COMMITTEE FOR EMPLOYMENT AND LEARNING

OFFICIAL REPORT

(Hansard)

Review of Workplace Dispute Resolution

25 March 2009

Members present for all or part of the proceedings:

Ms Sue Ramsey (Chairperson)
Mr Robin Newton (Deputy Chairperson)
Mr Alex Attwood
Mr Paul Butler
Mr Alex Easton
Mr Willian Irwin
Ms Anna Lo
Mrs Claire McGill

Witnesses:

Mr Bob Collins ) Equality Commission
Ms Eileen Laverty )

The Chairperson:

I welcome the representatives from the Equality Commission and thank them for the information that they sent to the Committee. I invite Mr Collins to make a presentation, which will be followed by questions from members.

Mr Bob Collins (Equality Commission):

I am the chief commissioner of the Equality Commission, and my colleague Eileen Lavery is the head of strategic enforcement in the commission. We are happy to have the opportunity to attend today’s Committee meeting. Given the nature of our remit and responsibility, we have a particular interest in the area of alternative dispute resolution, as well as the general area of dispute resolution.

Although the work that the Equality Commission does in this area has a different focus from the work that is done by other organisations, there are areas of overlap and common interest. Many of the cases and enquiries that are brought to the commission for formal legal assistance could have — and, perhaps, should have — been resolved long before the individuals felt the need to come to the Equality Commission. That represents an inadequacy — perhaps failure is too strong a word — in the procedures for dealing with circumstances as they arise.

The work of the Committee in respect of dispute resolution relates only to employment, whereas the Equality Commission has a broader remit. People come to us with a range of issues in respect of the provision of goods, facilities and services.

We have an interest in the resolution of the difficulties that individuals come to us with, but we also have an interest in the structural issues that arise. An individual case might reflect a set of circumstances that might affect everyone who works in the same area. It might also affect people who work in similar areas across Northern Ireland and, in many instances, those cases can help the commission to illustrate to the public how the law offers protection to individuals. We take a dual perspective in relation to that, as we must. Our role is to take a strategic view from the perspective of the commission’s objective and look at what the law lays out for the commission in respect of the cases that it supports.

Issues of an industrial relations character touch upon much of the work that other organisations are involved with, and such issues are the meat and drink of alternative dispute resolution. In many instances, the conventional industrial relations responses are not the most appropriate when it comes to dealing with some of the issues that people bring forward relating to various aspects of discrimination law. Through our employment development division, we do a lot of work with employers to help them to understand discrimination law and assist them in dealing with issues that arise in their employments.

The Equality Commission works actively, on a continuing basis, with the Labour Relations Agency (LRA) at executive level. Our boards meet jointly at least once a year. We jointly publish material with the LRA and hold conferences and events with it. Furthermore, we engage actively in the steering group that deals with workplace dispute resolution — Eileen Lavery is the commission representative on that group. That prompts me to suggest that it would be better if Eileen were to continue with the presentation — she knows a great deal more about that matter than I do.

Ms Eileen Lavery (Equality Commission):

I will outline what the commission does, how it meshes into the area of dispute resolution and how it is best that resolution is reached in Northern Ireland.

As the Committee knows, the commission has responsibility only for discrimination matters that are made unlawful by statute. Therefore, we consider questions regarding age, gender discrimination, fair employment, sexual orientation, equal pay, race relations and disability; all of which are matters that are of personal interest to individuals. Very often, they are issues about which individuals need particular advice, and we are happy to supply that advice.

We have been involved in the review of dispute resolution because we want to see disputes being resolved as close as possible to where the disputes occurred — that is, the particular workplace — and we want to see them being resolved as informally as possible. Bob emphasised that it would be better if some of the cases that come to us were resolved informally in the workplace where they arose. We would be happy to see arrangements being put in place that would allow that to happen.

We are keen to see that even alternative resolutions could produce meaningful outcomes for individuals. That is an important area that must be considered. Informal resolution is of benefit to individuals because of the private nature of it; not everyone wants a dispute to become public, but it has to have meaningful outcomes.

Each year, we provide individualised advice about discrimination to approximately 3,000 individuals who come to us and claim that they have been victims of discrimination. In many instances, the advice that we give to those individuals helps them to resolve those matters in an informal way, so there is no further need for them to progress with their cases. However, that is not true of everyone — each year, we also receive requests from people seeking assistance in taking a case forward.

I know that the review of alternative dispute resolution has mainly focused on the question of statutory dispute resolution procedures. The Committee will know that those procedures will soon come to an end in Great Britain, but we will continue with those arrangements until an alternative is produced in Northern Ireland.

On the one hand, those procedures have made matters more complex. On the other hand, however, they have produced many advantages. When an individual comes forward with a discrimination matter, the commission does not give them advice about statutory dispute resolution arrangements because that is the business of the LRA. We give them advice about the discrimination element. However, it is the individuals’ responsibility to lodge an internal grievance before they lodge an external case — that is the sort of complexity that the individuals must negotiate their way around, and that has been difficult for them.

What has happened in the past is that, because matters have been identified and recorded in writing, by the time that individuals come to bring forward a case with which they wish to proceed, the substance of it has been spelt out and everyone is clear about what is alleged and what the defence response of the employer will be. That means that those matters come to the table much earlier, which has been helpful for the individuals involved.

When we receive an application for assistance, we make a decision about whether to assist that case in accordance with our strategy. We do not assist all cases. We know that that is sometimes disappointing for individuals, but the fact is that we select cases in accordance with our strategy. We tell individuals the reasons why we have not assisted their case. Even though they may have a very good case, if the case involves a matter that is readily understood and has nothing new in it — either in relation to law or practice — they will be given advice to help them to proceed with that case unaided.

For cases in which we assist, we effectively become the individual’s solicitor. Where necessary, we will appoint a barrister on their behalf, and it becomes a legal case. Out of interest, I have brought some copies of our recent decisions and settlements review to give members — if they are interested — an idea of the cases that we assist and the kind of conclusions that are arrived at. Personal stories are always of interest to individuals.

We do enter into negotiated settlements; not many of our cases will ultimately be determined in a court or tribunal. Most of the cases that we deal with will be concluded by way of settlement. Our role in Northern Ireland is to promote equality and eliminate discrimination, so we are not just interested in the personal terms and conditions for the individual — we are interested in the more substantial matters about the changes to policy and practice.

Another of our roles is to promote good equality practice, so our employment development team provides employers with information on how to put in place good practice. I know that the review of dispute resolution is focused on building capacity and that employers — including small employers — must have the capacity to implement good quality practice. The employers must consider whether they have the appropriate policies and procedures in place, whether they know what is acceptable in the workplace and whether they outlaw everything that is not acceptable and that is likely to cause disputes. We are doing a lot of work on the employer side, but, when cases are brought to us, the law says that it is individuals whom we can assist. Therefore, it is the individual for whom we act as a solicitor and whom we help to resolve a dispute.

I want to emphasise the role of the tribunal. As the Committee will know, there are fair employment tribunals and industrial tribunals. Tribunals have had a significant role in addressing discriminatory practice in Northern Ireland. Crucial decisions have come out of our local tribunals, and those decisions have been upheld and have become case law throughout the United Kingdom. Therefore, tribunals have had a significant impact.

The Committee will also be aware that the president of the tribunal has put in place significant amendments to quicken the process, because justice that is delayed is not much use to anyone. The timescale from the point when an individual lodges a complaint to the point when the dispute reaches its conclusion has reduced significantly in the past three years. The commission is pleased to have been involved in those amendments and process reviews.

The commission has been involved with the work of the steering group in bringing forward this review. We are pleased to be involved in that work because it is important. Although we are committed to the early resolution of a dispute and want to ensure that a case is resolved as close as possible to the source where the dispute arose, we recognise that some cases involve significant discrimination matters and will have to go to a court or tribunal for a determination.

We are committed to dealing with the issues that have come up in the course of the review, such as the promotion of good employment relations, the need for principles that should govern dispute resolution in Northern Ireland and the need for a commitment to encouraging employers to develop their skills. We look forward to the forthcoming consultation on those matters, which we hope will lead to new Northern Ireland-specific arrangements being put in place that will place better practice at the heart of what we do. We will continue to provide advice to individuals when they need us, but, as is the case with all public bodies, our objective is to bring about a resolution as early as is possible.

The Chairperson:

Thank you for your presentation. I know that the Department wanted to include as many people as possible in the steering group. However, at a previous Committee meeting, we learnt that the Law Centre had not been represented on the steering group, although we had been led to believe that it was. The representatives of the Law Centre raised some valid points that we will take on board in our response to the consultation.

In your paper — for which I thank you — you outlined the remit of the Equality Commission and you have mentioned that the Equality Commission was involved in the steering group. More and more, I am finding that documentation that we get from Departments has been internally screened out and the Departments say that there is no need for the relevant policies to be equality impact assessed. Other members might agree that they have noticed that happening. That raises an issue with me, because if there is a need for something to be changed, its impact must be assessed. Given that you were involved in the steering group for the consultation document on dispute resolution, do you know whether it will be equality impact assessed, or has it been screened out by the Department? I hope that you can deal with that concern.

Ms Lavery:

The forthcoming consultation will ask questions. Our main concern is whether that consultation is going to be a good consultation and whether it will meet the standards of the equality duties of the Department for Employment and Learning (DEL).

The Department has taken advice from our statutory duty team on running a good consultation. It is no longer simply presenting a policy without having consulted on it — it now goes out to consultation on forthcoming or potential changes and ways forward. Therefore, it is crucial that the consultation is good.

We have given the Department advice on how to run a good consultation, because we need to avoid the criticism of consultation fatigue, which I think we are all conscious of. One-to-one discussions must be had with the key partners on the relevant policy and there must be provision to collect that information.

On screening, the central question for DEL is what does its equality scheme require it to do? The Department must look at whether it has acted within the terms of its equality scheme and whether it has gone through its screening process when bringing about policy changes. At this stage, there is no policy change, there are simply questions about what should be in the policy.

The Chairperson:

That is quite useful — if anyone from the Department is listening, they need to take heed. All of the Departments need to be able to say that they have taken advice on how to advance their consultation procedures. It is useful that the Equality Commission was involved in the steering group. However, if there are no policy changes, we must consider what comes after that and look at the equality impact of such a decision.

Mr Collins:

A formal equality impact assessment will not be undertaken for every policy decision that is taken by every public authority. When determining whether a formal equality impact assessment is necessary, from the Commission’s perspective it is crucial that there is an element of proportionality in the consideration of the relevance and significance of a policy and the extent of its application.

Eileen’s point raises an important issue regarding the way that public authorities develop policies, although it is a bit distant from the particular question of dispute resolution. A policy that is built on a process of engaging with people is likely to be more effective than a policy that has not had that preceding element. We will have a continuing engagement with the public authority — that is, the Department — in respect of any policy developments that flow from these discussions.

Mr Newton:

I welcome the delegation to the meeting. I want to pick up on a phrase that Eileen has used. Eileen, you are a member of the steering group, and you said that:

“alternative resolutions could produce meaningful outcomes”.

On the basis of the work that the Equality Commission is doing, are you convinced that we are heading in that direction?

Ms Lavery:

Yes; I do think that, and it is for that reason that I have brought copies of our recent decisions and settlements review, which outlines the kinds of settlements that we conclude on an individual’s behalf. Those are cases in which there has not been a determination in a tribunal as the parties have settled. In the terms of the settlements, we are looking at such matters as whether there is recompense for the individual for the loss that they have suffered, or whether there is recognition of the hurt to their feelings, for example.

In cases that we are involved in, we are also looking for changes to practice to ensure that what went wrong and led to the dispute does not go wrong again. In our settlements, we always have a review of the company’s equal opportunities policy and may suggest such measures as training for the individuals in the matter that brought about the dispute. Those are meaningful outcomes. Alternative resolution cannot just be a simple and cheap way of getting rid of disputes; that is what it should not be.

Mr Newton:

Therefore, is it fair to say that, in general, you are favourable to the approach that is being worked through?

Ms Lavery:

Yes, we are.

Mr Butler:

Thank you for your presentation. There seems to be an issue around the provision of advice to individuals. The Equality Commission receives 3,000 enquiries a year, 80% of which relate to employment issues, but you only select a certain number of cases to go forward. When the Law Centre spoke about this issue, they told us that they have only two people dealing with claimants and they are overwhelmed.

Particularly in light of the current economic climate, I am concerned that there seems to be a lot of people who feel that they do not have their grievances addressed, and that was indicated in a report that was commissioned by the Department for Employment and Learning. That is all the more concerning at a time when people are losing their jobs and income and face a financial burden.

The Law Centre pointed out the issues that people face when they try to pursue a claim. In that evidence session, I think that it was Alex Attwood who mentioned that sometimes employers come up with tactics to try to drag a process out. There does not seem to be a clear route for people who want to get advice at an early stage. People are concerned, particularly in relation to employment issues, that they do not have the finances to pursue an issue that they want to have resolved. A lot of people seem to be slipping through the net.

The report by the Department for Employment and Learning mentions analysis of, and research on, exactly what workplace disputes involve. That is something that should be looked at. I have a sense that more and more people are getting involved in disputes as a result of the economic downturn, as more people are being paid off and feel aggrieved at that. That seems to be an issue. Although DEL has carried out the report and the Committee welcomes it, the evidence that we have heard from the Law Centre — which, as I said, has only two people dealing with workplace dispute resolution — suggests that current procedures are inadequate to deal with that issue.

Mr Collins:

In our work, we in the Equality Commission constantly bear in mind the saying from Sherlock Holmes about “the dog that didn’t bark”; frequently, it is the people who do not come to us who are a source of concern. We want to be sure that everyone right across Northern Ireland who could benefit from the services provided by the Equality Commission is aware of that facility and avail themselves of it. That is why we have a constant process of trying to make people aware of the commission, so that they know that there is a place to which they can have recourse in certain circumstances.

At the moment, we detect an increase in requests for advice and applications for assistance. Many of those cases relate to employment issues and may be an effect of present economic circumstances. However, many of those cases may not come within the legal remit of the Equality Commission because, as we both said earlier, our remit is to deal with discrimination issues. The circumstances that arise as a result of an economic downturn are the consequences of a recession and have implications for businesses; however, those circumstances may not give someone a foothold in respect of discrimination law, which is what we deal with.

Of the 3,000 people who come to us seeking advice, all of them get it and, as Eileen has said, many of them will find ways of resolving their difficulties without having to take the matter any further and are perfectly happy with that. Although it varies from year to year, there are upwards of 300 or 350 people in any given year who come to us seeking formal assistance with cases that they are proposing to take.

Each of those applications is considered in detail. In the first instance, that is done by legal officers, who work with the applicant to ensure that they have done all that the law requires of them to protect their interest. Each application then comes before a legal funding committee that is composed of members of the Equality Commission and is advised by commission staff. A decision on whether assistance is granted or declined is taken in respect of each case.

Assistance is granted on a phased basis, so that it can be reviewed at every stage — for example, when counsel’s opinion is obtained regarding whether the case will be settled or will go to a hearing. At every stage a decision is taken as to whether the case will continue to be supported. Every case is considered in detail. In the four years that I have been with the Equality Commission, I have been involved in most of the meetings of the legal funding committee and one of the things that impressed me from the very beginning was the extent to which each case is considered in detail and the extent that the interests of the applicant, as well as the interests of the respondent, are taken into account in the making of a decision.

Not every case can be assisted — to be frank, not every case merits assistance. Not every case has a strategic interest for the Equality Commission. The commission is not a free legal aid body, in the sense that we simply do not have the resources — that is, the funds — to support everyone who seeks assistance. We have a considerable number of staff to deal with enquiries from individuals — Eileen can provide further detail on that. A significant amount of attention is given to those peoples’ needs.

In the context of the economic downturn, it might be the case that discriminatory practices that had not been part of an employer’s environment previously will creep in, as people’s guards drop or as they focus on other matters. We are remaining watchful to ensure that that is not an unintended consequence of the economic downturn. However, there will be many issues that arise and difficulties in which people find themselves that are not captured by what we are entitled to do by law.

Members may be interested to note that disability is the number one category on which people seek advice. Race is the second, gender is the third, and religion and politics are next. Age and sexual orientation, being relatively new, are close to the bottom of the list. One of the depressing characteristics of the gender cases that come to the commission is the extent to which pregnancy discrimination is alive and well in 2009 — more than 30 years after it was, theoretically, disposed of. That is life, I suppose.

Mr Attwood:

Thank you. I have two questions, but I will first make a comment. I am quite protective of the culture that has arisen over the past 20 or 30 years in the North with regard to employment laws and the regulation and enforcement of those. Developing that culture was a necessary requirement for our society as it began to develop and move on.

There is good evidence that that culture has created new disciplines and attitudes in the relations between employees and employers. Given the profile of the cases that are coming to the Equality Commission, which Bob has just outlined, as well as the cases that are not yet getting much of a profile in the commission, it seems to me that those disciplines need to be protected. I need to be convinced that adjustments are needed because I think that we are better as a society because of the disciplines, the laws and the enforcement that we have.

Both in your written submission and orally, you have said that alternative dispute resolution needs to have Northern Ireland-specific requirements. However, in its evidence session one hour ago, the Confederation of British Industry (CBI) said that we should simply follow what is happening in Britain. Why do we need a Northern Ireland-specific framework? The CBI does not agree that we do.

The representatives from the CBI made a point that seems to have some merit, which is that the statutory procedures do not differentiate between different types of dismissal. They stated that disciplinary dismissals are treated in the same way as those that result from redundancy or from the end of a fixed-term contract, for example — is that right? What is your observation on that matter? Instead of having a one-size-fits-all approach, the CBI believes that there should be different mechanisms that are dependent upon how the different situations arose.

Mr Collins:

I will make an observation in response to yours and then Eileen with deal with your questions. The commission shares the view that the development of employment legislation over the past number of decades has been positive in the life of Northern Ireland.

Certainly, we see the impact of fair employment legislation. The legislation’s continuing relevance will become increasingly apparent in circumstances in which demographic changes occur in Northern Ireland, and it will become relevant in ways that may not have been contemplated when it was enacted. That is already becoming the case, as is clearly indicated by the results of the workforce monitoring that we produce every year.

There is no suggestion of any dilution, amendment or lessening of the protection that is provided for under the law that prohibits discrimination. Nothing flowing from these discussions on dispute resolution will diminish or dilute the extent of existing legal protection.

Ms Lavery:

I will first deal with the question about Northern Ireland-specific requirements. The arrangements in GB have come about as a result of the Gibbons Review, which focused on getting rid of the arrangement whereby individuals had to bring an informal grievance before they could go to any kind of external adjudication. Although I am an outsider looking in, that review seems to have determined the focus of the change process.

We have been keen to point out that despite the fact that the number of resolutions that have been reached in Northern Ireland has fallen, statutory dispute resolution has produced some good outcomes. For example, as I outlined earlier, that process enables individuals to see their employer’s defence before proceeding with a case. It must be recognised that the system in Northern Ireland is not just one-way or is all bad.

The Equality Commission wants to ensure that when something happens to individuals, we continue to provide them, relatively speedily, with answers from employers regarding why it happened. In a dispute, every individual has a right to see such information. Therefore, from our perspective, it has been important to engage in the pre-consultation work in Northern Ireland, as it has enabled us to ask the various actors in the system about how it has been working and what its good and bad points are. That has been helpful and worthwhile.

I must say also that, compared with the rest of the United Kingdom, Northern Ireland is a very different place. As a simple example, I assume that everyone is aware that, in the process of doing our work, we in the Equality Commission spend a lot of time working with public bodies. We work with fewer than 200 public sector employers and, consequently, we have come to know most of those organisations. In Great Britain, there are some 40,000 public bodies, so the potential for interaction and for working with those bodies to improve equality practice is quite different. Therefore, we must be clear about the specific circumstances in Northern Ireland.

In relation to Mr Attwood’s second question concerning dismissal, disciplinary action and other types of grievances, the Equality Commission can only respond when grievances are rooted in a case of unlawful discrimination. We have no involvement in other matters. We only become involved if an individual is of the opinion that an action was motivated by discriminatory intent, and that is the aspect that we focus on.

Presently, in Northern Ireland, redundancies are occurring and unemployment levels are rising, and people may feel that they have been selected for redundancy or dismissal because of their gender or race, or because they are pregnant. We are involved with such cases; however, we are not usually involved in more general grievances relating to discipline and dismissal. We only become involved in a case if there has been discriminatory intent.

Ms Lo:

It is good to see both Bob Collins and Eileen Lavery. I am pleased to hear that cases involving disability and race are at the top of your list of enquiries; in my days as a commissioner, they were at the bottom of the list. The Equality Commission has done good work.

I understand what Eileen was saying. However, given the complexity of statutory dispute resolution, formal procedures have some merit. Many employers get very nervous when discrimination is mentioned in a complaint, and many would prefer clear-cut guidelines in case they lose a case on a technicality. Therefore, there is merit in opting for statutory dispute resolution in complex cases.

Mr Collins:

Statutory dispute resolutions have pluses and minuses; they can formalise from a very early stage an issue that might be more easily dealt with informally, but they do have the benefits that Anna Lo mentioned.

The Chairperson:

Thank you for your presentation and your submission, both of which will help the Committee in its response to the consultation. It is important that the Committee takes a holistic approach and listens to all the people involved. Thank you for your time.