Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence - Fourth Report




Further memorandum from the Fair Employment Commission for Northern Ireland



  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.


  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.


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.


  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.


  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.


  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.


  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.


  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.


  The statistics for complaints for 1996-97 and 1997-98 are as follows:
General Enquiries2,098 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

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