Representation at the EAT; grounds for concern?

I have been taking a look at the statistics in the Annual Reports of the Employment Appeals Tribunal for representation and appearances at the tribunal.  I examined the figures for the years 2005 and 2008 and in October last year the 2009 Annual report was published.

It adds interesting information. It mostly indicates a huge increase in the number of cases being referred to the EAT; from 5457 in 2008 to 9458 in 2009 although only about a half of this number were heard during the year.

I have strong feelings (as an arbitrator and mediator) about the way things have gone with the EAT and there is widespread dissatisfaction with delays now of about a year and a half. (Admittedly the position at the Equality Tribunal is a lot worse. The Minister for Equality Jimmy Deenihan recently announced that it took three years to get a hearing.

These are the figures for categories of representation in all cases coming before the EAT. There were a total of 2180 cases heard altogether. There was representation of employees in 1447 cases and of employers in 882 cases.  See Appendix A below for details.

What follows are general observations and not those of a statistician. I’d welcome comments.

But a number of things strike one from these figures.

The EAT produces statistics for representation at all hearings and separately for claims under the Unfair Dismissals Act (UDA). Claims under that act account for 93% of all hearings (2009 report)

What the figures above show is that comparing 2005 and 2009; in cases where parties are represented;

•  62% were represented by lawyers; a decline since 2005 from 69%.
• Those represented by unions has increased marginally from 12 to 14%
• Those represented by ‘Others’ has seen a significant enough surge from 16 to 20% (mainly accounted for by a leap in the number of employee cases in this category from 111 to 301). I take another look at that below.

In cases involving Unfair Dismissals Act the position regarding representation is as set out in Appendix B below

There is a significant increase in the number of appearances by lawyers; rising from 64% of ‘all cases’ to  about 75% in cases under the UDA and remaining constant over the period. This may not be a surprise. The involvement of lawyers in the process was well advanced by 2005!

I also took a look at representation of employees only and the following is the picture (just looking at 2005 and 2009.

All Cases		Union %	Lawyer %	Others %
2005	989	23	66	11
2009	1447	22	57	21
UDA only
2005	764	16	77	7
2009	794	13	75	13

Some interesting changes here. The numbers of ‘Others’ has climbed sharply while the involvement of lawyers in cases under legislation other than the UDA has fallen somewhat.  This may reflect lower levels of settlement in non UDA cases.

In the case of employees only, the numbers of those represented by ‘others’ has almost trebled from 111 to 301 and in UDA cases doubled from 52 to 104; (the category of employers represented by ‘others’ has fallen from 123 to 103; 19%.)

This means that there are as many claimants (I am assuming all claimants are employees) represented by ‘others’ as by trade unions. Outside of UD Act cases it is not onerous to present a case under certain of the other statutes. The only concern is that they get so far (see final paragraph)

Who are these ‘Others’? Clearly they include those such as your humble correspondent! But presumably also Citizens Advice Bureaux (especially in cases involving nationals from EU or other states), the occasional family member etc. Although I am at a loss to know who others are in the case of employers, apart again from independent HR consultants, or perhaps accountants.

Are these figures worrying for trade unions? Looking at the benign scenario first it is probably the case that where trade unions represent workers there is a very high probability of cases being settled long before they get to this stage.

Interestingly this appears to show that in respect of the 2180 claims heard by the Tribunal in 2009, and on the assumption that an employee was in attendance in most, if not all of these they were only represented in (roughly) 1500 cases.

That said I have heard from some union sources of a reluctance on the part of union officials to take cases as far as the EAT because of the rigidity of the procedures, the requirements for examination of witnesses etc.

Union officials probably prefer theLabour Courtstyle of presentation of their submission without having to comply with the burden of even somewhat relaxed application of the rules of evidence, cross examination etc which may be reflected in the figures, but I can’t say for sure. But these facts suggest that only about one in six employees whose case runs before the EAT is represented by a trade union official.

The bottom line is that the era of employment rights has drastically altered the balance of forces and entitlements that exist as a matter of legal right do not require trade union membership for their vindication.

On the employer side IBEC offers legal representation through in-house solicitors and employers and trade associations would in general be better resourced to fund legal representation.

Finally, the report says that the average waiting time for a hearing in 2009 was 31 weeks inDublinand 32 elsewhere. A query I made recently established that this situation has deteriorated significantly and it is now 78 weeks inDublinand 81 weeks in Wicklow, for example.

The EAT is unusual both in terms of dispute resolution in employment matters and in the wider world in that it does not have a mediation or conciliation ‘step’. It badly and urgently needs one. It is far too cumbersome, time consuming and in many cases expensive to resolve what are for the most part relatively simple disputes. And it is now settled law that even statute based claims may be settled subject to a number of simple conditions without the necessity for an EAT hearing.

The other LRC; the Law Reform Commission in its report launched in November 2010 on mediation ducked this issue. While it provided a comprehensive and informative overview of the  current situation for reasons best known to itself it made no hard proposals.

The area of employment disputes was once our most developed system of what we today call Alternative Dispute Resolution….Not any more! The EAT is thirty four years old this year and showing its age. It needs a Berocca boost!

Appendix A Representation; All cases

	T.U/ Trade rep			Legal			Other
	2009	2008	2005	2009	2008	2005	2009	2008	2005
Employees	318	282	223	828	831	655	301	219	111
Employer	92	77	53	616	626	585	174	220	180
	410	359	276	1444	1457	1240	475	439	291

 Appendix B Representation UD cases

	T.U/Trade assoc			Legal			Other
	2009	2008	2005	2009	2008	2005	2009	2008	2005
Employees	100	106	126	593	636	586	101	71	52
Employer	70	63	44	455	479	489	104	140	123