Submission to the Employment Lawyers Association UK on reforms of UK dispute resolution structures

The ELAI made a submission to the UK Employment Lawyers Association on the reform of UK dispute resolution structure. The ELAI provided a comparative perspective of recent developments in Ireland as follows:

The Workplace Relations Act 2015 introduced fundamental changes to workplace dispute resolution machinery in Ireland. There was a general consensus that the pre-existing infrastructure, comprising a bewildering array of mechanisms and points of entry was outdated, complex and inefficient. The Act introduced a two-tier structure for the adjudication of both employment rights and industrial relations disputes. As of 1 October 2015, disputes are heard at first instance by an Adjudication Officer at a newly established body, the Workplace Relations Commission (the “WRC”). The WRC also offers a mediation service. At the request of the disputing parties, or at the suggestion of the WRC, parties can elect to seek resolution through mediation by a WRC Mediation Officer. Appeals from decisions of Adjudication Officers at the WRC are heard by an expanded version of the pre-existing Labour Court. Labour Court hearings are presided over by a tripartite panel composed of a chairman (or deputy chairman), an Employers’ Member, and a Workers’ Member.

The introduction of a more streamlined, efficient system is undoubtedly welcome. It is understandable that a new system in its formative year is bound to encounter challenges. Nevertheless it is the view of the ELAI that the new system, as it currently operates, falls short in many critical respects of the Minister for Jobs, Enterprise and Innovation’s stated objective to deliver a "world-class workplace relations service.”

Adjudication

Before the Act’s introduction many disputes pertaining to statutory minimum rights were heard at first instance in private by individual adjudicators called Rights Commissioners. Disputes governed by equality legislation were heard by Equality Officers at the Equality Tribunal. Many disputes pertaining to termination of employment were heard at first instance by the Employment Appeals Tribunal (the “EAT”). EAT hearings were conducted in public by a tripartite body comprised of a chairperson (habitually a qualified lawyer), a worker representative and an employer representative. Adjudication at first instance of all of these workplace disputes now falls to WRC Adjudication Officers sitting alone and in private.

Some members of the ELAI have expressed particular concern at the disbanding of the EAT. Despite the administrative delay at the EAT, its adjudicators generally bore considerable know-how and experience on the resolution of complex legal issues. The availability of this robust tripartite adjudication structure at first instance is perhaps a loss to users.

The ELAI is concerned that the current framework for appointing and training Adjudication Officers is substandard. It is unclear what qualifications, levels of competence or expertise is precisely required to be an Adjudication Officer. It is not clear what level of training is received by newly appointed Adjudication Officers. Hearings at first instance are conducted in private. As such, the ELAI is concerned that the lack of clarity in appointment and training processes does not fully guarantee that appointed Adjudication Officers are entirely competent and sufficiently expert to undertake the complex task of presiding over all manner of workplace disputes.

Prior to the changes introduced by the Act the expertise established for adjudicating on equality cases, unfair dismissal and industrial relations matters was evident through the separate functions of Equality Officers, EATs and Rights Commissioners. Combining these functions, while welcome in simplifying access, has resulted in a dilution of the expertise available across all potential dispute resolution areas.

This may be resolved over time as individual knowledge and expertise is enhanced in ‘new’ areas; however, this does not address the potential for a fair hearing in the intervening period.

There does not appear to be any monitoring of decisions by Adjudication Officers which can result in inconsistences as outlined below. Consideration should be given by the WRC to sampling decisions to ensure a consistency of outcome is achieved across all areas of complaint.

The WRC’s rules of procedure are largely silent on exactly how adjudication hearings are to be conducted. The ELAI is concerned that these rules do not guarantee users’ constitutionally protected right to a fair hearing. Anecdotally, amongst our membership, representatives have expressed concern that there is inconsistency in how Adjudication Officers apply basic rules of fair procedure; for example, the permissibility of cross-examination and the application of rules of evidence. Some members are concerned that these inconsistencies, perhaps caused by a lack of clarity in the WRC’s rules of procedure, do not guarantee fairness of process on determining often complex legal issues.

Pre-hearing and mediation

Initial complaints are made to the WRC by way of a complaint form. For the vast majority of complaints, complainants are not required to provide a narrative detailing the substance of their complaint. Exceptionally, complainants must provide substantive detail for allegations of discrimination and constructive dismissal. Employers are required to respond to complaints within 21 days. This very short response period, coupled often with the lack of information about the substance of the complaint, renders the pre-hearing process largely meaningless. Members of ELAI who represent employers have expressed the view that 21 days is too short a time period to prepare an adequate response to complaints. Information and evidence on the substance of the allegations falls to be discovered on the day of hearing. Some ELAI members have expressed concern that unsuccessful defendants will habitually seek redress by way of appeal at the Labour Court, given the often ad-hoc disclosure of the substance of the complaint at hearing before an Adjudication Officer.

The Act provides for a mediation service. However, it would appear that as matters currently stand, the mediation service may be under-resourced to meet demand. Some members have described instances where both parties to a dispute have requested mediation but that request has been rejected by the WRC. In the ELAI submission to Government on the Workplace Relations Bill emphasis was given to the success of an early resolution service being dependent on users having confidence in the expertise of the WRC officers involved in the providing the service. Unfortunately, experience to date does not follow the success of a similar service provided by the Labour Relations Agency (LRA) in the North of Ireland. The 2013 LRA Annual Report recorded a 74% success rate in resolving disputes at this early stage.

This type of intervention requires investment if it is to have any opportunity of being successful. However, as the WRC was established by Government not only to streamline access, but also to save money, it is feared that the potential will never be achieved.

Access to services

The ELAI is acutely aware that the introduction of service fees in the UK has led to a dramatic fall off in the number of complaints. The Act provides that the Minister for Jobs, Enterprise and Innovation can introduce fees. The Minister has to date only exercised his discretion in a limited manner. Parties who fail to appear at first instance before the WRC and then seek to appeal a decision to the Labour Court are subject to a small fee. However, the power of the Minister to introduce fees in the future is a cause for concern given the UK’s recent experience in this regard.

Workplace complaints are excluded from Ireland’s state legal aid scheme.

Conclusion

The Act introduced fundamental reforms to workplace dispute resolution machinery. Streamlining of the previous unwieldy system was necessary and welcome. However, the ELAI is concerned that the new infrastructure falls short in a number of respects of the objective of providing a “world-class workplace relations service.” Many members of ELAI unfortunately hold the view that the government’s agenda for reforming the workplace relations machinery was primarily motivated by reducing operation costs rather than a genuine effort to improve access to justice and fair procedures in this often complex area of law. Our main concerns have been described above.

We would urge the Employment Lawyers Association, with its unique perspective and expertise, to engage early and often with all parties and legislators involved in reforming the UK’s equivalent system to ensure that users obtain the best possible workplace dispute resolution service.