Minister Bruton Publishes Summary and Analysis of Responses to Tribunal Reform

The Department of Jobs, Enterprise and Innovation (the DJEI) has undertaken a massive programme for the reformation of the State’s employment rights and industrial relations structures and procedures.The DJEI are also looking to amend and consolidate over 30 pieces of employment and equality legislative Acts into one piece of law as the Department has been “presented with a real opportunity for reform”. The DJEI invited submissions from all interested parties and received a total of 67 responses, including a 14 page Peninsula Business Services submission. A follow-up “Summary and Analysis” from the DJEI has outlined the General Consensus on a variety of issues and has compiled them in a recent publication. The programme for reform is motivated by a desire to clear the backlog of employment dispute cases at tribunal and to streamline the tribunal process generally. Peninsula Business Services is pleased to note that the vast majority of its submission has been taken into account in the DJEI’s recent publication and its suggestions for reform are very much reflected in the proposals for reform. Accordingly several of Peninsula’s clients have had their viewpoints and suggestions taken into account through Peninsula’s submission. We have outlined below what the DJEI’s findings have been and through this we can get an insight as to how the system will likely operate in the near future:

A Two-Tiered Tribunal System to Replace the Current System of Four Tribunals

• An integrated two-tier model should be adopted whereby all claims are heard by one body of first instance and all appeals would go to a dedicated appeals body. This would replace the LRC, EAT, Labour Court and Equality Tribunal system that exists today. All such cases should be heard at first instance by a single person tribunal but consideration should be given as to whether certain cases should be heard by a three person tribunal at first instance.
• It should be considered whether or not to allow the single entry body of first instance to dismiss frivolous or vexatious employee claims where they see fit as long as the right to fair procedures is upheld.

Tribunal Claim Application Forms

• The best way to facilitate a single point of entry is through providing a single application form, amalgamating existing bodies and the enactment of primary legislation.
• Employee complaints should not be processed until the complaint form is correctly completed and with sufficient background detail and information on their complaint.
• Consideration should also be given to issuing penalties to any person who provides information which is false or misleading and the complaint application form might also request the employee to set out what measure they have taken, such as grievance hearings and mediation, to resolve the dispute,

Resolving Disputes Before They Make it to Formal Tribunal Hearings

• Employers and employees should be encouraged and assisted to resolve disputes at workplace level before they proceed to tribunal and consideration should be given to not accepting tribunal claims from employees until the dispute resolution procedures in the workplace have been exhausted.
• An Alternative Dispute Resolution intervention system should be in place to try rectify matters before they proceed to tribunal. Intervention should take place as soon as possible after a complaint is lodged and prior to the case being referred to a tribunal hearing. Participation in any such form of early intervention should be voluntary.
• All types of employment tribunal cases are suitable for early intervention through alternative dispute resolution but consideration should be given to setting timescales within which conciliation or mediation should be offered and what overall time limit should be given to complete the process.
• If the parties enter mediation but it is unsuccessful then anything discussed in it should be confidential and cannot be divulged at subsequent tribunal hearings. However, a mediator’s report might be admissible at a subsequent hearing

The Provision of Employment Law Guidance to Employers and Employees Alike

• There should be one “go-to” website covering all employment rights and industrial relations matters.
• A non-directive information service for both employers and employees would facilitate the early resolution of grievances and stem the flow of claims.
• The new body of first instance that hears all claims at the outset should only be able to provide non-directive information (rather than advice) to both employers and employees. For example, they can tell employees what their entitlements are but not necessarily advise them what to do or advise them on the likelihood of a successful claim.

Separating Certain Issues from the Two-Tiered System

• Compliance record information following on from inspections of employer premises should not be available to the tribunal bodies; they should only know the facts presented to them by the employee and employer at hearing.
• Routine statutory redundancy entitlements claims could be handled on an administrative basis by the Department of Social Protection but there would be a right of appeal to the tribunal bodies. However, consideration should be given to ensuring that tribunal bodies only would hear redundancy claims where difficult questions of employment law are at issue or where the employer disputes the redundancy claim.
• Tribunal officers in this two-tier system should be separate from and independent of those undertaking other functions such as mediation/conciliation (i.e. the two-tier tribunal bodies would not mediate and subsequently adjudicate a dispute). Consideration should also be given to separating the two-tier tribunal bodies from industrial relations disputes. Thus the two-tier bodies would only deal with hearings and not mediation or industrial disputes.

Appointment of Tribunal Officers

• Tribunal officers should only be appointed through an open and transparent system and selection criteria must require appropriate levels of knowledge, experience, qualifications and suitability for decision-making. Tribunal officers should receive extensive induction training and regular refresher courses and should be subject to explicit performance targets and performance reviews.

Time Limits for Taking Claims

• There should be a consistent time limit deadline for an employee to take a claim and also a consistent deadline for both employee and employers to lodge a subsequent appeal. It would seem six months will be the initial claim deadline and six weeks for appealing a subsequent decision.

Employee Representation at Tribunal Hearings

• Only the aggrieved employee or employees can submit a claim to tribunal and it can’t be done on their behalf unless some intellectual or psychological disability prevents them from doing so effectively.
• Employees should be allowed to nominate representatives to represent them at hearings but they ought to be required to notify the tribunal body and the employer in advance of their representative.

Timescale for Reform

The above certainly does suggest that sweeping changes will be made to the current system. However, as I type this I can sense that the majority of readers will be throwing their eyes to heaven on the basis that the above is unlikely to happen and if it does happen it will probably take years to implement. However, it does seem that the DJEI are being extremely proactive on this matter and are genuinely viewing this as an opportunity to implement some much-needed reform. Thus, the following timescale for the delivery of key aspects of the above reform has been outlined as follows:

1. Phase 1: to end December 2011:
   • introduction of a single point of entry for all workplace disputes
   • introduction of a single authoritative, up to date, information resource for all workplace dispute queries
   • reducing the number of claim forms from over 40 to one

1. Phase 2: to end June 2012:
   • Early Resolution Service Online
   • interactive single claim form
   • Integrated website

1. Phase 3: to end December 2013:
   • Legislation completed to establish new arrangements
   • New Business Processes fully embedded
   • Single Case Management System fully operational