Thematic feature - individual labour/employment disputes and the courts

This article examines how individual labour/employment disputes are handled through the courts in Ireland, as at March 2004..

In March 2004, the EIRO national centres in 24 European countries were asked, in response to a questionnaire, to give a brief overview of their country's system for dealing with individual labour/employment disputes through the courts, along with data on: the volume of cases; the costs; the timeframe; alternatives to going to court; and any current debate on these issues. The Irish responses are set out below (along with the questions asked).

System

Please give a brief description of how disputes concerning individual employees' employment and labour rights are handled in your country by courts, tribunals or other official judicial bodies.

Individual employees can take a wide variety of employment-related issue to courts, tribunals or other dispute resolution bodies. These issues include unfair dismissal, redundancy, discrimination, health and safety, working time etc. Any category of worker can take a case relating to a dispute over the employment relationship. In the majority of circumstances, members of a trade union are entitled to ask their union to represent them in individual employment-related cases, although in internal proceedings in some non-union workplaces, employers refuse to deal with union representatives.

The main dispute resolution institutions pertinent to individual employees in Ireland are as follows.

In collective industrial relations disputes involving groups of workers, the parties will normally refer their dispute to the Labour Relations Commission, which is comprised of equal numbers of employer and trade union representatives and independent representatives, and, if unsuccessful, the Labour Court, which is intended to be a court of last resort. Employment disputes involving a single worker, or small group, are usually referred, in the first instance, to the Rights Commissioner Service. Either party to such individual disputes may appeal against any Rights Commissioner decision either to the Labour Court or the Employment Appeals Tribunal, depending on the issue. The decision of the Labour Court or EAT on such appeals is binding on the parties and legally enforceable. In some instances, cases may be referred on to the Circuit Court and the High Court.

The Rights Commissioner Service operates as an independent arm of the Labour Relations Commission. Rights Commissioners deal with individual disputes and grievances relating to a wide variety of issues, such as unfair dismissals, working time, maternity and parental leave, part-time work and so on. Rights Commissioner decisions are not binding on the parties.

The Labour Court provides a comprehensive service for the resolution of disputes about industrial relations, equality, working time, pay, and other issues. The Court is comprised of nine full-time members: a chair, two deputy chairs and six ordinary members - made up of three representative of employers and three of employees. For most purposes, the Court acts as a court of last resort. - ie its services are used when all other avenues have been exhausted. However, it also serves as a court of appeal in relation to decisions by Rights Commissioners, Equality Officers and the Director of Equality Investigations.

The Employment Appeals Tribunal is an independent judicial body set up to provide a speedy, fair, and informal means for individuals to seek remedies for alleged infringements of their statutory employment rights in relation to disputes over issues such as redundancy, unfair dismissal, working time, maternity and parental leave, etc. The EAT consists of a chair and 22 vice-chairs, and a panel of 60 members - 30 nominated by the Irish Congress of Trade Unions (ICTU) and 30 by employers' organisations.

In relation to employment equality, dismissal and discrimination cases, the Labour Court may fulfil both court of first instance and court of appeal roles. In dismissal cases, where individual workers believe that they have been dismissed, or constructively dismissed, on grounds constituting discrimination or victimisation, they may go directly to the Labour Court to seek redress. The Court’s decision in such cases is called a 'determination' and is legally enforceable. In other cases, involving discrimination or victimisation, but not involving dismissal, the complaint is first of all investigated by an equality officer or the Equality Tribunal. The Equality Tribunal is an independent quasi-judicial body established in 1999, whose core function is to investigate, and/or mediate, complaints of unlawful discrimination at work under the Employment Equality Act 1998 (IE9909144F), and to provide legal enforcement and remedies. Either party to a dispute may appeal against the decision of the Equality Tribunal to the Labour Court, and the Court’s determination is legally enforceable.

The higher courts, but not the dispute channels of first instance, may impose a range of sanctions on the parties, including fines, changes in employment terms and conditions etc. For instance, one of the largest awards to date issued against an employer by an equality officer, in relation to discrimination on gender grounds (and, indeed, on any grounds) was in the case of Rebecca O'Malley v Golden Vale, when the complainant was awarded compensation of EUR 107,000 in 2001 after being discriminated against on pregnancy grounds (IE0207201N).

Number of cases/disputes and costs

How many cases have been dealt with in your legal system by each category of court? Where possible, please provide statistics on the number of disputes in your country each year from 1990 to 2003 (or the latest year for which data are available). Where possible, please provide statistics on costs.

The number of cases referred to Ireland’s various dispute resolution bodies have been rising from year to year. The tables below provide data for cases before the Labour Court and Equality Tribunal. In 2002, 1,693 industrial relations disputes were referred to the Labour Relations Commission.

Source: Labour Court.

Source: Equality Tribunal.

Litigation timeframe

Where possible, please provide statistics on the timeframe within which court cases over individual labour/employment disputes are settled.

No general information is available on how quickly individual disputes are settled - though see next section for information on disputes over equality at work.

Other means of resolving individual disputes

Is there any kind of legal mechanism forcing or encouraging the two parties (management and employees) to resolve a dispute by prior negotiation? Where there is such a mediation process foreseen, please give details. Is there any evidence that mediation has had an effect on the volume of claims handled by courts? Are there any corporate policies built into the structure of organisations in your country specifically to deal with disputes? How are the employees’ representative bodies involved in the process?

An informal mediation service provided by the Equality Tribunal since December 2000 has facilitated a more speedy resolution of equality disputes at work, compared with the traditional, and more formal, equality investigation route IE0212204F. There has been a marked increase in the number of claims referred to, and resolved through, equality mediation. There were 179 cases referred to mediation in 2002, up from 102 in 2001, which represented a 75% rise. In total, 56 cases were resolved through mediation in 2002, compared with 11 in 2001 - a five-fold increase.

According to the Equality Tribunal, its mediation service is, on average, three times quicker than the alternative equality dispute resolution option - a formal investigation decided by an equality officer. Equality cases that have resulted in mediated agreements have been completed in just six months (from the original date of referral to the date of signing the agreement), compared with an average of 18 months in employment investigation cases (again, from the original date of referral to the date of decision).

The Equality Tribunal mediation process involves dispute resolution by direct negotiation between the disputing parties. Mediation is guided by the principle of self-determination and is completely voluntary (either party may withdraw at any stage) and informal, and does not involve written submissions. Agreements are not published (unlike equality officer decisions in investigations), and the parties are also given a 'cooling-off' period before being asked to sign an agreement, to ensure that both sides can give informed consent on signing. Any agreement, once signed, is legally binding and enforceable.

A key distinction between equality mediation and traditional industrial relations mediation (which occurs through the Labour Relations Commission), is that, whereas under industrial relations conciliation, there is an assumption that a compromise settlement will be reached somewhere in the 'middle ground', no such assumption is made in equality mediation. In addition, whereas parties to a labour dispute are expected to use the service of the Labour Relations Commission before referring an issue to the Labour Court - which is supposed to be Ireland’s court of last resort in this area - parties to an equality dispute can refer an issue straight to investigation, rather than having to go through mediation beforehand.

Debate

Please summarise any current debate on the issue of employment/labour disputes litigated by courts in your country.

There has debate in Ireland surrounding the growth of a so-called 'compensation culture', and a general increase in litigation claims. In relation to complaints specifically related to employment, to some extent the growth in individual litigation is perhaps not too surprising, particularly given the absence of collective channels of employee representation and 'voice' in large swathes of the private sector.

The weakening of collective forms of employment regulation, and a parallel individualisation of employment relations and expansion of individual employment rights, has occurred alongside a significant increase in the number of individual employees pursuing legal claims - the result being that established dispute-resolution agencies are coming under severe strain (IE0406203F). This was the argument of Professor Paul Teague of Queens University Belfast, at a January 2004 conference in Dublin exploring 'alternative dispute resolution' (ADR) mechanisms ( IE0402203F). According to Professor Teague ,broad economic and social changes in Ireland are exerting significant pressures on established forms of employment governance/dispute resolution, which, as a result, he argues, will require renewal. He suggests that many employers, particularly smaller firms, are finding it difficult to adapt to this new system of regulation, with extra burdens being placed on business. The result has been a surge in claims from employees of alleged breaches of employment rights by their employers, which, in turn, has meant that the established dispute resolution agencies - such as the Labour Relations Commission and the Equality Tribunal - are experiencing a case overload.

Whereas union members have access to their union representatives when addressing grievances, in many non-union workplaces this independent 'voice' mechanism is not available, so they are more likely to seek redress through the judicial process in relation to issues such as discrimination and bullying. Given the weakening in collectivism and the proliferation of non-union workplaces, Professor Teague argues that ADR are required. More and more disputes need to be solved on an individual basis, for instance, as reflected by the rise in sexual harassment claims. There is a comprehensive established dispute-resolution framework in Ireland, Professor Teague says, but various problems exist. For instance, there is a degree of institutional overlap between the various agencies, which sometimes mean they are covering the same terrain. Further, the Labour Court has expressed concern that, all too often, its role as court of last resort is being compromised and undermined as the parties to a dispute request its services without first exhausting other dispute-resolution avenues.

Professor Teague suggests that dispute-avoidance and problem-solving activities, as opposed to dispute-resolution activities, need to be enhanced, and that more needs to be done at organisational level to solve disputes and grievances close to their point of origin. The implication is that organisations need to improve in-house procedures to resolve disputes. (Tony Dobbins, IRN)