New WRC Guidelines on Adjudication of Employment and Equality Cases

On 22 December 2021, the Workplace Relations Commission (the “WRC”) published an updated set of procedures in respect of its adjudication and investigation of all employment and equality complaints and disputes.

These procedures reflect changes introduced by the Civil Law and Criminal law (Miscellaneous Provisions) Act 2020 (the “CLCLA 2020”) as a result of challenges posed by the Covid-19 pandemic, including the power of the WRC to hold remote hearings and implement procedures facilitating same.

The new procedures also reflect the Supreme Court’s findings in Zalewski v Adjudication Officer [2021] IESC 24 (“Zalewski”) and the resulting enactment of the Workplace Relations (Miscellaneous Provisions) Act 2021 (the “WRA 2021”) , which provides for the conducting of WRC hearings in public, the power of the Adjudication Officer to administer an oath or affirmation and the introduction of a penalty for witnesses for giving false evidence.

The following is a list of the key procedural changes observed in the new published procedures:-

1. Consent to Service by Electronic Means
Parties are encouraged by the WRC to consent to the service of documents by electronic means.

2. Documentation to be Submitted 15 Working Days in Advance of a Hearing
Parties to a hearing must submit all documentation they wish to rely upon no later than 15 working days before the date of the hearing, copying their documentation to the other parties in the case. This new rule applies to both remote and in-person hearings equally.

3. Remote Hearings
The published guidelines contain a presumption that all WRC cases are considered ‘amenable to remote hearing’. This presumption can be rebutted at the WRC’s discretion of its own motion or if a party can establish that a remote hearing would not be in the interests of justice or would be in breach of fair procedures.

Pursuant to section 31 of the CLCLA 2020 and SI No. 359 of 2020, the WRC is empowered to make any ancillary or consequential directions which it considers appropriate for a remote hearing.

4. Public Hearings
Pursuant to the WRA 2021 and the Zalewski decision, there is a presumption that all WRC hearings involving the administration of justice shall be held in public and that parties’ names shall not be anonymised save in special circumstances.

The published guidelines reflect this by stating that all WRC hearings involving the administration of justice will be conducted in public unless the relevant Adjudication Officer decides, of their own motion and in accordance with the law and fair procedure, or following an application from a party to the proceedings, that due to ‘special circumstances’, proceedings should be conducted in private.

5. Postponement of Hearings
WRC procedures for the postponement of hearings have also been consolidated to entail two processes, namely ‘Process 1’ and ‘Process 2’.

Process 1 applies to postponement requests made early on consent, which meet certain requirements, and which are granted as a matter of course. Process 2 applies to requests where there are “exceptional circumstances and substantial reasons” justifying the grant of a postponement by the relevant Adjudication Officer.

All postponement requests must be made by e-mail as early as possible to the WRC and on notice to all parties to the case. The party applying for the postponement should give reasons underpinning its application to postpone, together with all relevant supporting documentation.

6. Evidence by Witnesses on Oath/Affirmation
The WRA 2021 empowers Adjudication Officers to take evidence from witnesses on oath or affirmation. In electing to do so, the Adjudication Officer will have to inform the witness that by swearing an oath or making an affirmation, the witness is promising to tell the truth and that giving false evidence is a criminal offence.

Conclusion
The new guidelines published by the WRC are a welcome consolidation of recent legislative and judicial developments in the area.

If you have any queries on this matter, or if we can assist you in relation to any of your legal needs, please do not hesitate to contact us.