belief and political opinion appears to have declined. This is not to say that discrimination does not continue. As SACHR said in evidence: "There are, of course, cases of discrimination going on, on the basis of people's religious belief or political opinion, in Northern Ireland, and that ... is shown by the judgements of the Fair Employment Tribunal, which finds discrimination against Catholics and Protestants."[85] There is no direct evidence which can be said to support that general view, but the unanimity of the views that discrimination is in decline is good news.

REDUCTION IN SEGREGATION

39. Significant improvement appears to have occurred with lessening segregation of predominantly Roman Catholic firms, and predominantly Protestant firms. From 1990 to 1997 there was, according to FEC figures, an improvement of 4.7 percent in companies which employed less than 10 per cent Catholics, and an improvement of 3.3 percent in the companies which employed less than 10 percent Protestants.[86] Occupational segregation also appears to have declined, although certain occupations which are Protestant dominated and some occupations which are Catholic dominated remain. Engineering and craft trades have been predominantly Protestant, and remain so. Construction trades have tended to be predominantly Catholic, and this remains the case.[87]

REDUCTION IN UNDER-REPRESENTATION IN EMPLOYMENT

40. The picture appears mixed, with some progress and some remaining problems. On the positive side, appointments from the two designated religious communities now roughly reflect applications for jobs from the two designated [88] religious communities. FEC statistics show that the overall Roman Catholic share of employment has risen by 4.3 percentage points over the period 1990 to1998. The results of monitoring indicate an under-representation of Roman Catholic males and an increasingly small under-representation of Roman Catholic females.[89] The Roman Catholic share has risen in every occupational group since 1990, though unevenly. In the public sector, Roman Catholic representation has increased by 3.4 percentage points over the period 1990 to 1998.[90] In security-related occupations, 91.6 per cent were Protestant and 8.4 per cent were Roman Catholic in 1998; there has been a 1.0 percentage point increase in the Roman Catholic share since 1990. There is also evidence of continuing imbalances in certain grades in the Northern Ireland Civil Service.[91] In the private sector in particular, there has been a significant increase in the proportion of Catholics employed.[92] In private sector concerns with 26 or more employees, the male Roman Catholic share increased by 4.7 percentage points over the period 1990 to 1998, and by 4.5 percentage points for Roman Catholic females.

41. A gap still remains, however, in employment between the percentage of Roman Catholics in employment and the percentage of Roman Catholics who are classed as economically active. Figures for 1998 show that the Catholic share of employment was 39.1 per cent, while the Catholic share of the economically active was estimated to be about 42 per cent.[93]

UNEMPLOYMENT DIFFERENTIAL

42. Considerable attention was given by several witnesses to the problem of long term unemployment in Northern Ireland and the issue of differences in unemployment rates between Catholics and Protestants, sometimes called the unemployment differential. There is still a significant differential in terms of unemployment, with the unemployment rate for Catholic men still twice that for Protestants.[94] Almost two-thirds of the long-term unemployed are Roman Catholic.[95] However, one witness, Dermot Nesbitt, who dissented from the SACHR report in 1997 on this issue, regarded the Government's focus on the unemployment differential as mistaken.[96] Several different issues arise.

43. The first is whether the cause of the different experience of unemployment between the two communities derives from discrimination.[97] Some of those who gave evidence contested the extent to which what differences there are were caused by present-day discrimination in the labour market. Sir Robert Cooper, Chairman of the FEC, argued that the issue is not central as to whether there is a problem which need to be tackled: "... it is desirable that the whole community in Northern Ireland joins together to tackle the problem of long-term unemployment rather than having a lot of arguments about the past."[98] We consider that, to the extent that Government can lessen these differences, it should do so, irrespective of what caused them.

44. A second issue is whether the differences in unemployment have any relevance to fair employment issues, conceived as the issue of equality between the two communities in participation in jobs. We agree that there is no simple connection between unfairness in the two areas. To infer that simply because there is a worrying difference between the two communities in unemployment, there is therefore an unfair difference between the two communities in employment, would be invalid.

45. We do not consider, however, that tackling the differences in unemployment is only worth doing in so far as that connection is established and that, without that connection, Government should not concern itself with the issue. Not to treat the unemployment differential as an issue of fairness in the broad sense is, to us, unacceptable. The substantial difference in unemployment rates is of concern in its own right. As Sir Robert Cooper put it in his foreward to the ninth annual Monitoring Report of the FEC:

"It has too often been the case that improvements in conditions for those at work have made little or no impact upon the lives of those out of work. As inequalities within the actual workforce continue to be addressed, the extent to which we can lower the disproportionately large proportion of Catholics who are unemployed will be a vital aspect of the task of bringing genuine equality and fair participation in the economy to all sections of Northern Ireland society."

46. A third issue is how a Government concerned at the Roman Catholic unemployment rate should react to a finding that the extent to which the failure to accompany the increase in employment of Catholics with a decline in the Catholic unemployment rate may be partly (though not exclusively) due to an increase in Catholic availability for work over that period. Mr Nesbitt appeared to us to consider that this finding (assuming it to be accurate) should lead to less attention being paid to the issue of Catholic unemployment because it then ceased to be an issue of fairness which the Government should tackle. In evidence, he argued that "if there is unemployment there should not be any ... implication that somehow any differential is other than the dynamics of the labour market. It is nothing to do with fairness."[99] We, however, consider that the Government has a responsibility to help provide employment opportunities to all sections of both communities. We do not assume that there is some natural proportion of jobs allocated to each community which should remain constant, irrespective of any differential in the rates of change of their economically active populations.

47. In short, we consider that the community differences in unemployment should remain an appropriate and important issue of concern for Government. While not a simple measure of success of the legislation, it is one measure of the success or failure of Government policy generally in the area, but not the only one.

EMPLOYER COMPLIANCE WITH REGULATORY REQUIREMENTS

48. The extent to which employers have complied with the regulatory requirements of the legislation, such as monitoring and periodic review requirements, appears impressive. It seems clear that, in general, there have been fewer problems than anticipated in employers meeting their obligations under the legislation, particularly in terms of monitoring.[100] The FEC reported a very high level of compliance by employers with their statutory duties of monitoring, submitting monitoring returns, and periodically reviewing their employment practices. It also reported that there have been considerable improvements in equality-based employment practices in recent years. The FEC has received 64 formal undertakings to implement affirmative action programmes with large employers. In total, affirmative action programmes were in place with 137 private and public sector concerns at the end of March 1998.[101]

49. SACHR considered that employers had now "accepted the need for fair employment and equality."[102] The FEC considered that "the major achievement which has been gained has been the transformation in employers' attitudes in terms of employment practices."[103] CBI Northern Ireland, reflecting its members' views derived from CBI surveys, "see the benefits of the legislation". We were told that "many" of their members "see the positive benefits of it, in terms of recruitment and selection, that it has enabled them to carry out those processes in a much more objective and standardised way, possibly, than they would have done before."[104] Perhaps most encouraging, the FEC reported generally a "sea change in the attitude in both communities, particularly the Protestant community; greater recognition that fair employment is something which we have to get right as part of getting Northern Ireland right."[105]

COSTS OF THE LEGISLATION

50. We attempted to gain an insight into the costs of the legislation to employers, but without very much success. Although the Explanatory Document produced by the Government to accompany the 1998 draft Order indicated that the private sector was estimated as likely to be subject to half a million pounds of additional expenditure in order to comply with the amendments to the existing legislation, Mr Ingram was unable, in oral evidence, to provide us with information on where this extra expenditure would occur,[106] although he subsequently produced a breakdown into four sub-headings.[107] This revealed that the majority of this expenditure would arise from the new requirements to monitor part-time workers, new requirements relating to review of religious imbalance, and the extension of the monitoring of applicants by all private sector employers. CBI Northern Ireland was unable to provide any detailed information - and indeed had not made any assessment itself of the costs expected to arise from the 1998 Order.[108] Nor was the Institute of Directors Northern Ireland Division (IoD) able to assist us on this point.[109]

51. The CBI did argue, however, that the fair employment legislation could restrict an employer's ability to meet labour demands efficiently where an employer needs to fill a job quickly but the procedures laid down in the Code of Practice make it difficult to do so.[110] The IoD, which made a similar point, agreed that there were not lots of examples where employers felt effectiveness and efficiency had been impaired.[111] On the issue of whether the legislation affected job creation either positively or negatively, CBI Northern Ireland responded that there was some anecdotal evidence that employers might be reluctant to employ more than ten employees because of the extra monitoring requirements which doing so would involve, but that how great an issue this could be was unclear.[112]

52. The existence of fair employment legislation does not appear to have operated as a deterrent to inward investment. The IoD had no evidence that fair employment legislation retarded 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.[113] Indeed, Mr Ingram stated[114] that "it can actually be an encouragement to tell people they are coming into an investment area which is trying to tackle some of the fundamental problems that there have been there for a long time in order to try and bring harmony into the working environment."

53. We are conscious that much of the evidence on the compliance costs of employers under the fair employment legislation is, at best, somewhat anecdotal. Further research is necessary before definitive conclusions can be reached. We return to the issue of further research subsequently.

Overall assessment

ROLE OF LEGISLATION AND PUBLIC POLICY

54. The employment shifts described above are welcome, but the question arises as to how far they are the result of fair employment legislation. Sir Robert Cooper, commented that "It is very difficult to give an answer to that and very difficult to disentangle the situation. All I would say is that, during the previous period when the legislation was much weaker and where broadly speaking the legislation was simply designed to deal with direct discrimination and indirect discrimination was not covered, there was not as great a change over the previous 15 or 20 years. So I believe that a considerable part of the changes has been as a result of the legislation but I would by no means argue ... that the changes have been exclusively because of that."[115] Others shared that basic viewpoint, arguing that the legislation "has created an environment within which the values that legislation encapsulate have been accepted by employers..."[116] CBI Northern Ireland considers that the changes in employment "are largely attributable [to the legislation], because [it] would suspect a lot of the changes are due to improved ... recruitment selection procedures."[117]

55. The Fair Employment and Treatment Order 1998 has only been in force for a few months and it is not therefore possible to assess the effectiveness of the new provisions. It is clear that the previous legislation has made an important contribution to improving the degree of fairness in employment in Northern Ireland, even if the precise extent of that contribution cannot be accurately determined. Mr Ingram commented that "there is still some way to go to ensure equality of opportunity" and that "there is still much to be done."[118] We shall continue to monitor the effectiveness of the legislation in this important policy area.

HANDLING OF INDIVIDUAL COMPLAINTS

56. The approach to the handling of individual complaints of unlawful employment discrimination adopted in the 1989 Act and continued in the 1998 Order is for them to be considered by the Fair Employment Tribunal. We sought evidence as to whether the use of the tribunal-based approach, which employers supported when the 1989 legislation was under consideration,[119] had proved to be an effective means of resolving complaints of discrimination.

57. Several of those who gave evidence were broadly supportive of the system. For example the Committee on the Administration of Justice (CAJ) believed that the "Fair Employment Tribunal has gained the reputation for being an effective tribunal within which religious equality legislation has been interpreted and applied."[120]Of others who gave evidence to us, some employers were particularly critical of the operation of this system, especially the IoD. Several different criticisms were made. First, it was argued, the system encouraged excessive amounts of litigation against employers; there was a tendency to use the legislation to pursue grievances which had little or nothing to do with the purposes the legislation was designed to serve.[121] Second, it was argued that there was insufficient deterrence of frivolous complaints which took up excessive amounts of employers' time and energy[122] and led to the settling of complaints, simply to avoid unnecessary hassle: employers were unwilling to go through a tribunal procedure and would 'buy off' complainants whose cases were unmeritorious.

58. It was also argued that the FEC was a major culprit in encouraging these problems by using its powers to assist frivolous and vexatious complaints to the Fair Employment Tribunal.[123] There were also assertions that there were substantial delays in hearing cases before the Fair Employment Tribunal and that this created unfairness to litigants in general and to employers in particular.[124]

59. We sought further information on the latter two points in particular from employers' bodies. We questioned the IoD on these issues when it gave oral evidence,[125] and invited it to submit further information to support its complaints. With the sole exception of the issue of delays,[126] which we consider below, we received no convincing evidence which supported these complaints. It was apparent that the complaints which the IoD articulated to us were not based on any systematic research by them or by others, but simply reflected the views of their members which were apparently largely based on anecdotal evidence.[127] We also note that, when asked in evidence for its views on this issue, CBI Northern Ireland responded that it had "no specific evidence of [the FEC] supporting frivolous cases."[128] According to Mr Ingram, he had no knowledge "of any group of company interests who made such representations" in response to the White Paper.[129]

60. Although in evidence the IoD stated that there was no power in the Fair Employment Tribunal to discipline those who brought such cases,[130] it is clear that the Tribunal does, indeed, possess the power to award costs against those who take frivolous and vexatious cases.[131] Despite this power, we understand that the Tribunal has apparently seldom been asked to award such costs.[132] In addition, the employer may ask for a pre-hearing assessment before the full case is heard and, if the Tribunal takes the view that the case is frivolous or vexatious, the individual may be warned that costs may subsequently be awarded against them if they proceed.[133] We have received no evidence that the Tribunal has inadequate powers in this area or that it is unwilling to use its existing powers.

61. We also asked the FEC to address these complaints and respond by explaining in detail the procedure the Commission adopted in assisting complaints.[134] The FEC denied that it encouraged employers to make nuisance settlements.[135] We note that there have been no awards against complainants supported by the Commission on the grounds that the complaint was frivolous or vexatious. None of the evidence we have received convinces us that the Fair Employment Commission has been assisting "frivolous cases" to be taken to the Fair Employment Tribunal.

62. The major area of justified concern is with regard to delays in the system, and consequent backlogs in the hearing and disposal of cases. Evidence was presented to us which indicated that, whereas delays in hearing employment tribunal cases were about six months, those for fair employment cases were about two years.[136] Sir Robert Cooper told us that a working party is currently considering the issue of backlogs in the tribunal system.[137]

63. We considered two alternative methods of dealing with the problem of delays. The first was a proposal, supported in particular by CBI Northern Ireland,[138] to create a new Employment Appeals Tribunal to which appeals from the Fair Employment Tribunal would go, instead of the current system of appeals which is to the Northern Ireland Court of Appeal. We were unconvinced, however, that (whatever its other merits might be[139]) a new Employment Appeal Tribunal for Northern Ireland would significantly speed up the process of tribunal consideration of fair employment complaints; indeed, the reverse might well be the case since it would create an extra tier of appeal. The assumption that litigants would not appeal to the Court of Appeal from the Employment Appeals Tribunal in fair employment cases is in our view questionable.

64. We therefore considered an alternative approach which focussed more closely on the nature of the problem, which appears to lie in delays occasioned by the lack of resources in the Fair Employment Tribunal itself. If the Tribunal system was accorded further resources to deal with the delays and consequent backlog of cases, we consider that the problem could be significantly reduced. In particular, to the extent that more full-time chairmen and better accommodation would help to alleviate the problem, this should be sympathetically considered.[140] We recommend an urgent review of the manpower and physical resources devoted to Fair Employment Tribunals in order that the backlog of cases can be cleared and future cases decided much more speedily, in the interests of complainants and respondents alike.

FAIR PARTICIPATION

65. There is no statutory definition of 'fair participation'. However, the FEC does not regard the absence of definition of fair participation in the legislation as a major problem in working with employers.[141] The FEC regards the twin aims of "fair participation", first, as achieving the better representation of the Roman Catholic community, and, second, as getting rid of segregation in employment.[142] We explored with the FEC whether it considered that there was a tension between these two aims, and whether they sought to prioritise one over the other. The answer was that the Commission had not had to prioritise the aims because the Commission had sufficient resources to concentrate on both.[143] We recommend that adequate resources be provided to the Equality Commission to ensure that this remains the case.

REGULATION VERSUS COMPLAINTS

66. It has been argued that it might be preferable to reduce the regulatory functions of the FEC, and concentrate resources on resolving individual complaints, making them a more effective mechanism of deterrence.[144] However, it appears to us that such an approach does not recognise the different functions of the individual complaint and the FEC regulatory systems. The former is restricted to dealing with allegations of discrimination, while the latter has a much broader role in encouraging (and ultimately enforcing) fair participation, affirmative action, and equality of opportunity, which (as we have seen above) goes considerably beyond simply eradicating unlawful discrimination. We agree with SACHR, when it said that "you do not necessarily arrive at [fairness and equality] simply by abandoning or abolishing or getting rid of discrimination..."[145] While we welcome the extent to which individual complaints have been used by the Fair Employment Commission as the basis for strategic work with employers, we agree with the Commission that if this was the "sole method of dealing strategically with employers then it would be a failure."[146] We recommend that the existing regulatory functions of the Commission be retained in their entirety.

ENFORCEMENT VERSUS ADVICE-GIVING

67. Neither of the two main employers' organisations which gave evidence to us, CBI Northern Ireland and the IoD, considered themselves as a principal source of fair employment advice, except in very general terms. While the CBI pointed to the growth of experienced lawyers able to advise on fair employment issues,[147] it seems clear that the statutory bodies also serve as an important source of advice and CBI and IoD appear to act often as a source of referral to these bodies, particularly the Labour Relations Agency and the FEC.[148]

68. However, in evidence, some pointed to what they considered as a tension between enforcing the legislation on the one hand, and giving advice and assistance to employers on the other. There was concern about, for example, the possibility of information gained from an employer in the course of advice-giving being used for enforcement purposes against that employer. CBI Northern Ireland expressed concerns about having the same body enforcing and giving advice and information, and viewed it as inhibiting employers asking for information and advice because of the possibility that the FEC might use information gained in advice giving to mount a later case or investigation.[149]

69. We put these points to Sir Robert Cooper and were reassured by his forthright denial that there were any circumstances where information gleaned by the FEC in the course of advice-giving would be used in enforcement activities, and that an effective system of "Chinese walls" was in place in the Commission to ensure that this was the case.[150]


84  Q127. Back

85  Q278. Back

86  Q135. Back

87  Q462-3. Back

88  1998 Order, Article 52(11). All figures quoted are in respect of those for whom a community was determined. Back

89  Appendix 4, p.170. Back

90  Monitoring Report No. 9, Fair Employment Commission, March 1999. Back

91  Q549. See also Appendix 4, p. 169. Back

92  Q131. Back

93  Profile of the Monitored Workforce in Northern Ireland: Summary of the 1998 Monitoring Returns: Monitoring Report No. 9, Fair Employment Commission, March 1999, p. 1 and 7. Back

94  Q497. Back

95  Q136 and 281. Back

96  Q376. Back

97  Q136. Back

98  Q136. See also the similar position advanced by SACHR, Q285. Back

99  Q408. Back

100  Q423. Back

101  Ev. p. 39. Back

102  Q270. Back

103  Q129. Back

104  Q51. Back

105  Q152. Back

106  Q37-42. Back

107  Ev. p. 20. Back

108  Q60-1. Back

109  Q363-5. Back

110  Q114. Back

111  Q352. Back

112  Q115. Back

113  Q355. Back

114  Q565. Back

115  Q128. Back

116  Q447. Back

117  Q105. Back

118  Q2. Back

119  Q155. Back

120  Q417. Back

121  Q332. Back

122  Ev. p. 89; Q335. Back

123  Q335. Back

124  Q353-4 Back

125  Q347-8. Back

126  Q353-4. Back

127  Q348. Back

128  Q64. Back

129  Q8. Back

130  Q373. Back

131  Fair Employment (Rules of Procedure) Regulations (Northern Ireland) 1989, Schedule 1, para 11(1); and Q6. Back

132  Q161. Back

133  Fair Employment (Rules of Procedures) Regulations (Northern Ireland) 1989, Schedule 1, para 6(2); and Q161. Back

134  Q158. See also Appendix 1, p. 162. Back

135  Q157. Back

136  Q76 and Q164. Back

137  Q163. Back

138  Q107-111. Back

139  Q111. Back

140  Q76. Back

141  Q125. Back

142  Q123. Back

143  Q124. Back

144  See Cm 3684, p. 97 (Note by Dissenting Member - Mr Dermot Nesbitt). Back

145  Q279. Back

146  Q165. Back

147  Q116. Back

148  Q56, Q359. Back

149  Q85. Back

150  Q150. Back


 
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