An unfair disadvantage for migrant workers?

A study of employment appeal rulings shows disparity in outcomes between Irish and foreign nationals, writes Seán McCárthaigh

IRISH applicants are marginally more successful than foreign nationals in winning their claims for unfair dismissal against employers, according to a study of rulings by the Employment Appeals Tribunal in 2012.

The research shows that 48% of Irish claimants won their cases, compared to 41% of migrant workers.

On the other hand, rulings went in favour of the employer in 31% of cases involving claims made by Irish employees and in just 23% of claims lodged by foreign nationals.

The findings are based on the analysis of rulings published by the Employment Appeals Tribunal in 2012.

There were 1,082 decisions relating to applications brought under the Unfair Dismissals Act which went to a public hearing before the tribunal, or 37% of all rulings issued by the EAT last year.

The research examined the outcomes of 1,067 cases, of which 57.6% were claims for unfair dismissal by Irish nationals and 32.3% by non- Irish. The nationality of the applicant could not be determined or inferred in 10.1% of cases.

Application forms used by the EAT until recently did not collect data on the nationality of the claimant. However, rulings issued by the tribunal regularly contain information which indicates whether the applicant is Irish or a foreign national.

The situation has been improved by the introduction of the workplace relations complaints form which replaces the old T1A form and which requires information on the claimant’s nationality which should provide greater accuracy for any future similar research.

A quarter of all unfair dismissal claims lodged by foreign workers did not proceed, either as a result of the claimant failing to show up for a hearing before the tribunal or failing to submit their claim within a six- month time limit.

The figure contrasts with a no prosecution/no jurisdiction rate of just 10% of cases involving Irish employees.

In many cases, it is likely that foreign claimants had left Ireland and returned home or moved to another area by the time their case came to a hearing. A sharp rise in the number of cases filed with the EAT in recent years led to average waiting times between lodging an application and a case coming to hearing increasing to 76 weeks in Dublin and 77 weeks in other parts of the country by 2011.

The high rate of claims filed outside the time limit by migrant workers may also indicate lack of awareness about the legal requirements of processing an unfair dismissal case.

Approximately one in 10 cases was withdrawn by the claimant at the time of the EAT hearing, with no significant difference in Irish and foreign employee levels.

Solicitor Richard Grogan of specialist employment law firm Richard Grogan & Associates in Dublin said the findings would support a common perception that migrant workers are targeted by employers when they want to get rid of staff.

“A lot of unfair dismissal cases are where they areunfairly selected for redundancy,” said Mr Grogan.

While Irish workers are generally better informed about their rights, he claimed many foreign nationals preferred to have their cases heard before a Rights Commissioner as it is quicker, less expensive, and less formal.

When it came to legal representation at EAT hearings for unfair dismissal, more than a third of both Irish and foreign workers were represented by their solicitor.

However, Irish employees were almost twice as likely as migrant workers to have employed a junior counsel to represent them.

A junior barrister represented claimants in 29% of cases taken by Irish employees, compared to just 16% of cases taken by foreign nationals. A senior counsel was engaged by claimants in only two of all cases surveyed — both Irish workers.

There was little difference between Irish and foreign claimants in the number of cases where they were represented either by a trade union official or just themselves.

Both types of workers were assisted by a trade union representative in approximately 10% of cases.

They also represented themselves without engaging any legal or trade union adviser in approximately 12.5% of cases. The EAT is not allowed to make awards for legal costs, so legal fees have to be paid out of any compensation awarded.

A high proportion of foreign claimants failed to show up for listed hearings before the tribunal. A total of 13% of cases involving foreign workers did not proceed due to their failure to attend a scheduled EAT hearing, compared to just 4% involving claims taken by Irish employees.

There were also significant findings in terms of differences in legal representation for employers between cases taken by Irish workers and foreign nationals.

Employers or their legal representatives were almost twice as likely not to attend hearings before the tribunal involving migrant workers compared to Irish employees.

Employers did not attend EAT sittings in 32% of all cases taken by foreign employees, in contrast to failing to attend the tribunal in just 17% of cases involving Irish workers.

Such a finding might suggest a more cavalier approach by employers towards claims lodged by foreign workers.

Mr Grogan said many employers failed to attend hearing in the belief that the claimant would also not be present.

“However, many of them also adopt the view of ‘let them chase me for the money’ and that is a problem.”

There were 27 cases out of 960 — or 2.8% of total unfair dismissal claims examined — where both parties failed to attend the hearing.

Employers were also twice as likely to hire a junior counsel to represent them in cases involving Irish staff. Such barristers were hired in 18% of unfair dismissal cases taken by Irish employees compared to 9% of cases involving foreign nationals.

Migrants Right Centre Ireland said it encouraged claimants to represent themselves in uncomplicated cases in order to reduce costs they may have to pay to legal representatives.

“However, it can be daunting if you’re facing an employer who is represented by solicitors and barristers,” said MRCI spokeswoman Gráinne O’Toole.

She claimed the real difficulty is with employers who fail to engage with the EAT process.

“In many cases, migrant workers have to take enforcement measures to obtain their rightful compensation.”

She explained that a recent Labour Court ruling had also provided some employers with an excuse to avoid paying compensation to undocumented workers, despite the fact that the issue is still before the Supreme Court.

Half of all foreign nationals making an unfair dismissal claim were based in Dublin, compared to 35% of claims made by Irish staff.

The figure would bear out other research suggesting a high concentration of migrant workers in large urban centres, particularly Dublin. However, it may also suggest that awareness of workers’ rights is higher in areas with large numbers of foreign nationals.

No real interpretation can be made about the level of compensation awarded by the tribunal in terms of whether migrant workers fare better or worse than Irish counterparts in unfair dismissal cases, as award levels are based on a number of factors, including the length of time a claimant remains unemployed. Such details are not generally available.

However, the findings show there is little significant difference between the compensation levels awarded to the two types of workers, although there is a slight trend for Irish workers to receive higher awards.

Half of all foreign nationals who won their unfair dismissal claims received compensation totalling 10,000 or less, compared to 40% of Irish workers.

A total of 8.3m was awarded in compensation for unfair dismissal in more than 420 cases.

The highest payout was worth almost 300,000 which was awarded to a Paul Taylor from England, who was unfairly dismissed as a manager of the David Lloyd Leisure Centre in Dublin.

Three claimants — two Irish and one foreign worker — who won their unfair dismissal cases were awarded zero compensation.

The average payout for Irish workers who were unfairly dismissed was 12,900 compared to 9,800 for foreign staff.

Notably, no migrant workers received a ruling in their favour to order their employer to reinstate them to their former job. In contrast, an order to rehire an employee was made in 14 cases involving Irish staff, or 5% of such cases.

There was no statistical difference between the two groups in terms of workers contributing to their dismissal, with 14% of both Irish and foreign workers deemed by the tribunal to have played a role in their loss of a job.

The industrial and construction sectors accounted for the biggest category of claimants among both foreign and Irish workers — about a fifth of all cases.

Migrant workers employed in the food and accommodation sectors, which are traditionally associated with low-paid staff and high employee turnover rates, were proportionately more likely than their Irish counterparts to be involved in an unfair dismissal case.

- Supported by the Mary Raftery Journalism Fund

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