CIArb Ireland Conference on Mediation & ADR in Cross border context


Irish Branch

presents a conference


Programme includes:

Key Note Address – David Ford MLA, Minister for Justice

The ‘Mediation Directive’ : EU cross border mediation – Nicola White BL

NI/RoI Employment Dispute Resolution : a comparison – Ciara Fulton, Tughans

ADR in Sport, north & south ‐ Dr Jack Anderson, Law Faculty, QUB

ADR in Construction : the adjudication process – Edward Quigg, Quigg Golden

A Judicial Perspective – The Honourable Mr Justice Gillen

What next for ADR? The president’s view – Brian Speers, The Law Society

Bookings: Cost: £75 or €75 per delegate For booking arrangements and confirmations please contact Mr Jarlath Kearney, Events Coordinator at:

Tel: +44 (0)2890 321022 & +353 (0)1 676 6744 Fax: +44 (0)2890 321023 Cheques payable to ‘CIArb NI Chapter’ Alternatively, book online at

Date: 1030 – 1700, Thursday 29 September 2011 Venue: The Hilton Belfast, Lanyon Place Keynote speaker: David Ford MLA, Minister of Justice

Quigg Golden Limited 1 ‐ 3 Brunswick Street Belfast BT2 7GE or via

‘Disputes know no borders’ CIArb cross border mediation event

The Chartered Institute of Arbitrators has watched with keen interest as the landscape of dispute resolution has changed on both sides of the border in Ireland. In many instances the context may be different, for example, construction, commercial or family disputes, but the constant and consistent theme of alternative dispute resolution remains as steadfast as ever.

In the last year alone the media has been awash with articles with headlines such as “See you out of court” or “mediation, mediation, mediation”, and it clear that the alternative dispute resolution message is finally getting through to even the most cynical minds.

So what has changed? The answer comes from a variety of sources ranging from enlightened advice, financial common sense, well drafted contracts, through to new legislative initiatives. The Chartered Institute of Arbitrators has watched as lip service has been paid to theory of alternative dispute resolution, but not the practice because it relied on disputing parties to try to resolve differences on a voluntary basis. Now however the rules are changing and slowly but surely a “legal requirement” or a court invitation to attempt to resolve disputes by way of alternative dispute resolution techniques such as mediation is fast becoming the rule rather than the exception.

In Northern Ireland this year the Cross Border Mediation (Regulations) Northern Ireland 2011 were passed into law in April. These Regulations implement Directive 2008/52/ECof the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, which applies to cross border disputes.

Local companies and businesses engaged in cross-border trade should be familiar with the new Regulations as they may impact upon them in the event of a commercial dispute and thus a sound working knowledge of alternative dispute resolution techniques in a cross-border context becomes an invaluable asset.

The Chartered Institute of Arbitrators is holding a one day conference on alternative dispute resolution in relation to cross border disputes from a variety of perspectives – commercial, employment, sport and so on, on 29th September in the Hilton Hotel Belfast. The conference will feature speakers including the Minister for Justice, industry specialists and members of the judiciary.

More information is available here.

If you would like to attend please contact Jarlath Kearney CIArb Event Coordinator on 028 90 321 022 or

How ‘Fair’ does ‘Fair procedure’ have to be?

Minister for Jobs, Enterprise & Innovation, Richard Bruton is embarking on some much-needed reform of the employment rights bodies. A consultation period concluding on September 16th has been announced. (Details and more information can be accessed via the News Section of the Homepage on this site).

Outside the issue of structures (about which I intend to write more in due course) there is an aspect of this that may otherwise escape attention in a debate focused on reform of the institutions.

But it is as badly in need of attention as part of the package of reforms.

That is SI 146/2000; the statutory instrument which is the benchmark document for the operation of fair procedure at workplace level, or more accurately the interpretation of the procedures it promotes requires a fresh look.

Interestingly, I had this piece more or less concluded when I came across an article on the site of the American Bar Association entitled ‘How fair does justice have to be’? It concerns the duty on the prosecution to share information with the defence in criminal trials (known as ‘Brady material’, as a matter of interest, but no relation!). It is only relevant to this article insofar as I am asking the same question and relieved that it does not turn me into some sort of a fascist for daring to ask it!

At the outset I am concerned on the basis of my own experience and what I hear from colleagues about the apparent loss of dispute resolution skills in many workplace situations. The Pavlovian reach for the Procedures manual can be bad for workplace relations and more important for the speedy and fair resolution of disputes.

Even where the employment relationship has ended amicable and early resolution of disputes is desirable for all parties.

The CIPD reckons that HR managers with mediation skills are 80% more likely to resolve disputes than those without. I suspect that for ‘mediation’ one might substitute ‘negotiating’ skills.

While the broad principles of the SI and the Code of Practice are fine, and indeed very important my concern is its applicability in small business settings. The principles in the document appear to have been drafted by people who weren’t thinking about small or medium sized, owner managed businesses.

This is despite the fact that about 60% of all businesses employ 50 people or less. No data are collected for micro-businesses. But clearly many thousands of these employees are employed in retail, and other businesses with under 20 employees or smaller.

For example s 13 reads; ‘Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied’

This is a good idea for ‘enterprises or organisations’ that have ‘different levels’. And the overall tone and expectations of this document are those of large enterprises and government departments; business organisations with a hierarchy. Most small businesses only have one level!

It envisages a level of administration impractical in a small business. I once had a case where the employer collected the claimant in his car every morning at 6.30. Following an incident he gave him a good telling off one morning as they were on their way to work.

Should he; the operator of a small butcher shop have sat down when he got in to work at 6.45 am and made a record of that? Under the current dispensation it might be the difference between an expensive award against him or not.

The claimant may not even dispute that it happened but a good, especially legal representative will make an issue out of the lack of documentation as a matter of principle, rather than from the point of view of a real, substantive breach of the employees rights, or as a matter of evidence as to whether the warning was issued.

To expect the owner of a small business to match a well resourced HR department in a large company or state organisation in the administration of workplace discipline is simply unrealistic; even unfair, as we’re on the subject.

I do not argue for one second that there should be any diminution in the substantive rights to the full rigour of fair procedure of a person accused of something which may cost them their job

However, it may be that the calcification of the system with its investigations, delays, hearings, costs can result in unfairness to all parties through the prolongation of disputes unnecessarily.

The impact on human relations in the workplace in replacing the inter-personal dynamic with an obsession with disciplinary and other procedures is surely a bad thing if it turns the workplace into a quasi legal battleground.

Another issue is the requirement for an appeal layer which is impossible to implement in most small businesses in any meaningful way.

In thousands, perhaps in most small businesses there is insufficient daylight between the necessary decision maker and any other person who might hear an appeal.

In my opinion the idea that an independent third party (paid for by the business owner) might be appointed to hear the appeal is somewhere between ludicrous and dangerous.

This essentially takes what is still at that point an internal business decision out of the hands of the owner of the business.

In any case, strictly speaking such an adjudicator, paid for by the employer may not be viewed as independent taking into account the requirement for independence in arbitrators and recent decisions of the courts on such appointments. (Healy v Whitepark Developments, 2009 Unreported). (Private arbitration by a competent arbitrator is another matter, and I repeat my criticism of the mystifying exclusion of employment disputes from the Arbitration Act 2010, a really stupid decision).

Again I have had a recent painful experience where a person appointed to hear such an appeal did so without terms of reference, without holding a hearing, and without giving reasons for his findings. Neither the adjudicator, the company which suggested him, the employer or the employee (represented by a large Trade union) thought it necessary to challenge any of these deficits. A mess? Carnage!

Indeed the whole idea that ‘nemo iudex’; the principle underpinning fair procedure that no-one is a judge in his own cause can apply in any meaningful way in a small to medium sized business is somewhat fanciful (and has been recognised as being so by the High Court).

It is ludicrous to imagine that the owner of a small to medium sized business can rise to judicial levels of detachment in relation to issues in which s/he has a direct involvement and with employees s/he knows well. No amount of po-faced posturing about fair procedure will change this reality.

The Rights Commissioner service is hearing cases with a relatively short delay and offers the option of an appeal under the Industrial Relations Act which would remove the necessity for such pantomime at the level of the workplace. This might resolve the matter subject to it having the resources to cope (or by also amending the Arbitration Act to allow private arbitration in employment disputes).

Parties for example need clarity that the lack of an appeal layer in a small business may not be a breach of fair procedure.

The basic principles in the Code of Practice should not be changed (except that the option of mediation really needs to be put centre stage in view of the expected Mediation and Conciliation Bill in 2012). But at the very least the implementation of those principles in a small business setting needs to be clarified (what are ‘adequate records’ for example?) and we are unlikely to get a better opportunity than the forthcoming consultation process.

It can happen that an employer has done their very best to be fair within a general understanding of the term, and indeed has complied with a very high standard of procedural fairness but still ends up being tripped up because there is no documentation of a verbal warning!

In other words where a process has been in substantial compliance (whatever that may mean) with the requirements of fair procedure technical flaws should not render it unfair.

The problem is no-one knows with certainty (normally until it is too late) what the standard should be.  At the point you find out for sure you could be reaching for your cheque book and paying out a five-figure sum.

Is it this ‘juridification’ of workplace discipline issues that is destroying traditional dispute resolution skills practised for generations by old style personnel managers (as they were then) and workplace representatives.

It is likely that the current SI was based on discussions between the then ‘social partners’ who were scarcely very representative of small enterprises or cognisant of these issues. The high level of involvement of some solicitors and barristers in the system with limited knowledge of HR and workplace dispute resolution processes has compounded the problem.

Those who are representative of small business might now be invited to consider the preparation of a more relevant document that brings greater clarity for all parties involved as part of the Minister’s reform initiative.

There is no argument being made here that basic principles of fairness should be in any way compromised, or that peremptory action by bad employers should be rewarded.

But there should be explicit recognition that due regard should be had to the small business context, proximity of relationships etc. in assessing compliance with the SI where there has been an attempt in good faith to operate in a fair way.


I dedicate this article to the memory of  an old acquaintance.  A lonely, single, middle-aged, gentle person with a drink problem who happened, stupidly to call into his workplace while intoxicated, but did no more than that. He did nothing wrong.

He was, in accordance with the procedures suspended pending a disciplinary investigation by his award winning employer. At that point he consulted me. I advised him on June 28th to seek medical help immediately and we would deal with the disciplinary matters later.

He agreed to do so.

He was found dead, alone exactly four weeks later. He was buried on July 22nd

May he rest in peace.

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

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

The Resolution of Individual Employment Rights Disputes

(This was a very successful event held on July 1/2 at which Minister Richard Bruton made proposals for radical changes in the employment law institutions. See my Blog on the Bruton proposals. I’ll post some more on other papers at the conference in due course. )

UCD School of Law 

(with the support of the UCD Commercial Law Centre and the Employment Law Association of Ireland) 

presents a conference on


University College Dublin

Friday 1st July & Saturday 2nd July, 2011

 The Resolution of Individual Employment Rights Disputes 

The incremental evolution of employment rights legislation has created a complicated system involving a range of bodies whose jurisdiction depends on the nature of the employment right in question. There now appears to be general acceptance of the need to simplify and streamline the complaint, appeal and enforcement procedures across the various bodies but there is less agreement on how this might be achieved.

This High Level Conference will involve contributions from distinguished experts who will provide critical evaluations on the way in which individual  employment rights disputes are resolved in England, Northern Ireland, France, Italy, the Netherlands and Canada as well as contributions from a range of speakers who will provide unique insights into the operation of the existing procedures in this jurisdiction.

Conference Schedule 

Friday, 1st July 2011

 Venue:          John Hume Institute for Global Irish Studies, University College,  Belfield, Dublin 4

5.30pm          Registration

6.00pm          Welcome

            Professor John Jackson, Dean of the School of Law, University                                    College Dublin

6.10pm          Formal Opening of Conference

Richard Bruton T.D                       

6.45pm          Dinner

7.45pm          Conference Opening Address

HH Judge Jeremy McMullen QC

8.15pm          Coffee

Saturday, 2nd July 2011 

Venue:          Quinn School of Business, University College, Belfield, Dublin 4

8.45am          Registration

9.15am          Welcome

            Carol Fawsitt, Hayes Solicitors, Chair of the Employment Law                          Association of Ireland

                 9.20am          Session 1: The Reform Agenda

                        Chair:             Pat Brady

Speakers:     Brian Barry,  Tom Evans, Anthony Kerr

11.00am       Coffee

11.20am       Session 2: A Comparative Perspective

                        Chair:             Bill Roche

Speakers:     Bernard Adell, Maurizio Del Conte, Yvonne Erkens, Francis Kessler

1.00pm          Lunch

2.00pm          Session 3: Round Table Discussion 

                        Chair:             Colin Scott

Speakers:     Kevin Duffy, John Horgan, Janet Hughes, Eugene McGlone, Kieran Mulvey, Alan Price, Peter Ward

4.00pm          Close of Conference & Distribution of CPD Certificates

Speaker Profiles 

Bernard Adell is Professor Emeritus at Queen’s University, Ontario and editor-in-chief of the Canadian Labour and Employment Law Journal.

Brian Barry is a graduate of Trinity College Dublin, where he is currently pursuing a PhD in the area of Irish employment dispute resolution reform, and an executive committee member of the Employment Law Association of Ireland.

Pat Brady is an Employment Law and HR Consultant, Arbitrator and accredited Mediator and Chair of the Chartered Institute of Arbitrators.

Richard Bruton, T.D.,  is the Minister for Enterprise, Trade and Innovation.

Maurizio Del Conte is Professor of Labour Law at Bocconi University, Milan and an editorial board member of Diritto delle Relazioni Industriali.

Kevin Duffy  is Chairman of the Labour Court.

Yvonne Erkens is an Associate Professor of Labour Law at Leiden University and a part-time Labour Court judge in Maastricht.

Tom Evans is Assistant Director at the Northern Ireland Department for Employment and Learning where he is responsible for employment rights, policy and legislation.

John Horgan is a former Chairman of the Labour Court who is now an independent Human Resources consultant.

Janet Hughes is a former Rights Commissioner.

Anthony Kerr is a Statutory Lecturer in the School of Law, University College Dublin and Vice Chair of the Employment Law Association of Ireland.

Francis Kessler is an Assistant Professor in the Sorbonne Law School at the University of Paris I and Senior Counsel at Gide Loyrette Noviel AARPI.

Eugene McGlone is an official with UNITE – The Union.

Jeremy McMullen QC is a senior circuit judge, one of two permanent judges of the Employment Appeal Tribunal sitting in London and Edinburgh, who, before being called to the Bar, worked for the GMB trade union as an elected regional officer.

Kieran Mulvey is Chief Executive of the Labour Relations Commission.

Alan Price is a Director of Peninsula Business Services (Ireland) Ltd and a lay member of the Employment Tribunals in Britain.

Bill Roche is Professor of Industrial Relations & Human Resources in the School of Business, University College Dublin.

Colin Scott is Professor of EU Regulation and Governance in the School of Law, University College Dublin, where he is Associate Dean.

Peter Ward is a Senior Counsel and an executive committee member of the Employment Law Association of Ireland.

Booking Details 

Programme Fee: €350/ €250 for ELAI Members.

Saturday sessions only: €285/€200 for ELAI Members.

Programme Fee includes attendance at conference, a comprehensive conference folder (containing papers relating to the conference sessions), coffee/tea on arrival at and during conference, lunch and dinner.

Certification for CPD purposes will be available on Saturday if required.

To book your place please complete the booking form attached and email to

For more information call Sinead Hennessy at 716 8763.


Mediation; an opportunity for a new approach

(This article appears in the Spring/Summer 2011 issue of the RGDATA magazine UPDATE)

Human frailty, it seems destines us to a level of involvement in disputes and nowhere more so than in business and in the workplace. But I see a future where the support business owners might need from their association, or others will be services to achieve amicable dispute resolution, as well as the information needed to defend and contest disputes.

Alternative Dispute Resolution (ADR) is the key to keeping down business costs across a whole range of commercial, contract and workplace disputes.

My work as an employment law and HR consultant is about helping clients avoid disputes and then resolve them as quickly, cheaply and effectively as possible when they do arise. By definition such disputes are adversarial in nature, especially if they involve reference to a third party.

Increasingly we are turning to better, cheaper and more efficient ways of resolving disputes; known by the generic term ‘Alternative Dispute Resolution’ (ADR). The best known forms of ADR are mediation and arbitration.

Under Arbitration legislation (The Arbitration Act 2010) the existence of a valid arbitration clause in any contract will result in a stay on legal proceedings in respect of ANY dispute arising out of that contract (the wording is important).

This not only avoids costly court appearances but all that messy pre court stage also. Arbitration is not without cost; but it is faster, normally a good deal cheaper where the dispute is not complicated, and it is private.

Last year the Law Reform Commission published proposals on Mediation and Conciliation which will provide court encouragement and protection to mediation of commercial disputes. The full Report, including the draft bill and a commentary can be read via a link on a sub tab of the Dispute Management page on this site.

So this is not a passing fad. This is the next ‘big thing’ and the new Government has promised that the Mediation & Conciliation Bill will be published next year. Courts are likely to punish even successful litigants who refuse to avail of mediation in relation to their costs.

What does this mean for your business? In the first place all commercial contracts should contain a mediation and arbitration clause. Many already do. It’s common across a wide range of sectors; financial services, construction, package holiday and most new car purchases, for example and I have provided RGDATA with a model text and can advise further.

In the world of employment law and HR there is also a role for ADR. Strictly speaking the Arbitration Act does not cover employment disputes (for reasons lost on me, but the Mediation Bill will) but in a situation where it now take 80 weeks to get to the EAT, and three years to the Equality tribunal there is something not quite ‘fit for purpose’ about this system.

Often employers will want to ‘kick the can down the road’ but I generally advise against this. A problem delayed and unresolved may be a problem doubled.

While statutory guidelines on dispute resolution in the workplace include reference to internal and external mediation, one sees almost no standard Grievance and Discipline procedures which provide for it.

At local level, many HR departments or small business owners baulk at this, and at the mediation option in general.

And even where a claim is statute based this should not discourage settlement by mediation. While the Rights Commissioner service is worth its weight in gold it still involves a degree of delay, a trip to a hotel or Beggars Bush and a degree of unpleasant confrontation on the day with people who may be current employees. Down the road from this, a further wait for an EAT appeal which may hang over you for two years is not a great idea.

The EAT will refuse to exercise jurisdiction where parties have settled a case subject to a number of important pre-conditions (mainly based on ‘informed consent’). A mediated settlement by an independent, accredited mediator will get an issue off your desk, and resolved confidentially and in a setting where you have some control over the outcome and the cost! And with current employees you get to shake hands and get back to work!

So this is how I see the future of dispute resolution. Quicker, better, cheaper and less confrontational.  Start by having a fresh look at your commercial contracts and your Grievance and Discipline procedures! And think about getting ADR provisions into all you can!

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



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

The Programme for Government and dispute resolution

Given the large scale problems facing Ireland, and the time pressures on writing the Programme for Government it would not be sensible to expect a great deal of specific interest to readers of this site in the new programme for Government.

But here is what there is.

 Public Sector Reform

 The Programme proposes to reduce public service numbers by between 18,000 and 21,000 by 2014 and by a further 4,000 by 2015.

 Obviously the big issue here is selection; it’s a voluntary scheme but do you let everyone who wants to go leave?  Also there’s a lot of ill informed comment about protecting ‘frontline’ staff. Just because you don’t see someone does not mean they aren’t in the ‘frontline’. At least the programme talks about frontline ‘services’, which is better.

 National Minimum Wage

 The reduction to €7.65 will be reversed. 

Joint Labour Committees 

The strangest thing here is the lack of any reference to the review being undertaken by Kevin Duffy and Dr Frank Murphy which is due to conclude in the not too distant future. And this can’t be dismissed as previous Government business as it was a commitment under the EU/IMF programme for Ireland and is not likely to go away. (And maybe that’s what makes it not strange at all! Why put it in the programme if the EU/IMF are going to require it anyway?)

 The new Government says it will ‘reform the Joint Labour Committee structure, beginning with the appointment of independent Chairpersons to JLC’s, who will retain a casting vote. Reform options will examine the rate of pay for atypical hours’.

 But this wording is odd, being a good deal less specific than either of the manifesto commitments of the parties, although a bit more ‘cut & paste’ from Labour than FG. 

The following is the wording from the respective manifestoes.  Fine Gael was quite specific and said it would; 

‘support the renegotiation of the Employment Regulation Orders (ERO) imposed on the hotel, restaurant, security, agricultural, retail and other sectors under the JLC system within six months under an independent nonvoting chairperson. We will also allow employers and workers in ERO sectors to negotiate enterprise-level collective agreements with their own staff which will make them exempt from the ERO’

Labour had said it would ‘reform the Joint Labour Committees (JLC) structure that dates from the 1940s, a time when employee rights and general labour law were much less developed. [and by]  appointing independent chairpersons to the Joint Labour Committees as an urgent first step in this reform process’.

As can be seen FG was going to tackle the Orders themselves by ‘renegotiating’ them. Also the final sentence clearly implied that ‘enterprise level’ agreements outside the ERO system would be permitted.

Even Labour’s wording seemed to suggest that the JLC system had outlived its usefulness being a ‘structure that dates from the 1940’s.’

So what precisely reforming the ‘structure’ means in practice we will have to wait and see but those who wished to see reform here will be worried for now. We will see what Messrs Duffy and Walsh have to offer.  Also gone is the six month deadline.

The emphasis on ‘independent’ chairpersons is interesting. Currently, these are appointed by the Minister for Enterprise etc and appear to be normally drawn from the Industrial Relations Officer corps of the LRC. They are hardly partisan so presumably ‘independent’ means from outside the system altogether.

Certainly, one hears anecdotal evidence from the employer side that they generally end up in a minority when push comes to shove and hard decisions are being made about increases.

Mediation & Law Reform

What we get in the Programme for Government is a cut and paste from the FG manifesto;

‘We will encourage and facilitate use of mediation to resolve commercial, civil and family disputes in order to speed up resolution of disputes, reduce legal costs and ameliorate the stress of contested court proceedings’.


‘We will prioritise a programme of law reform arising out of the recommendations made by the Law Reform Commission.’

Given that one of the most recent recommendations of the Law Reform Commission was its report on mediation (including a draft Mediation Bill) it might not be going too far to see this as the green light for that legislation. I believe the Directive can be effected by way of Statutory Instrument anyway.

Labour didn’t really have anything to say about this except in relation to driving professional costs down, in which ADR options might be seen as an option (and were so seen in the Four Year programme of the previous government.)

The Labour Party will support robust competition policy and enforcement and ‘structural’ reform in the professions to drive down the cost base for the traded sector’

It might however be taking it a stage too far to see this as a possible opening for reform of the Employment Appeals Tribunal along the lines that I have argued strongly for in detail in another blog on this site.

There is no reason not to introduce private mediation and arbitration into the employment law scene which is unable to cope with the current workload. (More here)

 Trade Union recognition

 Well buried in the ‘Equality’ section on page 54 of the document is a commitment to;

 ‘reform the current law on employees right to engage in collective bargaining (The Industrial Relations (Amendment) Act 2001) so as to ensure the compliance by the state with recent judgements of the European Court of Human Rights. 

This is a reference to the Demir and Baykara judgement in the European Court of Human Rights. (More here This links to my report of a lecture by Professor Keith Ewing on the case and its implications for the Supreme Court judgement in the Ryanair case. Professor Ewing’s opinion is that the Ryanair decision is incompatible with the new direction in European case law and the Charter of Fundamental Rights of the EU.

 This is a ‘biggie’ as constitutional rights form the basis of the Supreme Court’s ruling. Again we shall see. 

More significant is whether such a change will make any difference to declining trade union numbers. If I were a trade union leader I wouldn’t be counting on it. In the US which has a system for compulsory ballots etc on trade union recognition trade union membership in the private sector is down to 7%. Based on studies here I reckon that among young workers (say under 25) in the private sector in Ireland its not a million miles away from that now.

Radical thinking needed post election to improve dispute resolution

As the General Election approaches, and with it the welter of reviews, proposals and policies it is interesting to see where changes, or even opportunities are coming in relation to the world of employment law, HR and dispute resolution. 

That change is needed can hardly be in doubt. In the last two years we have seen waiting time at the EAT rise from 30 weeks (2009 EAT report) to between 78 weeks (Dublin) and 81 weeks (Wicklow). 

Twice in the last year the CEO of the Labour Relations Commission has complained that the agency is under severe pressure. Referrals to Rights Commissioners have increased from just under 5600 in 2005 to 14369 in 2009. 

Interestingly, while the workload of the Conciliation Service has experienced growth it has been much lower; presumably reflecting the disparity between ‘collective’ and individual employment rights disputes in the system. Kevin Duffy, Chair of the Labour Court  has noted that ‘the number of industrial relations cases coming before the [Labour] Court involving private sector employments has been steadily declining as a proportion of its overall case load’. 

So, from having once had a pioneering and innovative form of alternative dispute resolution it is now creaking at the seams. Certainly, if a claimant in an unfair dismissal case has to wait the best part of two years from the disputed dismissal to getting a resolution or a remedy the system might be said to be no longer fit for purpose. This is especially so as it was originally designed to offer an alternative to the more cumbersome ‘wrongful dismissal’ route in the courts which, one suspects could now be traversed in a much shorter time; resources permitting, of course. (And over 60% of parties appearing before the EAT have legal representation; rising to 74% in Unfair Dismissals cases. One meets barristers at Rights Commissioner hearings!). 

And extraordinarily there is no mediation ‘step’ in the EAT system even though this was always a feature of the Labour court system (the conciliation service, and now some mediation also) and works well in the Equality legislation. 

Between 2003 and 2007 much effort went into the generation of proposals for reform of the system, culminating in the EAT Procedures Revision Group which regrettably resulted in little change of substance. It contains many important and useful recommendations which could seriously address current problems. Its weakness was that its remit was confined to the EAT and it did not give us a bird’s eye view of the entire system.

 It is time to do so, and to develop an integrated response across the current dispute resolution services.

What are the political parties saying about the issue? In the context of the other problems facing the country it’s not a central concern. But interestingly those very problems may offer impetus to reform from the point of view of the need to reduce business costs and competitiveness and arising from the Croke Park agreement. In addition the efficacy of our dispute resolution systems is seen as a factor in attracting and retaining FDI.

 On the first of these, and admittedly in the context of reducing costs for ‘Professional Services’  Fianna Fail repeats the commitment first made in the ‘Four Year Plan’ to address competitiveness by providing a more structured approach to mediation in the legal system and promote further the use of Alternative Dispute Resolution, taking into account recommendations of the Law Reform Commission in its Final Report 2010 on the subject’ and also to ‘Provide for increased use of arbitration and mediation’.

Are there grounds for hope in this that the same principles will extend to workplace disputes?

 As recently as 2010 the Department of Justice declined to remove the exclusion on employment related disputes from the 2010 Arbitration Act. This anachronistic provision is a legacy of the 1954 Arbitration act when we lived in very different times and the then relatively recent 1946 Industrial Relations Act, (which did contain a provision for Arbitration at section 70. In sixty-five years it has been used about three times but was presumably seen as providing the necessary arbitration option.

Information garnered by this writer on a FOI application reveals advice from the Department of Enterprise and Employment that change was unnecessary as the existing institutions were doing a good job, or words to that effect. (‘[it would be] inappropriate and would lead to unnecessary confusion for complainants and respondents alike…’)

 The statistics above, and the views of Mr Mulvey who wondered at a seminar in UCD in July 2010 whether a ‘better way could be found to vindicate employment rights’ suggest otherwise. Most practitioners would also agree.

 Happily, the draft Mediation Bill, produced as an appendix to the report of the Law Reform Commission in November 2010, while excluding its provisions from cases being dealt with by the (other) LRC system proposes to apply them to cases that are not; thereby offering parties in dispute a choice.

 The Labour Party says it will support robust competition policy and enforcement and ‘structural reform in the professions to drive down the cost base for the traded sector’ which could be read as including the ADR options in the employment law sphere.

 Interestingly both Labour and Fine Gael propose a review of the JLC/ERO system. Following the reduction in the National Minimum Wage JLC basic rates are now almost €2 per hour higher than the NMW!

 FG says it will  support the renegotiation of the Employment Regulation Orders (ERO) imposed on the hotel, restaurant, security, agricultural, retail and other sectors under the JLC system within six months under an independent nonvoting chairperson. We will also allow employers and workers in ERO sectors to negotiate enterprise-level collective agreements with their own staff which will make them exempt from the ERO’

 This system also with us since 1946 looks as if its days are numbered.

 FG also proposes the introduction of a Single Employment Act; a slightly odd proposal. On the assumption that none of the existing protections will be removed the proposal to consolidate all 31 statutes and regulations into a single measure sounds like a waste of effort. For practitioners the issue is not the multiplicity of statutes, but the processing of claims arising under them.

 In that context, some reform of the process for submission of claims (beyond the design of forms) is required. A single ‘portal of entry’ for all claims would help, with the addition of some filtering of claims as happens in the UK under the 2008 Employment Act. The standard suggestion by the Rights Commissioner service that parties contact each other is rarely (in my experience) taken up with the result that claims relating to inadequate documentation, for example even when unfounded are only tested when the case runs before the Rights Commissioner. (The UK is consulting on the introduction of a fee for lodging a claim).

Some preliminary meeting to assess claims, or optional ‘documents only’ adjudication in simple cases might be an idea.

 In its submission under the Croke Park agreement the Department of Enterprise etc proposes merging some functions of NERA and the LRC. This is tinkering and while obviously aimed at achieving cost reductions required under that process (which agreement incidentally also incorporates an imaginative, ‘fast track’ ADR process) it may not address the needs of parties in the process and their representatives.

 More radically Fine Gael says it will merge the many agencies that deal with employment law complaints; the Labour Relations Commission, the Rights Commissioner Service, the Employment Appeal Tribunal (EAT) etc. This network or different bodies and agencies cause confusion for employers and employers and increases cost’.

 While this approach is understandable the growth of ADR and now the possibility of a Mediation Act should surely be seen as an opportunity in an era of straitened circumstances to do much more than bang agencies together. Catching up with these major developments could cut a swathe through the logjam of existing claims and greatly improve dispute resolution at local level also, AND do so cost effectively. This is what the Courts system is seeking to do with strong support from the judiciary. (New Grievance and disciplinary procedures should always incorporate a mediation step).

 While putting the EAT on a full time basis would be a step forward it would not be a radical one; and it would be to shun the much greater prize offered by ADR options.

 The EAT review group proposed greater use of consent orders to enable enforceability of agreements. While this is good the problem is that parties are not facilitated in reaching such agreement either in sufficient numbers or at an early enough stage in the process, although it is now well settled law that, subject to evidence of ‘informed consent’ the EAT will refuse to exercise jurisdiction in such cases.

 The attractions of early settlement and enforceability should surely appeal to all parties to a dispute.

 Other changes which do require rationalisation in the legislative area relate to appeals; the choice of route from Rights Commissioners to either the Labour Court or the LRC is nonsensical.

 We will see if the combination of factors; economic imperatives, the rise of ADR, the pressure on the system, the mood for reform will lead to an improvement in the situation.

 And remember, no matter who you vote for the Government still gets in!

A Golden Opportunity!

It’s the first day in office of the Minister in the newly created Department of Dispute Resolution!

Determined to establish a reputation as one who can move early and decisively with an imaginative and popular series of announcements a Press Conference is announced for a few days that will make a real impression on dispute resolution! 

You are the Minister’s best friend and an experienced HR professional/union official (take your pick). 

‘Okay’, the Minister says,, ‘no funny business. There’s a limit to what I can do on your wishlist…it’ll have to be something that won’t draw down the wrath of the ‘other’ side. And I need it today! Just three or four items………’

Your phone rings! Into this scenario of fantastic opportunity place yourself and start drafting your reply……

 Here are a few of mine for starters.

  •  Announce the fast tracking of the Mediation Bill proposed by the Law Reform Commission. 
  • Introduce a common ‘portal of entry’ for all cases under employment rights legislation with a ‘filter’ process for all cases. (Looks like this may happen as Entemp seeks to make Croke Pk targets!)
  • Establish a mediation ‘step’ at the EAT and more relaxed procedures when you get there!
  • Take the Review of the Employment Rights Bodies off that dusty shelf and look at its recommendations!!!!! Perhaps even implement some of them!
  • Repeal the provision in the 2010 Arbitration Act excluding employment disputes from its ambit.

And would you….restore the minimum wage but also apply it to the JLC sectors??  Or try other…’a bit for me, and a bit for you’ proposals! (The review of the ERO system has started this week and will conclude in two months)

PS. On the ADR front, but not HR, I’d be taking a look also at Fergal Quinn’s Construction Contracts Bill 2010. Flawed in the form introduced but a good idea and could be improved. It will help a recovering construction sector.

Ring Ring..Ring Ring…..can you put me through to the Minister’s office…..

 What do you plan to tell your old buddy,, now at the helm????