Tag: Employment Law/HR

The staff Christmas party; too much cheer could cost you dear!

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 I know, I know, the party poopers are at it again. But just dusting down some seasonal advice that might save you a lot of trouble, and cost!

(See also excellent article by Linda Hynes, Solicitor,  Leman Solicitors in Sunday Business Post, December 18th)

The fact is the Christmas party (or other social events, or work events away from the normal workplace) gives rise to obligations and may be covered by employment rights law.

Bullying legislation refers to behaviour ‘at the place of work or in the course of employment’ and while a single act will not constitute bullying the same does not apply to harassment, and that normally means sexual harassment.

This is defined (in broad terms) as inappropriate or unwanted verbal or physical behaviour and could result in a complaint by a victim of such behaviour under the company  ‘Dignity at Work ‘ policy (if you don’t…you should have one). 

And after the ‘rake of pints,’ shots and general bravado the insight necessary to distinguish between acceptable and unaceptable behaviour may diminish, with consequences for colleagues who have a clear legal entitlement to be free of certain types of  unacceptable behaviour. And this could cover a wide range of behaviours!

And while these comments have focussd on sexual harassment there are other aspects to dignity at work which may also be offended. We now have minorities in Ireland whose right to equal treatment is enshrined in law (and a pity in many ways we have to rely on the law for that measure of  decency and equality of treatment!)

And the employer may be liable for such behaviour if he has not taken reasonable steps to prevent or address it.

Linda Hynes refers in her article to a fight at an office party in Malahide which resulted in an unfair dismissal and cost the employer €150,000!

The Small Firms Association has noted that:

‘Employers must be aware that the party venue is basically an extension of the office and that they remain responsible for the well-being, protection and behaviour of employees during such events.  Employers should make note in a work function invitation that appropriate behaviour is required at the party.’

If you need more contact pat.brady@workplacesolutions.ie and see Equality page on this site

The Temporary Agency Work Directive, a bit of a ‘TAWD-ry mess!

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1st December 2011

Text of Statement from Dept of Jobs, Enterprise & Innovation

You can access a copy of the Bill here

The Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton TD has this evening [Thursday 1st December 2011] written to employers’ representative bodies to confirm that legislation to transpose the EU Directive on Temporary Agency Work is being finalised in light of the conclusion – without agreement – of discussions between Social Partners on the possibility of agreeing a derogation under Article 5.4 of the Directive. This derogation could have provided a qualifying period before agency workers on relatively short term assignments would be entitled to the same basic pay and working conditions as if they were directly recruited.

These discussions have not yielded agreement on such a derogation, which is a matter of regret to the Minister. It is not open to the Government to legislate for a qualifying period, as this was a matter which was placed in the hands of the Social Partners under the terms of the Directive.

Accordingly, the Minister informed the representative bodies that the Directive will become effective on a “day 1” basis, with no lead-in or qualifying period. This means that with effect from 5th December, 2011 all temporary agency workers (c.35,000 workers or approximately 2% of the active workforce) assigned to a hirer are entitled to equal treatment in terms of basic working and employment conditions as if they had been directly recruited by the hirer in the same job. The Government’s Bill, when published before Christmas, will confirm this and will define pay for the purposes of the legislation as follows:

  • Basic pay
  • Shift premium
  • Piece rates
  • Overtime premium
  • Unsocial hours premium
  • Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee.

This is an exhaustive list in the Bill to be published. Other possible component elements of remuneration will not be included in the definition of pay for the purpose of equal treatment in the Bill, including for example:

  • Occupational Pension schemes
  • Financial participation schemes
  • Sick pay schemes
  • Benefit in kind
  • Bonus payments

The Bill will also provide for equal treatment of Temporary Agency Workers who fall within scope of the Directive in respect of the following:

  • Working time
  • Rest periods
  • Rest breaks
  • Night work
  • Annual leave
  • Public holidays

The Bill will also transpose the Directive’s provisions that temporary agency workers will also be given rights in relation to access to the collective facilities and amenities of a hirer (e.g. canteen or other similar facilities, childcare facilities and transport services) under the same terms as directly recruited employees and are to be informed about vacant posts.

The Minister said to the representative groups that Hirers and Agencies should make the appropriate arrangements to ensure that the principles of equal treatment as indicated above are put in place from 5thDecember, 2011 for all temporary agency workers, including those who are assigned on or after 5thDecember, 2011.

International Arbitration Conference; Opening remarks

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Introductory remarks by Pat Brady, Chair of the Irish Branch at Inaugural conference of CIArb Young Members group, at the Distillery Building, Dublin, November 11th, 2011.

Your Honour Judge Kelly, Ladies and gentlemen

It’s a very great privilege and a pleasure to welcome all our visitors to Dublin for the first ever international conference of young members of the Chartered Institute of Arbitrators, and of course to welcome members of the Institute of all ages, and other participants in todays event.

This meeting is therefore a historic day for the Chartered Institute of Arbitrators.

Today also sees the inauguration ceremony for our ninth President and Head of State.

So the theme of ‘new beginnings’ might be a good one as we start out on our conference.

Of course this is a special day in the history of conflict resolution also; the eleventh day of the eleventh month commemorating the end of one of the bloodiest battles in modern history, acquiring the added poignancy this year if being 11.11.11.

But before addressing that theme this gathering of CIArb members representing as we do over 20 jurisdictions underpins some of the traditions of our Institute as a global body; a global community of practitioners of alternative dispute resolution shortly approaching its 100th birthday!

We can go further back in this City to one of the oldest arbitration bodies in the world which was formed in this city in 1705; ‘The Ouzel Galley Society’.

We are delighted to have the World President, Professor Doug Jones here as an honoured guest and participant.

Indeed Professor Jones is going to have a very busy couple of days and we look forward to drawing on his expertise and experience as we do with all our guest speakers and participants. In particular I might mention that tomorrow morning Doug will make a presentation on Mediation in Australia: What Can Ireland Learn from Australia’s Promotion of Mediation?” at the Radisson Hotel, not far from here.

The organising committee has worked hard to pull together an impressive programme and I congratulate them on the work they have done. I am confident you will see the outcome of their efforts as the day rolls on and I’m sure you will agree that it has been well rewarded

As we gather as members of the Chartered Institute of Arbitrators, there is a question I wish to pose. Indeed non-members of the Institute might be just as interested in the answer to the question.

What makes the CIArb different?

In some ways an event such as this helps answer the question as it illuminates one of the great strengths of the CIArb. We are a worldwide body with a presence in over 100 countries; an organisation of 12,000 members, 750 of those here in Ireland.

This is represented in one of the themes of today’s conference;  ‘International Best Practice: What can arbitral seats learn from one another?

Our standards are tested against the highest of benchmarks and the best standards of the international legal, business and dispute resolution community.

I had reason to consult the Institute core document known as ’The Guidance ‘ this week. Anyone who doubts the rigorous requirements we place on our members should have a look at its 92 pages of standards. This provides the necessary reassurance to those who rely on our services that a third party neutral appointed by us has achieved a standard of training and subscribes to a code of professional and ethical conduct in which parties can place their trust.

All of you attending today, but especially the members of the Young Members Group are showing by your presence your determination to pursue the highest standards of your profession as arbitrators, adjudicators or other third party neutrals.

So I hope that this conference is the first of the new beginnings and that another branch of the Institute will want to host number two in the series.

Another beginning for us in Ireland, and while not the subject of this conference I might digress briefly to mention that our government will next year introduce legislation to regulate the practise of mediation for the first time.

This is on foot of the report of the Law Reform Commission last year.

The Irish Branch welcomes this development but it will raise many issues not least of which will be how the standard will be set for the status of ‘Accredited Mediator’.

This is important.

In its report on mediation the Law Reform Commission stressed that it was important that the mediation option should not be seen as ‘second class justice’.

As many observers have noted mediation is part of the justice system not apart from it.

Clearly those who practise as mediators, just as with arbitrators should be expected to reach a standard such as that which this institute lays down and no less, if this public confidence is to be first attained and then retained.

All organisations involved in mediation need to remember that the primary object of the exercise is to serve the citizen in need of mediation services and we would all do well to reflect on how best we might contribute to that objective in the manner we promote our services.

Turning to other beginnings what else is new in the world of ADR?

It appears we are almost definitely going to see the introduction of a form of adjudication into the construction sector in Ireland, although what form exactly that will take remains to be seen.

Some of the existing proposals have been the subject of serious criticism by professionals in the construction professions and most recently by one of my predecessors of some years ago as Chairman of the Irish Branch and the current Chair of the Engineers Ireland dispute resolution Panel Ciaran Fahy.

In a paper delivered this week and not yet published Mr Fahy is strongly critical of the proposals in relation to costs, the ambitious nature of timeframes and other matters.

And of course this development in an industry where arbitration has traditionally been a vital tool for dispute resolution raises issues about the future of arbitration itself in that sector. Experience in the United Kingdom would indicate that such fears are not without foundation.

Do we need some new beginnings in arbitration itself that will make it more effective, more efficient and more economical? There are many existing models to look at but recessionary times have forced quite a lot of re-thinking about models that were discarded in the past. Perhaps we need to look at some of ours.

But while we can look backwards to 1705 for arbitration in Ireland it is much more important that we remain focused on the future and with colleagues from across the gamut of ADR practitioners we strongly support the campaign by Arbitration Ireland to see Dublin develop as a seat for international arbitration.

We have many attractions to potential parties.

Ireland has just last year modernised its arbitration law and has now embraced the Uncitral model, about which you will hear more detail later as one of the themes of the conference is ‘Evolving practice under the New York Convention’.  We have other advantages also as an English speaking country with an increasingly competitive cost base, good communications and travel links and common law-experienced lawyers and neutrals.

We hope that many of you will consider Ireland as a future venue for international arbitration, although of course we will be delighted to see you for any reason!

Before concluding I want to thank all of you who made this day possible; a hard working committee of the young members group under its Chairman Goncalo Malheiro from Portugal, the team in Bloomsbury Square and especially Sue McLaughlin, all of our distinguished speakers, our sponsors, Beauchamps, the CPLA, Lewis & Barnes, The Bar Council of Ireland and BLG (and later Maples and Calder.

On the Irish Branch Committee I want to thank Dermot Durack who led for the committee and the indefatigable Arran Dowling Hussey, both of whom did a prodigious amount of work.

Ladies and Gentlemen, we are very honoured to have as our first guest Mr Justice Peter Kelly.

Judge Kelly is the judge assigned under the Irish Arbitration Act 2010 and who deals with cases arising under the act.

However he is a very powerful voice for alternative dispute resolution, both by virtue of his eminent position as a member of the judiciary, but if anything even more so by virtue of the persuasive power of his advocacy of its merits and its potential contribution to better dispute resolution.

Its my pleasure to introduce Mr Justice Peter Kelly, judge of the High Court

The EU Cross Border Mediation Directive

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On September 29th, the Chartered Institute of Arbitrators, which has a presence on both sides of the border, held a conference in a Belfast hotel to look at commercial disputes from a variety of different contexts but with one common theme; resolving the dispute without the need to go to court.

The conference was opened by the Chairman of the Chartered Institute of Arbitrators (Irish Branch ) Pat Brady who introduced the keynote speaker; the Minister for Justice in Northern Ireland, David Ford MLA who re-iterated his support for alternative dispute resolution and highlighted the fact that the issue was given prominence in the recently published ‘Review of access to justice in Northern Ireland’.

As cross-border disputes were the underlying theme of the conference the issue of how the cross border mediation Directive has been transposed on both sides of the border was something that legal expert Nicola White did with great skill and dexterity. (Ms White was the legal expert to the Law Reform Commission report on mediation).

In these straitened financial times the issue of employment law is never far from the headlines especially if it involves a dispute and Ciara Fulton from Tughan Solicitors walked the audience through the intricacies of the differences north and south regarding the machinery of employment dispute resolution.

A subject that is perhaps less prominent in everyday life is that of disputes in a sporting context and Dr Jack Anderson from Queens university spoke passionately and authoritatively as he addressed the use of alternative dispute resolution in a sports context including everything from rugby to boxing.

From sport to something completely different as Ed Quigg from Quigg Golden enthralled the conference with his sharp analysis of the ADR landscape in a construction law context on both sides of the border with a view to recent and future legislative developments.

The conference was then delighted to hear from the Honourable Justice Gillen, judge of the N. Ireland High Court who has been a long time advocate of forms of alternative dispute resolution, but especially mediation. Justice Gillen spoke of how, as a judge, he could see the merits of properly trained and accredited mediators in the context of both family and commercial disputes and he talked of his hopes to see such systems become integral to the way disputes are resolved.

The conference was closed by the President of the Law Society for Northern Ireland, Mr Brian Speers who has been perhaps locally the most well known promoter and long time advocate of the use of alternative dispute resolution.

The President spoke candidly and authoritatively on what needed to be done to ensure ADR in Northern Ireland became something more akin to the rule than the exception. As serendipity would have it the President was unexpectedly joined by his Australian counterpart, Mr Alex Ward who acted as an impromptu closer of the conference with antipodian anecdotes regarding ADR “down under”.

The conference audience was left in little doubt that ADR has reached critical mass as a concept which stands outside the system and now is the time for it to come in from the cold. The Irish Branch and NI Chapter of the Chartered Institute of Arbitrators and the audience considered the conference a great success and perhaps the building block for future or indeed annual cross-border conferences.

(Thanks to Mark McAllister, Convenor, N. Ireland Chapter of  CIArb irish Branch who prepared this report)

Opening remarks by Chairman of CIArb Ireland at Belfast conference on ADR

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First a word of introduction to CIArb here in Ireland and worldwide.

 We are a global community with 30 regional branches and chapters across the world, offering a global network of ADR professionals. 

 A Royal charter was initially granted in 1979;this is  reserved for professional institutions and charities working in the public interest, Significant changes to the Institute’s governing structure from new Charter and Bye-laws granted in 2005. 

Objectives

  • Promoting access to non-court dispute resolution
  • Education, training & professional qualifications
  • Standards & guidelines, approval & accreditation of practitioners,
  • Academic & professional resources

Promotion of research, new professional policy and practices concerning dispute resolution as a ‘Learned Society’; working closely with academic institutions and other professional bodies across the world.

 What has brought us here today?

More important at the end of what will hopefully be an enjoyable and productive event will be where do we go from here to deepen the understanding and practise of ADR in business and commercial life in general?

CIArb Ireland has embarked on a general campaign notably with the business organisations to promote the advantages of ADR as a cheaper and more amicable way of resolving disputes in commercial and business life.

We are making progress and I want to acknowledge the support we have received for this event from IBEC and the CBI through its joint council, and we intend to develop this dialogue to bring the message that ADR is good for business to every moving part of the economy.

We are currently engaged in the early stages of a campaign with Chambers Ireland in partnership with the Law Society to bring these messages to businesses at a local level.

This is the age of ADR. What has first of all brought us here is to promote and assist a discussion on ADR. In that sense the most immediate trigger was the imminent and now implemented transposition of the EU Directive on Mediation into law in both jurisdictions on the island.

Many more businesses now trade on an all island basis; part of the peace dividend. One of the lubricants of successful business relationships is effective dispute resolution machinery. This is especially the case where problems need to be resolved but business relationships need to go on.

Overarching that specific measure is the general development of ADR as a dispute resolution mechanism, and mediation in particular.

I sometimes wish we had a new word to describe this process. Mediation is a word in fairly common usage and this may lead to an element of complacency about the imminent changes.

It is very important that this is not seen as some ‘flash in the pan’ new fad and that it is genuinely embraced in our commercial transactions, in the workplace and at the level of interpersonal disputes.

Solomon’s ultimatum in the famous bible story to the families in dispute is an early example of skills mediators are taught to practice known as ‘reality checking’!

The editor, until recently of our Journal ‘The International Journal of Arbitration, Mediation and Dispute Resolution;  Professor Derek Roebuck is an expert on the history of ADR and the author of such books as Early English Arbitration, Ancient Greek Arbitration and… ‘The Charitable Arbitrator; How to mediate & Arbitrate in Louis XIV’s France’.

This gives a flavour of the pedigree of alternative dispute resolution.

In his book ‘Roman Arbitration’ Professor Roebuck describes the Compromessum; an early form of arbitration agreement but whose connection to the modern word compromise brings us along the route to the modern core of mediation without any great need for Latin scholarship.

One of the strongest advocates of ADR and mediation has been the judiciary, both on the bench and off it.

It was notable when the report of the Law Reform Commission was published last October on  Mediation and Conciliation  that it was launched by the Chief Justice Mr John Murray thereby conferring on it very powerful judicial approbation indeed.

This report has found further approbation in the Review on Access to Justice in N. Ireland where in the section on ADR it says (p60)

At the outset we wish to refer.. to the Irish Law Reform Commission report, “Alternative Dispute Resolution: Mediation and Conciliation”, published in November 2010 and which we regard as an authoritative work on ADR with many proposals and ideas that are potentially applicable to this jurisdiction23.

I am sure Mr Justice Gillen will add to these encouraging sentiments.

On the bench we now have a line of authority in the English courts which has reversed the traditional rules on costs. A number of decisions including Halsey v Milton Keynes trust have said that a party which refuses to mediate may, even if they succeed at litigation get an adverse finding on costs.

The views of Lord Justice Dyson, author of that judgement may be read in the current issue of the Institute Journal Arbitration; there he summarises the three propositions in Halsey as

  • Mediation is important and should be used in many cases but it is not a universal panacea.
  • Parties should not be compelled to mediate if they are truly unwilling, BUT
  • Adverse costs orders are an appropriate means of encouraging parties to use mediation

There has been a recent case reported this month (September 6 2011)in which the English High Court commented on mediation in Samuel Smith Old Brewery (Tadcaster) v Philip Lee (trading as “Cropton Brewery”) [2011] EWHC 1879 (CH)

In the introductory paragraph of the judgment, Arnold J said that the dispute was one which ought to have been capable of settlement out of court a long time ago. Instead, it had grown into a case the costs of which were out of all proportion to what was at stake. “One explanation for this is Yorkshire pride; but I fear that the English legal system bears a measure of responsibility as well.”

In a postscript to the judgment, the judge said that he considered that the case should have been referred to mediation at an early stage. “The legal process appears to have caused the parties to become entrenched in their positions rather than seeking common ground. I suspect that the costs will themselves quickly have become an obstacle to settlement…. in future disputes of this nature the possibility of mediation should be explored as soon as is practicable.

The Irish Govt has made commitments to enact the bill which accompanied the LRC report in and it has now been announced that a bill will be published in 2012.

All of this has been done in the context of reducing professional costs to business but with the additional advantage that alternative dispute resolution, and mediation in particular hold many advantages over traditional methods of dispute resolution such as litigation.

I might add in passing that the draft bill will cover employment related disputes; a mysterious omission from the 2010 Arbitration Act.

The N. Ireland report on access to justice lists the advantages of such alternatives in addition to costs as retaining party control, its voluntary nature, flexibility, an agreed outcome and it is less stressful than a court appearance. So there are financial, social and psychological advantages to mediation

Frankly, there may be some way to go in getting the message across to business that there is a better way to avoid and resolve disputes, and a cheaper one to boot although the recent publication by the Ombudsman here on alternatives to Court will help.  One of our speakers today had a hand in that initiative, Dr Jack Anderson.

So the ADR community will have an important role in promoting the message that there is a better way to avoid and resolve disputes, and this conference is very much part of that process.

A word on the training and accreditation of mediators.

The LRC report noted the view that users of mediation had a ‘right to expect a competent service’ and not one tainted with the ‘second class’ justice criticism and went on to warn of the dangers of the ‘enthusiastic amateur’ as mediator.

CIArb Ireland has over 700 trained and accredited third party neutrals; arbitrators, mediators, adjudicators and others whose services can be made available through the independent nomination process we operate.

However we support its conclusion that a system (it proposes a non statutory one under the auspices of the Dept of Justice) should be developed under which the accreditation of service providers, and of individual practitioners could be structured (while making special comments about family practitioners).

We are very proud of the standard of training offered by the Chartered Institute, and while other providers offer a similar standard not all do.

Submission (II) on Employment Rights reform

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Introduction

Please see previous blog

Maintaining good employment relations and resolving workplace conflict

(These are our answers to a set of questions posed by the DEJI as part of the consultation process) 

1.1 How do you think employers and employees can best be supported in resolving disputes at workplace level?

Training; too many HR professionals engage in dispute management by procedures manual. There needs to be a greater awareness of dispute resolution techniques

1.2 Can the provision of timely, up-to-date factual information help to facilitate early resolution of grievances/ claims and stem the flow of formal cases being submitted?

No, not on its own. In fact it may have the opposite effect. Addressing the litigious mindset  and the grievance industry requires a significant change in the approach to workplace dispute management.

1.3 When and how should interventions be available from the State?

As at 1.1 the ideal place to resolve disputes is where they arise. However the provision of information especially on mediation of other ADR options  will contribute to the reduction of delays

1.4 How do you think access by employers and employees to a just, fair and efficient adjudication process can be ensured?

By first making the system itself intelligible and then making it accessible (simpler forms.)

Integrated structure 

2.1 Do you agree that the integrated two-tier model should be adopted as guiding principle?

Yes.

2.2 Do you agree that “differentiation” of processing channels should be minimised to optimise the benefits of the proposed reform and to avoid re-introduction of institutional and procedural rigidities?

Yes, and this does not require separate channels as at present. Cases could be assigned to divisions  of a ‘new’ Labour Court (my preferred term) on the basis of known expertise. (One could have a redundancy/unfair dismissal division, general appeals, industrial relations etc. rather as we have a Commercial court, a dedicated Arbitration judge etc. See introductory comments. One division should specialise in small business disputes)

2.3 Should all claims in respect of employment related complaints/claims (including employment related equality matters) be submitted and dealt with by one body of first instance?

Yes

2.4 Should employment rights cases only go to the body of second instance on appeal (i.e. should the right of either side to object to the body of first instance hearing a case be removed)?

Yes. Also appeal to the circuit court should be on a point of law only.

2.5 If minimal differentiation within a two-tier structure is to be pursued, what would the optimum streams / chambers be within both the first instance and the appeals entity? For example, is there a need to retain some organisational distance / separation between the distinctive roles of

o The inspectorate function (i.e. NERA’s role in inspection, enforcement and where appropriate prosecution);

o the conciliation and mediation processes dealing with collective disputes;

o the advisory / mediation / investigative procedures dealing with individual industrial relations and employment rights claims;

o any subsequent formal adjudication on such individual cases.

How might a satisfactory segregation of these distinctive functions be best achieved?

By effective case management at first instance, then overall management within an integrated structure.

2.6 What would be the advantages and disadvantages of having statutory redundancy appeals handled on an administrative basis, perhaps through the established social welfare appeals structure, given that statutory redundancy payments are now administered by the Department of Social Protection?

No comment

Appointment, tenure, etc, arrangements in new streamlined employment rights bodies 

2.7 Should the arrangements for the appointment and tenure of those working in/ appointed to the new streamlined employment rights bodies be changed, and if so, what should be the guiding principles?

Adjudicators; All positions at the level of current Rights Commissioners/EAT members and Labour Court members should be subject to open competition in line with public service norms and a panel of private arbitrators should be established.

Mediators.  The existing mediation and conciliation services should be supplemented with a panel of private accredited mediators

Information and Advice 

2.8 Should there be one website covering all employment rights and industrial relations matters?

Yes

2.9 Do you agree that a more coherent and co-ordinated approach to the provision of advice and information on industrial relations and employment rights issues should form part of the services of the new first instance body?

Most definitely

2.10 What is the best method of providing information and advice?

Website, social media (IBEC has an Employment Law ‘app’!) and by telephone. The Citizens Information networks have very accessible employment law advice

2.11 Should non-directive advice be provided to employees and employers on what options may be available to them on the basis of the facts provided and where to go for help if required?

As currently with NERA

Single Point of Entry /Submitting Individual Industrial Relations and Employment

Rights Claims

2.12 How can a single point of entry for all individual industrial relations and employment rights complaints/claims best be achieved?

Merge the LRC, the Rights Commissioner service and the EAT. Retain NERA as a separate body with close links to the new body with a clear role as a clearing house in minor or non contentious matters.  Once there is an integrated structure this will send a message that the system has been streamlined which should be accompanied with simpler forms.

2.13 Should there be a single application form for all individual first instance industrial relations and employment rights complaints/claims?

Yes.  However,  many claimants and respondents (including solicitors) do not take the forms seriously. I have experience of turning up to a Rights Commissioner hearing with only the scantiest information about the claim. No claim should be processed until a form is correctly completed

2.14 What measures could be taken to improve information gathering from complainants / applicants at application stage?

Simple. If the form is not completed to a reasonable standard that communicates the necessary information  to the other side then it should not be processed. It is a basic requirement of fair procedure that a respondent, say is in a position to defend a claim by knowing what gives rise to it. The stock invitation to parties from the Rights Commissioner service to attempt to resolve matters should be strengthened and enforced, perhaps as a condition of being granted a hearing, (although the mediation requirement would take care of this )

2.15 Should there be a consistent time limit for initiating all complaints/claims/appeals and if so what should it be?

Yes. Six months as at present. Reference to mediation should however ‘stop the clock’ for a duration of reasonable length, say one month.

2.16 Do you agree that more consistent arrangements are required for the representation of claimants so as to enable individuals to nominate a person to represent them at a hearing e.g. trades union official, solicitor, other representatives, etc?

No.

2.17 Where the power to present/refer a complaint is currently limited to the claimant, should it be extended to include the claimant’s trade union and, where appropriate, the claimant’s parent/guardian?

Yes, including in relation to appeals.

Enforcement 

2.18 Should there be a consistent method of enforcing awards of employment rights bodies and if so what should that be?

Circuit Court.

Facilitating early interventions and alternative dispute resolution methods 

3.1 What interventions should be available prior to a formal hearing or inspection to resolve grievances or non-compliance e.g. telephone contact, informal hearings, more formal mediation, conciliation or arbitration?

Mediation should be made a requirement as a default position and only in extreme circumstances should a party be excused from doing so. (see the principles laid down in Halsey v Milton Keynes NHS trust)

3.2 What is the best method of identifying suitable cases for early intervention?

Vigilance!

3.3 At what stage should the intervention take place, for example should it be available when the person first seeks information, prior to them lodging a complaint/claim or after a complaint/claim is lodged?

Both. There needs to be a stronger culture of this at workplace level and NERA should audit Discipline & Grievance procedures to ensure they contain a mediation option and that parties understand its use.

3.4 Is there scope for harnessing the expertise and capacity of personnel within the existing bodies to decide on straightforward issues where purely factual matters are in dispute?

Yes

3.5 Is there scope for forging positive connections between the public dispute resolution system and external experts in preventive alternative dispute resolution methods at workplace level?

Yes. Here are some proposals.

The Arbitration Act 2010 should be amended to remove the exclusion of employment related disputes.

A panel of suitably qualified private mediators should be established to provide early intervention or following referral to the new body.

3.6 Should parties be required to set their case out in writing?

No, but encouraged to do so as they may be at a disadvantage if they do not.

3.7 Should all complaints/claims be examined for potential interventions and should time limits apply to the offers of conciliation or mediation support?

Yes. But conciliation or mediation should not be an offer, but a requirement with adverse consequences for those who unreasonably refuse to cooperate

3.8 Are there particular kinds of issues, for instance, where mediation is likely to be especially helpful or, alternatively, where it is not likely to be helpful?

Mediation is helpful in almost all cases. An exception may be matters related to bullying or sexual harassment, for example.

3.9 Would there be merit in having a “preliminary hearing” process and if so how should it operate?

No, or very rarely. If mediation becomes a norm this is an unnecessary extra layer.

3.10 Should certain cases be dealt with on the basis of written submissions only?

In arbitration this is referred to as ‘Documents only’ arbitration and is common practise. Another option is Online Dispute Resolution (ODR) practised for example with great success by Ebay.  This might work for simple non compliance disputes.

3.11 Should attempts at resolution have any bearing on any subsequent hearing or should the process be confidential and not admissible in any hearing?

Yes, in the case of wilful refusal to participate in mediation or obstruction at it. Otherwise absolutely not. The idea of mediation is grounded in confidentiality and being without prejudice.

Conduct of Proceedings 

3.12 Should there be a uniform set of procedures regulating the conduct of hearings in all cases heard at first instance?

Not necessarily. Some standardisation might help. Rights Commissioners have different styles in relation to presentation of submissions etc but this is not necessarily harmful to the process (although apparently particularly disliked by lawyers).

3.13 Should first instance jurisdictions be empowered to dismiss what are adjudged to be frivolous, vexatious or misconceived claims without holding a formal hearing?

Probably not! But a costs penalty might assist in such cases.

3.14 Should hearings of employment rights disputes /appeals be heard in public or in private?

In public with a power to hold sensitive hearings ‘in camera’.

3.15 Should there be a uniform period for submitting appeals?

Six weeks

Submission by Workplace Solutions to Employment Rights Review

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(This is the first of a two-part submission; the second being responses to a set of questions posed by the DEJI as part of its consultation document. I have not yet posted that second part. It was submitted to the DEJI on September 15th 2011 )

Introduction

In the current discussion about reform of employment rights bodies the overriding issue for parties in dispute is how soon they can get to the point of settlement.

Their priority is to get early, amicable if possible and cheap resolution of the issues between them.

Others take a different view. One experienced employment law Senior Counsel has said that the starting point is that the ‘adjudication of legal rights’ is involved.

I do not share this view, whatever its academic credentials. If starting from this point of view leads us to where we are today we need to have a different starting point.

Of course the ‘legal rights’ base is important but in reality many (but not all) of the legal rights involved can be easily vindicated without having to endure the delays and other disadvantages of the current system.

Even in relation to more serious disputes (related to termination of employment mainly, also TUPE) the current legacy of treating them as legal rights does not serve the interests of justice if justice takes two and a half years to resolve a redundancy claim. This is not doing much to vindicate the legal rights of a young breadwinner.

So the correct starting point is what is necessary to achieve speedy and fair resolution of workplace disputes, consistent with recognising that legal rights are involved.

We have evolved techniques, and in the context of proposed legislation on mediation and conciliation in 2012 continue to develop solutions to the resolution of commercial and other disputes which have to a surprising extent passed by the world of employment rights disputes.

I support the creation of a single point of entry for all disputes, with appropriate reform of the forms etc. I agree that many claims (PWA, OWT, etc) could be dealt with either by the NERA inspectorate, without the necessity for a hearing or preferably by documents only arbitration or even Online Dispute resolution (ODR) techniques.

In all cases, (whether employment rights or industrial relations) the option of mediation (or conciliation as currently exists on the IR side) should be required. There should be an appropriate adverse consequence for unreasonably declining to avail of mediation, or unreasonably obstructing it (although in the absence of costs being awarded it is not immediately obvious what this should be).

However, it is now clear public policy both in political and judicial circles that early and amicable resolution of disputes is an imperative and we should not be over sensitive about acting to enforce this objective. It is also part of driving down business costs as we strive for greater competitiveness in the economy.

For example, the argument that a requirement to mediate somehow infringes the Article 6 rights in the EHCR has been strongly disputed, most recently by eminent UK legal authority in the person of Lord Justice Dyson, judge of the Supreme Court (and author of the judgement in Halsey v Milton Keynes NHS Trust, a leading case in the mediation v litigation debate).

There has been some discussion on the necessity for a hearing (at the current EAT level) to be conducted by lawyers because of the principle that legal rights are involved.

There may be some ‘lay’ adjudicators within the system who have an insufficient grasp of either the relevant law, or the law relating to fair procedure just as there nay be practising lawyers for whom the average Irish workplace is a distant country.

Knowledge of both should be a requirement for an adjudicator.  But there are non-practising lawyers, (or just non lawyers) who may be able to meet this requirement just as there are practising lawyers who cannot (the current Chairman of the Labour Court being a good example of the former as well as many current and former Rights Commissioners).

Arbitrators, for example may be involved in adjudicating sometimes complex disputes under the Arbitration Act 2010 and its predecessors involving millions of euros and while some are lawyers many are not and are no less competent as arbitrators as a result.

No-one would suggest that only a practising lawyer could conduct an arbitration. In this context, a similarly, appropriately qualified person who was not a solicitor or barrister would have little difficulty in spotting an unfair dismissal.

In addition there is no reason why an adjudicator who is not a practising lawyer (equivalent to the Chair of a current EAT division) should not have the option of legal advice if it was considered necessary.

In my view the system would then look like this.

Point of reference; assessment for one of three options

  1. Check by NERA for compliance, or settlement
  1. Option of mediation; panel of mediators to be created from suitably qualified applicants and existing Conciliation (LRC) and Mediation (Equality tribunal) services.
  1. Where mediation fails first instance adjudication by a single Adjudicator  (drawn from current Rights Commissioners supplemented by panel of Arbitrators)

Appeal to ‘new’ Labour Court (combined EAT and current Labour Court).

Cases to be assigned to divisions on the basis on known expertise. (One could have a redundancy/unfair dismissal division, general appeals, industrial relations etc.)

In particular one division should be assigned to deal with cases arising in small businesses.

On eligibility for appointment the requirement should be a high level of expertise in employment law, fair procedure and familiarity with workplace discipline and dispute resolution. It should not be a precondition that a person be a practising solicitor or barrister.

There should be appeal to Circuit court on a point of law only.

I do not favour separation of employment rights and industrial relations disputes. In fact, few disputes are entirely one or the other and this is a deeply conservative view of the needs of users of the system.  Appointees should be multi-disciplinary and competent to hear either and should rotate from one division to the other in the interests of their on-going professional development.

The Code of Practice/SI 146/2000

ACAS completed a review of its Code of Practise in June this year. Among its conclusions was that;

‘The Code was seen as able to lever a decrease in the number of disciplinary and grievance cases within an organisation by stimulating earlier resolution, before issues reached a formal grievance or disciplinary procedure.’

Of course this should be the overriding objective of such a code and in this writer’s view there is a need for a similar review of the Code of Practice/SI 146/2000 to evaluate whether it meets this objective.

In particular, this document needs to be reviewed to take account of the position of small enterprises in three key respects.

First, it is necessary to establish whether the document has any value as a dispute avoidance and resolution tool, or whether it is just a disciplinary guide, or even encourages the pursuit of grievances which might otherwise be settled.

Second, it is grossly unfair to expect the same level of record keeping and administration in a small business as is possible in a large enterprise with a dedicated HR department. Admittedly, the lack of records deprives a party of the certainty they need in their evidence but this should remain a matter for decision by the adjudicator, not an ‘offence’ in itself.

Third, the requirement to have an appeal layer in a small business is creating havoc.  In general, only the business owner can make the decision to dismiss and there is no-one to appeal to. Inviting an outside third party to adjudicate on whether the business wants to dismiss a person is preposterous and legally dubious.

Whether a dismissal is legal is another matter and that is one for the formal employment rights body to settle or decide.

However, the idea that the absence of an appeal renders a disciplinary process unfair per se must be corrected where no reasonable  option to hold one exists.

While the Code of Practice refers to mediation it is rare that this finds its way into ‘Contracts of Employment’ or the statutory statement of Terms of Employment. It is even less frequently availed of.

As a matter of priority NERA should use its persuasive presence in Irish workplaces to encourage the inclusion and use of mediation clauses in dispute resolution frameworks.

Finally, (and while I declare an obvious interest here) there is a growing body of employment law and HR consultants many with good dispute resolution skills, experience and sensitivity to issues arising in workplace disputes.  The definition of who may accompany an employee at internal disciplinary proceedings should be extended to include them.

However, the current restriction on legal representation should remain for the reasons it was initially introduced, except where this is required by the criterion of ‘severe career consequences’, or some other exceptional circumstance which seems to be the position at common law.

CIArb Ireland Conference on Mediation & ADR in Cross border context

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CHARTERED INSTITUTE OF ARBITRATORS

Irish Branch

presents a conference

MEDIATION & ADR IN CROSS-BORDER DISPUTES

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

jarlath@quigggolden.com Cheques payable to ‘CIArb NI Chapter’ Alternatively, book online at www.arbitration.ie/events.php

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 www.arbitration.ie

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

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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.

Epilogue

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

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

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

And there was more!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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