The Bruton proposals for reform of the employment rights bodies

‘A system not fulfilling its purpose, compliant businesses sucked into costly hearings, workers having to wait too long for a remedy, a system you wouldn’t choose if you were starting out with a blank page’

A selection of the things Minister Richard Bruton had to say about the current employment rights dispute resolution bodies at the recent conference organised by UCD Law School and the Employment Law Association of Ireland.  (July 1-2)

And there was more!

‘Five redress or enforcement bodies, (resulting in ‘forum shopping’) 35 different forms to launch proceedings, different time limits, different routes of appeal, a system that is too complex and requires professional help to negotiate it (something he said was never intended) and a system overloaded by problems arising from the economic crisis’

In common with many aspects of the Irish public service these words on the need for reform of the employment rights bodies are far from the first to be uttered, or written about the employment rights disputes bodies.

And while the conference featured a number of distinguished contributions from Irish and international speakers (about which more in a future newsletter) all who heard these remarks, or who practise in the employment rights bodies will be focused on the possibility that change may at last be imminent.

Few who know the system would take issue with the Minister’s criticisms or the need for the changes he described. And more important than its impact on practitioners is its failure to provide early and effective solutions both for complainants and respondents.

Indeed the big question after the Minister’s speech was; ‘Will it really happen this time?’

Some reasons for thinking that it will are that this initiative is also about getting better value for money.

Unusually in public service reforms this could be one of the cases where better value is not just a synonym for ‘cheaper’ but may actually result in a better service to those who use it both as ‘clients/customers’ and their representatives.

The Minister’s plan is for the creation of one, common portal of entry, with simplified forms etc, one basic system of adjudication at first instance (with one hopes a mediation level) and one of appeal.

There would be a common format for the submission of cases and, perhaps most important, active case management. (It can take eight months for a party to even be notified that an unfair dismissal claim has been lodged against them.)

Some innovations are being considered. Could there be more ‘documents only’ hearings? This sounds like an oxymoron but it is common in arbitration proceedings.

In relation to straight compliance issues such as whether an employee has a statement of their Terms of Employment could this be addressed by a NERA inspection, rather than requiring a hearing simply to establish the facts either way. (In this respect the standard suggestion made by the Rights Commissioner service that parties make contact with each other to clear up such matters is rarely taken up. Pending wider reform perhaps there should be greater encouragement to do this and sanctions for failing to do so.)

And of particular interest to this writer is the possibility that more extensive use might be made of mediation. (And while we are at it why not take the opportunity to remove the exclusion on arbitrating employment disputes in the 2010 Arbitration Act).

But the employment rights sector has now fallen very much behind the debate about mediation. Some of those at the conference (including some policymakers) seemed unaware of the Law Reform Commission report on Mediation, published last November, which does cover employment disputes.

The potential contribution to early dispute resolution of having a panel of accredited mediators available to parties is the missing piece in the jigsaw in this discussion.

Undoubtedly, many details would have to be worked out (what does accredited mean, who would pay etc) but in drafting the reforms Mr. Bruton’s Department should look at where this might fit in in the overall scheme of things. It needs to catch up on what is happening in relation to ADR in the wider context. The Chartered Institute of Arbitrators will be making a submission to the Minister along these lines.

What’s next? The Minister sees a short period of consultation and the establishment of an ‘Implementation Group’. He noted that the Croke Park agreement will facilitate any changes involving transfer of personnel.

So at last change looks likely, especially given the positive political reaction to the Minister’s remarks, including from Labour backbenchers where he has not been a popular figure of late! His discomfort has been relieved, for now at least by the recent decision of the High Court in the case brought by ‘fast food’ restaurants here. A point of interest now arising is whether existing contracts of employment are in fact protected, as was generally believed would be the case. More to follow on this, no doubt.

(To contact the Employment Law Association of Ireland its Chair is Carol Fawsitt at Hayes Solicitors; email cfawsitt@hayes-solicitors.ie)

(There is a link to the Minister’s speech on my homepage)