By Michael Smith
The Equality Tribunal, the Employment Appeals Tribunal, the Labour Relations Commission and the National Employment Rights Agency will soon be merged together into the Workplace Relations Commission (as recommended by An Bord Snip Nua).
Many of the reforms envisaged by the Workplace Relations Commission are necessary and will benefit both employers and employee. These include: shorter waiting times for hearings and more effective measures for the enforcement of decisions. Existing Rights Commissioners and Equality Officers will become Adjudication Officers when the Workplace Relations Commission is instigated on 1st October. A further 19 Adjudication Officers have been selected through a transparent process conducted by the Public Appointments Service. Some of these have already begun hearing Equality cases. However, the new Adjudication Officers are being paid a low daily rate. This means most of them are working part-time. Some have expressed fears that this could lead to potential conflicts of interest.
The Employment Appeals Tribunal will be dissolved as it is an expensive system requiring a Vice Chair (facilitating political appointments of Solicitors and Barristers) as well as a worker member and a business member. Instead, under the new system an adjudication officer will sit on her own (in private) hearing complaints. However, at least one reform flies in the face of transparent administration of justice.
Section 41 (14) of the Workplace Relations Act 2015 states: “The Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision (other than information that would identify the parties in relation to whom the decision was made) of an adjudication officer under this section”.
Anonymisation of decisions is a retrograde step. The Employment Appeals Tribunal currently holds hearings in public: anybody can attend. They deal with important issues like unfair dismissal e.g the Sean Quinn v IBRC case. The Equality Tribunal holds it hearings in private but publishes all decisions on its website with both employers and employees named (unless in the case of a minor, certain disabilities or sexual harassment cases). From 1st October this will no longer be the case.
Employment law practitioners say that the most powerful sword over bad employers or service-providers has been the threat of their name in the papers. Both Equality tribunal redress and EAT awards tend to be quite low so reputational damage can be the main factor in preventing employers attempting to defend the indefensible. There is every likelihood now that employers will no longer bother with the first instance stage and will put their energy into settling just before the appeal stage at the Labour Court (which, in fairness, will be in public). However, this imposes a huge cost on the taxpayer as Deputy Chairpersons of the Labour Court are paid at the equivalent of Assistant Secretary in the Civil Service level (€119,000 to €137,000). It will also discourage the use of the Early Resolution and mediation service. All litigation is about assessing risk. Even in the existing system, the odds of an employee winning a case are low -approximately a one in three chance in the Equality Tribunal and odds of about one in five with an unfair dismissal case in the EAT. Why would an employer settle a case at an early stage when it would be as cost-effective to do it at a later stage? In a time when court reporters are allowed access to the family courts, questions have to be asked about why this approach to something as important as employment rights is being taken.
While the Bill was going through the Oireachtas it was clear there was no appetite for anonymisation of decisions during the public consultation on the WRC. Trade Unions certainly do not want it, neither do legal representatives (they like the deflected fame) and IBEC has never publicly canvassed for it as employees are also named. This is one of the downsides of the vested enfranchisements that underpinned social partnership. And the Labour party notably did not take a stand on this.
If this part of the Act is not amended, it will mean that cases like the Philip Smith v RSA, Sheehy Skeffington v NUIG or the three Filipina workers against the UAE Embassy in Ireland would never have benefited from the public illumination of daylight.
Anonymisation of employment law decisions does not occur in any other country.
Why is Ireland so out of step with international best practice?
The current government has brought in very important legislation creating a register of lobbyists and the shielding of whistleblowers in the Protected Disclosures Act 2014. Anonymisation of employment law decisions is against the tide of this increased transparency in Government. •