The most wide sweeping changes to the resolving of employment disputes are contained in Part 4 of the Act.
Section 38 of the Act provides for the appointment of Mediation Officers which is a new mechanism for the resolving of employment disputes. Section 39 provides that cases can be referred to mediation officers for resolution but only if neither party objects. A mediation conference takes place in private however the terms of the resolution, (if the dispute is resolved) are written, signed and binding on the parties. If mediation is attempted and failed the dispute then goes forward to an adjudication officer. Section 39 sub-section 6 provides that the terms of the mediation can be enforced in court if contravened and Section 39 sub-section 7 provides that apart from these contravention, actions the terms are confidential between the parties.
Section 40 provides for adjudication officers to be appointed. It also allows that all current Rights Commissioners and Equality Officers automatically become adjudication officers on commencement of the Act.
Section 41 provides for how complaints and disputes should be presented before adjudication officers. Generally this process is envisaged by the Act as being more inquisitorial than adversarial, the hearing will be held in private and evidence will not be on oath. Representation (legal or otherwise) will be allowed, but there are no references in the Act to the examination or cross-examination of witnesses. This is an extreme change from procedures before the Employment Appeals Tribunal where hearings are held in public and resemble adversarial proceedings.
Under Section 41 sub-section 6 the time limit for the making of complaints is 6 months across the board, although s.41(7) deals with the various Acts that require an interpretation of when time begins to run such as the Carer’s Leave Act 2001 – see here.
There is a provision for an extension of time by a further 6 months in s.41(8) where it states:
An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
This requirement of “reasonable cause” for every extension of time is a change from the varying requirements of “reasonable cause” under some Acts and “exceptional circumstances” in other instances. It sets a lower bar than what was required under exceptional circumstances. For instance In Byrne v P.J. Quigley UD762/1994 the Employment Appeals Tribunal ruled that the words “exceptional circumstances” were “strong words” and meant something “out of the ordinary”. At the very least, the Tribunal said, the circumstances must be “unusual, probably quite unusual, but not necessarily highly unusual”. The Tribunal went on to say that, in order to extend time, it must be satisfied, the onus being on the claimant, that the exceptional circumstances prevented lodging the claim within the six month time limit and it seemed to follow that the exceptional circumstances involved must arise within the first six months. If they arose later they could not be said to have prevented the claim being initiated within that period.
Under Section 41 sub-section 5(a):
An adjudication officer to whom a complaint or dispute is referred under this section shall—
(i) inquire into the complaint or dispute,
(ii) give the parties to the complaint or dispute an opportunity to—
(I) be heard by the adjudication officer, and
(II) present to the adjudication officer any evidence relevant to the complaint or dispute,
(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and
(iv) give the parties to the complaint or dispute a copy of that decision in writing.
Section 41 sub-section 13 provides that disputes will be heard in private before adjudications officers which has proved to be a controversial point so far. Further Section 41(14) provides that all decisions of adjudicators will be published on the internet on an anonymised basis. This again is a change from previous procedure where generally parties were named in decisions.
Under Section 41 sub-section 10, an adjudication officer can require the attendance of a witness and/or the production of documents relevant to the proceedings. It is envisaged that this will be enforced more vigorously than previously at the EAT.
Part 4 of the Act also provides for the appeals procedure from a decision of an adjudication officer. Again the new procedure is more simplified than the various different avenues of appeal previously.
Section 44 provides one body for all appeals – the Labour Court with a further appeal on a point of law only to the High Court.
44. (1) (a) A party to proceedings under Section 41 may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall—
(i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
(ii) make a decision in relation to the appeal in accordance with the relevant redress provision, and
(iii) give the parties to the appeal a copy of that decision in writing.
An appeal from the EAT to the Circuit Court no longer lies. This court “supervision” of the functions of the Tribunal although only exercised in a small number of cases, did provide a vital check and balance on the powers of the EAT and the legal costs involved in a Circuit Court action are not as oppressive as those at the High Court.
Section 44 sub-section 7 provides that appeals will be heard in public, unless there are “special circumstances” that arise. Section 44(9) provides who can accompany and represent a person before the Labour Court:
(i) a trade union official within the meaning of section 11 of the Act of 1990,
(ii) an official of a body that, in the opinion of the Labour Court, represents the interests of employers,
(iii) a practising barrister or practising solicitor, or
(iv) any other person, if the Labour Court so permits.
(b) In proceedings before the Labour Court under this section, the appellant or respondent may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.
The Labour Court will sit as a three-person court for the appeals process and will have the power to take evidence on oath and to compel the attendance of witnesses and production of documents. The functions of the EAT will transfer to the Labour Court and so it appears that this appeals process will be similar in some form to a hearing before the EAT. This will fundamentally change the role of the Labour Court but it is not clear how this will work in practice.
Section 51 of the Act provides for the offence of failing or refusing to pay compensation, it provides:
(2) It shall be a defence to proceedings for an offence under this section for the defendant to prove on the balance of probabilities that he or she was unable to comply with the order due to his or her financial circumstances.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.