Mediation in the Workplace; Are we going backwards?

Posted on July 19, 2013 by Pat Brady

We expect to have a Mediation Bill next year which will transform dispute resolution in the civil and commercial sector. And yet, we appear to be going backwards in relation to mediation in workplace and employment rights disputes. For more on mediation and ADR please click here

In my submissions at the consultation phase of the workplace relations reform programme I argued strongly for an early intervention mediation service, at the same stage in proceedings as the Conciliation service that operates in the LRC for traditional disputes. (You can read my submission to the review here)

But also conscious that there was a cost cutting aspect to this I suggested (not entirely disinterestedly) that a panel of private mediators might be established for this purpose.

This was rejected, although I got to discuss it with the senior official then driving the project who was alive to the importance of mediation as an option.

But when it emerged there was never much of a serious attempt to represent the Early Resolution Service as a mediation option. It is little more than a ‘triage’ step and this is a disappointment especially in terms of getting real ‘Early Resolution’ of employment rights disputes.

I am a huge fan of the Rights Commissioner service. Their willingness to mediate settlements (having heard the parties) is a huge advantage in most cases, although you can’t always rely on the Commissioner acting in this way.

It is not strictly within their brief to act as a mediator/dispute resolver, although thankfully most of them do. But I have had experience of them going straight to hearing and then issuing a recommendation when you were hoping otherwise.

However it is not without its critics. Some solicitors in particular dislike it and criticise how it is done.

As it happens the entire Rights Commissioner/EAT structure looks set to be washed away over the next couple of years.

I don’t think one can view the proposed Adjudicator system as a direct replacement for the Rights Commissioner service. It will provide a first instance hearing and have jurisdiction for all cases. I assume it will be required to adopt the EAT ‘evidence only’ approach rather than the more informal submissions approach currently used. (Also I’m not sure what will become of traditional non statute-based employment rights cases cases submitted under the 1946 Industrial Relations Act).

One worry about the new Adjudicator layer is that the draft legislation appears to be written in such a way as to specifically exclude the possibility of settlements in the manner the Rights Commissioners currently do them.

As the draft legislation is written it requires a written determination to be issued following the hearing which seems to exclude the Rights Commissioner type of fix!

They could, of course facilitate the parties as the EAT does by delaying the hearing while the parties battle it out in the corridor but this is not quite the same thing. With the Rights Commissioner you know that if you weren’t roughly within the area s/he was thinking of issuing an award you would not fall too far outside that in a settlement.

There are two problems at the moment; the critical problem is delay. A good proportion of cases are settled at the EAT but the best part of two years after they have arisen (76 weeks in Dublin at the moment from referral to hearing) and longer at the Equality Tribunal.

While the employer has the option to object to a Rights Commissioner hearing in a limited number of cases they are inviting greater exposure at the EAT and entering unknown territory if they do so.

The new system may well take care of the delay problem; only time will tell.

But the second question is how we get early, effective and amicable resolution of disputes both those involving an end to the employment relationship and those which don’t.

While it has not really been a priority for any of the social partners (despite certain tokenistic references to it in the Code of Practice and elsewhere) the option to mediate is still the best one and the issue that arises is; if the state is not prepared to do it are there options for private mediation (or even arbitration) of claims.

On the former it is settled law that even statutory, rights-based claims can be compromised (i.e. settled) subject to a number of considerations, which if fulfilled will result in the settlement terms being enforced by the EAT.

I favour amending Grievance and Discipline policies first by re-styling them ‘Dispute Avoidance and Resolution’ processes and then introducing a mediation step, both for internal discipline issues but also for rights based claims even where the employment relationship has terminated.

Will this ‘bind’ former employees? Well that is far from certain and may be unlikely. And there is controversy about the idea of any suggestion of ‘compulsory’ mediation, but the alternative of a long wait for a hearing might make a little bit of pressure to get around the table more attractive.

But the new draft civil mediation legislation (due early 2014) will enable a court to penalise even a successful litigant who has behaved unreasonably at the mediation stage and revised Rules of Court already in place permit this even now. There is well established jurisprudence to this effect in Britain (see Halsey v Milton Keynes Trust)

This legislation, when enacted extends to employment disputes in certain circumstances. Obviously costs do not arise in the employment rights world but it would be a start if the state discouraged the processing of claims within the formal system if they had not been through a mediation stage. I have seen many cases where employees referred cases to the Rights Commissioner service (more accurately their solicitors did) while discussions were still underway at local level.

But in general terms the age of mediation is upon us and it will be in increasing use in civil and commercial disputes in the future. It surprises me how slow business organisations have been to embrace it and even slower to look at its potential in employment disputes.

For example, could there be industry or sector based mediation services, although it is likely that the employer would end up paying. But if costs could be spread more broadly, and resulted in earlier and more amicable dispute resolution this might be a very welcome thing to employers.

In arguing for his reforms Richard Bruton has exploited the widespread (and much of it justified) dissatisfaction with the EAT in particular. (In general, I support the reforms and disagree with criticism of them from the legal profession).

But the point is they only replace one system of arbitration or adjudication with another. Even if its better in that respect employers (and unions) need to do more to reduce the referral of disputes outside the workplace, or at least to a place where resolution is possible, early and cheap!

The actual ‘early (and amicable) resolution’ of disputes remains a missing link in the Bruton reforms, even allowing for the greater role NERA will have in minor claims such as Terms of Employment (Information ) Act compliance issues. It is also at odds with this Government’s general policy to alternative dispute resolution which is hard to understand.

Legislation introduced to US Senate banning pre-dispute arbitration clauses

Posted on May 31, 2013 by Pat Brady

This is news that may sound strange to Irish arbitration practitioners and the wider ADR community.

The Arbitration Fairness Act (S. 878/H.R. 1844) was introduced by Sen. Al Franken and Rep. Hank Johnson and would only permit arbitration that is agreed to after the dispute arises, unless the arbitration provision is in a collective bargaining agreement.

The Bill’s preamble, rather surprisingly states:

“Mandatory arbitration can be a huge disadvantage to consumers, workers, and small businesses, often limiting their ability to have any meaningful legal recourse when they are wronged.”

In a statement, Franken said, “I’ve reintroduced the Arbitration Fairness Act to ensure that people and small businesses maintain their right to their day in court when they are cheated.”

As usual things look different to European eyes. The European union has recently introduced a number of measures to facilitate alternative and on-line dispute resolution processes for consumers which have beed widely welcomed as providing an alternative to court action. Many consumers will see the opportunity to go to courts as a less than enticing prospect. (The Small Claims Court, wuth a claims limit of €2,000 being an exception)

But in the US the premise is that “mandatory arbitration undermines the development of public law because there is inadequate transparency and inadequate judicial review,” and so the legislation has been reintroduced to impose a broad ban on pre-dispute arbitration agreements involving employment and consumer disputes.

There is no congressional action currently scheduled on the bill, and it is considered highly unlikely the measure will see action by the Republican House of Representatives, according to international HR agency BEERG.

The campaigning website ‘Fair Arbitration Now’ describes forced arbitration clauses as ‘an abusive corporate tactic to stamp out consumers’ and employees’ rights’.

According to the website over the last year, the US Supreme Court has issued three decisions that expanded companies’ use of ‘forced’ arbitration clauses in consumer and non-union employment contracts.

It says the Court has allowed companies to restrict the right to access the court by expanding arbitrators’ power and limiting consumers’ and employees’ ability to band together in class actions. But is this a bad thing?

‘Just last month in AT&T Mobility v. Concepcion, the Court gave the green light to corporations to ban class actions in their contracts. So now we are left virtually without recourse and corporations are free to act without any fear that they may be held accountable for their actions.’

Can’t go along with this, I’m afraid. We need more, not less alternative dispute resolution vehicles as alternatives to court and less resort to the formal law system. Looks like just more work for lawyers!!

The Workplace Investigation and the Law Part 3

Posted on May 13, 2013 by Pat Brady

(In this piece I will discuss cases which stray beyond the ‘pure’ investigation, please see earlier posts for full paper)

A second, and related point is that, in my submission (and despite the comfort that may be found in the foregoing case law) investigators should think twice about assignments where the terms of reference take them beyond the pure investigation described there.

That brings me to the following cases where precisely that problem arises.

McLoughlin v Setanta Insurance Services Ltd 2011 [IEHC] 401 Injunction granted

Giblin v Irish Life & Permanent PLC [2010] IEHC 36

O’Sullivan v. Mercy Hospital Cork Limited, [2005] IEHC 170

These are all cases where to one extent or another the investigation process was compromised by breaches of fair procedure, the breach activated by the fact that they moved beyond the Minnock ‘pure investigation’ principle and into sanction.

It should be noted that some form of combined investigation/disciplinary step is not ruled out per se.

In Giblin Laffoy J. said that a one stage ‘inquisitorial process’ was possible.

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.

This may be a matter of terminology but it is certainly confusing (to non lawyers anyway) to describe what is essentially an adjudication as an investigation and it would of course require the full application of the fair procedure requirements. (Although I am aware of a process within a large multinational where an internal appeal against redundancy is described as ‘an investigation appeal’).

But in all these cases there were defects.

In McLoughlin the investigators were held to have produced a reasoned determination of the case, in Giblin the investigation team was charged with deciding on Mr Giblin’s case and on a sanction, which could include dismissal and in O’Sullivan v. Mercy Hospital Cork the investigator produced adverse findings against the plaintiff employee without her being notified that this was happening; all offending the sanction rule.

In passing, there is some comfort in Judge Laffoy’s comments for owner managers conducting disciplinary proceedings in small businesses where compliance with SI 146/2000 (a document whose authors appear to have overlooked SME’s) can be very difficult, in relation to an appeal for example. (See also Mooney v An Post where the difficulties in complying with rigorous standards of fair procedure were sympathetically reviewed by Keane J. where he said that ‘the two great central principles – audi alteram partem and nemo iudex in causa sua – cannot be applied in a uniform fashion to every set of facts.)

I am more concerned here with the practise of external investigators.

If we can turn to Doherty & Anor v HSE [2008] IEHC 331 the court was addressing a different matter there which turned on the distinction between serious and gross misconduct.

But in this case the terms of reference of the investigator permitted a finding as to whether the allegations represented serious misconduct, which would then be followed by a disciplinary hearing to decide on sanction (so stopped short of the error in McLoughlin, Giblin and the Mercy Hospital, and fell within the ‘Minnock principle’).

So legally speaking this ought to be acceptable on the basis of Judge Laffoy’s observations in Giblin and subject to fair procedure rights being observed, as it meets the criteria outlined in O’Brien and Minnock in avoiding imposition of a sanction.

However, an assignment as an investigator, (or an investigator only) on this basis is something that should be considered carefully.

It is hard to know why any employer (a large employer in particular) would suffuse the two stages of the process rather than keeping clear water between its investigation and disciplinary stages and avoiding this rather odd hybrid adjudication process.

While it is technically true on the basis of the authorities reviewed here that a finding of serious misconduct is not per se ‘a sanction’ it brings a respondent to the edge of the sanction precipice. Viewed from the perspective of employment law or HR practitioners a conclusion on misconduct and a decision on sanction are much closer bedfellows than any link between a finding of fact resulting from an investigation and a conclusion on misconduct.

For example, a finding of serious misconduct automatically triggers a sanction as it is difficult to imagine any situation where it would not. The two are inextricably linked.

There does not appear to be any logic in separating the finding on conduct from the application of an appropriate remedy, and none in allowing it to be done outside the parameters of the recognised disciplinary procedures.

Indeed the opposite approach seems more logical. Investigations have been compared to the compilation of a ‘book of evidence’. To continue this analogy it would be absurd to separate a decision on guilt in the courts from the passing of a sentence.

Further, it will be recalled that in O’Brien v Aon Insurance Managers the court appeared willing to ignore ‘infirmities’ in the investigation provided the respondent had the right to have the full disciplinary hearing consider all facts ‘afresh’ and have the benefit of fair procedure applied at the hearing where they would be considered. This was seen as correcting ‘infirmities’ in the investigation and it underpins the clear water needed between the two processes and suggests that, even allowing that single ‘inquisitorial processes’ might escape adverse judicial attention separate is safer.

That said, in Minnock the court intervened to grant an injunction on the basis that the investigator did not confine himself to the ‘pure evidence gathering’ to which the rules of natural justice do not apply and was prepared to reach ‘findings’. Where exactly this stepped over a line of which the court disapproved is not clear, but it seems likely to have been a result of the defect in the Terms of Reference.

In any event even if it can be said that a finding of misconduct lies between a ‘pure investigation’ but falls short of a sanction it is too close for comfort to the latter for safety, or, in any case for best practise for investigators.

It may be of interest, if not legally then in relation to the practicalities of setting up and running the investigation that the plaintiffs in a number of these cases were very senior employees. O’Brien was MD of Aon, in Cribbin v PLC Ingredients the plaintiff was a Director and a 25% shareholder, McLoughlin was the General Manager in Setanta. It may be that the set up and planning of a workplace investigation in such cases requires greater care and attention to detail than with other employees, if only because if aggrieved they are more likely to reach for a legal remedy.

In Cribbin for example the investigator was a Senior Counsel, not normal in a workplace investigation, (although he was eventually discharged for failure to complete his report in time; perhaps a reminder to include the ‘due dispatch’ obligation that falls on arbitrators in any ‘CIArb Investigation Rules’.) There are defined time limits in the public service dignity at work ‘Positive Working Environment’ policy, for example, although they may be extended relatively easily by notification to the parties).

(See also cases related to delay (not included in this post); notably UD 705/2008 where the Employment Appeals Tribunal set out some guidelines on delay)

On a related point, investigators are often asked in Dignity at Work investigations to reach conclusions on facts AND whether they meet the definition of bullying.

Is this much different in principle to a finding of misconduct? Unlike misconduct there are some criteria against which bullying can be assessed and normally even a finding on bullying goes to the first stage of a disciplinary process anyway, or may even enter a mediation process.

Misconduct involves a much greater element of value judgement, often particular to the employment and is a form of adjudicative activity more associated with the formal disciplinary process both in practice and under the terms of procedures drafted under the Statutory Instrument on Grievance and Discipline SI146/2000).

As it turns out the decisions of the courts so far in relation to a finding of misconduct by an investigator would seem to protect a finding of bullying also so, given that it is even one further stage removed from the danger of a sanction than a finding of misconduct it is likely that the reservations expressed here about findings of misconduct do not apply to bullying.

Other issues which may arise under fair procedure requirements are entitlement to representation, sight of witness statements, etc. It is submitted that these should form part of a best practise model of conduct of investigations, although as with workplace discipline in general entitlement to legal representation is not favoured, and indeed provided the process falls within the Minnock decision principles it would appear not required (But see Burns v Governor of Castlerea Prison [2009] IESC 33)

There is much more, and I have not touched here on items 3-7 in the list on page one, although I have assembled a number of cases on all those topics. But I trust this brief survey of a important aspect of the legal principles which will form part of our future training of investigators has been of interest.

Also bearing in mind that many of the dicta referred to in this paper might be regarded as obiter or fact sensitive the professional standard for the investigators we train and recommend in CIArb should be sufficiently robust and watertight to withstand a more direct challenge in the future.

Our task now is to proceed from this understanding of the law in relation to investigations to construct professional standards which take the legal principles as a minimum but build on them to create a high, and recognisable standard for the practise of workplace investigations.

Pat Brady FCIArb

First delivered March 8^th 2013

Posted May 12th 2013

The Workplace Investigation and the Law Part 1

Posted on April 27, 2013 by Pat Brady

Paper delivered to a conference organised by the Chartered Institute of Arbitrators, the Irish Association of Women Lawyers, Arbitral Women and the Law Society on Conflict Resolution: Celebrating Women as ADR Leaders

The bungled workplace investigation ‐ a look at the pitfalls of poorly investigated conflict and the real cost of badly managed complaints.

This is the first of three installments of this paper that I will publish in the coming days

Background

The Chartered Institute of Arbitrators is a broad church of dispute resolvers across many professions; construction, the law, financial services, other commercial sectors and the employment sphere. Our members are arbitrators, construction adjudicators, mediators and practise other dispute resolution processes.

Until now, we had no quality assured standards, panels or approved training in the way we do with other dispute resolvers. (Neither incidentally has anyone else but we decided to do something about it.)

We have done so by developing a course in workplace investigations and our ambition is to offer the legal profession, employers and others who seek it the comfort of a unique cadre of practitioner investigators trained to a good standard exactly as we do with arbitrators and mediators.

First we had to define the skillset needed for the conduct of an investigation; from the planning and set up stage through case management, interviewing techniques including with vulnerable interviewees, decision making and report writing.

Because workplace investigations are often linked to the disciplinary process the general framework of the law on discipline and dismissal overarches all of this. Indeed there is now something one might describe as the law relating to workplace investigations as a sub set of employment law. For example, a recent (Unreported so far, 21st December 2012) High Court decision: Patrick Kelly v Minister for Agriculture and Others addressed the obligation to provide witness statements during an investigation. (per Hedigan J.)

With a number of distinguished exceptions (and some further reading will appear at the end of the final piece) this has not yet got the detailed attention it deserves. Our purpose was not to add to the academic study of the law but to provide practitioners with practical guidance on pitfalls they should avoid, and to assist us in developing a best practice model for the conduct of investigations.

The starting point was to identify those potential problems which could result in adverse consequences for the workplace investigation (and investigator). This is ‘work in progress’ as decisions of the EAT, for example are a nightmare for the researcher as the EAT database is not searchable by case type. This is happily going to change as part of the reform of the Employment Rights bodies.

Why an investigation? Lets start not at, but just before the beginning. Why is investigation needed at all?

It is important to answer this question initially for HR professionals who are likely to make the first decision on this.

It is now quite common to include a commitment to hold an investigation as part of the disciplinary procedure incorporated in Contracts of Employment. In such cases the employee has a contractual right to an investigation

It may be required by Codes of Practice (on bullying, for example,) or by best practice compliance with fair procedure requirements, bearing in mind the relationship to possible later disciplinary procedures; a point discussed later.

In the case of a possible dismissal the Unfair Dismissals Act 1977 says at section 6 (1)

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The EAT has said: “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and
the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed

Hennessy v Read & Write Shop Ltd UD 192/1978

And this case was noted with approval more recently in Michael Morales v Carton Bros UD 835/2011 although in that case the employer was held to have reached a disproportionate conclusion despite having had a good investigation, in other words failing to meet the ‘substantial grounds’ test in the Unfair Dismissals Act.

The UK EAT (which it should be noted is a division of the High Court) has similarly held;

First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. British Home Stores v Burchell (1980) ICR 303 EAT

(For other UK authorities on investigations see Midland Bank v Madden (2000) ICR 1283 CA, Garry V London Borough of Ealing (2001) IRLR681 CA Tesco Stores Ltd v Pryke (2006) EAT)

So for the purpose of informing any disciplinary proceedings against an employee in addition to the considerations above it is obviously important that an employer is sure of the relevant facts before pressing on with those proceedings.

(On the issue of suspension pending an investigation see Khan v HSE [2008] IEHC 234 and McNamara v South Western Health Board [2001] IEHC 24. Essentially the applicability of fair procedure turned as in the cases below on whether the suspension added up to a sanction).

But returning to the pitfalls the following agenda of headings emerged as needing attention in developing an understanding of the law and investigations.

Fair procedure
1. General principles
2. Applicability to Investigations
3. Suspension pending investigation
Crossover into disciplinary
Failure to carry out investigation
Inadequate/Flawed investigation
Delay
Independence of Investigator
Standard of proof

While avoiding unnecessary scrutiny by the High Court is a prudent consideration for any of us, this should not be a defensive exercise only. We want to go beyond that thinking and move towards developing a best practise model that would be legally watertight for the long term but moreover provide comfort to the parties involved that they were getting the exercise they are entitled to get, and contribute to a resolution of the issue in hand.

It should resemble for investigators what the Institute’s standards and rules provide for arbitrators and mediators. (These can be viewed at www.arbitration.org)

In the next piece I take a brief look only at one of these issues; how fair procedure principles impact on the investigation.

The Irish workplace..seen from the Irish Times

Posted on January 22, 2013 by Pat Brady

Interesting series of articles in Irish Times, which ran from January 11th on the future of the workplace.

One of my main interests was the article on the impact of HR on unions; the headline on the article proclaiming that the power of unions has ‘crumbled’ with the rise of HR .

This general topic has been the subject of several blogs on this site and a number of presentations I have given on the future of, and challenges facing the trade union movement.

I disagree with a key aspect of the analysis in this article, though not with the conclusion that the power of unions has, if not crumbled then been seriously diminished.

But it is not ‘wily HR professionals’ who have tilted the balance away from trade unions, rather the impact of the canon of employment rights legislation since the 1970’s, now added to by the impact of recession. This development is overlooked in the article. (Incidentally I think the current HR culture has damaged dispute resolution at the level of the workplace in other ways as I have argued in a previous blog).

These days any employee, even those working in sectors of the economy where the reach of trade unions never extended, even at the height of their influence, can pursue their rights as a matter of statutory entitlement and relatively cheaply into the bargain.

What they cannot do is pursue them quickly, with the honorable exception of the Rights Commissioner service; waiting times for an EAT hearing in Dublin are 76 weeks, and longer elsewhere.

In 2010 claimants appearing before the Employment Appeals Tribunal were represented as follows: Union officials 20%, lawyers 57% and others (such as your humble correspondent) 23%. But when it comes to unfair dismissals cases the figures are; union 13.5%, lawyers 76% and others 10%! What is interesting here is the significant reduction in the number of union officials taking unfair dismissals cases, (or perhaps they are better than solicitors at resolving them before they get to that stage).

(The figures are a good deal worse for tribunals in Northern Ireland, where some tribunals are practically a union free zone)

I find it hard to accept the figures given in the Irish Times article for trade union membership and in my view they pre-date the current recession and are now out of date. The European Foundation for Living & Working Conditions (based in Dublin) in 2007 put total penetration at 35% and private sector at 21-23%. The Walsh-Stroble TCD study (also published 2007) had membership for the 20-24 age range, for example at 16% (in data collected in 2005!). This was down from 33% for the same category in 1994!

That age cohort is now nearly ten years older and one doubts if much has happened in the meantime to encourage them to take up union membership, and taken with the impact of the recession the position begins to look ominous.

Some (anecdotal) estimates put union penetration in the private sector as being in very low double figures i.e. at United States levels and certainly this is likely outside the banks and financial services sector.

This is a real crisis for trade unions. Tribunal advocacy is work many union officials can do well. But have you ever seen an advertisement to join a union or avail of its advocacy services! This is a marketing battle that is being lost by unions and won by lawyers.

So, some of the traditional protection offered by trade unions is less needed these days, or at least that is the perception of many employees. One thinks of Lord Wedderburn’s statement in ‘The Worker and the Law’ that trade unions want nothing more of the law than that it would leave them alone‘. Perhaps they were right!

And I do not believe that legislating to require employers to engage in collective bargaining on foot of the ECHR decisions in Demir and Baykara offers the lifeline that many trade unions think. (One of the ‘old Labour’ Ministerial characters in the Danish TV series ‘Borgen’ being shown on BBC 4 remarked in a recent episode that the problem with the labour movement was 1) there are no workers and 2) there is no movement!).

Anyway, worth a look at the Irish Times series which you can read here

Not quite Urbe et Orbe, but what are the employment law issues in 2013?

Posted on January 5, 2013 by Pat Brady

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 64^th 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

Happy New Year!

Workplace Solutions blog! 2012 in review

Posted on December 31, 2012 by Pat Brady

The WordPress.com stats helper monkeys prepared a 2012 annual report for the Workplace Solutions blog.

Here’s an excerpt:

600 people reached the top of Mt. Everest in 2012. This blog got about 8,100 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 14 years to get that many views.

Click here to see the complete report.

ADR…cheaper, more efficient, civilised!

Posted on October 5, 2012 by Pat Brady

As a strong advocate of ADR and a practitioner of the art I thought this quote from former U.S. Supreme Court Chief Justice Warren E. Burger’s about litigation in the U.S. deserved a whole blog to itself:

‘The entire legal profession – lawyers, judges, law professors – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts…

For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.

Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence, because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?’

Annual address to the America Bar Association winter convention, Las Vegas (February 12, 1984).

This came to me from a piece published by Lexology on dispute resolution in the construction industry in the US by law firm Duane Morris which you can read here. Burger J retired in 1986…how long will it take to get the message!!

UCD School of Law Conference ‘Current Fundamental Issues in Employment Law’

Posted on August 30, 2012 by Pat Brady

UCD School of Law (with the support of the Employment Law Association of Ireland) conference on

CURRENT FUNDAMENTAL ISSUES IN EMPLOYMENT LAW

University College Dublin, Friday, September 28^th & 29^th September 2012

Conference Schedule

Two main sessions on the key issues in employment law in Ireland today

Workplace Relations Reform
Freedom of Association & Collective Bargaining

Full details can be accessed here

I hope to post a report on some of the contributions shortly

Workplace Mediation..towards a paradigm shift….

Posted on June 25, 2012 by Pat Brady

Students preparing for the world of workplace dispute resolution in years gone by might have learned the really useful skills they needed in military manuals such as the ‘Art of War’ by Sun Tzu!

The process was one in which one side prepared and launched a series of ambushes, initially repelled by the other side, but sometimes leading from skirmish to pitched battle, to outright war, (metaphorically speaking) if things got really bad.

Only at the point when it became clear that the battle would succeed in exhausting and damaging both sides would they seek the intervention of a third party, sometimes through ‘conciliation’, or eventually a form of adjudication (both part of the State dispute resolution machinery).

Through a combination of the conciliator’s skill, helped by a large dose of nervous and physical exhaustion a settlement would be reached (4 am seemed to be a good time) and all retreated to bed, tired and mostly unhappy, worried about how the ‘best available offer’ would look in the cold light of the following day!

This is a caricature, of course, and somewhat of an exaggeration, but only somewhat.

Its essential characteristics retained the ingredients of war making; brinkmanship, the pursuit of triumph, unswerving belief in the rightness of the cause and a determination to beat the other side into submission with glorious indifference to any ‘collateral damage’ that might result.

Then the era of individual employment rights brought new challenges, especially in the context of demanding principles of fair procedure. These seemed to result in the process becoming more important that the outcome, and this calcification of dispute resolution procedures came at the expense of early or amicable resolution.

When one promotes one of the general advantages of mediation as being the maintenance of relationships between the parties the importance of this in workplace settings is much more important.

In the commercial context it may mean that people who have done business together in the past will continue to do so, will not insult each other as they pass on the fourteenth tee or at worst will not seek to actively damage each other.

In a workplace setting where relationships are a good deal more intimate the importance of this is more significant; two teachers in the same staff room, two retail assistants behind the same counter, two doctors in the same ER, two paramedics on the same ambulance.

These relationships are at such proximity that the notion of maintaining relationships has an added importance beyond that needed in a commercial situation.

It is in these settings that the option of mediation offers real benefits.

And so it would seem obvious that this will be embraced by disputants and their representatives with enthusiasm!

Perhaps not!

The welcome provisions in the new Mediation Bill requiring lawyers to advise clients of the advantages of mediation are only one half of the picture.

In November 2012 at a CIArb seminar in Dublin on the topic ‘ADR in Australia; lessons for Ireland’ the then President of CIArb Professor Doug Jones said that one very big lesson to emerge from the Australian experience was that ADR vehicles; mediation, arbitration etc are primarily client-driven.

Clients tell lawyers they want mediation or other ADR vehicles, he said, not the other way around.

When the ‘Automatic Referral to Mediation’ Pilot Scheme was introduced at London Central County Court research (by Prof Hazel Genn, 1998) showed that in approximately 80% of cases one or both parties objected to it.

“Other research shows that people are not as enthusiastic about mediation as the government, the judges and the mediation community think they ought to be’

Paul Randolph, New Law Journal April 2010

A concrete example of this in the workplace is in the following case .

Some workplace policies on mediation are clear enough. Not only must the option of mediation be offered (in Dignity at Work cases, in particular) but the advantages of mediation should be fully understood by the parties so that they might make an informed decision such as in the following extract.

Both parties will be requested to consider the use of mediation and every effort will be made to secure their agreement. An appropriate person who is experienced or well versed in mediation will meet with each of the parties separately to explain the mediation process and its benefits. This person may be from management, the unions or the agreed list of health service mediators.

It is vitally important that steps like this are fully understood and implemented as the merits of mediation are, in fact often poorly understood in general outside the mediation community as the research by Professor Genn indicates. Even allowing for some change since, and more will hopefully follow the enactment into law of the Mediation Bill there is no room for complacency.

Given that the word ‘mediation’ is in relatively general currency this may obscure the strengths of what is a very powerful dispute resolution process or lead to unfounded presumptions about how its value.

Despite the foresight of the authors of policies on Dignity at Work in anticipating these difficulties by inserting a requirement that parties be met by a person experienced or ‘well versed’ in mediation can we be sure it always happens?

Trade unions, accustomed to a traditional way of doing things and the ‘conciliation’ approach of the LRC may also have much to learn about facilitative mediation. It is all too easy to view the mediation option now increasingly being provided for in workplace procedures agreements as a stepping stone on the route to the Rights Commissioner or EAT; just one station on a railway journey where the journey is more important than the destination.

Recent press reports referring to recommendations of a ‘mediator’ in the redundancy talks at one of the leading banks will jar on the ears of a trained mediator.

This may be understandable but it is not helpful in building an appreciation of the powerful tool that mediation is; or in developing a move away from confrontation, hidebound procedures and towards consensual dispute resolution. (The CIPD reckons that HR practitioners with mediation training are 80% more likely to resolve a dispute than those without).

This it can do by ‘digging in’ to the real causes of a party’s grievance, bringing unarticulated material to the surface and attempting to resolve it. Thus it can give meaning of real substance to a phrase such as ‘giving the person their day in court’.

Except that it is not court but a place where a person’s need to be listened to can be met as a first step in resolving their issues.

Research shows (Law Reform Commission report on Mediation) that often parties are forced into litigation (and its equivalent in the workplace) because no-one would listen to them or offer them any apology for their sense of grievance. In the workplace this is often because of a slavish dedication to process over resolution.

Herein lies another of the strengths of the mediation process; it can adapt in a flexible and pragmatic way to the needs of the parties and their problems. The mediator creates a ‘safe’ space, but within an overall framework that has a shape and a structure where the parties can negotiate a mutually acceptable outcome.

From a practitioner’s point of view it might be assumed that when parties indicate initial willingness to attend mediation this is half the battle. Even those who do opt for it may still harbour incomplete or inaccurate notions about it.

In these circumstances a pre-mediation step is essential, ideally not an hour before the main mediation but at sufficient remove to enable the mediator to fully explain the process and the parties to digest it.

In this respect the task of the workplace mediator is a challenging one.

In commercial mediations nothing quite concentrates the mind like the daily costs of running a High Court action! This may be a negative reason for entering mediation but it is a powerful one.

In the workplace, disputants can opt to allow their grievances to simmer, occasionally boil over, but in any event remain unresolved in an atmosphere of sullen stalemate, which impacts on colleagues, organisational outputs, and of course themselves.

HR practitioners and union officials locked in the highly process-driven structures that currently pass for dispute resolution mechanisms in the workplace may struggle to break free of them, even where they want to, which is not always. They must really mean it when they agree to enter mediation, not see it as just another stage on the journey to adjudication.

This may be the era of mediation. But what is required is a paradigm shift in the way dispute resolution is seen and practised currently in Irish workplaces so that the art of dispute resolution can be clearly distinguished form the Art of War.

Pat Brady

Accredited Mediator

June 10^th 2012