As published in the Sunday Business Post, Sunday 20 September 2015

The Workplace Relations Commission is due to begin in October 2015.  This is the most dramatic change to the employment regulation landscape in a generation.

Employee rights have developed in a patchwork fashion over the last 50 years.  During that time, new statutory enforcement bodies have been created and the result is that different rights must be enforced in different fora.  The system can, with some justification, be regarded as unnecessarily complex and difficult to navigate.  The Minister’s speech, introducing the changes, summed the position up well:-

“…If we had a blank page, I doubt anyone would draft the system that we have today…”

The new Commission merges the following bodies into a single organisation, the Workplace Relations Commission:-

  • Labour Relations Commission;
  • Rights Commissioner Service;
  • Employment Appeals Tribunal;
  • The Equality Tribunal; and
  • The National Employment Rights Authority (“NERA”).

This has the effect of creating a “one stop shop” for all employment and equality claims – as opposed to the present system which has multiple entry points.  A single Adjudication Service, in which individual Adjudicators will make the decisions, will deal with all claims.

Another difficult aspect of the present system is that once a first-instance decision is made, there are multiple bodies that can hear an appeal.  The reforms have established a single appeals route – a single new Appeal Body will exist as part of the Labour Court.

The new system – even before it begins working – has been the subject of some criticism.  Among other things, practitioners have been critical of the fact that single Adjudicators will be appointed, none of whom are required to have legal training.  That could be a concern, but it’s worth noting that the Equality Tribunal (deciding legal claims under the Equal Status Act and the Employment Equality Act) is staffed exclusively by Civil Servants, none of whom are required to have legal qualifications.

Admittedly, the Adjudicators will have to deal with a wider range of issues than Equality Officers (whose remit is to understand and interpret legal principles relating to equality alone – whereas Adjudicators will have to comprehend the entire body of employment law).  However, it’s also worth noting that Rights Commissioners are not obliged to be qualified lawyers.  Equally, of the three panel members in the Employment Appeals Tribunal, only one of the three needs legal training.

Another criticism, whose merit is perhaps easier to see, relates to the speed at which the new bodies will move.  Long delays before a claim is heard are now unfortunately the norm under the existing system.  Even the simplest form of dismissal claim will take well over a year (if not longer) to be heard.  There are also long delays between hearings – generally, a case will only be listed initially for a day in the EAT and then weeks (or months) can pass before the case takes up again.

Any progress in shortening the time between the issuing of a claim and a hearing date will be greatly welcomed.  Of course, this will depend in large part upon the resources that are made available to the new Adjudication Service.  Thousands of employment and equality claims are issued each year.  Sufficient numbers of Adjudicators being appointed is probably a pre-requisite.

Equally, something that will be very important is ensuring that the Labour Court – as the Appeals Body – is sufficiently resourced to meet demand.  Irish employment lawyers (or, at least, their clients) will often avail of the opportunity for another bite of the cherry.  It’s quite likely that many of the claims decided at first instance will be appealed and it’s essential that the new appeals body has the manpower to deal with those appeals.

All in all, it is probably premature to criticise the new Commission.  It needs time to bed down and given the scale of its inheritance, it is probably fair to wait and see how it comes to grips with the scale of the problem.

At a minimum, the changes summarised above have the potential to significantly restructure the State’s employment regulatory and enforcement function.  Anything that simplifies and codifies the existing legal regime is to be welcomed.  A forum that is quick, straightforward and cost-effective is the least that we can expect.