There is likely to be an increase in redundancy and unfair dismissal cases in the coming months as the recession bites and more people are laid off, writes Kitty Holland
WHEN PEOPLE start losing their jobs, they naturally feel aggrieved and hard-done-by. On the flip-side, as the bottom falls out of the economy, many employers feel under pressure to cut costs and even corners. Some may feel the need to get rid of surplus employees as cheaply as they can get away with.
Whatever the truth, as with previous economic downturns the numbers of people who have lodged notices about alleged breaches of their employment rights with the Employment Appeals Tribunal - the main arena in which such cases are adjudicated in the State - have increased "significantly".
According to Dominic McBride, secretary to the tribunal, notices of cases have grown since May. "The impact of the increase on our workload has not really kicked in yet and is likely to take three to four months," he says. He attributes the increase to the economic downturn.
According to the most recent quarterly figures from the Central Statistics Office, the number of people out of work has grown by 53 per cent in a year.
Asked whether employers were using the downturn to cut corners by breaching employees' rights when offloading jobs, or whether the increase in the number of people losing work means there are more disgruntled people looking for some kind of payback, he would not comment.
"That is the business of the tribunal to decide. But the last time this kind of increase happened was just after September 11th, so there is a fair indication that it is linked to the economic situation with the economy."
A spokesman for Ibec, the employers' representative body, says members have not noticed a remarkable increase in members being brought to the tribunal.
While the number of cases of alleged unfair dismissal actually heard at the tribunal have not increased dramatically - there were 808 in 2000, 957 in 2001, 1,291 in 2006, and 1,127 in 2007 - the scene does appear to be set for a noticeable increase in both redundancy and unfair dismissal cases in coming months.
And with the vast increase in the volume and complexity of employment and labour legislation, the whole area is daunting, even intimidating, for anyone who feels aggrieved in the work place.
The tribunal was established as the Redundancy Appeals Tribunal in 1967, and was renamed in 1977. It now works with 16 Acts, including the Minimum Notice and Terms of Employment Act, the Protection of Young Persons (Employment) Act, the Carer's Leave Act and the Organisation of Working Time Act.
The majority of cases heard come under the Redundancy Payments Act, where the former employee feels they haven't received their redundancy entitlements - two weeks' pay for every year worked plus a bonus. In some cases the employer may not be able to pay the entitlements, in which case the State steps in once the tribunal declares the person eligible.
John Eardly, author of a new user-friendly book on workers' rights, Employees: Know Your Rights in Irish Law, believes that in an economic downturn, when a job becomes an ever-more precious commodity, a working knowledge of employment and labour rights is essential. "First, the legislation has increased the legal protections for workers, so much so that people can be overwhelmed with the amount and complexity."
At the same time there's an increased sense of entitlement among Irish workers to assert their rights in the workplace. "I have noticed a cultural/social change. A lot of employees have become more assertive, want to be more included in the decision-making and to be consulted."
The forum the case is brought to can affect the outcome, he stresses, saying that if the aggrieved former employee can mount a strong case under the Employment Equality Act, which outlaws discrimination in the workplace on nine different grounds - including gender, family status, race, religion and sexual orientation - this is where the greatest financial awards are made.
The most potentially costly arena is the tribunal. Awards here are generally lower, and if a legal team is hired, costs can be high. Even if the former employee wins, the tribunal does not award costs.
"So the system in some ways conspires against employees. It almost gives with one hand and takes with the other. If the case drags on, a person can be taking the case just to pay the legal fees. Fees can run into the thousands and sometimes into the tens of thousands. This is a big barrier to people bringing cases and a lot of workplace mistreatment may be going undetected because of it."
The argument against awarding costs, apparently, is a fear that it could result in vexatious claims.
The book makes limited mention of trade union membership. Michael Halpenny, legal rights officer with Siptu, says this is the surest protection against mistreatment, particularly in a downturn, when even the most generous employers are looking at their bottom line.
"Employers are trying to challenge every aspect of employment regulation, particularly those which are there to protect some of the most vulnerable employees. You may rest assured they will be mounting challenges to the Employment Law Compliance Bill which there is a commitment to enact under the terms of the Partnership agreement."
He points out that trade union representation at the tribunal - an accepted alternative to a solicitor or barrister - is free to union members.
Eardly's book looks at areas in which aggrieved employees and former employees may not be aware they have rights. One area in which he sees growth is disability, where some employers are not doing all within their power to "reasonably accommodate" the worker. The range of problems recognised as disabilities is growing, he says, and now include alcoholism, epilepsy and obesity.
The primary motivation for the vast majority of people taking cases against a former employer is not compensation, but vindication, he stresses.
Echoing him, McBride of the tribunal tells how he sat in on a case last year in which a woman in her early 20s had taken a case against the video shop where she had worked several years previously. She had become pregnant, and as well as being thrown out by her mother she was harassed by her employer and eventually had to leave.
Between leaving and the case coming up, the shop had closed down. Finding in her favour, the chairman told her she would be awarded a small amount but she would likely not get it. "She turned around and said, 'This was never about the money. I just wanted someone to say I was right.' And 99 per cent of the time," McDonnell says, "that is the one thing people really want."