Enforcement Issues

Powers of WRC Officer

A Workplace Relations Commission designated officer may do any one or more of the following:

  • at all reasonable times, peaceably enter premises;
  • require any person to produce to the designated officer any records, books, documents or other things which are in that person’s power or control and which the designated officer has reasonable grounds for believing to contain material information and to give the designated officer such information and access as may reasonably be required in relation to the contents of any such records, books, documents or other things;
  • inspect and copy or take extracts from any such records, books, documents or other things;
  • inspect any work in progress at any premises.

Any person who obstructs or impedes the Labour Court, the Workplace Relations Commission or an adjudication officer in the exercise of its powers, or fails to comply with a requirement of the Labour Court, the Workplace Relations Commission or an adjudication officer is guilty of an offence.

An adjudication officer who is nominated by the Workplace Relations Commission to investigate and prepare a report on a question specified by the Circuit Court may, for the purpose of that investigation and report, exercise any of the above powers.


Warrant to Search

If a judge of the District Court is satisfied by information on oath of a designated officer that there is reasonable cause for suspecting that any records, books, documents or other things containing material information are to be found on any premises, the judge may issue a search warrant

The powers of inspectors shall not be exercised in respect of a dwelling or any person, record, book, document or other thing in a dwelling unless where the powers are to be exercised for the WRC, the Minister (or an officer of the Minister authorised by the Minister in that behalf) certifies in writing that there are reasonable grounds for believing that there is in the dwelling information which is material to the investigation of a case, or the consideration of an appeal.

Where the powers are to be exercised by the Circuit Court, the Circuit Court must be satisfied that there are reasonable grounds for believing that there is in the dwelling information which is material to the adjudication officer’s investigation.


Investigation / Information Requirements I

For the purpose of enabling the Workplace Relations Commission or the Labour Court to exercise their functions the Workplace Relations Commission or the Chairman of the Labour Court—

  • may require any person who, in their opinion are in possession of, or has in his or her power or control, any information that is relevant to the exercise of those functions to furnish that information
  • where appropriate, may require any such person to attend before the Workplace Relations Commission or the Chairman for that purpose,

and the person shall comply with any requirement so made.

Any persons required to attend shall answer fully and truthfully any questions put to them by the Workplace Relations Commission or the Chairman (other than any question tending to incriminate the person asked). If so requested, he shall sign a declaration of the truth of his answers to any such questions.


Investigation / Information Requirements II

Where, in the course, or for the purposes, of any investigation, mediation or hearing, any person discloses information to the Labour Court, the Workplace Relations Commission, a mediation officer or any other person entitled to obtain it, the making of the disclosure shall not give rise to any liability (in contract, tort or otherwise) on the part of the person making it.

No information furnished to, or otherwise acquired by, the Labour Court, the Workplace Relations Commission or any other person, or otherwise in the course, or for the purposes, of any investigation, mediation or hearing shall be published or otherwise disclosed except—

  • for the purposes of such an investigation, mediation or hearing,
  • on the order of the High Court or the Circuit Court,
  • with the consent of the person furnishing the information and of any other person to whom the information may relate.

Any person who discloses information in contravention of the above provisions is guilty of an offence.


Victimisation Offence

If an employee is dismissed in circumstances amounting to victimisation, the employee’s employer shall be guilty of an offence and if, in a prosecution for an offence under this section, it is proved  that the employee was dismissed and that the employee, in good faith, did any of the below acts, that proof shall, without more, be evidence until the contrary is proved, that the sole or main reason for the dismissal of the employee was that the employee, in good faith, did one or more of those acts.

The acts concerned are

  • made a complaint of discrimination to the employer,
  • undertook any equality proceedings;
  • represented or otherwise supported a complainant;
  • was a comparator in equality proceedings;
  • was a witness in equality proceedings;
  • opposed by lawful means any unlawful act; or
  • gave notice of an intention to take any of the above actions.

Victimisation Compensation on Conviction I

On conviction of an offence under this provision n, the court may, if it thinks fit and considers that the Workplace Relations Commission would have the power to do so make an order for the reinstatement of the employee by the employer, or make an order for the re-engagement of the employee by the employer.

If the court by which a person is convicted of an offence does not make an order it may, if it thinks fit, in addition to imposing a fine for the offence, order the employer to pay to the employee concerned such amount of compensation as it considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the employer or the employee concerned.

The court shall not exercise its above powers of reinstatement and reengagement unless the employee concerned consents.  The amount of compensation shall not exceed either the amount which, the Workplace Relations Commission could order by way of compensation under on a claim for redress in respect of the dismissal or   if the order is made by the District Court, the amount of that court’s jurisdiction in tort.


Victimisation Compensation on Conviction II

Where, on conviction of an employer for an offence, the court makes the above orders whether or not the employer appeals against the conviction or sentence, the employer may appeal against the order to the court to which an appeal lies against the conviction, and the court hearing an appeal against the conviction or sentence, or an appeal against the order alone, may revoke or vary the order and, in particular, may vary the amount of the compensation.

Where the court makes an order for the payment of an amount of compensation then without prejudice to any right of appeal by any other person, the employee concerned shall have a right of appeal, limited to the amount of the compensation, to either the High Court or, as the case may be, to the judge of the Circuit Court.

To the extent of the amount of compensation paid, the payment by the employer of the compensation shall be a good defence in any civil proceedings brought by the employee concerned in respect of the remuneration which the employee would have received if the dismissal had not occurred.


Discovery I

The Minister may by regulations provide for the procurement of information from an employer, with a view to obtaining information in order to assist the complainant in his case. This may be with a view to assisting a person in proving unlawful discrimination, dismissal or penalisation in circumstances amounting to victimisation. It may relate to breach of the equal remuneration term or failure to provide with a benefit in breach of the equality clause.

The complainant may question the respondent so as to obtain material information, and the respondent may, if he so wishes, reply to any questions. Information is material if it is

  • information as to the respondent’s s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,
  • information, other than confidential information, about the remuneration or treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant or
  • other information which is not confidential information or information about the scale or financial resources of the employer’s business and which, in the circumstances of the case in question, it is reasonable for the complainant to require.

Discovery II

The respondent or any other person is not required to furnish any reference or any report (or copy or extract relating to the character or the suitability for employment of any person (including the claimant) or to disclose the contents of such a reference or report.

In a case where a person considers that he or she may have been discriminated against by, or in the course of an interview conducted on behalf of the public service, the Defence Forces or An Garda Síochána the information is deemed not to be material in for these purposes if it relates to communications with external advisers to any of the below persons if it goes beyond the permitted information specified below.

In the context of a recruitment or selection process, information is permitted information, if it identifies the successful and the unsuccessful candidates by reference to their sex, or in terms of the discriminatory grounds, by reference to those who have the same relevant characteristic as another.


Reference for Enforcement

Where it appears to the Irish Human Rights and Equality Commission or the Workplace Relations Commission—

  • that discrimination or victimisation is being generally practised against persons or that a practice referred is being applied or operated;
  • that discrimination or victimisation has occurred in relation to a particular person who has not made a reference in relation to the discrimination or victimisation and that it is not reasonable to expect that person to make such a reference;
  • that there is a failure to comply with an equal remuneration term or an equality clause either generally in a business or in relation to a particular person who has not made a reference in relation to the failure and whom it is not reasonable to expect to make such a reference,
  • that a publication or display has been made in contravention of the legislation
  • that, a person has procured or attempted to procure another to do anything which constitutes discrimination or victimisation, or
  • that a person has procured or attempted to procure another to break an equal remuneration term or an equality clause,

the Commission may refer the matter to the Director General Workplace Relations Commission.


Injunction

Where the Commission satisfies the High Court or, as the case may be, the Circuit Court that, following a WRC decision, there is a likelihood of—

  • further discrimination or victimisation,
  • a further failure to comply with an equal remuneration term or equality clause,
  • a further publication or display or
  • further procuring or attempting to procure a breach of the legislation of the type the subject of the decision.

the High Court or the Circuit Court, on the motion of the Commission specifying the person in question, may grant an injunction to prevent that person from continuing any such conduct.

Where in any proceedings arising from a reference of a matter by the Commission to the Workplace Relations Commission facts are established by or on behalf of the IHREC from which it may be presumed that an action or relevant omission has occurred, it is for the respondent to prove the contrary.


Collective Agreements

If the IHREC or a person who is affected by a collective agreement claims that a provision of that agreement is null and void the IHREC or that person may refer the question of that agreement to the Workplace Relations Commission. A person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it).

Where a collective agreement is referred to the Workplace Relations Commission, then if the Commission considers that the question could be so resolved, it shall refer the agreement to a mediation officer for mediation. If the complainant or the respondents object to the Director, the matter shall be referred for decision or adjudication. The ordinary provisions apply in relation to an investigation by the Director General of the Workplace Relations Commission in this case

The mediation by a mediation officer, or a decision of the Workplace Relations Commission shall identify which (if any) provisions of the agreement are null and void. The mediation officer or the Commission may provide guidance to the parties to the agreement as to how alternative or amended provisions might be devised which it would be lawful to include in the agreement.

Not later than 42 days from the date of such a decision, the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.  The Labour Court shall hear an appeal) in private unless, at the request of one of the parties, it determines to hold the appeal, or so much of it as it does not consider should be treated as confidential, in public.


Equality Offences

A person who is guilty of an offence under equality legislation is liable—

·         on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 1 year or both, or

·         on conviction on indictment, to a fine not exceeding £25,000 or to imprisonment for a term not exceeding 2 years or both.

If the contravention in respect of which a person is convicted of an offence under equality legislation is continued after the conviction, that person shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable on summary conviction to a fine not exceeding £250 or, on conviction on indictment, to a fine not exceeding £1,500.

Summary proceedings for an offence under any provision of the equality legislation may be instituted by the Workplace Relations Commission or the IHREC. Summary proceedings for an offence under any provision of the equality legislation may be instituted within 12 months from the date of the offence.

Where an offence under any provision of the equality legislation which is committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person (as well as the body corporate) shall be guilty of an offence and liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.


Victimisation

Persons who bring claims under the anti-discrimination law are protected from retaliatory measures or so-called “victimisation”.  It applies where a person, acting in good faith has applied for redress, been a witness or given evidence or opposed by lawful means, any conduct prohibited by the equality legislation or has indicated an intention to do so.

Victimisation will occur where a person who has sought redress etc. as above, has been subjected to acts or treatment by the respondent after having done so, which treatment is less favourable than would have been afforded to a person in similar circumstances, who had not taken action.

Opposing unlawful conduct includes opposing something which the complainant reasonably believes to be unlawful. Victimisation may occur where reasonable accommodation is requested, but more adverse treatment is offered or given instead.

Victimisation arises where a person is adversely treated, is penalised in employment or is dismissed, as a consequence of making a good-faith complaint against an employer.  Employees are entitled to protection against being penalised for making complaints, even if the complaint, case or alleged wrongdoing, is not ultimately upheld.

A person who procures or attempts to procure another person to do anything which  constitutes unlawful discrimination or  constitutes victimisation is  guilty of an offence.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.24

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch. 13

Employment Law in Ireland Cox & Ryan 2009 Ch 15

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law  Smith  2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law   Daly & Doherty           2010

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26

Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G        2007

Irish Employment legislation (Looseleaf)       Kerr     1999-

Employment Rights Legislation (IEL offprint) Kerr     2006

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017