4 January 1996
1. The Ulster Unionist Party, as a modern, pluralist party, supports employment equality and fair participation in employment.
2. In trying to achieve fairness and equality it is essential that the highest value is placed on equality of opportunity. Equality of outcome is desirable, although in this context that concept is too often wrongly debased into a sectarian headcount. It must never be thought that equality of opportunity can be sacrificed in order to achieve a supposed equal outcome. The merit principle is crucial and the Commission must be suspicious of sophisticated attempts to redefine merit in such a way as to allow other considerations to take precedence. We welcome the recent decision of the European Court of Justice that it is unlawful, under European Law for there to be a preference for the under-represented sector of the workforce in so-called tie break cases. This decision has implications for any move to dilute the merit principle.
3. We notice also the strong tide of opinion in America against so-called positive discrimination. Discrimination on grounds irrelevant to the merits of the individuals concerned in relation to the job in question is wrongful discrimination. The human rights of the individual must be paramount and the claims of "communities" to a certain share of jobs must not take precedence over human rights.
4. The best way to achieve the goals of fairness and equality is by developing the economy in Northern Ireland to such an extent that there is enough employment for our entire population.
5. It is unfortunate, however, that the high level of unemployment in Northern Ireland has created a situation where there is high competition for employment and where sectarian overtones are attached to this competition.
6. The Ulster Unionist Party found many faults in the Fair Employment Act 1989 and did not support the Bill in Parliament. Many of our criticisms hold true.
7. There can be no doubt that the 1989 legislation has been effective. Overall, the Roman Catholic proportion in every occupational group between 1990 and 1994 has increased with the largest increase being in managerial and professional occupations. Roman Catholic managers and administrators have increased from 30.5% to 34.4%, an increase of 3.9 points. Roman Catholic professionals have increased from 33.4% to 38.8% an increase of 5.4 percentage points. In those sectors which have been monitored for four years the Roman Catholic workforce has grown from 34.9% to 37.2%, an increase of 2.3 percentage points.
... the figures would suggest that ... about half the under-representation of Roman Catholics in employment and more than half of their under-representation in the top two SOCs has been eliminated. (Robert Cooper, Chairman, FEC, 5th Monitoring Report)
8. The above figures relate to the numbers of those in employment. These figures are precise and reliable. Unfortunately there cannot be the same confidence in the figures of those unemployed. Reference is frequently made to differential rates of Catholic and Protestant unemployment. But these unemployment figures include everyone "on the double" and everyone drawing benefit in one jurisdiction while working in another. It is possible that there is an equal incidence in those practices among both protestant and catholics. But it is highly unlikely, if only because the incidence of these practices varies from one occupation to another, for example, being high in the construction sector, which is disproportionately catholic.
It is therefore essential that an attempt be made to get reliable figures of the unemployed and a better analysis of the causes of unemployment rather that the present approach which wrongly assumes that any differential in unemployment is caused by unfairness.
9. The Commission should also be prepared to consider a fundamental reappraisal of the number and remit of the statutory agencies in this field. We are faced with the prospect of four agencies all dealing with employment. The Fair Employment Commission the Equal Opportunities Commission, the Labour Relations Agency and perhaps a Commission for Racial Equality. The Commissions have both an advisory function and an enforcement function. Yet these functions are in conflict. No one going to a lawyer seeking advice would be happy if he were told that his solicitor also works as a judge and may be considering his case as a judge while advising or assisting one or both of the parties at the same time. The Commissions may claim that there are "chinese walls" within them to separate these different functions. But this lacks credibility in the eyes of those who should seek advice and the Commission may find on inquiry that it does not work satisfactorily in practice. For the Commissions cannot be genuine advisors when they have a clear institutional commitment not just to certain general objectives of the Commission, but to all the particular policies that may be adopted from time to time by the Commission towards the achievement of those objectives.
Not only is there conflict between the functions of the Commissions there is conflict between the agencies. The LRA and the FEC differ on redundancy procedures. The EOC and the FEC differ on random selection of interviewees. These conflicts remain unresolved, despite reference in one case to the Department of Economic Development. Yet the employer is carrying out the same function and must therefore simultaneously satisfy all the agencies. An employer cannot wait for the bureaucracies to complete their deliberations, he has to take decisions on, say redundancies or shortlisting criteria and these decisions which may be subject to legal challenge by those affected. He needs a single authoritative source of advice.
10. There is a case therefore for two agencies with clearly different functions. One to act in an advisory manner with regard to employment issues; the other to deal with the enforcement of the legal codes on discrimination. Both agencies would handle all possible causes of discrimination whether religion, politics, race or sex. The Commission must make sure that efforts to build and defend bureaucratic empires does not stand in the way of a coherent structure, responsive to the needs of business and individuals seeking advice or assistance. We are dealing with one subject, employment, and the legal concepts relating to discrimination in employment decisions are the same whatever might motivate the discriminator. The one area where there may be differences is with regard to monitoring and "affirmative action" requirements. But here too there may be benefit from a fundamental rethink.
11. Traditionally, the nationalist perception in Northern Ireland was that fair participation in employment was denied to the Roman Catholic community. The Ulster Unionist Party senses from the community now that there is widespread perception among Protestants that the balance has shifted the other way. The FEC is viewed as an agency created to promote employment for Roman Catholics and ipso facto is working to the detriment of Protestants.
12. We recognise that the FEC was established to combat allegations of illegal discrimination and unfair participation against either community in Northern Ireland. Nevertheless, the FEC is regarded in a negative light by the Protestant community and more needs to be done to win its trust. This should be a priority goal for the FEC.
13. Much fault for this problem lies with republican pressure groups and nationalist political parties which have deliberately targeted particular employers (e.g. Queen’s University, Northern Bank) for abuse, as part of wider agenda campaigns.
14. There are many organisations where Protestants are under-employed but which do not appear to receive attention from the FEC, e.g.
| Organisation | % Protestant |
|---|---|
| Newry and Mourne District Council | |
| Enterprise Ulster | |
| Citybus Ltd. | |
| Flexibus Ltd. |
Of course the make-up of the FEC itself [44.7% Protestant] causes annoyance in the Protestant community and damages the FEC’s credibility.
15. Catchment areas must be defined with care having regard to the nature of a particular firm and the geographic area from which it is reasonable for it to draw its workforce. In some cases more account should be taken of travel to work areas, particularly in Belfast where those residing in North Down, Newtownabbey, Carrickfergus, Lisburn and elsewhere could reasonably be expected to take up employment. In other cases, the FEC should not extend the catchment area without the full agreement of the company, to do otherwise would mean that the wages offered by the company would not justify the time spent in travelling. Definition of catchment areas radically affects the view taken of a firm and the obligations that may be imposed on it under so-called affirmative action. The Commission therefore should inquire into the practice of the FEC on this matter to assess whether it has defined catchment areas appropriately.
16. A company may be required as part of the action required by the Commission to advertise on the basis that applicants of a particular religion are very welcome. Such a requirement gives an impression that candidate of another religion is at a disadvantage. This is not our understanding of a level playing field for all employees. Commission officers stress that the company should employ the best person for the job. This is a difficult task if affirmative action requires the company to increase the number of employees from one community. Such a requirement may destabilise that workforce because they may suspect that the affirmative action required is favouring a minority and that an employee was selected not on merit but because of his religion.
17. Where goals and timetables are set as part of affirmative action, the very setting of the goal would involve a figure in relation to the total workforce and a timetable in which to achieve it. In these circumstances any difference, if one exists, between a goal and a quota is slim indeed.
The FEC in its 6th Annual Report says, "In all its discussions with individual employers ... the Commission has stressed the clear distinction between goals and timetables, as allowed by the legislation and quotas which are unlawful."
The Commission should consider and investigate whether such a distinction actually exists in practice.
18. To take examples from the Affirmative Action programmes published in May 1995, a company was set "a target of achieving a Roman Catholic proportion of not less than 35% among applicants and appointees for all posts at Belfast; 27% among applicants and appointees for all posts at Ballymena. An overall goal of increasing the Roman Catholic proportion of its workforce to 31% at Belfast, 21% at Ballymena."
Despite the use of the words goal and target, the precision of the figures and the pressure towards increasing the number if Roman Catholics in a firm which then had only 7% Roman Catholics within its workforce must create a real danger that merit will take second place to the target. The Commission should investigate to see whether the merit principle actually survives in such a hostile environment. Our fear is that only lip service is paid to merit and that the targets become virtual quotas. These fears are exacerbated by the fact that the word merit does not appear anywhere in the 45 pages of the May Affirmative Action programmes. The introductory definition of terms includes the bald statement that quotas are illegal. But no effort is made to define and explain the practical difference between a quota and a target. Throughout the emphasis is one outcome rather that opportunity. Significantly the introduction to the FEC's 6th Annual Report by its Chairman gives a higher priority to affirmative action than to equality of opportunity.
It our belief that in all circumstances priority must be given to equality of opportunity.
19. We would also ask the Commission to investigate and assess the FEC's actual conduct of its Affirmative Action programmes. How were firms selected? Has there been fairness and consistency in selection and treatment? Have the targets and goals been set fairly and consistently? Is the statistical basis accurate and has it been used fairly? Take the case mentioned in the preceding paragraph. Targets of 21 and 27% were set for the Ballymena site. Yet the Roman Catholic proportion of those economically active in the Ballymena District Council area is 19%. Again in that case targets of 35 and 31% were set for the Belfast plant. Yet that plant is actually located in Castlereagh where the Roman Catholic proportion of those economically active is under 12%. The higher figure is justified by including all of Belfast City Council. But why include the neighbouring Council on one side while ignoring the neighbours of North Down and Ards on the other side? Surely the actual catchment area of a firm in Castlereagh will be Bangor, Newtownards and East Belfast. Was there a political motive behind the omission of Bangor and Newtownards and the inclusion of West Belfast? With regard to Londonderry a very different approach can be seen. For a firm in the west bank of Londonderry with 1% protestant employees in a Council Area where 28% of those economically active are protestant (32.8% in the travel to work area), a target of 12% is set. This figure may fairly represent a reasonable target given the location of the firm, but is appears to follow from a different approach to the firm in Castlereagh. In any event in that particular case the target of 12% is impossible. All the evidence in that case indicates that the firm in question does not discriminate; that it makes considerable efforts to attract and retain a balanced workforce but that the chill factor in that locality and on that shopfloor is so great that the target cannot be achieved.
20. Such circumstances must call in question the objective of a balanced workforce in every place of employment. This objective is not in the legislation. The FEC justify this objective by reference to the concept of fair participation in employment. But there is no necessary reason for fair participation to have to be achieved in every location of employment. It could be achieved on an overall basis. Indeed the evidence seems to be that it is in fact being so achieved. Yet to insist on an equal outcome in every workplace is to cut against family ties, geography and social practices. The Commission should consider whether the FEC was justified in extending its remit so radically. It should also consider whether in so doing it is operating within its legislative powers. The FEC is using investigations and undertakings under sections 11 and 12 for this purpose. But those powers are for "promoting equality of opportunity". That is a fundamentally different concept to either equality of outcome or fair participation.
21. Since the Fair Employment Act 1989 many public sector organisations and private sector companies with alleged recruitment bias have been recruiting members of one community at a higher rate than their population size should merit - obviously in a deliberate attempt to ‘improve’ the figures in their monitoring returns, e.g.
| Employer | % Protestant | % Roman Catholic | |
|---|---|---|---|
| BBC | |||
| Arts Council | |||
Again the Commission should investigate the FEC’s role in these matters to make sure that the merit principle was properly sustained.
22. While a company may have had a recruitment bias towards one section of the community which needs to be rectified, it is not fair to favour the under-represented community among new recruits in order to atone for bad practice in the past. This in effect makes a ‘scapegoat generation’ of young (mainly Protestant) people who find gaining employment increasingly difficult.
23. We suspect there is correlation between fair employment practices and the rising numbers of Protestant school leavers and university graduates who leave Northern Ireland for Great Britain where there is no similar legislation.
24. The exemption of school teachers from the current legislation should be reviewed.
If it is not felt possible to include school teachers on a par with other occupations, the employment of teachers should certainly be included in FEC monitoring figures. There are many teachers from the Roman Catholic community employed by the controlled voluntary grammar sectors but very few from the Protestant community employed in the Roman Catholic Maintained sector. The absence of these employees creates a distortion in overall employment figures for Northern Ireland.
25. In many cases the number of employees whose religious affiliation is listed as ‘not determined’ represents more than 5% of the total, e.g.
| Organisation | 'not determined' | |
|---|---|---|
| Western Health & Social Services Board | ||
| Office of Public Service & Science | ||
| South Eastern Education & Library Board | ||
| British Broadcasting Corporation | ||
| Ulster, North Down & Ards Hospitals Trust | ||
| Belfast Education & Library Board | ||
| North-Eastern Education & Library Board | ||
| Belfast City Hospital HSS Trust | ||
| Southern Health & Social Services Board |
In these instances monitoring returns should be further refined to more accurately reflect the true composition of the workforce and avoid the danger of distorted figures.
26. We consider that on termination of employment the ‘last in first out’ rule should take priority. The obvious difficulty in relation to recently recruited employees from one community should not override the unfairness to other workmen made redundant because of their religion.
27. The Fair Employment Tribunal has two functions. Firstly, to hear complaints of discrimination and award damages. Secondly, to hear appeals from the Commission by companies and to enforce Commission directions with power to impose cash penalties. The jurisdiction of the Tribunal in relation to damages and penalties was restricted to £30,000. The jurisdiction, following an EEC ruling, is now unlimited.
The only avenue of appeal open to a company aggrieved by a decision by the Tribunal is by way of Case Stated to the Court of Appeal on a point of law. There is no appeal on quantum. We are strongly of the view that the absence of an appeal on quantum is manifestly unjust. We suggest that there should be a right of appeal to the High Court from the decision of a Tribunal and with leave from the High Court to the Court of Appeal and to the House of Lords with leave of the Court of Appeal. As an alternative an Employment Appeal Tribunal might be considered on the lines of the English Tribunal dealing with appeals from an Industrial Tribunal. It would be essential that a High Court Judge should sit on the Appeal Tribunal.
28. It is understood that the jurisdiction of Industrial Tribunals and Fair Employment Tribunals overlap. There appears to be a case for merging the two Tribunals with jurisdiction to deal with matters from both Commissions.
There may well be a case for the merger of the two Commissions ruling in a saving in time and money.
We are also concerned by the absence of any clearly defined procedure for discovery in Commission cases. It is understood that complete files may be available to a complainant when only certain documents are relevant. The question of costs should also be considered. Where a respondent succeeds, costs cannot be given against the Commission. This places respondents in a very serious disadvantage as costs are very substantial. At least where the applicant is assisted by the FEC then if the respondent succeeds costs should follow the event in the normal way. This could be unfair where the applicant is not assisted, but it would not be unfair for the unsuccessful applicant to bear some of the cost.
29. Under current case law the legislation has been held to apply to any preference given in the course of employment. So that appraisal reports, decisions to send an employee on a training course and so on could all be subject to litigation. It may be said that these merely require good management practices. But they do require major changes in management and a huge potential burden. Consideration should be given to limiting the effect of the legislation to where such preference or decision has significant adverse effect, e.g. results in an employee being passed over for promotion.
30. The majority of companies in Northern Ireland wish to encourage fair employment in the workplace. They are not sectarian and make every effort to co-operate with the FEC in the implementation of the legislation. There is a belief, however, that the FEC, due to its enthusiastic enforcement of the legislation, fails to have due regard for the well being of companies and the employment they provide in the Province.
There is a feeling that officers of the FEC often approach companies as defaulters who are in breach of the legislation, rather than as a company which wishes to comply with the law and requires understanding of its problems and assistance in rectifying any breach of the legislation which may be detected by the FEC.
It should also be borne in mind that the extensive records to be kept and the strict procedure to be followed places a particular burden on companies of up to 150 employees. These companies cannot afford a full-time personnel office. We consider that such firms should be given special consideration.
Where a family company wishes to employ a member of the family in the company it should not be required to follow the prescribed procedure for recruitment. The present procedure is unfair to families of small companies of 10 or more members.
31. At a time when deregulation is a key government policy and when there is a desire to reduce the burdens on industry consideration should be given to ways in which the burden of monitoring, record-keeping etc. could be lessened now that we are approaching the fulfilment of some of the objectives of the legislation.
It is essential that Ulster businesses survive and prosper. Prosperity will bring more jobs for everyone. They must be competitive. That must mean a reduced regulatory load. It also must mean that the best person for that business gets the job. The Commission might like to consider whether the highly structured and stylised shortlisting and interview procedures required by the FEC actually do in practice result in the best person for that particular business getting the job.
