Workers’ rights are once again under the spotlight

Structural reforms to industrial relations disputes have tried to restore a sense of informality but resistance to change is being led by the legal profession, writes Kyran Fitzgerald.
Workers’ rights are once again under the spotlight

The pickets are back as public sector unions line up to demand their pound of flesh.

The upsurge in the number of collective disputes comes at a time of general transformation in the area of dispute resolution.

Structural reforms to the system are beginning to take effect following the passing into law of long-awaited new laws.

The reforms have particular impact on the large number of individual worker rights disputes, which currently account for a substantial majority of the cases handled by dispute resolution bodies.

However, Irish employment lawyers have been lining up to criticise the reforms contained in the Workplace Relations Act, 2015, put in place following years of consultation, by former Jobs Minister Richard Bruton.

But the reforms have also been drawing plenty of support from within the industrial relations establishment, as made clear at a recent conference in University College Dublin organised by legal academic and barrister, Tony Kerr.

Prior to the passing of the 2015 Act, aggrieved employees could take cases to Rights Commissioners, the Equality Tribunal, or the Employment Appeals Tribunal.

They also had, and continue to have the option of going to court seeking damages.

Aggrieved parties and their advisers had to negotiate a complex maze of legislation.

IR practitioners became concerned at the increased presence of lawyers at these bodies and at a perceived erosion in the key principle that informality should be maintained as much as possible.

The reforms were intended to bring about a restoration in the sense of informality.

At first instance, hearings are now conducted by Workplace Relations Adjudication Officers followed by the option of an appeal to the Labour Court.

The new two-tier system has been accompanied by an enhancement in the powers of the court and in a move that has provoked some controversy, the names of parties at hearings at first instance are no longer revealed.

This has caused dismay in the media and among those who favour the idea that offending parties — in particular, high profile companies — should be named and shamed where they behave badly towards employees and in certain instances, contractors.

Much of the resistance to the new changes is being led from within the legal profession.

The results of a survey carried out by Dublin Institute of Technology academic, Dr Brian Barry, on behalf of the Employment Law Association, have attracted considerable interest.

Around 140 practitioners took part, half of whom consider that the new two-tier system was actually performing worse than its predecessor. As much as 60% consider that the format of the new adjudication system is “inconsistent” while 40% are dissatisfied with the quality of the adjudication officer rulings.

The Employment Law Association goes further, decrying the decision to disband the EAT, arguing that it has resulted in a “loss of know-how and expertise in the resolution of complex legal issues” and suggesting “the framework for appointing Adjudication Officers is sub standard.”

The lawyers, it seems, are feeling out of joint because of the enhanced role in the new system accorded to laypersons, many of them officials, Similar objections were raised when PIAB, the Personal Injuries Assessment Board, was set up, some years ago.

However, a different point of view was to be heard at the UCD conference where the moderator, Professor Bill Roche, raised the issue of the growing ‘juridification’ of society.

To put it briefly, too much legal formality has crept into proceedings, undermining the very rationale of our dispute resolution bodies.

Professor Roche raised the question: should all adjudication officers be legally qualified?

The former Labour Court Chairman, Kevin Duffy, one of the country’s top trade unionists in the 1990s, says: No.

He pointed out that apart from the Employment Appeals Tribunal, there existed no requirement for legal qualifications under the old system.

A more nuanced point of view on this issue was aired by a leading UK expert in the field; Professor Alan Neal of Warwick University. He hints at criticism of the UK system.

He is particularly scathing about the impact of the decision by the last UK Coalition government to introduce a system of charges into the employment disputes service.

This is of particular interest as the 2015 Act provides for the possible introduction of charges here, also.

In Ireland, there is very limited provision for charges where a party has failed to show at a first instance hearing, but subsequently seeks to appeal the verdict.

While there is no indication the Government is considering any extension of charge, they or a successor would be well advised to proceed with caution.

In England and Wales, a pretty hefty regime of charges now exists. A party has to pay £1,200 to bring a case and could be on the hook for another £1,600 should the employer ultimately win out following an appeal.

According to Professor Neal, the result has been a decline of 80% in the number of cases being taken by employees, with a particularly steep drop in the case of Payment of Wages cases.

As a result, exploitative employers are now getting away with the financial equivalent of murder given that it is simply no longer worthwhile for employees, in particular lowly paid ones, to chase after money owed to them.

The lawyers’ critique of the reforms is one that should be respected, but so too is the argument put forward on behalf of those who favour an informal system suited to the requirements of lay litigants.

Lawyers, like other sectoral groups, naturally seek to protect and enhance their interests, but one should avoid the temptation, for example, to get sentimental about the lawyerly Employment Appeals Tribunal.

It produced many fine decisions, but also sloppily presented ones. Too often, large awards were handed out without any adequate accompanying explanation. The new system is still taking its baby steps and it should be given a chance.

A balance is required between the requirements for due process sought by the legal profession and the sort of informality and low expense that ensures access to all. The wheels of justice should be allowed to turn without unnecessary obstruction. After all, justice delayed, all too often, is justice denied.

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