knowledge 26 April 2021 |

Employment Law Update: Immediate Changes to WRC Procedures Following Supreme Court Judgment

On 6 April 2021, in an appeal from the High Court, the Supreme Court delivered its judgment in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and made further consequential orders on 15 April 2021. The Supreme Court held that Adjudication Officers of the Workplace Relations Commission (the “WRC”) and members of the Labour Court are administering justice in the course of their adjudication of most employment and equality rights claims, in a manner permitted within the meaning of Article 37 of the Constitution.  

The Supreme Court rejected a challenge to the validity of certain sections of the Workplace Relations Act 2015 (the “2015 Act”) and section 8 of the Unfair Dismissals Acts 1977, as amended. However, the Supreme Court separately determined that two aspects of the 2015 Act are incompatible with the Constitution: the blanket prohibition on public hearings and the lack of capacity of Adjudication Officers to take evidence on oath.

Practical Implications of the Supreme Court Judgement

• The WRC must hear all cases in public, save where the hearing or investigation does not amount to the administration of justice. Parties who had submitted complaints to the WRC for adjudication before the Supreme Court judgment would have done so based on these hearings being heard in private. It is important to ensure all parties are aware that the provision for a private hearing no longer applies and that decisions of Adjudication Officers will be published, including the names of the parties. Furthermore, members of the public and the media will able to attend hearings. As the WRC is currently holding remote hearings only, members of the public and the media may request to attend these hearings via WebEx link, subject to certain restrictions.

• Where there is a serious and direct conflict of evidence between the parties, the Adjudication Officer must adjourn the hearing pending amendments to the 2015 Act to enable Adjudication Officers to administer an oath or affirmation and provide for a punishment for the giving of false evidence. The WRC can currently administer an oath in redundancy related hearings under section 39(17) of the Redundancy Payments Acts 1967 - such cases may proceed on a public hearing basis.

• In relation to cases which have concluded before 6 April 2021, the determination of the Adjudication Officer will be anonymised when published (in line with section 41(14) of the 2015 Act) or at the Adjudication Officer’s discretion if the complaint relates to an equality matter. For cases heard after that date, in light of the Supreme Court ruling, the names of the parties will not be anonymised. This may create new reputational issues for employers.

• The changes do not apply to trade disputes under section 13 Industrial Relations Act 1969 which are non-justiciable and such cases will continue to be heard in private. Please note, however, that complaints in relation to a Sectoral Employment Order brought under the Industrial Relations (Amendment) Act 2015, fall within the scope of the judgment and will be subject to the new procedures.

• The WRC has published a notice outlining the changes (available here), highlighting that mediation is also unaffected by the Supreme Court Judgment and remains an option in all cases submitted for adjudication and will continue to be entirely confidential.

Once legislation is enacted by the Oireachtas to give effect to the above procedural changes, the WRC will update its procedures in line with the new framework. Parties to WRC proceedings currently underway should carefully consider next steps. A public hearing may motivate the parties to settle the complaint or to seek to have it mediated in private by the WRC. 

How can we help?

The McCann FitzGerald Employment, Pensions and Incentives team are available to answer any queries you may have in relation in to the changes to WRC procedures and provide guidance on how to navigate WRC proceedings pending or currently underway.

Also contributed by Róisín Finn and Clarissa Mulcahy.