As part of Legal Island’s 25th Anniversary Webinar series, we are exploring the journey of the Adjudication Service of Workplace Relations Commission (WRC) since its establishment to now. Undoubtedly, the WRC has in the last 3 years gone through its most challenging period and is entering a new era in its adjudicative model. In this webinar, we directly from an Adjudication Officer on best practice for respondents who are coming before the WRC’s Adjudication Service.

H do respondents handle the changing landscape of the WRC’s Adjudication Service?

Laura McKee, Knowledge Partner, Legal Island leads the discussion with our expert panel, Jennifer Cashman, Head of Employment, RDJ LLP and David Small, Director of Adjudication Services, WRC in exploring where we are in 2023, and what it means for Irish employers.

They share insights and practical tips on the following:
1. Where are we two years on from the Zalewski Supreme Court decision? What employers, their representatives and witnesses must know about the impact of the Supreme Court ruling when preparing for a WRC hearing in 2023 and beyond.
2. Getting the procedures right: Best practice for employers preparing and attending WRC hearing in 2023.
3. Where does the Adjudication Service go from here? Can we expect more procedural changes and if so, how does a respondent handle that?

This webinar is ideal for line managers, HR professionals, solicitors, barristers, in-house counsel and anyone who has a hearing, mediation or conciliation coming up before the WRC.

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Recording

Transcript

Laura:  So good afternoon, everyone. You are very welcome to LegalIsland's third 25th anniversary webinar. My name is Laura McKee, and I am a knowledge partner here at LegalIsland.

So what are we talking about today? Well, today's session is a look behind the scenes at the Adjudication Service of the Workplace Relations Commission. And undoubtedly, the WRC has, in the last three years, gone through one of its most challenging periods. We had the pandemic forcing us to move into remote hearings, as well as the Supreme Court decision and the Zalewski ruling, which two years ago significantly changed the WRC's procedures. So how do employers handle this changing landscape of the WRC's Adjudication Service?

Well, our expert speakers today are going to give you guidance on what has changed, best practices, and their top tips for attending and preparing for a WRC hearing. So we have an hour set aside for the webinar today. We aim to finish at 1:30 or just shortly beforehand.

And before we get started, just a quick shout-out to our sponsor of today's webinar, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performance businesses by contacting them and connecting them with the most talented candidates in the market. If you are interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

So please join me in welcoming our expert speakers today. Both are great friends of LegalIsland, and I'm really pleased that they could both join us for our anniversary webinar. We have Jennifer Cashman, who is a partner and Head of Employment Law at RDJ LLP, and David Small is a Director of Adjudication Services at the Workplace Relations Commission. So you're both very welcome, Jennifer and David. Great to have you with us.

Jennifer:  Thanks, Laura. Lovely to be here. Happy birthday to Legal Island.

Laura:  Oh, thanks, Jennifer.

David:  Thanks, Laura. Great to be here. Happy birthday again. Celebrate.

Laura:  So before we start off, just to give you a brief outline of how we're going to go through the webinar today, David is going to kick us off first, and he will provide us with a brief overview or a history of the WRC's Adjudication Service. And after that, Jennifer will provide us with the practitioner's perspective, so by giving us some top tips for the employers for preparing for a WRC hearing and also the common mistakes that they make and how to avoid them.

And just a reminder that please do drop any questions that you have for our panel into the questions box, just on the right-hand side of your screen. So as they come up, please put them in there, and we will have time at the end for questions, and we would love to hear from you. So David, I'll hand it over to you to give us a brief overview and a history of the WRC Adjudication Service.

David:  Laura, thank you very much. So I suppose looking back, the WRC was established on the 1st of October, 2015, and it was the most significant reform in the workplace relations arena. It merged four previous bodies that had been there before. So you would have had the Labour Relations Commission, which comprised of the Rights Commissioners Service, the National Employment Rights Authority, the Equality Tribunal, and the first instance functions of the Employment Appeals Tribunal. The appellate functions of the EAT were transferred to the Labour Court, and the powers of prosecution which were vested in the minister were then vested in WRC.

So essentially, what it provided was a single point of reference for adjudication complaints. And I'm old enough to remember those wall charts that were on the wall prior to 2012 that were really complicated. If it's under this legislation, this is where you go, this is where the appeal route lies, and this is the appellate period.

So what the WRC has brought is a very simplified structure, 42 days for the date of appeal from the date of the decision. Nearly all of the appeals go to the Labour Court, with the exception of the equal status appeals, which go to the circuit court. I suppose the WRC's core services include early dispute resolution, mediation, conciliation, advisory services, obviously adjudication, and monitoring of employment conditions to ensure compliance. And I think that's been a big change for us. That's all about ensuring that there's compliance there, enforcement of employment rights, and providing information, and processing employment agency and young person licenses.

So that's it in a nutshell. I suppose it has moved from a stage where all hearings were in private and decisions were anonymised to hearings being in public, decisions being published with the names on it, with journalists attending the WRC every single day. So that's a big change over the years, and I can go into that in a little bit more detail.

Laura:  Absolutely. Great. Thank you so much, David. It's really interesting. And I suppose, Jennifer, just moving over to you about your experience from the practitioner's perspective, and I know you primarily act for employers.

Jennifer:  Yes, Laura. So yeah, so myself and my employment team here in RDJ, we only do employer work. So I suppose we're always on the receiving end of the complaint forms from complainants in the WRC. And certainly, you know, as David said, from the perspective of simplifying the process, certainly the creation of the WRC has most certainly done that for everybody.

Everybody is clear now that it's six months from the date of the alleged breach to take a claim, 12 months if it's a redundancy claim. That's the only exception to that. But it's six months from the date of the alleged breach. Twelve months for reasonable cause. It used to be exceptional circumstances, which was quite a high threshold from a legal perspective, but now it's 12 months for reasonable cause. So I suppose it's a little bit easier for complainants to have the time limit of 6 months extended to 12 months. And reasonable cause isn't defined in any sort of definitive way. It really depends on a case-by-case basis as to what the reason for the failure of the complainant to issue their claim within the six months was as to whether or not the adjudication officer will allow them to extend the time limit to 12 months.

But I suppose it has simplified and streamlined the issue of claims. Like David, I am also old enough to remember, you know, the different, the Tights Commissioner, the Employment Appeals Tribunal, the Labour Court of the courts. So from that perspective, it is much easier now because everybody understands that the employment claims and equal status claims are taken to the WRC within 6 months from the date of the alleged breach, 12 months for reasonable cause. You start with the complaint form, and you go from there effectively.

Laura:  Yeah, yeah. Great. And Jennifer, just in terms of how, like the Zalewski decision, which was two years ago, a huge constitutional Supreme Court ruling that came in, brought significant changes to the procedures of the WRC in terms of, you know, how the WRC Adjudication Service operates, you know, the hearings taking place in public. We're all very aware of this now. We're all getting really used to it, I suppose. How have you found two years on, how is that working for you in terms of a practitioner acting for employers? Is it something we're all used to and we just are getting on with it? Or is it still a struggle?

Jennifer:  Yeah, I think so Laura. I mean, I think those changes in terms of the public hearings and the fact, I mean, I suppose it can be a bit strange for all parties if there's somebody attending the hearing that nobody knows. So if it's a journalist or a member of the public that wishes to attend the hearing, that could be a bit strange for both complainants and respondents in terms of a hearing. But I think everybody is used to it now. I mean, I think everybody is used to . . . I suppose the biggest change really for both complainants and respondents was the fact that the names of the parties would be published in any decision.

And, you know, that can impact both parties. It can impact the complainant in terms of making a decision as to whether or not they wish to pursue a claim in the first phase because their name will be linked to the claim in the decision afterwards. And it can impact on a respondent's approach to a claim also in terms of whether or not they want their name linked to the particular complaint. So I suppose that's certainly been a change, and I suppose it's an additional factor that parties need to take into account when they're considering for the complainant whether to issue a claim, for the respondent whether to go ahead and fully defend the claim up to a hearing.

Now there is an exception to the lack of anonymity of the party. Well, there's a couple of exceptions. One exception is the Industrial Relations Act claims. So there are claims that can be issued, trade dispute claims under Section 13 of the Industrial Relations legislation. There, the WRC in those claims issues recommendations only, and they are anonymised and heard in private. So that's an exception to that rule.

The other exception, obviously, is that an adjudication officer can make a determination in any particular claim, particularly in employment quality claims, where there might be details of somebody's medical conditions or some other sensitive information included in the claim, an adjudication officer can make a determination that they're going to anonymise the parties in those particular circumstances for the protection of the parties and their privacy and sensitive information being linked to them.

So there are some limited exceptions to the publication of the parties' names. But I suppose that's been a big change for both, as I say, complainants and respondents. But I think everybody is used to that now and understands that, you know, once they enter that process, once they enter the process of issuing a claim, then there is a chance that their name will be linked with that claim, whether it's at the adjudication stage or whether it's at the appeal stage before the Labour Court.

Laura:  Yeah, yeah. Okay, great. And I suppose, David, from your perspective as a director of the Adjudication Service, now, this was one challenge that the WRC had to face in the last number of years. What other kind of challenges came up? I suppose the pandemic is the obvious one and the move to remote hearings and all of that. It'd be great if you could give us kind of a flavour of your perspective on that.

David:  Okay. Well, I'd say from . . . I'll start with the different parties. So I'd say from a complainant perspective, and this is leaving aside the Supreme Court decision, but just more generally filling out the complaint form properly, giving the correct name of the respondent when they're sending it in, making sure that they provide the correct supporting documentation. So that could be pay slips. It could be contract of employment, whatever. From a respondent perspective, we would say, well, getting the correct witnesses that are required on the day of the hearing, providing the relevant documentation in support or defence of the claim.

I suppose identify in relation to the issues, what I would say from both parties, if they can resolve it at the start, before it goes on to a hearing, that's a better option for everybody. But that's not always possible.

I think the big change is the fact that journalists are present, and we have . . . I have a journalist currently in the hearing room next door. So they're here in Lansdowne House and in other WRC venues every single day. So that's been sort of a big change in relation to how we deal with them.

I suppose the taking evidence on oath and creating new offensive perjury alongside the Criminal Justice Perjury Act, it's a change, but it's not a big one. The two big ones, I think, are the hearings in public and the decisions not being anonymised. We have guidance in relation to the witness guidelines on the website, public hearings, and what the term 'special circumstances', as Jennifer has just outlined, what that actually means. Updated guidance on adjudication, and particularly in relation to submissions and getting those in 15 days before the hearing.

So I think, looking back, certainly moving through the pandemic and moving to remote hearings has been a big challenge. 12th of March, 2020, in line with COVID, we had to cancel all hearings. April of '20, we carried out a broad consultation with stakeholders in two phases about the feasibility of remote hearings. And then in August of '20, the Civil Law and Criminal Law Miscellaneous Provisions Act came into force, which effectively enabled the courts and the WRC to roll out WRC hearings.

The interesting thing we found, when we were starting doing remote hearings in July, was we were getting 85% objections. So for every 100 hearings we were scheduling, we were getting objections in 85 of them. Now, that was probably unfamiliarity with the platform. And as time went on and people got more familiar with talking to their grannies on Zoom and so on, people relaxed, and then the introduction of the legislation certainly helped. And now we get very, very few objections to that.

So the designation order came in September of 2020. But I think from a customer service perspective, the big win was it enabled the WRC to continue to schedule hearings throughout the pandemic. And if you look at our international comparators, that definitely wasn't the case. There were a lot of them that just stopped hearings during the pandemic. So for us, it was a big plus to be able to organise that.

And moving forward, I think we're probably delivering about 70/30, about 70% in-person hearings and about 30% remote. But for complainants who are no longer in the jurisdiction, multinational companies who might have witnesses across several countries, people with sensory or neurodiverse circumstances or safety concerns, protective court orders, and so on, it has really enabled us to open up another avenue for delivering our services. So the only downside is it's more costly for the WRC to schedule a remote hearing. There's about 30 additional tasks required for remote hearings rather than an in-person, but certainly, that's the model we're looking at. It's roughly 70/30, and we're not looking to move away from that at the moment, Laura.

Laura:  Okay. Very interesting that it's actually more costly to run a remote hearing than it is an in-person. And I suppose, Jennifer, have you been involved in remote hearings, and how have you found that?

Jennifer:  Oh, yeah, Laura. I mean, it's fantastic. It's a fantastic facility. I mean, as David has said, because we act for employers in our team, we would have companies who are, you know, global companies who have witnesses. Their HR function might be based in the UK or elsewhere. There may be witnesses that are required to give evidence from the U.S. for example. So from that perspective, it's hugely beneficial if we can do it by way of a remote hearing.

And, you know, I suppose one of the principles of the WRC and the creation of this structure was that it would reduce cost for parties in terms of dealing with claims. So certainly even though there's an increased cost from the WRC perspective, for the parties' perspective, there can actually be a reduced cost in a remote hearing because it saves you having to fly in witnesses for a face-to-face hearing. What if a case doesn't get finished on the day because cases can be unpredictable in terms of how they run? What if a case doesn't get finished on the day? It'll have to be relisted hearing. You'll have to file that witness potentially back in again.

So certainly it's hugely beneficial from our perspective. And I know our team, we're huge advocates and fans of the remote hearing process. So certainly that's been hugely beneficial from a respondent perspective.

And as David said, from a complainant's perspective too, in many instances you have complainants who are no longer in the jurisdiction. But also, you know, people can be more comfortable in their own surroundings. You know, if they're delivering evidence, they can be more comfortable in their own surroundings. And it's still done, as David has said, by way of administering the oath of the affirmation. So they're still giving evidence on oath or evidence by way of affirmation.

And I often meet resistance from complainant solicitors, particularly, that, you know, oh, we want to cross-examine witnesses, and it's far more effective to do that in person. I actually don't agree. And it's perfectly effective to do it on a remote hearing where everybody is attending just like this, and the person takes the oath of the affirmation and is questioned by their own legal advisor and cross-examined by the opposite side's legal advisor. It's a perfectly good way of taking evidence. And I've been involved in lots of hearings that have been fully contested hearings that have gone on, many of them, for more than one day where there has been full cross-examination and direct evidence from witnesses. And it's been very efficient through the remote hearing.

Now, I mean, of course, there are downsides to a remote hearing. One of the downsides is you don't get that opportunity, I suppose, that you do at a face-to-face hearing where the parties meet maybe in advance of the hearing and maybe where the advisors get an opportunity to have a quick chat in advance of the hearing and, you know, see where everybody is at. But I think particularly where parties are legally represented, those chats have been held anyway. Even where there's a remote hearing, the legal advisors would have contacted each other and had a without-prejudice conversation in relation to the claim to see if there's any prospect of resolving the claim without the necessity of the hearing.

So, you know, and I think the WRC in fairness takes a very mature attitude to that, which is that, you know, if the parties are legally represented and the parties turn up for a remote hearing, well, the WRC takes the view that, well, then the parties have obviously, you know, tried to resolve it. It's been unsuccessful. Let's just plough on with the hearing and get on with it. So I think it's been great.

And I suppose I know David and I have had many conversations about the benefits of mediation. And I've been involved in plenty remote mediations as well, and that's worked perfectly well also from the perspective. I mean, a lot of the time in mediation, the parties don't see each other anyway, even in a face-to-face mediation because it mightn't be appropriate or it mightn't be helpful to the resolution of the matter for the parties to actually be in the same room. It might be more beneficial for the parties to be in separate rooms for the purpose of the mediation. And that can be done on remote mediation as well.

So I have to say, certainly myself and my team, we're big fans of the remote hearings and remote mediations.

Laura:  Great. And maybe David, that's something we can explore a bit more is mediation. I know the annual report of 2022 showed I think it was a 30% increase in mediation. So is this something that WRC is strongly encouraging at the moment?

David:  Absolutely, and I'd like to send out a strong message of encouragement, as myself and Jennifer have discussed this before, but it's not a trial run of an adjudication hearing. But parties agreeing to mediation, if they come to it that they want to resolve the matter, there's huge benefits in that. And that from our perspective, that the parties attending have an agenda and authority to do that, to actually resolve it.

So I suppose, looking at it, what is it? Pre-adjudication mediation, it's a process where the WRC appoints a mediator. They'll talk through the issues with both parties, either individually or together, with the aim of reaching sort of a mutually acceptable agreement.

And Section 39 of the Workplace Relations Act is the relevant legislative support. And it really provides a more informal, non-legalistic approach for parties to resolve the issues. If it doesn't work out, if there's no resolution, it moves on to adjudication. And it's available for all complainants, except individual IR or redundancy complaints. But if IR is coupled with another case, we can't do it in those instances.

The mediated agreements at the WRC, they're without prejudice and without final admission of liability by either party.

So I suppose how can you access it? Well, when a complainant has indicated their interest in mediation by ticking the relevant box in the form, it goes to the employer and the employer can respond to that. But alternatively, if either party, when a complaint has been lodged, are interested, they can just email the WRC at mediation.response@workplacerelations.ie to indicate their interest. Sylda Langford is the mediation manager here in the WRC, and WRC is very anxious to facilitate and encourage that.

I would see the benefits as being confidential. You know, the matter can be settled privately without a public hearing, and parties are legally bound to keep the mediation agreement. It's voluntary, so meaning each party has the right to withdraw from the process at any point. It's free and impartial, and many times you hear that word 'free'. So it's a free service, and it's impartial, provided by experienced mediators and it's legally binding.

I suppose what has changed? Since June of last year, the WRC has moved to offering in-person mediation for unfair dismissal complaints. So we found that that works better than the remote for unfair dismissal. We've always done it for equality cases, but certainly, when you're doing telephone in those cases, there's a lot of back and forward via email, whereas we feel that the in-person for unfair dismissal and in equality works a lot better.

In September of this year, we launched the pilot of a late request mediation service. And it was aimed at parties who wanted, you know, to keep the date for the hearing but did want to participate in mediation. So it enabled sort of a postponement request to take place without a postponement coming in.

What are the results so far? We've had a 21% increase in participation in mediation last year. And considering that the unfair dismissal change only took place from June, I think next year, looking back at this year, it's going to be even bigger again. Telephone mediation did go down by about 25%, but equally face-to-face mediation increased by 263%. So there's been a huge increase in that face-to-face mediation. Resolution of mediations have increased by 276%. So massive increase there. So I think we're really pushing an open door in relation to that. And coming back to looking into internationally, the success rate for the WRC is in around 50%, which is great when you consider that Acas in the UK it's in around 15% to 20%, where the Acas system is compulsory, whereas ours is voluntary. So we think that that works, having the voluntary process there.

So what with the WRC, we would say engage as early as possible with mediation, engage in good faith, that we don't want to hear at mediation, 'I'm here in deference to the Commission'. If you don't want to come in and resolve it, well, then we'll just move it on to adjudication. And sometimes that lack of meaningful engagement at mediation can sometimes harden the parties' resolve, and issues that could have been resolved, you know, people dig their heels in on things like that. It's not a fishing exercise so that people will come to it. It's not the role of the mediator to convince the complainant to withdraw the complaint, but if the both parties come together, they can reach a resolution.

I suppose the benefit we feel is that mediators can come up with creative solutions that adjudicators wouldn't have the ability to do because they're bound by the legislation. So that's the real benefit of mediation. So we certainly send a very strong message out to all parties to engage with mediation and engage early.

Laura:  Great. Thanks, David, that's very interesting. And I suppose, Jennifer, is this something you are seeing with your clients? Are respondents more, are they open to mediation?

Jennifer:  Oh, 100%, Laura. Yeah, I mean, there'll be cases, of course, that respondents feel very strongly should be fully defended, and then you have to walk a delicate balance between, as David said, not just going through the stage of mediation for the sake of going through the stage of mediation with no intention really of resolving it. But most respondents certainly are open to some exploration of the potential for resolution without the necessity of a full hearing because, you know, where both parties are legally represented, hearings are expensive, because there's a lot of work involved in a WRC hearing. There's preparation, there's taking instructions, there's preparation of submissions, preparation of documents, finding case law, you know, attending at the. . . So there's dealing with the paperwork in advance and there's attending at the hearing.

You know, a lot of cases don't get disposed of in one day, so there'll be another day potentially, or more days to resolve the hearing. So, you know, they can be expensive from both parties' perspective. So I think for everybody's sake, certainly mediation and again, myself and my team would be big fans and big advocates of the mediation service.

Certainly, as David has said, I think in-person mediation or remote mediation, where it's online like this, I think telephone mediation, we never found particularly beneficial. I think it's very easy for parties to not be particularly engaged in telephone mediation where there's calls going back and forward between the mediator and the parties. I never found that particularly useful. I think the parties need to be present in the one place for the purposes of a mediation, whether they're actually face-to-face or not is a separate issue. But either by means of a remote mediation or by means of an in-person mediation, I think that's the way it needs to take place, and everybody needs to be present and available in that time frame in order to make the mediation more beneficial for everybody and see if a genuine resolution.

But there are huge advantages. And one of the big advantages for both parties, as David has said, is that then you come to a mediated agreement, which is private. There is no decision with the parties' names attached to it. And everybody can get on with things.

And very often, you know, as David has said, very often, maybe a complainant will say no to mediation in their complaint form initially because, you know, it's early on. Something has just happened, and they're issuing their claim and they may tick the no box for mediation in their complaint form. But as time moves on, and there could be a number of months between the time when they've issued the complaint form and the date on which the hearing date actually comes in from the WRC, you know, circumstances may have changed, the complainant may have another job, everybody has moved on. Everybody is less fraught about the issue. And it can be a very good . . . the late mediation, I think, is a great initiative by the WRC because that can be very useful at that stage if, you know, legal advisors can say to their clients, 'Look, we have a hearing date. Now, just before we plough on, does anybody want me to approach the WRC and ask if we could have a late mediation in this?' And sometimes if the respondent asks for that, the complainant may very well agree to it on the basis that they now have a hearing date. It's all very real. And as I say, they may be less fraught than was initially.

So it's certainly something I think which parties need to be aware of is available and need to consider before a hearing date. So that's almost a question that's asked as a matter of rote by legal advisors. Do you want us to look at late mediation, if mediation hasn't been engaged in previously by the parties.

Laura:  Yeah. I suppose, David, is that the pilot at the moment? Is that going to be extended? Is that the late request?

David:  Yes, it will be extended to the end of the year and we look at the engagement in relation to late request mediation. So we see huge benefit in it. We're going to continue it on. It's a second bite of the cherry, if you like, that, you know, the parties have been offered mediation before, but as Jennifer has said, sometimes circumstances change and, you know, people have become less entrenched and more open to mediation. So we think that's a good option to offer that. And as Jennifer has also said, costs are very important, and WRC would look at this, how do we reduce costs for the parties as well? So giving people an out with mediation is a helpful option.

Laura:  Yeah, brilliant. Great. And maybe just to touch on something you just spoke about earlier and mentioned earlier on submissions. Could you speak a little bit about what you'd recommend, or what the WRC expect in terms of the lodgment of submissions?

David:  Yes, the WRC would expect that submissions would be lodged at least 15 working days prior to the hearing. And why are we looking for that? Well, we want something that will enable the adjudicator to prepare properly for the hearing and also will enable the other side to respond or to defend the claim knowing what's going to be said out there. There's, I suppose, the possibility of a little bit of game-playing maybe going on, and the parties say, 'Well, I won't send mine in until they send theirs in', that type of approach. But we're trying to say is we would separate out what a submission is, if you like, against documentation. So obviously, you wouldn't call a contract of employment or pay slips or anything like that, a submission. But it's just something to set out the gist of the case that you're making or the gist of the case that you're defending.

A recent change that we made is we put up a list of 150 cases on our website that are cases that are regularly cited before the WRC in Supreme Court, High Court, and various different appellate bodies. And what we're saying to representatives is if you're using this case to make your case or to defend your case, there's no need to send it in. Because sometimes the submissions are expanded out quite significantly by, you know, if you add on 10 cases into an appendix, it grows into a 200-page document. So if you already have those, we're saying, look, WRC already has those. There's a 2500-page document up on the website, which has all the documents. They're hyperlinked. You can click your way through those. So that's been helpful, and that's one of the things we're aiming to help represent those with, but not having them in.

And there has been the experience of adjudication officers is that people send in submissions late. They're coming in on the eve of the day of the hearing or on the day of the hearing in at least 60% of cases. So that's not helpful for us. What we're looking for is that the hearings are done operationally and efficiently, and that if, you know, submissions come in late, we take a practical approach to it with adjudicators. We might take a break of 20 minutes, half an hour and say, 'Go off and read this and come back'. But sometimes parties say, 'Look, after getting a 200-page submission here, I need time to engage with my client and to resolve'. So if that had come in 15 days or prior to the hearing, it would have enabled everybody to be on board with that.

So we're sending you the strong message to get submissions in. It's not acceptable to the WRC to have those coming in late because if it leads to hearings being adjourned, there's an additional cost to the parties and to the WRC. So we're looking to keep submissions short, simple, and submitted on time.

Laura:  Great. Really useful tips there, David. And I suppose, Jennifer, from your perspective, what is best practice for respondent's lodging submissions?

Jennifer:  Well now, Laura, what's best practice and what's . . . Is where David and myself, he's laughing, is where David and myself now might have to part company in terms of our agreement on things. And I suppose, you know, I have to defend respondents, for respondents and defend legal practitioners as well. It can be very tricky, Laura. I mean, you know, in an ideal world, all of us want to have our submissions into the WRC 15 working days before a hearing. We all do. Believe me, it's no benefit to practitioners to be rushing the night before a hearing, trying to get submissions together, whatever. That's not good for us either.

But the practical reality sometimes is quite different. So sometimes the respondent particularly will receive a complaint form that is less than detailed in terms of what the complaint actually is and what claims are actually being made against the respondent. So particularly in equality claims, for example, where, you know, there's a positive obligation on the complainant in an equality claim, because the burden of proof is on the complainant, to lodge their submissions. And I have a lot of equality claims where complainants don't lodge submissions, and it's not even a case of, you know, the respondent not wanting to show their hand. It's actually, to be fair for us as practitioners trying to defend a claim, we need to know what claim we're defending and we need to understand what the legal arguments that are being made against the respondent so that we can best advise them.

So whilst, of course, best practice and everybody's interests is to have the submissions in 15 working days, it's not always practical in claims, unfortunately. And I can only appreciate how frustrating it is for adjudication officers to be getting submissions on a very late basis. But very often, respondents particularly are in that position because the complainant hasn't put in their submission in time. And therefore respondents are waiting to get the complainant's submission so they can understand what the complaint is and exactly what claim they're meeting in order that the submission can comprehensively cover everything from the respondent's perspective.

So yes, I would absolutely agree with David that it is better for everybody if the submissions are in, in advance and everybody understands what claim is being made. What is the defence to that claim? You know, what broadly speaking are both parties' positions on the claim? But unfortunately, very often, that's actually not practically what happens.

And one area, I think, which can be very frustrating from a respondent perspective is the mitigation of loss piece, which is very relevant in say, an unfair dismissal claim where, you know, a complainant is under a positive duty to mitigate their loss. And we've had lots of hearings where absolutely no information has been given in advance of the hearing on the complainant's efforts to mitigate their loss and establish what their losses actually are. And then you're trying to deal with that information in the course of a hearing. And that's difficult for everybody. It's difficult for the adjudication officer. It's difficult for the complainant and the complainant's advisor. It's difficult for the respondent. And that then can lead to, you know, further submissions being required by the parties after the hearing, whatever.

So I mean, unfortunately, I mean, I'm not so sure what the WRC can do about this, but I think it is something that needs to be looked at because it is something that I know frustrates everybody. And while there's guidelines there, they're not statutory requirements, there are guidelines from the WRC in terms of having the documentation in 15 working days in advance. It's just not always practically possible to do it. So whilst everybody is, you know, approaching it in good faith, hoping that that is the case, unfortunately, it's not always feasible. So I think it is something that probably needs to be looked at as a bigger issue in terms of how we can seek to address that.

Laura:  I suppose, David, do you want to reply to that? I suppose it'd be interesting to hear about the mitigation of loss piece as well.

David:  Yeah, the mitigation of loss, I will completely agree with Jennifer on that one because I've seen that sometimes working out well I think  if the parties get that in at the start and the adjudicator saying, 'Well, what's the loss from the complainant side?' And they say, you know, 6,000, and the employer says, 'Well, I think it's 8,000'. They're not that far apart. So sometimes that can prompt discussion. So I think that's a really important bit of information to get out there.

But Jennifer's absolutely right. In a lot of cases, it's not addressed in the complaint form or in subsequent documentation. So you're looking for the parties to get that out there and discussed. Right at the start of the hearing, I think is a great opportunity to iron that out. And certainly for the adjudicator to know, well, where are you at, how far apart are you in relation to your understanding of the loss? And then certainly what efforts have been made to mitigate that loss. So that's important.

I do accept . . . like certainly from the WRC, we're providing a fair and impartial approach. So from a respondent perspective, I understand Jennifer's point of view saying, well, we can't respond to the complaint if we don't know what it is. And I do accept that in a lot of complainant's cases, there's nothing about that. You'd look at it and say, 'Well, what exactly is the complaint here?' So it's frustrating for the adjudicator, and it's frustrating for Jennifer and people acting for respondents saying, 'Well, how do we respond to that? What complaints are we actually responding to?' From our perspective, what we're trying to, I suppose, push as improvement in that area if we can get documentation in as far in advance as possible.

I think the big issue that we see is about 50% of our complainants are unrepresented. So I'm not overly concerned when there's a representative on both sides because they know the game, they know the ins and outs. But when you have an unrepresented complainant, that can be difficult because they just don't understand what's involved. And it could be their first time appearing before the WRC.

So some of the videos that we've developed recently have been an effort really. They're helpful for a solicitor that if you have a client who has never been in, they're a bit nervous and apprehensive, you can say, 'Well, have a look at the videos on the website about adjudication', as well as the advice that you'll give them. But certainly, for unrepresented parties, it's really helpful that they can look at that information on the website guidance note for the hearing, information about pre-adjudication mediation and about how the hearing will actually work itself.

So I think that the solution to it may have to be a policy decision by the Department of Enterprise, but that is outside the scope of the WRC. But I just wanted to raise it as an issue there and recognise that there are two different angles to it. I do recognise that.

Laura:  Yeah. And I know there was some new developments in the WRC recently that you've mentioned there. The videos obviously that are available on the website for anyone to watch, not just, you know, unrepresented claimants, but they're very helpful. You mentioned the frequently cited authorities in the WRC jurisprudence. And then also I understand there's a table of remedies that an adjudication officer may grant as well, and the Summary Information Guide for practitioners. So all this, we do have this set out on Legal Island's Employment Law hub as well. So for any of our delegates today who want to know more about what David is speaking there, do check that out.

And if we turn to some other issues, one I'm thinking of is postponements. How does an employer actually or an employee go about seeking a postponement of the hearing?

David:  Yeah, I would say in relation to postponements, if you're looking for a postponement, we would be scheduling out six to eight weeks in advance of the hearing. So we have postponement process one, which is if you receive a hearing notice and you realise that the HR manager is abroad on a conference or is getting treatment for an illness or whatever, but they're just not going to be available on that date of the hearing, get the consent of the other side and apply for the postponement within five working days of the receipt of the hearing notice. And we just grant it. We won't look for any additional information. And we introduced that new process the latter part 2021, and we're still looking for more engagement and more traction in relation to people applying for that.

We recognise that things will happen in people's lives that will require people to apply for postponements, but certainly, the process one is one option that we can do. If not, then give us the evidence of the material. So if somebody is abroad or whatever, just send us in the flight tickets. We need that evidence there to deal with it. And the earlier we get it, the better because we can backfill the hearing slot.

We obviously want to maximise as many hearing slot as possible. So if you get a postponement happening closer to the hearing date, we can't backfill it. If it's less than 21 days prior to the hearing, we can't backfill that hearing slot. But the earlier we get it, the better. So that would be the message, early application for postponements and use process one if you can.

Laura:  Great, great. Thanks, David. And I suppose, Jennifer, from a practitioner's perspective, is this something that you're seeing coming up in practice?

Jennifer:  It does, Laura, unfortunately, particularly the time of the year, I suppose, when people have annual leave scheduled because, to be fair to the WRC, they sit right through the summer. They take very little time off to be fair to them. So you do have hearings being scheduled during the summer, so of course you're going to have a situation where you have postponements. And there'll be all sorts of reasons, as David has said, why people might need postponements. And certainly, you know, if you can get in there quickly enough for that process one, that's hugely beneficial. But unfortunately, it does happen that postponements need to be applied for outside of that time frame for whatever reason. A key witness may become unavailable for whatever reason. So yeah, so it is unfortunately sometimes necessary for either side to apply for a postponement.

And, you know, there is an opportunity, to be fair to the WRC, there is an opportunity for both parties to object to the other side's application for a postponement and to write to the WRC and set out the reasons for the objection. And then the WRC will consider that and will make a determination in relation to whether or not the case should be postponed or not. Because as I say, it's in everybody's interest. Obviously, the cases are pushed on and dealt with, but there will be situations where postponements do need to be applied for.

Laura:  Okay. Another topic that I just want to touch on before we move to questions is, and maybe, David, you could tell us a little bit about case management hearings.

David:  Yes. We use case management in a range of reasons. Certainly, if there are preliminary issues to be addressed, we could have a case management meeting on that. But the vast majority are multiple cases, so where we receive 40, 100, 1,600 complaints involving the same respondent. So generally, and it works very well if both sides are represented because the representatives can engage with each other on that front. But obviously, each complaint is entitled to their own individual hearing. But we can discuss with representatives if we can agree a test case in relation to that at a case management meeting. And then the test case, we schedule it, hear it, issue a decision, and that's subject to going on appeal to the Labour Court. And then we see what the outcome of that appeal is before progressing the remaining cases. And that sometimes may mean that the remaining cases are withdrawn, and sometimes it may mean that we have to progress the remaining cases.

But an interesting trend that we've seen starting probably back in late 2017, early 2018, was an increase in multiples and to this year, when we now have 49% of our cases are multiples. So that's a big change in that front. Whereas back in late 2017, it would have been around 3%, 4%. Now, that's varying on economic factors that can arise and instances happening with particular firms closing. But certainly, we're very open to case management, and we have used it to try and narrow the issues, address preliminary issues, and particularly with multiple cases to try and address those.

Laura:  Yeah. I suppose, Jennifer, are your clients using this as well?

Jennifer:  Yeah, Laura, I'm a massive fan of case management, particularly, as David has said, where there might be a number of complainants taking claims under the same issue because there is no provision in Ireland for any sort of, you know, class action. So every claim is an individual claim. But you can have a situation where, you know, a number of employees are taking a similar, if not the same claim. They won't always be identical because everybody has their own individual terms and conditions of employment. But it can be really useful to have a case management hearing.

And I've been involved in lots of cases where case management has been utilised by the WRC, and it's hugely beneficial because it means the parties can agree timelines for submissions, can agree test cases to be sent forward to be heard by the WRC. So a hugely, hugely beneficial process, and one that I'm a massive fan of and one that I would be encouraging both sides to look at, depending on the circumstances. It can be very useful or if you have even one complainant with a number of different claims against an employer and a number of different preliminary issues arising in a claim, it can be very useful to have a case management hearing even where just everybody can get together and agree the issues that are actually arising. So I'm a massive fan of case management.

Laura:  Great, great. And I suppose there was just one final question from me, I'm kind of putting you on the spot here, but is there kind of any key takeaway piece of advice or kind of a top tip that you could give to, I suppose, Jennifer, for you, for an employer, from today's webinar for preparing and attending a WRC hearing? And I know we've covered lots of different things, but what would your top tips be?

Jennifer:  To be honest, one of my top tips is very basic, which is the complaint form. It's actually, you know, looking carefully at the complaint form and the circumstances because it's the first thing that an adjudicator will do at a hearing is take out the complaint form and start going through the complaint form. So as David has said, is the respondent's name correct? Because particularly in companies that have, you know, group companies, the respondent's name might be incorrect. So there could be items in the complaint form that are incorrect that need to be brought to the WRC's attention. The date in terms of when the issue arose and when the claim has been issued.

So my top tip really is the complaint form is the starting point. It's the starting point for the complainant in issuing a claim, but it's also the starting point for a respondent in examining a claim and examining what exactly is being set out against whom the complaint has been made, what details have been given by the complainant in terms of earnings. Are those correct? If they're not correct, have we got the evidence to show that there's something different?

So I think starting with the complaint form can be really beneficial from a respondent's perspective, certainly. And just gathering the information then flowing from the circumstances that have been set out in the complaint form. But, you know, that's the starting point for me for any claim, is let's have a look at the complaint form, let's have a look at what the complaint form says, and let's have a look at any issues that we're taking in respect of that.

Laura:  Great. And David, I see you nodding your head. So is that something you agree with in terms of top tips?

David:  Yeah. No, I fully agree with Jennifer there in relation to the complaint form. We see complaint forms not filled out correctly. People not knowing who they're working for, what's the correct name of the respondent, and not providing correct supporting documentation on that. So if it's a payment of wages claim or whatever, where's the pay slips? Oftentimes people arrive at the hearing and say, 'Where's the pay slips?' 'Oh, I didn't think you'd need that'.

So just for people from a complainant side get the complaint form right, get the name of the respondent right, and get your documentation right. From both parties, I'd say get your correct witnesses, who do you need, and notify the WRC in advance who they're going to be. Provide the relevant documentation in relation to that. And I think for the larger employers, it's generally not an issue. They have a HR department that can, in conjunction with legal practitioners, get these issues addressed. But it's the smaller employers who have never really dealt with these things and it's not on their radar. So it's a big change for them to deal with that.

Laura:  Okay, great. Well, thank you so much for that fantastic discussion. Lots to ponder and reflect upon and great tips there. So we might just move to questions now if that's okay. So David, this question might be for you. Will mediation be offered remotely? At present, it's not an option.

David:  Yes, mediation is offered remotely. We sort of . . . Let me just have a quick look at our mediation option. So we do use remote mediation where it's required, and it varies from circumstance to circumstance. We do use in-person for unfair dismissal and employment equality cases. But in any other type case, we do use remote mediation, and we find that that works very well for more straightforward complaints if you like. The telephone mediation, we're still doing it, but we have moved away from that gradually. So yeah, remote mediation is definitely there and is used.

Laura:  Okay, great, great. Maybe this question is also for you as well, David. It's around statistics. We mightn't have an answer to this. But what are the statistics for no-show complainants? Do we have those?

David:  I don't have those to hand, but it's certainly not huge in relation to that. It certainly sometimes you get parties and what we do is the adjudicator would always take a pragmatic approach and see has there been any engagement prior to the hearing and double-check is it the correct email address, correct postal address. And if it's certainly a respondent who's always engaging and appears before the WRC and on this instance hasn't, maybe there's a reason that it hasn't, and we might reschedule the hearing on that front. But not a huge . . . I don't have the exact numbers to hand, but it's not huge.

Laura:  Okay. Okay. Great. Question here. How long does it take from notification of a case through to a case being heard by the WRC, i.e., is there a standard length of time? And also is there a backlog at the moment in the WRC? So I think this is all on you today.

David:  No, no, no, that's, that's fine. I suppose from the point of view of the backlog, there's not a backlog. We're actually scheduling cases from January, February, March of this year. The multiples are one where we're seeing sort of holdups in relation to that because 25% of our multiples are waiting on decisions from appellate bodies, whether that's the Labour Court, the High Court, or other bodies. So certainly we'd be looking at getting cases on as soon as possible. And you know, certainly the pandemic and the Supreme Court combined did lead to a five-month build-up of cases, but that's been fully addressed. Now, the median time from receipt of complaints to a hearing is about 9.5 months. And as I said, we're now scheduling complaints from January, February, March of this year.

So we've made improvements to the acknowledgement phase. So we're now acknowledging complaints. Ninety-nine percent of complaints are acknowledged within 10 working days. So that's moving it on and that's on to the next stage then for the respondent to come back. And we're scheduling 25% to 30% more hearings every single week. So you'll see from our annual report that we'd scheduled 7,500 complaints last year, which was phenomenal. But 17% of those were postponed. So what we're trying to do is if we can reduce the number of postponements, that will really help. There were about 20% withdrawn, which, you know, from the WRC perspective that the parties resolved between them, that's a good outcome in relation to that. And in relation to the hearings held, they were 28% up on the previous year. So very good stats in relation to adjudication generally.

As I say, our multiples are the big thing that we're dealing with at the moment with 50% of our cases. I hope that answers the question for that particular person.

Laura:  Great, thank you. And a question here about, we may not be able to answer this, but how long did artificial intelligence take to pull the most cited case law on the website? From my experience, it's a matter of seconds, but . . .

David:  Yeah, yeah, I'd say a minute, if that's the case. It was very, very quick. And certainly, that's something that we will look at on a yearly basis just to update that because obviously cases will be added to that list regularly. So we run it every single year. But yes, it astounds me. But equally, you know, you need to use it for particular points, and that's one that, you know, statistically we were looking for. And it was very useful for that.

Laura:  Yeah. Yeah. Great. Look, thank you so much. Jennifer, is there anything else you need to, you would like to add from an employer's perspective? I suppose just around maybe what we were discussing there?

Jennifer:  One of the questions there around the no-show for complainants, I mean, I think the no-show on the actual hearing date, our experience would be that's pretty low, as David had said. One thing though that can be frustrating is complaints that are withdrawn at a very late stage. So and I'm not sure there's anything anybody can do about this, and that I suppose, look, that leads to a question that I know practitioners in this area would be discussing on a regular basis as to whether or not there should be some charge for issuing a complaint, just to avoid that situation where somebody just issues a complaint that they don't really ever have any intention of pursuing.

The respondent spends time and money getting ready for the defence of that complaint, and then it's withdrawn the day before the hearing. And there's no repercussions for the complainant in doing that, and yet the respondent has a big legal bill because they've understood that they have to prepare for a hearing. So that can be quite frustrating. And that has been a cause of frustration for many respondents. So lots of employers would say to us, you know, 'Are there no repercussions? Is there nothing that anybody can do to prevent that type of scenario from happening where you effectively have the kind of frivolous or vexatious type claim that really was never going to be pursued?' But from the respondent's perspective, they don't know that it's frivolous or vexatious until it's withdrawn the day before the hearing. So that can be a little bit frustrating. And I suppose we're always trying to think of ways that we could suggest to the department that that might be addressed from the perspective of making sure that those who issue claims have to think about it before they press the Send button on the complaint form.

Laura:  Absolutely. Okay. Look, we're nearly at time. Thank you so much for that fantastic discussion. And maybe all of this has sparked your interest in finding out how a WRC hearing plays out in practice. Well, now you can find out. Legal Island have just announced a new event for our autumn season, and that will be a mock WRC adjudication hearing, which will be held in person on the 27th of September in Dublin. So it's proven in the past to be a very popular event and places are limited. So make sure to check out the website for more information. And actually, my colleague Maria in the background is going to drop a link so you can have a look at more information and book your spot today.

We would love if you could also join us for our final 25th anniversary webinar, which will be on next Monday, the 3rd of July at 12.30. And it's on diversity and inclusion in the rise of AI machines. So it's for everyone in both ROI and NI, and it would be great to see you there.

And finally, we'd also love to see you at our Annual Review of Employment Law. So the one in Ireland is on the 29th of November at the Dublin Convention Centre, and it's a hybrid event. So you can choose to come along and see us face-to-face or stay cosy at home or in the office and watch it online. Either way, we would love if you could join us.

So that's it, folks. Thank you so much for joining us today. I hope that you found the information as helpful as I did. I'd like to give special thanks to Jennifer and David for their time and for such an engaging session and for answering all of those questions. And thanks too to Maria for offering tech support in the background, and we'll see you next time. Thank you.

Jennifer:  Thanks, Laura. Thanks, everyone. Thanks, David.

David:  Thank you, Laura. Take care.

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