20/09/2022

Workplace Relations Commission Report 2020

The WRC has issued its first annual report which analyses the decisions and recommendations it made between 1 January and 21 December 2020.

Some of the key statistics are:

Number of cases received in the period: 8,103

Number of these cases that were the subject of a published decision in the period: 1,401

Number of specific complaints adjudicated upon: 3,059 (of the remainder, the report confirms some were settled or withdrawn, some were referred to mediation, and some were stayed or adjourned.)

Types of complaints most commonly lodged:

Organisation of Working Time Act: 557 complaints

Unfair Dismissals Acts: 454 complaints

Outcomes

Of the 3,059 complaints the WRC adjudicated upon in 2020:

• 1,237 were successful

• 1,595 were unsuccessful

• 227 were withdrawn

Representation

Of the cases where data was available:

• 47% of parties had representation

• 45% were self-representing

• 8% failed to appear

Awards

Average award under the Employment Equality Acts: €19,753.57

Highest award under the Employment Equality Acts: €117,814

Average award under the Unfair Dismissals Act: €11,472.96

Highest award under the Unfair Dismissals Act: €104,000

Average award under the Organisation of Working Time Act: €1,057.48

Highest award under the Organisation of Working Time Act: €11,180

Protected Disclosures

Complaints brought under the Protected Disclosures Act 2014 had the highest rate of success, however only a small number proceeded to adjudication. Of the 17 complaints heard, 14 were successful and monetary awards were only made in 3. Whilst the maximum award can be up to 5 years pay, the awards in 2020 were low with the highest €7,500.  Whether the new Act (once implemented) increases complaints is yet to be seen.

We also wait to see whether the recent changes in WRC proceedings, in particular the hearing of claims in public and the publication of party names in WRC decisions, will have an impact on hearing statistics.

New Codes of Practice on Equal Pay and Workplace Harassment

On 9 March 2022, the Irish Human Rights and Equality Commission published two new codes of practice for employers:

• the Code of Practice on Sexual Harassment and Harassment at Work (the Harassment Code) and
• the Code of Practice on Equal Pay (the Equal Pay Code).

Whilst the Codes are not legally binding, they are admissible in evidence in proceedings, including before the WRC and the Labour Court. Employers are therefore strongly advised to ensure compliance with the Codes.

The Harassment Code

The Harassment Code does not place any new obligations on employers, nor does it make any changes to the law.

It does however introduce a new concept of a “champion” – a senior level employee outside the HR structure to act as an independent voice advocating for a diverse workplace culture that is free from harassment.

In more familiar territory, the Code summarises the legal position relating to harassment and sexual harassment including best practice steps to combat such behaviour. It emphasises the need for employers to have effective policies and procedures in place and encourages employers to implement relevant and up-to-date training (including refresher training.) The Code also provides examples of how employers should monitor policies to track their effectiveness, such as by conducting staff surveys, anonymised questionnaires and discussion at training courses.

The Code highlights that individuals with disabilities, those with precarious employment contracts, new workers and immigrant workers, are particularly vulnerable to sexual harassment and harassment. Additional measures may be required to ensure a safe place of work for employees in these categories.

We recommend employers check their current Dignity at Work policies for compliance as a well-drafted policy may already comply with the Code. Employers should also review their Dignity at Work training, specifically whether refresher training needs to be rolled out to all employees.

The Equal Pay Code

Again, the Equal Pay Code does not make any changes to the law. It does however include a set of principles, guidelines and recommendations for employers to refer to when revising remuneration practices and policies.

The Code reminds employers that while the phrase “equal pay” is most commonly used, it includes not just pay but also allowances, bonuses and other non-cash benefits.

The Code recommends employers incorporate a job evaluation model as the most effective method of eliminating pay inequality. A detailed review process is set out in the Code and employers are encouraged to include employee participation at all stages of any review or change to remuneration practices.

Employers are reminded that proper processes should be in place for employees to raise concerns regarding pay inequality and discrimination, including both informal and formal avenues of resolution.

Where a pay equality issue has been identified, for example, following a successful claim, the Code sets out a number of recommended strategies and measures that can be introduced to combat future issues.

Case law update

Rejection of “banter” defence

The WRC recently upheld a complaint of racial harassment and awarded the Complainant, a man of Latin American descent, €12,500. The Complainant worked for the Respondent for 1 day during which time his manager referred to him as “Chico.”

At the WRC hearing the manager apologised for the use of the term and stated he had not intended to cause offence.

The legal position in respect of harassment in ROI mirrors Northern Ireland as it is irrelevant that the harasser did not mean to cause harm or offence; the submission that this was mere “banter” was rejected by the WRC.

This case is a further reminder of the need for employers to take steps to prevent discriminatory conduct: this is normally via a combination of a well-drafted and communicated dignity at work policy; and regular training and awareness raising.

Waiver/compromise agreements

In Northern Ireland the conditions regulating compromise agreements are set out in statute and unless they are strictly adhered to, such an agreement will be invalid. One of the main requirements is that the employee receives independent legal advice as to the effect of the agreement on their ability to bring a claim. The legal adviser must complete a declaration/certificate to confirm they have independently advised the employee.

There is no statutory regime in ROI governing these types of agreements. The conditions generally required for the agreement to be enforceable are that:

• the agreement is in writing;
• it is signed by the employee;
• the claims being compromised are clearly set out; and
• the employee has taken independent expert advice (however there is no obligation for the adviser to complete a declaration/certificate to confirm they have provided the advice.)

In the recent High Court case Philomena Hennessy v Ladbrooks Payments (Ireland) Ltd the court considered the validity of a waiver agreement. In this case the Plaintiff signed a compromise agreement with the Defendant but subsequently lodged a claim.

The Defendant sought to dismiss the claim at an early stage via an Interlocutory Injunction. The Defendant relied on the terms of the compromise agreement that included a statement the Plaintiff had received independent legal advice prior to signing. The Plaintiff however stated she was under pressure to sign the document, and she had not in fact taken any legal advice as she had not been advised to do so.

The High Court rejected the injunction request and found the issues in relation to the agreement should be dealt with at the full hearing. This matter does however highlight the extreme care that employers need to take when entering into compromise agreements in ROI. Whilst the law does not require an employee or their adviser to sign a statement that they have received/provided independent legal advice, we strongly recommend employers take steps to confirm that independent legal advice has been taken; one of the best ways of achieving this may be to make a contribution to the legal fees (and a receipt from the adviser) as is the practice in NI.