Concerns grow over private appeals tribunals

The move to hold employment hearings behind closed doors could be in breach of constitutional requirement that justice should be done in public, an expert has warned.

Under legislation introduced in 2015, most employment rights hearings now take place in private with no access for the public or the media. Some cases before the Employment Appeals Tribunal have continued to be heard in public but only because they were initiated before the legislation came into effect.

It is expected the last of these legacy cases will be concluded by the end of April, meaning from then all initial employment inquiries will take place in private. Cases appealed to the Labour Court will continue to be heard in public.

The changes introduced in the Workplace Relations Act 2015 were broadly welcomed as streamlining the complicated and confusing employee complaints system.

However, there was little discussion in the Oireachtas or media about the part of the legislation which mandated that hearings being held behind closed doors.

“I think it’s really unfortunate,” said senior counsel, Marguerite Bolger, an employment law specialist and founder of the Employment Bar Association.

“Not only is it a requirement of the Irish Constitution that justice be administered in public in principle, it is also a requirement of the European Convention on Human Rights.”

Ms Bolger said the situation means an employer could repeatedly breach employee rights without the public knowing.

“That includes breaches by the State, there’s huge numbers of State employees who take cases before the workplace adjudicators. “The new system is being presented as something that allows people to maintain privacy but in my view allowing justice to be administered behind closed doors is more prejudicial to the rights of the employee.”

The barrister said that adjudicators have “huge powers”, including the power to order up to two years of wages be paid to a worker or that a dismissed worker be re-employed in their previous position.

“It’s terribly important that there is an overall monitoring of decision makers and it’s also important in a democracy that legal wrongs are remedied and done so in public.” Under the new system decisions are published online in an anonymised form.

Ms Bolger said that this gives no insight into the processes which led to the decisions. She said the judgement also does not allow the quality of the procedures to be evaluated. Ms Bolger’s view is shared by The Law Society.

“We highlighted this concern initially, and it continues to be a concern,” said Joanne Hyde, chair of the Law Society Employment and Equality Law Committee.

“First of all, where employees have been treated particularly badly, where there have been very egregious breaches, I think it is good that attention is brought to those cases, and that can only be done where there is public access.

“Holding hearings in public also holds the system to account. Where the public has access to what happens, it makes the system more transparent,” continued Ms Hyde, who is a partner and Head of Employment & Labour Law at Eversheds.

Ms Hyde said she would have concerns if other settings would also begin to hear cases in private.