As the new workplace relations system is now in operation for over 30 weeks, we continue to provide you with updates of our experiences of the new system and how it is operating in practice.
Adjudication Officers’ Decisions
The first of the Adjudication Officers’ decisions were published on an anonymised basis on the workplace relations website earlier last month. It is intended that all Adjudication Officer decisions will be published on the website, though it is likely to take some time to achieve this. As expected, such decisions are much more detailed than those previously issued under the old system and set out the facts, whether those facts are agreed or disputed, and the legal reasoning for the decision. For example, in a decision dealing with an unfair dismissal complaint, the Adjudication Officer helpfully sets out a number of questions to be addressed in deciding on the fairness or otherwise of the dismissal. It remains to be seen whether this format will be followed in all Adjudication Officer decisions in respect of unfair dismissal complaints.
A new section 101(4A) has been included in the Employment Equality Acts 1998 to 2015 (the “Equality Acts”), which makes provision for the manner in which parallel complaints relating to dismissal under the employment equality legislation and the unfair dismissals legislation will be dealt with by the Workplace Relations Commission (“WRC”). This amendment to the Equality Acts was effected by Section 17 of the Credit Guarantee (Amendment) Act 2016 and came into effect on 8 February 2016.
The new section 101(4A) and associated regulations made by the Minister for Jobs, Enterprise and Innovation provide that an individual who has referred a dismissal complaint under both the Unfair Dismissals Acts 1977 - 2015 and the Equality Acts has to elect between one or the other complaint within 42 days from the date of notification in writing from the WRC informing the individual that section 101(4A) applies. If the individual fails to elect by this date, the discriminatory dismissal complaint will be deemed to have been withdrawn.
Power to Compel Witnesses
A discrepancy exists in the Workplace Relations Act 2015 whereby Adjudication Officers have not been conferred with the power to compel witnesses to attend unfair dismissal hearings, despite having the power to compel witnesses to attend all other types of hearings. As a result, under current legislation, to the extent that witnesses might be compelled to appear in the hearing of a discrimination claim, for example, such witnesses cannot likewise be compelled to appear in aspects of an employee’s claim that relate to unfair dismissal. We understand that the Department of Jobs, Enterprise and Innovation are aware of this anomaly and are looking into remedying the situation.
Length of Hearings
A further practical point to note is that complaints made under the Equality Acts appear to be treated in a different manner to all other claims before the WRC in that they are automatically allocated a day for a hearing, rather than the usual two to three hour slot.
Confirmation of Hearings
It is advisable to contact the WRC by phone in advance of a scheduled hearing date in order to confirm that the hearing in question is proceeding. In our experience, matters have been postponed by the WRC without either party to the complaint / dispute having received notification of same in advance.
We will continue to provide updates of our experiences as the new system progresses.
This article was authored by Geraldine Carr (pictured above), Associate in the Employment, Pensions and Benefits Group.