COMMITTEE FOR EMPLOYMENT AND LEARNING

OFFICIAL REPORT

(Hansard)

Workplace Dispute Resolution

29 April 2009

Members present for all or part of the proceedings:

Ms Sue Ramsey (Chairperson)
Mr Alex Attwood
Rev Dr Robert Coulter
Mr Alex Easton
Mr David Hilditch
Mr David McClarty
Mrs Claire McGill

Witnesses:

Mr Peter Bunting ) Northern Ireland Committee, Irish Congress of Trade Unions
Mr Eugene McGlone )

The Chairperson (Ms S Ramsey):

We will now hear evidence from the Irish Congress of Trade Unions (ICTU) on workplace dispute resolution. I have been ill, and have not had the opportunity to follow up on the issue, but I saw your interview, Peter, following the rally at the City Hall. You offered some suggestions about what the Assembly could do to protect workers’ rights. For members’ information, I will arrange a meeting with Peter in order to tease out some of those issues, because it is important that this Committee should be made aware of them. We will be in touch as quickly as possible.

I thank you for coming here to speak to us about the issue. The Minister has told us that the issue of workplace dispute resolutions is a blank canvas, and he wants the Committee’s input. We have met a substantial amount of people with a keen interest in the issue, ranging from the Law Centre to your organisation. We had to postpone the last meeting because of one of the rallies that your organisation was involved in at the City Hall. I will give you the opportunity to make a presentation, and I will then open the floor to questions.

Mr Peter Bunting (Northern Ireland Committee, Irish Congress of Trade Unions):

Thank you for the invitation. The Northern Ireland committee of the trade union movement represents somewhere in the region of 250,000 workers who are organised; and there are obviously those who aspire to be organised, but cannot be, for other reasons. In many senses, the situation in Northern Ireland with regard to employment rights is very unsatisfactory to all workers, irrespective of whether they are organised; although if they are in an organisation and have been treated unfairly, there is a better opportunity for them to get redress.

From our perspective, the interesting thing about the Northern Ireland Assembly is that it has the autonomy to bring about significant change. If this Committee and the Assembly are to be relevant to working people in Northern Ireland, this is a unique opportunity to display that relevance as a democratic institution in Northern Ireland.

We are all aware that, in many senses, the whole industrial climate has changed over the past number of years, as have employment rights. There is also a huge emphasis, particularly from the European Union, on individual employment rights, and it would not be unfair to acknowledge the fact that we have moved away from a voluntary system to one embedded in “jurification”, which is a fancy word for “legalistic”. From that perspective, we are deeply concerned about the access to fair play, justice and early dispute resolution in Northern Ireland. There are many reasons for that concern, including the emphasis on legality and the construct of the Northern Ireland economy, where around 90% of economic activity is carried out by small and medium-sized enterprises, which, from our perspective, are difficult to organise. From an employer’s perspective, it is difficult to keep abreast of the ever-evolving situation of employment rights.

We believe that the statutory disciplinary and dismissal system is simplistic. It is not complex, but it is fair insofar as it can be. That is not to say that every dismissal is fair. However, it is a simple system, easy to follow, and one does not need tremendous guidance or legal opinion on how to follow it.

We believe that the grievance procedure is quite complex, and its complexity means that seeking legal opinion is often the first resort for people. That, by its very nature, makes the issue more complex. By its very nature, the language of the legal industry is frightening and off-putting to a number of people, particularly those who are unorganised. We have a difficulty with endorsing the complexity of the grievance procedures.

Members are well aware of the situation whereby, if employers cannot follow the grievance procedure exactly — crossing every t and dotting every i — and it becomes subject to an industrial tribunal, the penalties become more punitive. Obviously, there are also difficulties for the employee who has a grievance. Similarly, if they do not follow everything to the nth degree, in many cases, legitimate and meritorious grievances fall by the wayside.

Therefore, we need to underpin employment rights and the current dispute resolution system in Northern Ireland with a different system that is simplistic, fair and easy to follow. I will deal with the alternatives to the current system later.

The old employment relations system was voluntary. It was expeditious: generally, disputes were resolved on the factory floor or as close to their point of origin as was humanly possible. It now seems that in order to resolve a dispute, an industrial tribunal has become the first resort instead of the last resort. In itself, that is of huge economic cost to employers and, in many senses, to the trade union movement, too. In fact, we are having difficulty keeping up with the costs of engaging in industrial tribunals.

In many cases, industrial tribunals are certainly not expeditious. Claimants can wait two or three years for their cases to be heard. The nature and operation of the system can be best described as archaic. When the president of the court asks a question, he or she writes it down, as well as the response. That is a ridiculous situation in the twenty-first century. It means that a claim, case or dispute can drag on for three weeks. We all know how much three weeks’ worth of legal fees can cost, irrespective of the party. That is an incredible situation.

With regard to the Law Society, we concur in general terms with its views as to how the process operates and how it discriminates against ordinary, decent people who believe that they have a claim, but who do not have the wherewithal to fight a claim, whether they are in a trade union or not. We believe that claimants who are not in a trade union have no chance of getting redress for a claim that they lodge with an industrial tribunal.

We are so deeply concerned about that situation that, from our meagre resources, we have engaged a research company. It is carrying out research into why people do not follow claims through in the industrial tribunal system. We believe that people do not follow claims through because of the complexity and cost of the system and because they fear that costs will be awarded against them, which militates against them going through the tribunal system. Even going through with the process creates blockages in the system. If you are looking for ease of movement and a speedy resolution to a dispute, you will not find it in the industrial tribunal system.

It is unfair that dispute resolution mechanisms are disproportionate, depending on the person who uses them. We are looking to embed an employment relations culture that places an increased emphasis on the prevention of disputes. That really is the way ahead. We are not only concerned about how the dispute resolution process in situ, but how we can stop people from getting into that system, and how that system should be amended or modified at some stage. Those are some of our points.

I now address our views on the alternatives to the current system. Some members may be aware that I have spent many years in the Republic of Ireland working as a trade union activist and general secretary of the Irish Congress of Trade Unions. We propose a dispute resolution system that is similar to that of a rights commissioner system, which is voluntary, non-adversarial, and which should be the first port of call if a dispute arises.

From our point of view, it is speedier. Workers and employers will find it easily accessible. It is non-legalistic in its approach, although it deals with legal issues. It is investigatory as opposed to adversarial. Our objective is to sustain employment relations in a way that will be compatible with employees realising their rights.

Certain cases, such as bullying or harassment that is motivated by sexual or religious influence, are dealt with in a more sensitive manner than the cold comfort of a legal battle in an industrial tribunal. There is a greater sense of ownership of the outcome by both the employer and the employee. We believe that that should be the first resort for all disputes in Northern Ireland, followed up, if necessary, by a conciliation process in the Labour Relations Agency (LRA), with, as the court of last resort, following an appeals mechanism, to which everyone is quite entitled, an industrial tribunal or an employment appeals tribunal.

We believe that that will create — or recreate, I should say — an ethos in Northern Ireland of a voluntary system of dispute resolution, which has, in the long term, benefits for employment itself — old sores would not fester — and for relationships, in the sense of how we do business. It would be more informal; would create better morale in workplaces; would be more just, equitable, fair — whatever other definitions you want to use — to both the employer and employee; and there would, certainly, be less wastage of economic resources for the employer, the trade union movement, and the employee.

We advocate that as an alternative, as the court of first resort, in any dispute system. Obviously, it will be under the auspices of the LRA. We believe that we now have an opportunity to enact legislation that will underpin that type of principled system for dispute resolution, which would be unique to Northern Ireland.

Mr Eugene McGlone (Northern Ireland Committee, Irish Congress of Trade Unions):

We want to focus on one or two matters. Disputes occur, and can be remedied, in three areas. The first, obvious, one is the place of work. Assistance must be put in place that will allow for early resolution of disputes in the workplace. The earlier a dispute is resolved, the better it is for all parties concerned: that is a given. I do not believe that anyone would say otherwise.

The difficulty is that current mechanisms do not lend themselves readily to early resolution. That is part and parcel of the issue. On the other hand, we cannot have a two-tier system or one that treats large employers differently to small employers. It is about the rights of the employee, the worker. In that sense, every worker must be treated equitably. The system that needs to be put in place must, therefore, be universal and universally accessible. It cannot be seen to be punitive with regard to costs for smaller employers. Therefore, creative thinking is needed on the mechanism that will benefit smaller employers and will allow them to access services to assist them to resolve disputes in workplaces when it costs less to do so. That must be considered.

The next stage at which disputes are resolved is, obviously, external — when someone is brought in to mediate, for example. Peter laboured on the point about the rights commissioner. At that stage, a more voluntary approach is taken, without the heavy constraints of the current legal system being brought to bear. Let us also concentrate on the fact that what we are dealing with, by and large, are not massive crimes by the employee or the employer: they are simply disputes. Many of them get blown out of all proportion because, as Peter mentioned, the situation is allowed to simmer. When a situation is allowed to simmer, people start to dig trenches. When they start to dig trenches, they start to throw stones. That is how wars commence. The situation is allowed to get to that stage. Unfortunately, when the judiciary takes over, it is irreversible. It is almost like a Dickensian novel: once the judiciary gets a hold of it, it is finished, and you are finished. The relationship is gone.

The current system totally lacks any form of remedial action to repair relationships. Bear in mind that it does not matter what type of work an individual does because the work can be done whether there is a loving relationship between the employee and the employer or simply a tolerable one, as long as the work gets done and it is commensurate with what is required.

That we have reached a point in our society where a complete breakdown in the relationship between employer and employee is needed before a resolution can be reached is ludicrous. There should be the ability to rectify relationships as they move into a dispute. People should be able to enter into a dispute — either an employer raising a disciplinary action against an employee, or an employee raising a grievance against the employer — without it becoming something that ends up with one of them moving on. That is not good. It not good for business and it is not good for relationships.

Employees and employers do not enter into business to have a good laugh; they do so for a purpose. If you are in business, you are in business to make money. If you go to work, you do so to make money, to feed your family, to contribute to society, and to be economically active. Therefore, a dispute is not something that is entered into lightly.

There is an investment in work from both sides, which like any relationship can sometimes break down, warranting a need to invest in a methodology to allow for the repair of those relationships. We have nothing in that respect, but we must put something in place to allow for such situations. The sad thing is that that will cost money, and in the current climate that money will not be easy to find.

The final method of dispute resolution — the judicial method — is wholly inappropriate. For example, I recently ran a case for sexual discrimination where the applicant was cross-examined for three and a half days. Indeed, she spent longer being cross-examined than CJ Haughey spent in the entire court proceedings against him. That is a ridiculous situation and an abuse, not only of the system, but of the people involved in it, and it must be examined very seriously.

Perhaps part of it is the point that Peter made about the need to modernise the system. Currently, the chairperson of a tribunal writes down every relevant and appropriate word or sentence, and that is just not good enough. It prolongs the proceedings and people spend days giving evidence that could be condensed into an hour or two. Furthermore, the process applies a great deal of pressure to people. Pressure is placed not just on the individual who finds it difficult to function outside of the proceedings, but on the business because it must commit a number of people to sit in the tribunal and give evidence. Those businesses do not simply pay lawyers and walk away and leave the case. All those pressures contribute to the breakdown in relationships and, again, there is no repair mechanism.

We must modernise the system. We must attempt to remove the conflict from the situation, and the best way to do that is to attempt to remove it at an early stage. Perhaps a system similar to the rights commissioner service in the Republic of Ireland would be the correct one to use, as it removes a high percentage of the cases at an early stage. That means that most people can return to some form of reality quickly, and I think that such a service would help to resolve our situation.

Mr Bunting:

We will be making proposals when the research is ready. We have been holding fire on putting anything into writing because we were a bit late in getting the research under way. However, we have been promised that research by the end of May. The research company is having some difficulty in conducting it, because it is trying to trace those who lodged cases with industrial tribunals and then withdrew them. For data protection reasons, the company cannot obtain that information from the tribunal records and has had to contact the community, voluntary and trade union sectors to access some form of a cohort. That should give the company and us some degree of reasoning that may inform why the cases are being withdrawn. One can make assumptions from the evidence of the Law Centre and our own anecdotal evidence, but the research should give us a more informed position.

As trade unionists, we also carry out a great deal of pro bono work for people who are not in trade unions. The trade union movement has an ethos and a culture of not rejecting people, and we all have friends and neighbours who refer others to us. Indeed, some of us have spent days in tribunals fighting cases for those who are not in trade unions. However, that pro bono work does add a further string to our bow, as it enables us to gain an understanding of those who are not organised.

The Chairperson:

Thank you very much for the presentation. It is quite useful, because you are raising issues that have not arisen during previous briefings we have had on the subject.

Mr Attwood:

I echo what the Chairperson has said; you have given a different flavour to some of the evidence that we have received so far. You also anticipated one of the things that I was going to ask; could we see the research or the model that you have been discussing when it is completed? I was not able to follow your description fully, and would like to see more details on that.

I will ask you a question that I have asked of other people. At a private seminar some months ago, a lawyer who is in the employment of the public sector said that there was a culture in the public sector whereby, because it is bankrolled by the public purse, employers in that sector do not become involved in trying to resolve disputes with employees. He said that the public sector is willing — and, at times, keen — to let such disputes run, because it would be bankrolled in the event that the dispute went to tribunal. Do you think that that is an issue?

If the culture in the public sector is that, because that sector is bankrolled, such disputes are left to run until the complainant runs out of money or patience, simply putting a mechanism in place will not necessarily change that culture, if it exists.

Mr Bunting:

In broad terms, I think that that culture permeates every section of industry in Northern Ireland, both public and private, and, indeed, organised and unorganised employment. Whether that has grown over time as some form of subculture, or it borrows from legal advice, there is a huge tendency to refer everything to an industrial tribunal. We are trying to advocate that everyone should move away from that. That is why our view is that the court of first resort should be a rights commissioner, or something akin to that, which is of a voluntary nature.

People should not be able to go directly to an industrial tribunal, but should have a right to appeal whatever adjudication has been made to the industrial tribunal to protect their rights. However, that should be the court of last resort. That would put that particular culture to bed. We are trying to change the culture. It is a waste of taxpayers’ money, employers’ money and trade unions’ money to go directly to an industrial tribunal. It is a nonsense system of operation, which should only be utilised when all else fails.

I believe that there is a culture, which you have indicated, not just in the public sector, but everywhere, and we need to change that. The only way that can be changed is to enact a legislative system of employment rights. One should first go to the voluntary system — there are two elements to that, the rights commissioners system and LRA conciliation — and only if those two processes have failed to resolve the problem, or one does not like the adjudication, one should have the right to appeal that to an industrial tribunal, knowing full well what the economic and cost implications of that will be.

Mr E McGlone:

The point has been well made. The bogey man in the public sector is called the audit committee. There are not many public-sector employers who will take a decision, for fear that someone will audit them six months or a year down the line and demand the justification for doing so. The tribunal, which should be the court of last resort, becomes the court of justification for paying out money. To go through a process that costs £10,000 or £15,000 of ratepayers’ money to pay someone £500 compensation is an absolutely ridiculous situation.

Such situations are prevalent now, and the union suffers and becomes frustrated as a result. For example, a Liverpool-based company looked after my organisation’s estate, and someone was dispatched from Liverpool to Waterford to confirm that we had a hole in the roof. It cost us £700 for someone to tell us that there was a bucket collecting drips from the ceiling. It is in that sort of situation that you need justification to spend £200 to fix a problem, and it is becoming a really big issue.

I do not know how the problem can be solved. It cannot be solved by anything that we say around the table, but it needs to be looked at. Major equality issues in respect of local authorities are bubbling under and coming to the surface. It is going to take people to be brave and to stand up and say that it is wrong and that it must be dealt with now. We do not need a very expensive process to tell us that it is wrong. We already know that it is wrong, and it is an issue for the people who manage the public sector.

Mr Bunting:

Sue should eradicate the admission that there is bureaucracy in a broadened trade union movement.

Mr E McGlone:

Apart from in the ICTU, of course. [Laughter.]

The Chairperson:

The difference is that we do not have to write the answers by hand, because Hansard reports meetings for us.

Mr E McGlone:

Due to the chairperson having broken her arm, I presented to the tribunal probably the first ever case to be taken by a stenographer. It took the entire first day to deal with three witnesses even though the sessions were not particularly detailed. The second day was brilliant because we got through the other 12 witnesses. That second day went very quickly, and it was a great exercise because the chairperson could focus on what was being said and refer to the stenographer if necessary. It was expensive, but it was good value.

The Chairperson:

Thank you for the presentation. Some of the points that you have raised have given us a lot of food for thought. I am always keen to hear unions’ views on the issues being dealt with by the Committee. Thank you for taking the time to come to the meeting.

Mr Bunting:

I have one final thing to say just before you finish. The Minister visited the Labour Relations Commission (LRC) in Dublin, and I know some people in the Department who were quite impressed by it. We could arrange for you to visit the LRC and witness a few cases being heard. I can also send a digest of the list of the cases to the Committee, which will give you a flavour of how the system works and what issues it can resolve.

The Chairperson:

That would be useful. Thank you.