Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on an upcoming High Court challenge to the Workplace Relations Act 2015.

It has been reported in the papers that a Judicial Review has been sought, in the High Court, in relation to a case which was heard in the WRC where the papers report a claim for Judicial Review on the basis of lack of fair procedures and that the legislation is unconstitutional.

At this stage, matters have only gone by way of an ex parte application. No full hearing has taken place.

It is well known and accepted that there have been rumblings in relation to the legislation from when it was first mooted that there were potential claims in respect of the new procedures which would at some stage be open to challenge. Without referring to the current case, a number of these issues are well known and it is possibly useful to rehearse them again.

There is the issue that proceedings are heard in private. Both the Constitution and article 47 of the European Convention on Human Rights have been referred to in numerous talks relating to the right for cases to be heard in public. Of course family law cases are not heard in public, but there is a strong argument that employment cases should be in public. Of course there would be exceptions in the cases involving sexual harassment or similar type cases, but there is a reasonable argument that other cases should be in public.

Secondly, while the Workplace Relations Commission guidelines provide for examination and cross-examination, it is not done on oath. In the Labour Court, evidence is given on oath. It has been strongly argued that it is always advisable that evidence would be given on oath.

In the case currently before the High Court it appears that the parties had exchanged written submissions. The employee bringing the Unfair Dismissal case, it appears from reports, was not allowed to give evidence or cross-examine in relation to the submission of the employer. The difficulty I would see is that in relation to any claim before the WRC parties should be allowed present evidence and cross examine in relation to evidence given. That of course is a basic right.

At this stage as stated, we only have an ex parte application. This case is going to be important. As further particulars emerge in relation to the case, I would expect there will be a number of commentaries.

There are many issues currently before the WRC which will ultimately go to the Labour Court (and some of them are already there) which are going to have a significant impact in how cases are run even if the current application is unsuccessful. These are:

One: The issue of costs. Because the new rules place a requirement on certain submissions and documentation being sent, this increases the economic cost to employees in particular who would be entitled to make a claim under the Von Colson and Kamann principles for the economic cost of bringing a claim. As submissions now need to also include issues relating to the law this could mean potentially there are significant cost issues which may arise.

Two: The issue of litigation advice privilege is most definitely there in the WRC and the Labour Court. This issue is also currently before the High Court on an appeal from the Labour Court and therefore this could have a significant impact on how cases will proceed in the future where parties are represented by non-Solicitors or persons who are not Barristers.

Three: The issue of the procedures themselves, particularly the giving and challenging of evidence by way of cross-examination where there is no procedure for sworn evidence, is an issue which concerns some practitioners.

Four: The issue of fair procedures being seen to be applied, particularly where cases are heard in private, is a concern to some. It may well be argued that this is no different than before the old Labour Relations Commission. However, before the Labour Relations Commission matters were different. A Rights Commission was appointed on the basis of hearing a case but also under the Industrial Relations Act was obliged to see was it possible to reach a settlement of matters. Accordingly, while Rights Commissioners in some cases would appear to have been no different than an Adjudication Officer now, they also had that additional important function which meant that it was a different type of hearing. Either party could bypass the LRC and go to the EAT for a public hearing. The new WRC system is adversarial and therefore issues of fair procedures are becoming more relevant.

Five: There is an issue with the claim form being lodged online but not being sent to the Director General contrary to section 41 (this issue is currently before the WRC in an unrelated case).

What is absolutely clear in relation to this matter that has gone to the High Court is this is a significant challenge to the jurisdiction of the WRC and to the constitutionality of the Workplace Relations Act 2015. The employee in this case is represented now by an eminent Senior Counsel namely Mr Peter Ward. He is and has been a critic of the new Workplace Relations Act 2015 and has been very open in his arguments which all practitioners and the Department were well aware of.

There are some unforeseen implications if this case is successful. The first is that if the claim is successful and the Workplace Relations Act 2015 is declared unconstitutional, or part of it, then all claims currently before the WRC may fall. This will mean effectively that any employee who has a claim which is based on European law will now have a claim against the State for failing to vindicate their rights. This could potentially be a significant cost to the State as each and every one of those claims will have to be taken in the High Court against the State. The cost element alone to the State will be substantial. Any constitutional action may very well delay claims coming on for hearing. Following a recent ECJ judgment this may also leave the State open to substantial costs if there was any delay in processing cases because of this Judicial Review. There are interesting times ahead.

The comments made today by me are on the basis of newspaper reports. Hopefully once the proceedings are closed it will be possible to have all the arguments set out, on both sides, to facilitate colleagues being aware of the issue.