Employment law reforms face a possible court ambush

Richard Bruton’s sweeping changes could face a constitutional challenge as some lawyers see themselves being sidelined, writes Kyran Fitzgerald.

Few, apart from some lucky litigants, have been happy with the way employment rights disputes have been dealt with in recent years.

The recession led to a surge in the numbers of people taking actions for unfair dismissal against their former employer.

Rights bodies such as the Equality and Employment Appeals Tribunals have suffered from staff embargoes.

The result was a rise in delays. However, long before 2008, the system has appeared to creak with new laws being piled on top of each other resulting in a procedural maze through which only the cleverest lawyers could tread with ease.

More recently, the cracks have really been showing with the Jobs Minister Richard Bruton acknowledging that delays of over two years in getting a hearing at the Equality Tribunal, and an average delay of 18 months in the case of the EAT, were simply unacceptable.

The minister has responded by pressing ahead with the enactment of the Workplace Relations Act.

This amounts to quite a shake-up of a system.

Five workplace bodies have been slimmed down to two. The EAT and Equality Tribunal have gone, along with the well-respected Rights Commissioners, who handled most cases initially.

Now, all claims will have to be first heard by adjudication officers working for the new Workplace Relations Commission. The hearings are to be in private and the names of the parties will not be disclosed.

Cases can then be appealed to an expanded Labour Court (which takes on many functions performed by the tribunals.)

Mr Bruton has been brave. But could he be venturing into the constitutional equivalent of the Valley of Death?

Many lawyers are objecting to what they view as an attempt on the part of the minister to sideline them, though some back the reforms.

David McCarroll of law firm Ronan Daly Jermyn believes that the ‘rebooting’ will lead to an improved system. But he also expresses concern there will be no right to cross-examine witnesses before adjudication officers.

In his view, where evidence is contested, you need the “cut and thrust of cross- examination.”

The concern is that this could all lead to a flood of appeals to the Labour Court which, despite increased resources, could face difficulties in handling a tide of new case work.

Richard Bruton has made it clear he considers that the system, designed to be informal, has become overly legalised.

He is seeking greater informality. Adjudication officers and members of the Labour Court will not be required to be legally qualified.

Currently, at least one member of an employment tribunal sitting at a hearing is a lawyer.

Lawyers tend to disagree. Concern has also been raised about the fact that adjudication officers and members of the Labour Court will be appointed for fixed terms, leaving them open to outside political pressure despite the fact they will be exercising quasi-judicial functions.

Ciaran O’Mara recently represented former RSA boss Philip Smith at the Employment Appeals Tribuna. It awarded him €1.25m or two years’ salary. The award is under appeal.

Mr O’Mara welcomes the fact there will no longer be multiple claims going to different forums, but questions whether the new powers handed to adjudication officers would survive an eventual constitutional challenge along the lines of the legal challenge that overturned wage-setting arrangements some years ago.

The Government should have asked the President to refer the Bill to the Supreme Court before enactment.

Senior counsel Peter Ward, has accepted that the introduction of a unified system of employment rights was an “urgent necessity”, yet he argues that the act is a “retrograde step.” In a paper delivered recently, he contends that the act “fails to meet the fundamental requirements of the proper administration of justice” and could be in breach of article 37 of the Constitution.

This provides for the exercise of ‘limited powers of a judicial nature’ by persons other than judges “duly authorised by law.” He questions whether the significant powers accorded to the new adjudication officers will fall within Article 37.

Despite not being legally qualified, these officers could make huge awards in the case of wealthy claimants, yet are subject to far fewer controls than District Court and Circuit Court judges.

Certainly, the lawyers seem up for the fight though it is questionable whether someone with the resources and determination to mount a constitutional challenge will emerge in the near future.

That said, businesses did secure the striking down of wage-setting agreements.

The Bruton reforms have also annoyed some in the media where real concern is expressed about the way claims at first instance will now be dealt with in private. This means that no reports would have been possible in the case of the proceedings involving Sean Quinn jnr and RSA boss Philip Smith. In both cases, light was shone into practices in those companies.

This represents a real blow to transparency, at a time when, as a result of changes introduced by the former Justice Minister Alan Shatter, proceedings in family courts can now be reported provided the names of the parties are withheld.

The restrictions on reporting smacks of a sweetheart deal between the social partners.

While the minister deserves credit for taking an axe to a system that had grown unwieldy, he does need to review some of the detailed changes.

In particular, the minister needs to take a second look at the decision to block public hearings before adjudication officers while anonymising judgements, all of which means that employers or claimants who flout the law, or chance their arm, will be off the hook of public disclosure and embarrassment.

This represents good news for those employers who treat their staff with arrogance. Under the new reforms, they need not fear being named and shamed, except in an unlikely event of an appeal.

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