ASSESSING THE POSITION TO DATE
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
- unlawful discrimination has actually declined
and, equally, has been perceived to have declined;
- segregation in the employment context has been
- 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;
- employers have complied with the regulatory requirements
of the legislation, such as monitoring and periodic review requirements;
- 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
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."
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
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
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 
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.
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.
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.
In the private sector in particular, there has been a significant
increase in the proportion of Catholics employed.
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
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.
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
Almost two-thirds of the long-term unemployed are Roman Catholic.
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.
Several different issues arise.
43. The first is whether the cause of the different
experience of unemployment between the two communities derives
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."
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."
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.
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.
49. SACHR considered that employers had now "accepted
the need for fair employment and equality."
The FEC considered that "the major achievement which has
been gained has been the transformation in employers' attitudes
in terms of employment practices."
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."
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
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
although he subsequently produced a breakdown into four sub-headings.
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.
Nor was the Institute of Directors Northern Ireland Division (IoD)
able to assist us on this point.
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.
The IoD, which made a similar point, agreed that there were not
lots of examples where employers felt effectiveness and efficiency
had been impaired.
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.
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.
Indeed, Mr Ingram stated
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
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.
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."
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..."
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."
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."
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,
had proved to be an effective means of resolving complaints of
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
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.
Second, it was argued that there was insufficient deterrence of
frivolous complaints which took up excessive amounts of employers'
time and energy
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.
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
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,
and invited it to submit further information to support its complaints.
With the sole exception of the issue of delays,
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
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."
According to Mr Ingram, he had no knowledge "of any group
of company interests who made such representations" in response
to the White Paper.
60. Although in evidence the IoD stated that there
was no power in the Fair Employment Tribunal to discipline those
who brought such cases,
it is clear that the Tribunal does, indeed, possess the power
to award costs against those who take frivolous and vexatious
Despite this power, we understand that the Tribunal has apparently
seldom been asked to award such costs.
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
We have received no evidence that the Tribunal has inadequate
powers in this area or that it is unwilling to use its existing
61. We also asked the FEC to address these complaints
and respond by explaining in detail the procedure the Commission
adopted in assisting complaints.
The FEC denied that it encouraged employers to make nuisance settlements.
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
Sir Robert Cooper told us that a working party is currently considering
the issue of backlogs in the tribunal system.
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,
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
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.
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
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
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.
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.
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.
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..."
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."
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,
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.
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.
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.
84 Q127. Back
85 Q278. Back
86 Q135. Back
87 Q462-3. Back
Order, Article 52(11). All figures quoted are in respect of those
for whom a community was determined. Back
4, p.170. Back
Report No. 9, Fair Employment Commission, March 1999. Back
See also Appendix 4, p. 169. Back
92 Q131. Back
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
and 281. Back
96 Q376. Back
97 Q136. Back
See also the similar position advanced by SACHR, Q285. Back
99 Q408. Back
100 Q423. Back
p. 39. Back
102 Q270. Back
103 Q129. Back
104 Q51. Back
105 Q152. Back
106 Q37-42. Back
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
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
Employment (Rules of Procedure) Regulations (Northern Ireland)
1989, Schedule 1, para 11(1); and Q6. Back
132 Q161. Back
Employment (Rules of Procedures) Regulations (Northern Ireland)
1989, Schedule 1, para 6(2); and Q161. Back
See also Appendix 1, p. 162. Back
135 Q157. Back
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
Cm 3684, p. 97 (Note by Dissenting Member - Mr Dermot Nesbitt). Back
145 Q279. Back
146 Q165. Back
147 Q116. Back
149 Q85. Back
150 Q150. Back