The Gazette 1980

SEPTEMBER 1980

GAZETTE

It is evident from the foregoing, that Trade Union and employer organisations engaged in the Industrial Relations mechanism, prefer to have their cases heard by a Rights Commissioner, and this appears to be a most successful method of dealing with cases as evidenced by the surprisingly small percentage of appeals from Rights Commissioners heard by the Tribunal. The legal profession have a respectable share of the representation for both sides, but there remains a very large number of Claimants and Respondents who appear with no representation at all. The average award of £1 , 228 in Unfair Dismissal cases would compare favourably with the majority of Circuit Court awards, the main difference being in the area of costs in that each party must bear their own costs before the E.A.T. win, lose, or draw. The average award figure is somewhat misleading, in that the majority of awards tend to be around the £ 7 50 mark, and are boosted by a number of five figure awards in the year. There is a disturbing number of claims brought under the Minimum Notice Act. Entitlement under the Act is very simply assessed, and the only significant ground of dis-entitlement is misconduct. Many Claimants include Minimum notice claims with U.D., and Redundancy claims, but a good proportion of cases are Minimum Notice only. In reading cases for this survey, I noticed many simple Minimum Notice cases brought solely due to the employers ignorance of the employees entitlement. In one case brought solely under the Minimum Notice Act, both sides retained Solicitors, and the case went to a full hearing, resulting in an award of less than £20. The figures on settlement of cases are a little misleading also. While 6 9% of cases settled were settled by Solicitors, of cases involving Solicitors, only 6.4% were settled. The FUE were involved in 10.6% of all cases settled, but of cases involving FUE, 14% were settled. The overall impression given by the results of this survey is that the Employment Appeals Tribunal is providing a very valuable service in a speedy and efficient manner. The Tribunal have been at times, criticised by both employers, and employees as being biased in favour of the other side, but the decisions of the Tribunal do not bear this out. I would have two minor criticisms of the workings of the Tribunal. Firstly, that by not awarding costs against a Claimant, the Tribunal have allowed the situation develop where an employee properly dismissed can put his former employers to great trouble and expense by filing a claim, and conducting his own case at no cost to himself, even though his case be devoid of merit. Secondly, that the Circuit Court Rules governing cases appealed from the Tribunal to the Circuit Court S . l. No. 10 of 1979 - do not require an appellant to notify the Tribunal of an appeal and it is therefore most difficult to follow cases once and they are dealt with by the T ribunal. Addendum Since the time of writing the above, details of new Rules of Procedure for Industrial Tribunals in England (which come into force on October 1st next), have been published and are deserving of study by the Department of Labour. The new rules cover complaints for Unfair Dismissal. Redundancy. Sex and Race Discrimination, together with various other employment protection complaints. It should be remembered that English Tribunals covcr a far wider range of subjects than our F .A.T. The parallel of our E.A.T. in England is the

Industrial Tribunal from which appeal lies to the Employment Appeals Tribunal on a question of law only. The English E.A.T. is equivalent to the High Court, but with procedure akin to that of the Industrial Tribunals. The main changes in the new rules are:- (a) The existing rules relating to Discovery and Further Particulars are extended. There is a completely new provision providing for pre hearing assessment on the application of one of the parties, such assessment to be on representation submitted in writing and oral argument —no mention is made of hearing evidence. If the Tribunal considers that a complaint is unlikely to succeed or a party has no reasonable prospect of success, it can given an opinion that if such party continues their case, costs may be awarded against them. The case then goes before a completely new division of the Tribunal for a full hearing in the normal way. Our rules make no provision for particulars or discovery at any stage of the proceedings. (b) Tribunals are not bound to observe formal rules about the admissibility of evidence this is already the case in England and Ireland, and now receives statutory recognition. (c) The Tribunal can at its discretion, cut out the right of a party to make an opening or closing statement. (d) A Tribunal can award costs where a party has acted 'frivolously or vexatiously' or 'otherwise unreason- ably'. Such costs can be awarded in a fixed sum, and can include 'expenses'. Orders of this nature will, of course, be tied in closely with the pre hearing assessment at (a) above. While amendments such as these, if introduced into the working of the E.A.T. in Ireland, would not be welcomed by the non-lawyers who appear before the Tribunal, they would nevertheless enable the Tribunal to retain its "Lega l" status which it is in danger of losing. This status is most important in setting the Tribunal apart from the Labour Court whose attraction is its informality, and the non-enforceable nature of its decision. We do not need another forum for the informal solving of problems, rather we need a formal forum with set rules, yet retaining discretion, which will demand the respect necessary for its operation within a legal framework such as exists at present.

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