APPENDICES TO THE MINUTES OF EVIDENCE
TAKEN BEFORE THE NORTHERN IRELAND AFFAIRS
COMMITTEE
APPENDIX 1
Further memorandum from the Fair Employment
Commission for Northern Ireland
VEXATIOUS CASES
INTRODUCTION
This paper addresses the relevant statutory
provisions and procedures in the FEC in relation to the granting
or refusal of assistance to persons alleging religious and/or
political discrimination.
ASSISTANCE
The Commission can only consider granting assistance
if the application comes within the statutory grounds specified
in S29(2) of the Fair Employment (NI) Act 1976 which provides:
Where in relation to proceedings or prospective
proceedings under this part, an individual who is an actual or
prospective complainant applies to the Commission for assistance
under this subsection, the Commission shall consider the application
and may grant it, if it thinks fit to do so, on the grounds that—
a. the case raises a question of principle;
b. it is unreasonable having regard to the
complexity of the case or the applicant's position in relation
to the Respondent, or another person involved, or to any other
matter to expect the applicant to deal with the case unaided;
or by reason of any other special consideration
Where the Commission considers that the application
comes within any of the grounds specified in S29(2) it must proceed
to consider whether it thinks it fit to grant assistance on that
ground.
AUTHORISATION OF
ASSISTANCE
S.29 Committee
As permitted by Schedule 1, paragraph 10 of
the Fair Employment (NI) Act 1976, the power to decide upon the
grant of assistance has been delegated by the Commission to a
Committee formed for that purpose. This Committee is known as
the "Section 29" Committee. The Committee consists of
the Chairman and two Commissioners.
VEXATIOUS CASES
All complainants who request advice and/or assistance
in relation to proceedings under Part III of the Fair Employment
Act 1976 must complete an application form giving, inter alia,
details of the conduct or state of affairs which they allege may
amount to discrimination under the Act.
If, when the completed application form is returned,
it appears that the application is frivolous or vexatious or the
complaint does not fall within S16-23 of the Act or where the
complainant repeats allegations already dealt with in another
complaint, the matter is referred to a Senior Legal Services Officer.
The application may then be dealt with under a summary procedure
whereby the application is submitted to the S29 Committee with
a short report and recommendation that the application be refused.
CONDITIONS OF
OFFER
In all other applications, if assistance is
granted the Commission's decision to offer assistance is subject
to review and withdrawal at any time. Each applicant must sign
conditions of offer which include the following circumstances
in which assistance may be withdrawn:
(i) Failure by you (the applicant) to comply
with these written Conditions of Offer;
(ii) Failure by you to disclose material
information or documentation relating to your complaint of unlawful
discrimination to the Commission;
(iii) Misrepresentation by you of material
information or the making of false or misleading statements to
the Commission or its appointed legal representative;
(iv) Failure by you to co-operate with requests
from the Commission or its appointed legal representative for
information or comments;
(v) Failure by you to attend interviews or
consultations arranged by the Commission or its appointed legal
representative;
(vi) Failure by you to notify a change of
address;
(vii) The availability of fresh evidence
and/or advice and/or information which undermines your complaint
or otherwise indicates a lack of merit or material change in the
character of your complaint;
(viii) Failure by you to act in accordance
with advice given by the Commission and/or its appointed legal
representative(s);
(ix) Unreasonable conduct by you including
unreasonable conduct towards staff of the Commission;
(x) Any other material change in circumstances.
REVIEW OF
ASSISTANCE
The examples quoted above are not an exhaustive
list of the circumstances in which a decision to offer assistance
may be reviewed. The Commission may also, at any stage, review
the decision to offer assistance where a review is considered
appropriate for any other reason. The Commission does not, inter
alia, support cases which do not have a resonable prospect
of success.
REMEDY
Any person/respondent who considers that a complaint
has been brought vexatiously can apply to the Fair Employment
Tribunal for a prehearing assessment (held before the full hearing
on the main issues of the application) when the Tribunal can consider
whether the allegations or counter-allegations have no real prospect
of success. The aim is to eliminate cases which appear to be hopeless
or particular allegations which appear to lack real substance.
If the Tribunal considers that the orginating
application or indeed the contention(s) of either party to the
proceedings have no reasonable prospect of success then the Tribunal
may indicate that, in its opinion, if the application or those
contention(s) are not withdrawn prior to the full hearing on the
merits, an order for costs may be made at the full hearing against
the party who persisted with the application or allegations.
COSTS
The Tribunal has power to order payment of all
or part of the costs of the other party if it decides that the
action has been brought frivolously, vexatiously or unreasonably.
An award of costs may follow a warning given at a pre-hearing
assessment.
To date no costs have been awarded against the
Commission in applicant assisted cases.
STATISTICS
The statistics for complaints for 1996-97 and
1997-98 are as follows:
| 1996-1997 | 1997-1998
|
| General Enquiries | 2,098 |
1,881 |
| Ongoing at 1 April | 330 |
307 |
| Preliminary Investigations | 885
| 684 |
| Granted Assistance | 172 |
133 |
| Refused Assistance | 165 |
217 |
| Refused No Further Assistance | 48
| 67 |
| Cases Settled | 67 | 63
|
| Cases Withdrawn | 70 | 77
|
| Decided (Upheld) | 5 | 1
|
| Decided (Dismissed) | 5 |
8 |
| Ongoing 31 March | 307 |
240 |
| | |
It can be seen that the Commission supported a minority
of complaints which are brought to it. It should also be noted
that only a miniority of complaints lodged with the Fair Employment
Trubunal are assisted by the Fair Employment Commission. As at
31 December 1998, there were 999 fair employment proceedings lodged
with the Fair Employmnet Tribunal. As at the same date, 226 substantive
cases were receiving assistance from the Fair Employment Commission.
7 January 1999
| 
