Percentage of cases proceeding to hearing
The Workplace Relations Commission (WRC) has issued a "first-of-its-kind" report, which analyses the decisions and recommendations that it made in 2020. This article summarises some trends that were highlighted in the report and provides some guidance for employers.
The WRC's report examines published decisions and recommendations of the WRC from 1 January 2020 to 31 December 2020. During this period the WRC received 8,103 cases (encompassing 18,969 specific complaints). Of these, 1,401 cases (encompassing 3,059 specific complaints) were the subject of a published decision in 2020 and it is these decisions that are analysed in the report.
Percentage of cases proceeding to hearing
As mentioned, 1,401 out of 8,103 cases received by the WRC in 2020 (approximately 17%) were the subject of a published decision in 2020. The report confirms that some cases were settled or withdrawn, some were referred to mediation and some were stayed or adjourned. Only 200 post-hearing decisions were awaiting issuing by the WRC at the end of 2020. Although the report does not provide a breakdown of how many decisions were settled or mediated, this statistic suggests that a large number of cases are being settled or mediated rather than proceeding to hearing. It will be interesting to see if the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021, which provides for the hearing of WRC claims in public and the publication of party names in WRC decisions, has the impact of reducing the percentage of claims proceeding to hearing in 2021.
The legislation with the highest number of complaints was the Organisation of Working Time Act 1997 (the OWTA) (557 complaints, 18% of complaints), followed by the Unfair Dismissals Act 1977 (the UDA) (454 complaints, 14% of complaints).
Of the 3,059 complaints adjudicated upon by the WRC in 2020:
- 1,237 (40.5%) were successful;
- 1,595 (52%) were unsuccessful; and
- 227 (7.5%) were withdrawn.
When withdrawn complaints are excluded, the complaint success rate increases to 43.68%.
Complaints brought under the Protected Disclosures Act 2014 (the PDA) had the highest success rate of 85%. There were only 17 complaints under the PDA adjudicated upon during the period, 14 of which were successful. The legislation with the second highest success rate was the Terms of Employment (Information) Act 1994 with a 64% success rate. Complaints under the UDA had a 45% success rate approximately, complaints under the OWTA had a 38% success rate approximately and complaints under the Employment Equality Act 1998 (the EEA) had a 24% success rate approximately.
Of the cases where representation data was available:
- 47% of parties had third-party representation (41.6% of complainants and 52% of respondents);
- 45% were self-represented; and
- 8% failed to appear.
The most common type of third-party representation was representation by a solicitor accounting for 37.5% of the third-party representation.
The report does not contain an analysis of the awards by reference to an employee's salary as the decisions do not always give such detail. Therefore, although some observations can be drawn from the report, as detailed below, the fact that an award is high under one piece of legislation and not another may be due to the specific salary level of the complainant bringing the claim.
- The overall average award was €5,117.42. The highest average award was under the EEA (€19,753.57). The EEA also had the highest single award of €117,814. This could be due to how awards under the EEA are calculated, as the WRC may consider the impact of the respondent's behaviour on the complaint and/or the gravity of the situation and the award is not limited to actual financial loss, as is the case with awards for unfair dismissal. The average award under the UDA was €11,472.96 and the highest award was €104,000, which was the second highest single award of the WRC in the period.
- The Safety, Health and Welfare at Work Act 2005 (the SHWWA) also had a high average award of €16,220.11 and the third highest single award of €82,531. Awards made under the SHWWA are uncapped whereas awards under the EEA and UDA cannot exceed 104 weeks of the complainant's total remuneration.
- Although the highest number of complaints were brought under the OWTA, the awards in such claims appear to be relatively low with the highest award being €11,180 and the average award being €1,057.48.
- Although 14 complaints under the PDA were successful, only three monetary awards were made under the PDA. These awards were relatively low (with an average award of €6,000 and a highest award of €7,500). The maximum award that can be made in a claim under the PDA is five years' total remuneration. Although the employees who brought claims under the PDA could have been relatively low earners, this suggests that awards close to the maximum of five years' remuneration are rare in practice.
- Reinstatement was awarded in five claims and reengagement was awarded in 10 claims, which shows that such outcomes continue to be rare in practice, usually due to the irreparable breakdown of the relationship between the employee and employer.
The report is a new and welcomed source of information from the WRC and provides some interesting insight for employers on the most common claims and average awards.
As the highest number of complaints were under the working time legislation, employers should ensure that they have adequate systems in place to monitor employees' working hours and to ensure that employees are taking adequate breaks, not exceeding the maximum weekly working hours and taking their annual leave. Employers are also required to keep a record of daily and weekly working hours, annual leave and, in some cases, rest periods and breaks. It will be difficult for an employer to defend a claim under the working time legislation without such systems and records in place.
Given the high awards granted under the employment equality legislation, employers should ensure they have anti-discrimination and anti-harassment (including sexual harassment) policies in place and that employees are regularly trained in relation to the policies. It is a defence for an employer in a harassment or sexual harassment claim to show that it took such steps as were reasonably practicable to prevent the harassment from occurring. Having robust policies in place that employees are regularly trained on can assist an employer in defending such claims.
Employers should also ensure that they have health and safety policies in place and are compliant with their obligations under the SHWWA, including the obligations to carry out a risk assessment of their employees' workplace(s) and to compile a safety statement based on the risks identified in the risk assessment.
Protected disclosure claims will continue to be feature of WRC claims and are likely to increase over the next 12 months. Ireland should have transposed the EU Whistleblowing Directive into law by 17 December 2021, but this will now likely happen in the next few months. The government has published the Protected Disclosures (Amendment) Bill 2022, which is currently before Dáil Eireann, Third Stage. The Bill proposes to extend the scope of the whistleblowing protection to additional workers (eg, volunteers) and extends the definitions of relevant wrongdoing and penalisation to include further types of wrongdoing and further acts of penalisation.
The recent Supreme Court decision in Baranya v Rosaderra Irish Meats Group Limited opened the door for employee grievances to be considered protected disclosures in certain circumstances. The Bill proposes to exclude interpersonal grievances (grievances about interpersonal conflicts and complaints to, or about, an employee's employer which concern the worker exclusively) from the scope of the legislation but there may be other individual grievances that would not fall within this exclusion. These developments mean employers are more likely to see employee's claiming to be whistleblowers in the future. Employers should start reviewing their whistleblowing policies and procedures ensure they are as robust as possible.
For further information on this topic please contact Laura Ensor or Linda Hynes at Lewis Silkin by telephone (+353 1566 9875 and +353 1566 9877) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.