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| Representation at the EAT; grounds for concern? |
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By
Pat Brady, Workplace Solutions
May 31, 2011 |
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I have been taking a look at the statistics in the Annual Reports of the
Employment Appeals Tribunal for representation and appearances at the
tribunal. I examined the figures for the years 2005 and 2008 and in
October last year the 2009 Annual report was published.
It adds interesting information. It mostly indicates a huge increase in
the number of cases being referred to the EAT; from 5457 in 2008 to 9458
in 2009 although only about a half of this number were heard during the
year.
I have strong feelings (as an arbitrator and mediator) about the way
things have gone with the EAT and there is widespread dissatisfaction
with delays now of about a year and a half. (Admittedly the position at
the Equality Tribunal is a lot worse. The Minister for Equality Jimmy
Deenihan recently announced that it took three years to get a hearing.
These are the figures for categories of representation in all cases
coming before the EAT. There were a total of 2180 cases heard
altogether. There was representation of employees in 1447 cases and of
employers in 882 cases. See Appendix A below for details.
What follows are general observations and not those of a statistician. I’d welcome comments.
But a number of things strike one from these figures.
The EAT produces statistics for representation at all hearings and
separately for claims under the Unfair Dismissals Act (UDA). Claims
under that act account for 93% of all hearings (2009 report)
What the figures above show is that comparing 2005 and 2009; in cases where parties are represented;
- 62% were represented by lawyers; a decline since 2005 from 69%.
- Those represented by unions has increased marginally from 12 to 14%
- Those represented by ‘Others’ has seen a significant enough surge
from 16 to 20% (mainly accounted for by a leap in the number of employee
cases in this category from 111 to 301). I take another look at that
below.
In cases involving Unfair Dismissals Act the position regarding representation is as set out in Appendix B below
There is a significant increase in the number of appearances by lawyers;
rising from 64% of ‘all cases’ to about 75% in cases under the UDA and
remaining constant over the period. This may not be a surprise. The
involvement of lawyers in the process was well advanced by 2005!
I also took a look at representation of employees only and the following is the picture (just looking at 2005 and 2009.
| All Cases |
|
Union % |
Lawyer % |
Others % |
| 2005 |
989 |
23 |
66 |
11 |
| 2009 |
1447 |
22 |
57 |
21 |
| UDA
only |
| 2005 |
764 |
16 |
77 |
7 |
| 2009 |
794 |
13 |
75 |
13 |
Some interesting changes here. The numbers of ‘Others’ has climbed
sharply while the involvement of lawyers in cases under legislation
other than the UDA has fallen somewhat. This may reflect lower levels
of settlement in non UDA cases.
In the case of employees only, the numbers of those represented by
‘others’ has almost trebled from 111 to 301 and in UDA cases doubled
from 52 to 104; (the category of employers represented by ‘others’ has
fallen from 123 to 103; 19%.)
This means that there are as many claimants (I am assuming all claimants
are employees) represented by ‘others’ as by trade unions. Outside of
UD Act cases it is not onerous to present a case under certain of the
other statutes. The only concern is that they get so far (see final
paragraph)
Who are these ‘Others’? Clearly they include those such as your humble
correspondent! But presumably also Citizens Advice Bureaux (especially
in cases involving nationals from EU or other states), the occasional
family member etc. Although I am at a loss to know who others are in the
case of employers, apart again from independent HR consultants, or
perhaps accountants.
Are these figures worrying for trade unions? Looking at the benign
scenario first it is probably the case that where trade unions represent
workers there is a very high probability of cases being settled long
before they get to this stage.
Interestingly this appears to show that in respect of the 2180 claims
heard by the Tribunal in 2009, and on the assumption that an employee
was in attendance in most, if not all of these they were only
represented in (roughly) 1500 cases.
That said I have heard from some union sources of a reluctance on the
part of union officials to take cases as far as the EAT because of the
rigidity of the procedures, the requirements for examination of
witnesses etc.
Union officials probably prefer the Labour Court style of presentation
of their submission without having to comply with the burden of even
somewhat relaxed application of the rules of evidence, cross examination
etc which may be reflected in the figures, but I can’t say for sure.
But these facts suggest that only about one in six employees whose case
runs before the EAT is represented by a trade union official.
The bottom line is that the era of employment rights has drastically
altered the balance of forces and entitlements that exist as a matter of
legal right do not require trade union membership for their
vindication.
On the employer side IBEC offers legal representation through in-house
solicitors and employers and trade associations would in general be
better resourced to fund legal representation.
Finally, the report says that the average waiting time for a hearing in
2009 was 31 weeks in Dublin and 32 elsewhere. A query I made recently
established that this situation has deteriorated significantly and it is
now 78 weeks in Dublin and 81 weeks in Wicklow, for example.
The EAT is unusual both in terms of dispute resolution in employment
matters and in the wider world in that it does not have a mediation or
conciliation ‘step’. It badly and urgently needs one. It is far too
cumbersome, time consuming and in many cases expensive to resolve what
are for the most part relatively simple disputes. And it is now settled
law that even statute based claims may be settled subject to a number of
simple conditions without the necessity for an EAT hearing.
The other LRC; the Law Reform Commission in its report launched in
November 2010 on mediation ducked this issue. While it provided a
comprehensive and informative overview of the current situation for
reasons best known to itself it made no hard proposals.
The area of employment disputes was once our most developed system of
what we today call Alternative Dispute Resolution….Not any more! The EAT
is thirty four years old this year and showing its age. It needs a
Berocca boost!
Appendix A Representation; All cases
|
T.U/
Trade rep |
Legal |
Other |
|
2009 |
2008 |
2005 |
2009 |
2008 |
2005 |
2009 |
2008 |
2005 |
| Employees |
318 |
282 |
223 |
828 |
831 |
655 |
301 |
219 |
111 |
| Employer |
92 |
77 |
53 |
616 |
626 |
585 |
174 |
220 |
180 |
|
410 |
359 |
276 |
1444 |
1457 |
1240 |
475 |
439 |
291 |
Appendix B Representation UD cases
|
T.U/Trade
assoc |
Legal |
Other |
|
2009 |
2008 |
2005 |
2009 |
2008 |
2005 |
2009 |
2008 |
2005 |
| Employees |
100 |
106 |
126 |
593 |
636 |
586 |
101 |
71 |
52 |
| Employer |
70 |
63 |
44 |
455 |
479 |
489 |
104 |
140 |
123 |
Pat Brady,
Workplace Solutions,
Pat.brady@workplacesolutions.ie
www.workplacesolutiions.ie
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