For practitioners it’s hard not to look beyond two hoped for and very important developments in the area of dispute resolution. The biggest industrial relations issues of the year are likely to arise from public service reform, but here I deal only with employment law developments.
The first of those is the reforms of the employment rights institutions proposed by Richard Bruton, Minister for Jobs, Enterprise & Innovation. After a year of very substantial progress through the consultation phase, eventually (apparently) getting an initial green light from cabinet these proposals are somewhat behind target.
It’s not that nothing has happened. Far from it.
Some of the reforms introduced through the Workplace Relations service have been a big help but a number of the ‘big ticket’ proposals in the new adjudication system have been the subject of criticism on legal grounds from some lawyers, in particular in relation to possible breaches of the European Convention on Human Rights (article 6). Among the main critics has been the Employment Bar Association and you can read its views here.
The precise resolution of some of the issues raised here may initially require some important decisions in the office of the Attorney-General, and ultimately in the courts.
The key issues appear to concern the failure to guarantee a role for practising lawyers in the new system, not as a narrow vested interest position but as they see it to protect the rights of the complainant to a fair process.
Most practitioners are just keen to see the new system up and running as soon as possible especially given the widespread and serious criticism of delays at the EAT and other issues. This has not helped the lawyers’ case even though it is unfair to attribute responsibility for the problems at the EAT in all cases to the fact that there are lawyer Chairs.
That said many claims coming before the EAT do not involve serious points of law, (or often none I would say) and many non practising lawyers have a good knowledge of employment law and workplace culture, which many professional lawyers lack.
(My own views on this in my submission to the DJEI review can be read here.)
The second main area of interest and one which goes beyond employment rights issues is the Mediation Bill. It was disappointing that the Bill; promised for publication last Autumn failed to materialise, with enactment into law now months away.
It is disappointing in that we are now behind many European countries in providing a statutory framework for this form of alternative dispute resolution especially as the ADR community in Ireland is relatively united in its support for the published framework for the Bill. The EU Presidency is likely to be a factor that will delay it further.
Outside the sphere of workplace dispute resolution ADR has a vital contribution to make to reducing costs in the economy for professional services; indeed it is in this context that it appears in the Programme for Government. It should not be delayed!
The Retirement age conundrum
Moving on, we are now under twelve months to an increase in the eligibility age for old age pensions. From January 2014 this will become 66 years of age. I’m willing to bet a lot of workers whose 64th birthday falls this year are not aware of this and there’ll be a reaction to learning that they will not be getting their pension at 65 as anticipated. (And you fifty somethings should note that this rises again to 67 in 2021, and 68 in 2028)
The law in relation to retirement age is developing and in my opinion far from fully clear. It is a separate issue to the pension age, but what is clear is that in the absence of objective reason to justify it compulsory retirement at 65 may constitute discrimination.
(See the case of Elizabeth Sweeney v Aer Lingus Teo (DEC-E2012-135); a case which illustrates the importance of the ”objective justification’ principle.) Ms Sweeney got an award of €5,000 because Aer Lingus failed to establish thather retirement at 65 “served a legitimate aim, or purpose”.
I anticipate that rather as happened with other discriminatory barriers such as gender, the increased volume of cases which will result from increasing awareness of the problem may see the Court of Justice of the European Union (CJEU) push the boundaries out even further and our Equality Tribunal has had to move beyond existing Irish legislative provision to ensure compliance with the CJEU authority. (More interesting material on this from the European Labour Lawyers Network here
Advice to employers and employees?
Start talking to each other, and if you are the employer, do it carefully! But it would be unwise to postpone doing so. Even if the employment contract specifies a retirement age of 65 I expect that many employees will challenge this on age discrimination grounds and either way employers will be drawn in to conflict on the issue. I can advise further on avoiding this.
And other issues?
It will also be interesting to see the impact of the 2012 Industrial Relations (Amendment) Act on the JLC and REA scene. After all the fuss the Bill got a reasonable reaction from the social partners and came into force last July although a number of cases are before the High Court and due to be decided upon.
Also the process of rationalising (i.e. reducing the number of) JLC’s has, I understand, begun. Watch this space!
Annual Leave
The CJEU also made an important ruling last year in relation to annual leave entitlement during sick leave. Basically, the annual leave may be taken at a later date and outside the reference period, or if they have been out sick for a whole year entitlement to annual leaver persists. Irish statute law currently provides otherwise and will have to be amended to tale account of the CJEU decisions.
Finally, May 2012 also saw the enactment of the Temporary Agency Workers Directive in Ireland. However, as this is of relatively minority interest I invite anyone with queries to contact me at pat.brady@workplacesolutions.ie