Proposal 1 - It is proposed to introduce a questionnaire as used in other areas of discrimination with a time limit of say, eight weeks, for the employer to respond. In the interim it is proposed to explore with the Equality Commission the possibility of introducing a voluntary questionnaire.

Do you agree with this proposal? Yes .... No ....

Introduction of questionnaire.
The Higher and Further Education, Training and Employment Committee supports this proposal which is intended to simplify and speed up Industrial Tribunal cases.

Time limit
The Committee supports the eight-week time limit for the employer to reply.

Adverse inference
The Higher and Further Education, Training and Employment Committee suggests that the Industrial Tribunal should be allowed to draw an adverse inference against a respondent who fails to respond to an applicant's questionnaire

Voluntary questionnaire as an interim arrangement
The Higher and Further Education, Training and Employment Committee considers this proposal to be a possible option, ie in terms of a useful pilot/development exercise. But the Committee expresses concerns about the practical effectiveness of an interim voluntary questionnaire in speeding up and simplifying equal pay cases. The Committee believes there would be little incentive for a respondent to reply to such a questionnaire given the adversarial nature of legal proceedings.

Proposal 2 - It is proposed that in multiple cases the tribunal should require just one application (IT1 form) and one response from the employer (IT3 form) by enabling other applicants to be listed as a schedule to these forms.

Do you agree with this proposal? Yes .... No ....

The Higher and Further Education, Training and Employment Committee supports this proposal, finding it reasonable to require one application and one response as outlined above.

Proposal 3 - It is proposed to remove, via EC regulations, the current power which enables a tribunal to dismiss a claim on the basis that, in its opinion, it has "no reasonable grounds" for determining that work is of equal value. In future, a tribunal would either have to consider the claim itself or appoint an expert to consider it.

Do you agree with this proposal? Yes .... No ....

Comment:

The Higher and Further Education, Training and Employment Committee does not support this proposal. The Committee notes its concern that if enacted this proposal may "open the floodgates" for any person who feels aggrieved and has "an axe to grind", irrespective of his/her claim being meritorious. An individual should not have a right to a full hearing where he/she does not have a valid claim. There are pre-hearing tribunals under the current system that are intended for this very purpose, ie to get rid of unmeritorious claims.

The above proposal also raises an issue about the expenditure of public monies, i.e. why expend public monies on experts when the pre-hearing tribunals under the current system can dismiss frivolous, vexatious and unmeritorious claims.

The factors outlined above have convinced the Higher and Further Education, Training and Employment Committee to reject the above proposal.

However, if an alternative fair, low cost and reliable method to deal with frivolous, vexatious and unmeritorious claims can be implemented, the Committee could then support the above proposal. The Committee notes that officials from the Department of Higher and Further Education, Training and Employment informed the Committee that very few claims currently were dismissed at pre-hearings.

Do you agree with this proposal? Yes .... No ....

Comments:

The Higher and Further Education, Training and Employment Committee considers it unreasonable to agree with the precise detail off the above proposal.

An assessor should not sit on the tribunal. Instead, a more useful model may be that of the European Court of Justice (ECJ). There an Advocate General prepares a written opinion for the ECJ, which is used to inform the ECJ's final decision-making: the Advocate General only assists the ECJ via his or her written opinion.

Perhaps the above proposal could be modified so that it incorporates this model. The independent assessor could be someone who has expertise in the area and investigates the claim, consequently providing his or her findings to the tribunal in the form of a written opinion in open court following a hearing in which both parties to a claim were afforded a full and fair opportunity to make oral representations in open court.

Moreover, it may be appropriate whilst awaiting any amendment of the Equal Pay Act (Northern Ireland) 1970 for the tribunal to use witnesses' statements to narrow the issues between the parties.

Proposal 5 - It is proposed that where the tribunal has decided to appoint an Independent Expert, it should be limited to hearing expert evidence only from the Independent Expert by:

• encouraging the parties' agreement to selection of an independent expert; and
• EITHER Option 1 - limiting the parties' right to call evidence challenging the expert's report by removing the right to call their own expert witness
• OR Option 2 - limiting the parties' right to call evidence as in Option 1, but allowing for applications to the tribunal by the parties to admit expert evidence limited to one expert witness per party to the action.

Do you agree with this proposal? Yes .... No ....

If yes, which option do you prefer?

Comments

The Higher and Further Education, Training and Employment Committee does not agree with the above proposal.

Both parties in a tribunal should enjoy the right to a fair hearing. (See European Convention on Human Rights, Article 6) This includes a full and fair opportunity to be heard, including the opportunity to call your own evidence.

An independent expert appointed by a tribunal is not independent in the proper legal sense of the word. Such an expert is not independent of the tribunal who appointed him or her.

A better model appears to be the use of an official assessor who presents to the tribunal a written submission - ie a completely impartial and independent reasoned analysis of all relevant issues of fact and law, together with recommendations as to how the case should be decided - for the purpose of informing the tribunal's final decision. The role of an Advocate General in European Court of Justice proceedings could be examined as a potential model to be followed.

Proposal 6 - It is proposed to remove the unnecessarily detailed rules in Schedule 2 (Complementary Rules of Procedure for Equal Value cases) of the 1996 Tribunal Regulations.

Do you agree with this proposal? Yes .... No ....

Comments

(Views are also sought on how Rule 8A might be streamlined.)

The Higher and Further Education, Training and Employment Committee agrees with the above proposal in light of the reasons provided on pages 6 and 7 of the Consultation Document.

Proposal 7 - It is proposed that the two year time limit on back pay in equal pay cases should be replaced, via EC regulations, with a time limit in line with limitation periods already provided for in relation to contractual matters - six years from the date of commencement of proceedings.

Do you agree with this proposal? Yes .... No ....

Comment:

The Higher and Further Education, Training and Employment Committee supports the above proposal based on the recent ruling of the House of Lords in the case of Preston and others, etc

Therein the House of Lords decided that the "two year rule" in equal pay cases is precluded by Community law and therefore cannot be relied on to defeat claims for periods prior to the two years to be taken into account. The decision further found that equal pay law and a claim under general contract law provide a "sufficiently similar comparison" so that the same limitation period could apply in each case.

Proposal 8 - It is proposed, via EC regulations, to enable tribunals to consider claims about discrimination taking place within six months of the end of employment. It is also proposed to enable tribunals to consider claims about discrimination taking place after this period if it is just and equitable and to provide a set of factors for the tribunal to take into account when considering whether it is just and equitable.

Do you agree with this proposal? Yes .... No ....

Comments

The Higher and Further Education, Training and Employment Committee supports the above proposal.

Other issues on equal pay cases

Any other comments you may have on the equal pay proposals, for example how employers might be encouraged to take broader remedial action when unequal pay is identified by legal action, would be welcomed.

BURDEN OF PROOF

Question 1 - Do you agree that
(a) referring expressly to "direct discrimination" and "indirect discrimination"; and
(b) adding "or practice" defined as in paras 6 and 7 of Part Three of this paper,
implements the Directive's definition of indirect discrimination? If not, can you identify any cases where an individual might win a Tribunal case under the wider alternative definition but would fail to do so under this proposal?

Comments

Question 2 - (a) Do you agree that the proposed change to the Sex Discrimination (Northern Ireland) Order 1976 fairly implements the switch of the burden of proof required by the Directive?

Do you agree with this proposal? Yes .... No ....

Comments

(b) Have you any views about the proposed method of change?

Other comments on Burden of Proof Directive

Any other comments you may have on the proposals about the burden of proof would be welcomed.

Equality Impact Assessment

Please use the space below (and any additional pages) to comment on any issues raised by the Equality Impact Assessment, which has been prepared as a statutory requirement under Section 75 of the Northern Ireland Act 1998.

The Higher and Further Education, Training and Employment Committee welcomes the Equality Impact Assessment and notes the comments and detail stated in the Equality Impact Assessment about the proposed changes to simplify and speed up Industrial Tribunal cases.

The Committee of Higher and Further Education, Training and Employment has not considered the detail of this as it is within the remit of the Committee of the Centre.

Please use the space below (and any additional pages) if you wish to make any observations on the Consultation Exercise.

The Higher and Further Education, Training and Employment Committee notes and welcomes the well structured and presented response form provided in this consultation exercise. In addition the Committee commends both departments for allowing consultees sufficient time to respond.

Other points raised by Higher and Further Education, Training and Employment Committee

The Higher and Further Education, Training and Employment Committee is very concerned about the total lack of financial implications under the Regulatory Impact Assessment. This should be immediately addressed before the department's progress to the next stage.

The Higher and Further Education, Training and Employment Committee are very concerned if these proposed changes will achieve the overall aim to simplify and speed up tribunals.

The Committee also wishes to raise its concern in respect of the development of tribunals from a low cost, easy and highly accessible method of achieving justice to that of an expensive full-blown court format. The Committee makes this comment being fully aware of the increasing complexity of employment law.

Please tick as appropriate to indicate whether you are responding on behalf of:

A Voluntary Sector Organisation ....

An employer/service provider/employer's association ....

A trade union/staff association ....

A local authority ....

A statutory body ....

As a private individual ....

Other (please specify ____________________________________)

If you are responding on behalf of an organisation, please give organisation name below.

Higher & Further Education, Training and Employment Committee
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Please fill in your name and address below.

Dr Esmond Birnie MLA, Chairperson, Higher and Further Education, Training and Employment Committee 1March 2001
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Room 283, Parliament Buildings, Stormont, BELFAST, BT4 3XX
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Thank you for taking the time to reply. We do not intend to acknowledge responses unless by request.

Minutes of 22 February 2001, section 7, paras 1 and 2

Minutes of 1 March 2001,section 3, para 4