In April 2016 I wrote a detailed Article on the then new Workplace Relations Act 2015, titled “The Workplace Relations Act – a 2016 Revolution”. In that Article I questioned the appropriateness of many of the new Procedures to be applied under the Act. One particular aspect which I questioned was whether it was appropriate that the names of the Parties to the Dispute should remain anonymous when the Decision of the Adjudication Officer was being published?
Extract from my Article
In my Article I stated: “The Adjudication Officer will be obliged to issue reasoned written Decisions which will be published on the internet. However the Decisions will be published in a form which will preserve the anonymity of the parties. Again, this has been criticised in some Journalist circles. Whereas previously Decisions of the Employment Appeals Tribunal were published with the names of the parties redacted, the fact that such redaction will now follow a private Hearing will deprive the media of any opportunity to “out” a recalcitrant employer.”
I note now that Ms Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, has now come to a similar opinion, but obviously restricted to her brief, criticizing the anonymity of Equality Decisions made by the Adjudication Officer.
Notification issued by Irish Human Rights and Equality Commission
The Commission has issued a Notification in response to its own concerns, the concerns of legal practitioners, civil society advocates and the public, that rules adopted by the WRC have resulted in its decisions being published without identifying the parties. The Notification makes clear that the requirement under section 41 (14) of the Workplace Relations Act 2015 – that decisions be published without identifying parties – does not apply to decisions under anti-discrimination legislation. The Commission goes on to state that the primary means of enforcement of anti-discrimination law is the individual and their power to make complaints. The ability to publicly see this power in action, with employers and service providers who have engaged in discrimination or harassment identified through complaints, stimulates awareness and empowerment for others to also challenge discrimination.
And Unfair Dismissal?
Beyond the fact that the requirement under section 41 (14) of the Workplace Relations Act 2015 would not appear to cover Decisions under the Unfair Dismissals Acts either, is it appropriate that the requirement of anonymity should apply to any Decisions of the WRC in the first instance? What is the reasoning for this requirement? Decisions of the Civil Courts do not carry such a requirement. Anonymity does not apply, for instance, in Pollution Prosecutions or Claims under the Health & Safety legislation. Why should employers / respondents in WRC cases be treated any differently?
Reasoning of Commissioner
The Commissioner is quite clearly stating that employers and service providers who discriminate should be “outed”. By being publicly embarrassed in these Court Decisions they are less likely to discriminate again. Yes, but why shouldn`t this apply to all employers and service providers, regardless as to the nature of the Claim?
The argument for Publication is stronger than the argument for Anonymity
In a BLOG written by me recently, titled “The Whistleblowers Act 2014 – the Employee Perspective”, I made reference to a recent Decision of an Adjudication Officer in the WRC case “An Employee –v An Employer” – Adjudication Reference ADJ-00000456. In this case the employee nurse was sacked for making a Whistleblowing Report to HIQA. In one instance she came across a resident tied to a chair in her room with the door closed and in a very distressed state. And yet the name of the employer remained anonymous on the published Decision! Was this appropriate? Surely not!
What disincentive is there for employers in this instance to break the law if they believe that they can do so in the full knowledge that the public will not find out about their wrongdoing?
Are the public not entitled to know?
Morgan McManus Solicitors