Not all's fair in employment
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10 September 2014
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Religious and political discrimination in Nor-thern Ireland is regarded as a "fairly lucrative" business for lawyers. Well over £1m has been paid to successful complainants over the past five years, not including costs and legal fees. Yet only around 30 members of the legal profession currently specialise in fair employment cases.
"It's a dirty business but somebody has to do it," says one lawyer. Indeed, many members can make a fair reputation out of protecting citizens' rights to fair employment. Such cases often attract media attention and they generally get far more publicity than sex discrimination cases.
One of the most public recent cases was that of a Catholic civil servant employed in Baroness Denton' s office at the Northern Ireland Office. During the Drumcree crisis in Portadown, County Armagh, a colleague made remarks which were offensive to the litigant. The case would not have gained so much publicity had it not been for the fact that the Baroness was the minister responsible for fair employment. Furthermore, it was revealed that, contrary to fair employment practices, the litigant was removed from the NIO, rather than the Protestant woman who had allegedly made the offensive remarks.
Following the disbandment of the old Fair Employment Agency, new legislation was enforced in 1989, which set up the Fair Employment Commission (FEC). The FEC oversees the Fair Employment Tribunal consists of a number of lay assessors drawn from the Confederation of British Industry and trade unions, and is headed by a chair with a legal background. It works in much the same way as sex and racial discrimination tribunals, but the legislation is unique to Northern Ireland.
The tribunal was established with the view that a complainant would not necessarily need legal representation. "The idea was that it would be a cheap, informal way of solving individual problems," says one lawyer. But it has turned out that legal representation has been needed in all cases because of the difficulties in proving or disproving such discrimination.
Anyone going to the FEC for help receives legal aid paid for by the Commission, irrespective of the complainant's earnings, and under the legislation, the FEC is obliged to given anyone advice. In certain circumstances, it can support a case up to and including legal representation at a tribunal or appeal. The FEC has a bank of lawyers, and calls on barristers to work on cases of religious and political discrimination.
Damages awarded by tribunals vary. Until recently there was a cap of £35,000, but since its removal one litigant has been awarded almost £80,000. Generally the amount is divided into injury to feeling and financial loss. But most cases are settled before they reach the tribunal.
Often the legal difficulties faced by lawyers are caused by the intricacy of fair employment legislation. Also, proving that religious or political discrimination did or did not take place can be a highly charged business given the political climate in Northern Ireland. "These cases can be very complicated and time consuming," says one barrister. "They are one of the most difficult kinds of cases for barristers. They require a lot of care and attention."
Finance in these cases is a major problem for the FEC. It has a limited budget and has to decide which cases receive priority. Hence there is a huge backlog in the tribunal system.
The combined effect of these factors is that although lawyers regard fair employment legislation as lucrative, many are reluctant to specialise in it. And because there are so few who specialise in this area, they end up working both for the Commission and the employers who face the allegations - in most cases it tends to be more profitable to work for the employers.
Lawyers might specialise in this type of litigation because of political motivation and a sense of fair play. But these are not a high priority for many lawyers in Northern Ireland. The challenge is attractive but, says one barrister, "Some do it with more enthusiasm than others."
A number of the major firms have employment units: Elliott Duffy Garrett has four full-time employment lawyers, and partner Harry Coll says the area is growing fast, as employees recognise they have rights.
CH Jefferson partner Ken Rutherford says his firm has one full-time specialist for this fast-growing area, citing the "increasing obligations on employers".
The trend is likely to continue, as unfair employment and sex discrimination become ever more perilous practices.