Richard Grogan on employment law: New Labour Court rules

Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on recent changes to Labour Court rules.

At the start of September the Labour Court issued new rules which revoked the 2015 rules.

It is interesting that the 2015 rules are not even in the archived documentation on the WRC website.

The main change in the rules is that the ability to lodge submissions online has been revoked. Now employers and employees in cases will have to lodge six hard copies. In equality cases there will be a requirement to serve the other side. Unless the other side has consented to the documentation being sent by email it will have to be served on them or their representatives. The method of service will be by registered post.

These new rules are going to create significant additional costs for employers and employees.

The change in rules may well result in claims being brought by employees in relation to the costs of having to lodge the documentation in this new way.

Under the Von Colson and Kamann rules an employee in claims coming from EU legislation cannot receive compensation that merely covers the economic cost of them bringing a claim. It cannot effectively be notional. Where an employee brings a claim under legislation which derives from EU directives or Regulations then a claim may well be made for the costs. The Labour Court does not award costs. However, I anticipate that claims will be brought on the basis of the economic cost of having to copy a submission six times. Depending on the type of case there can be a considerable amount of paperwork that is going to have to be included. As a matter of practice the Labour Court, if you are quoting case law, want to see cases produced. This can mean that there can be a substantial volume of paperwork that has to be copied.

The next issue is the issue of having to lodge and file submissions. There is an economic cost in this as well. Where it relates to simply setting out the facts the cost may be relatively small. Where however it involves the interpretation of legislation where an employee could not reasonably be expected to understand the law to be able to present full legal arguments then in those circumstances there appears to be a reasonable argument that under the Von Colson and Kamann Rules the employee will be able to claim the cost of same. The Labour Court has consistently said that in cases before them they deal with matters on the basis of the matters that are argued before them. Therefore if a legal argument is not put forward or a legal defence is not put forward it is not the role of the Labour Court, according to them, to raise a defence or an argument supporting a claim. Of course the Labour Court if an employee or employer is not represented will assist but in cases where both parties are represented it is the duty of the representative to put forward the legal arguments if there are legal issues to be determined.

It would be our view that this issue is going to be argued before the Labour Court. We would fully expect that the matter may ultimately go to the High Court on a Point of Law for this issue to be determined. It may even have to go to Europe.

The decision of the Labour Court to revoke the ability to lodge online was communicated to this office on the grounds of it being a requirement for “administrative and organisational reasons”. The decision of the Labour Court to take this approach which flies in the face of Government policy to promote e-commerce is simply going to create additional costs for employers and employees. We have a suspicion that the reason why this has happened is that inadequate investment has been made in a case management system in the Labour Court.

When the Workplace Relations Act 2015 was being debated the whole basis of the legislation was to create a system that was going to be cheaper and more effective for employers and employees. That effectively has been abandoned. In addition, because of the way the new rules have been introduced, the time limits have not been increased to take account of the time it takes to photocopy documentation nor to have it delivered.

Clearly no cost issue can arise under Von Colson and Kamann legislation that does not come from Europe. Therefore the cost of putting in documentation in an Unfair Dismissal case or a Payment of Wages case would not of course be covered nor in the National Minimum Wage Act 2000–2015 case. The National Minimum Wage Act 2000–2015 does have an interesting element in it. Section 26 (1) (a) (ii) allows the reasonable expenses of an employee in connection with a dispute. The term reasonable expenses have not been defined but there may well be an argument that this would include the cost of representation. It will be interesting to see how matters develop. It is however unfortunate that the Labour Court has taken this step backwards which initially is going to cause significant additional costs and expenses to employers and employees. There will be no method for an employer to recover costs even if they win relating to having to lodge six copies of submissions.