Written Response from the University
of Bangor
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In 2002 The Commission for Racial Equality,
Disability Rights Commission, Equal Opportunities Commission
and the Legal Services Commission, commissioned a study
into the current pattern and level of information, advice
and representation for people in Wales who may be seeking
redress under the equalities legislation in employment
discrimination. It assessed the likely impact of existing
support on tribunal outcomes, both in terms of quality
and quantity. It identified the specific barriers to
accessing advice, information and support in all areas
of unlawful discrimination (race, gender and disability)
as perceived by both the providers and applicants within
the system, as well as other key stakeholders. It also
made recommendations for change in order to achieve
a more efficient and effective national system of complainant
aid. The study took account of the government’s
equality statement issues in November 1999, which set
out an agenda for extending the scope of equality legislation
and laid down a commitment to achieving greater consistency
in the legal protection available to a range of disadvantaged
groups.
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Following devolution, the Government
of Wales Act (1998)1 imposed a legal duty on the Welsh Assembly Government
to promote equality of opportunity, with equality clauses
that effectively confer 'positive rights' on all citizens
of Wales. To this end, it is necessary for territorial
disparities to be recognised and addressed.
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The report’s main findings and recommendations
dealt with
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- Applicants’ lack of information about their
rights and the services available to support them
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- The need to build an advice infrastructure in Wales
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- The development of more consistent and comprehensive
training and accreditation of advice workers
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- The importance of making optimum use of available
expertise in Wales
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- Meeting clients needs by providing
- continuity of advice and support
- mediation services,
- an audit of access to, and the amenities in tribunal
locations
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- The need for the Tribunal Service to reflect the
diversity of Welsh society in their personnel profiles.2
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But the researchers were frustrated in
their attempt to completely focus on the Welsh context
because the administrative boundaries used by the Employment
Tribunals are not coterminous to the administrative
boundary of Wales.3 As the report outlines, Wales has never
had a system of Employment Tribunals that is particular
to it. At present a fully integrated system covers both
England and Wales. In Scotland and Northern Ireland
the situation is different. They benefit from autonomous
systems under their own President. Until March 1987,
Wales was not regarded as an entity at all. Half the
country was administered from Regional Offices situated
in England. The Regional Office in Cardiff dealt with
south Wales, Hereford, Worcester and Gloucester. On
reorganisation, the whole of Wales became part of the
administrative area known as Region 6, which also incorporates
areas in England. For example, the catchment area of
the Shrewsbury office is territorially largely in Wales
but the majority population comes from Cheshire, Stoke
on Trent and Shropshire. This discrepancy has significant
repercussions for the future of the Employment Tribunal
service and for the ability of the government to meet
the objects of its own equality statement.
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| 1. If policy makers in Wales are to be in
a position to track trends and to monitor outcomes then
there is an urgent need to address the difficulty of producing
accurate, detailed and robust data for Wales that can
be subjected to comparison with the other countries of
the United Kingdom. |
| 2. The lack of coterminous boundaries might
also indirectly have adversely affected the ability of
the Tribunal Service to secure sufficient resources. Whilst
it was beyond the scope of the study to make any regional
comparisons, it was clear that the lack of suitable accommodation
has hindered the development and planning of the tribunal
service for some ten years. The Region does not
own any premises outside Cardiff and Shrewsbury and some
of the accommodation currently in use is not particularly
user-friendly. Much of the provision across Wales is housed
in excess courtroom space with its tenure precarious.
The importance of securing a strategic venue in North
Wales cannot be overstated, not only are the geographic
and cultural arguments compelling but also the status
of the Welsh Language Act in Shrewsbury is the subject
of some controversy. |
| 3. Because of the ‘boundary question’
and the subsequent location of the tribunal at Shrewsbury
there is confusion about the use of the Welsh Language.
Strictly speaking, the provisions of the Welsh Language
Act do not have to be taken into account by the Employment
Service working out of Shrewsbury. It is a moot point
as the Welsh Language Board is of the firm opinion that
the Act applies to both general and pre-hearing administrative
contact with users, and to the conduct of hearings. They
argue that it is the location of the applicant rather
than the location of the tribunal that determines whether
the Act applies. Welsh speakers, they suggest, should
not lose their rights under the Act by being obliged to
attend a tribunal hearing outside of Wales. Encouragingly,
in accordance with Welsh Language Guidelines, a language
scheme has been adopted for the use of Welsh in Employment
Tribunals. The aim of the Scheme is to provide a service
whereby both the conducting and processing of cases will
be in bilingual form should either party request it. The
aspirations of the Welsh Language Board are perhaps higher.
They suggest that that the best way forward would be to
establish a specialist tribunal support unit in Wales
to advise and assist tribunals of all kinds with Welsh
Language service matters, but with the core bilingual
administration retained by individual services, such as
the Employment Tribunal Service. Be that as it may, the
delivery of a seamless bilingual service is an enormous
challenge. |
| 4. The boundary confusion caused by a lack
of geographic integrity is compounded by the further constitutional
or jurisdictional boundary confusion which results from
the fact that legal issues are not devolved to the Welsh
Assembly Government whereas issues of citizenship are.
The parallel, shared, joint distribution of responsibility
may largely account for the Report’s conclusion that
co-ordination between major agencies across Wales in the
field of anti- discriminatory advice is weak. The weakness
is of some significance given that many discrimination
cases involve multiple jurisdiction. To enhance effective
liaison and referral, more formalised systems are needed.
In order to steer such strategic developments there is
a need for an appropriately resourced high level co-ordinating
body. Such a body could be responsible for disseminating
best practice and building mechanisms to facilitate the
transfer of expertise. The said body could act as a conduit
for user views through links with the Employment Tribunal
User Groups and the National Assembly Government, as well
as the major equality bodies. Although in its embryonic
form, the Employment Rights Network Wales has this potential. |
| 5. The Report concluded that advice provision
in Wales is fragmented, disjointed and sparse, with few
trained and experienced specialists in the employment
context. Evidence of liaison between the major players
and, in particular, between the unions and mainstream
advice providers was disappointing. The explanation again
may lie in a boundary issue. Employment is not a devolved
matter, so much of Union Training and policy development
is London centred. Indeed until recently there was little
evidence of any co-ordinated policy or development on
a regional basis. The London centred tradition of dealing
with employment issues is perhaps best illustrated by
the fact that TUC WALES/ CYMRU , despite regular approaches
from the public, has no casework capacity to respond to
enquiries about discrimination issues. |
| 6. The fact that neither Employment nor
Legal Services are devolved responsibilities is a strategic
impediment to the development of comprehensive anti-discriminatory
services across Wales. In the absence of any constitutional
change, much will depend on the political will of Welsh
Government to lobby for enhanced service provision in
Wales and to capitalise on the obvious commitment to reform
that exists amongst key agencies in Wales. Organisations
such as the Welsh Local Government Association must recognise
and address the need for adequate, appropriate funding
to underpin the necessary developments. The hope is that
the research together with much needed constitutional
reform will add impetus to the encouraging momentum for
change. |
1 S120 (1) - Requires
the Assembly to make appropriate arrangements with a view
to securing that its functions are exercised with due
regard to the principle that there should be equality
of opportunity for all people.
2 For instance, establish a target for the recruitment
of Welsh speakers amongst the lay membership of not less
than 20%.
3 See map in main Report
at Appendix A. |
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