The Mediation Act, 2017-What You Need to Know

mediation act 2017

The Mediation Act, 2017 came into law in Ireland in January, 2018. The purpose of this legislation is to allow parties to a dispute to avoid the costs of litigation and to reduce the number of disputes coming before the Courts.

Mediation is a collaborative process which aims to encourage the parties to a dispute to arrive at their own solution, with the professional assistance of the mediator. The mediator is to facilitate the parties and provide his/her professional expertise and experience but the determination of the dispute is up to the parties themselves.

The mediator can make proposals to resolve the dispute when the parties request this. There may also be a need for experts in a mediation if the issues are complex-for example a financial dispute with taxation implications.

It will have significant implications for solicitors in their daily practice of advising clients, and for clients who wish to institute litigation proceedings.

Before commencing legal proceedings on behalf of a client a solicitor will have to swear a statutory declaration that

  1. He/she has advised the client of the availability of mediation as a way to settle the dispute
  2. Give the client information about the benefits of using mediation, as opposed to instituting legal proceedings
  3. Give the client names and addresses of mediators who may be able to assist in resolving the issues between the parties
  4. Tell the client that mediation is voluntary and may not be appropriate where the safety of the client is at risk or where there is children and their welfare/health/safety is at risk
  5. Advise the client of the need for confidentiality in a mediation and the enforceability of a mediated agreement
  6. Advise the client of the solicitor’s obligation to provide a statutory declaration confirming the provision of the information above to the client

The statutory declaration should accompany whatever document is used to commence legal proceedings. If this does not occur the Court can adjourn proceedings until such time as the solicitor has provided the Court with the statutory declaration.

The Mediation Act, 2017 will not apply to certain proceedings, for example High Court judicial review proceedings and an arbitration under the Arbitration Act, 2010. The full scope of the act is set out in section 3, Mediation Act, 2017.

A court will be allowed to take into account when awarding costs any party’s unreasonable refusal or failure to use mediation.

Part 2 of the Act sets out the provisions re mediation generally including the role of the mediator, codes of practice, and the enforceability of settlement agreements arrived at through mediation.

Part 3 sets out the obligations of solicitors and barristers with respect to mediation and Part 4 sets out the role of the Court.

Section 19, Mediation Act, 2017 is an interesting one as it allows a Court to adjourn court proceedings to facilitate mediation:

9. (1) Where—

(a) parties have entered into an agreement to mediate, and

(b) one or more of the parties referred to in paragraph (a) commences proceedings in respect of the dispute the subject of the agreement to mediate,

a party to the proceedings may, at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to adjourn the proceedings.

(2) On application to it being made under subsection (1), the court shall make an order adjourning such proceedings if it is satisfied that—

(a) there is not sufficient reason why the dispute in respect of which the proceedings have been commenced should not be dealt with in accordance with the agreement to mediate, and

(b) the applicant party was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary for the proper implementation of the agreement to mediate.

(3) This section is in addition to and not in substitution for any power of a court to adjourn proceedings before it.

 

Some commentators have advanced the opinion that an employer, with an employment contract containing a clause agreeing to mediation in the even of a dispute, can have Court proceedings adjourned pursuant to section 19. It is too early to say how a Court will view this argument but it is probably advisable for an employer to have such a clause in his contract of employment as he has nothing to lose in doing so.

Section 16 provides for a court inviting the parties to engage in mediation and section 17 provides for the mediator to provide a report to the Court to explain why the parties have not so engaged or to explain why the mediation has failed and they wish to re-enter legal proceedings.

Conclusion

The Mediation Act, 2017 is to be welcomed as it should allow more parties in dispute resolve their issues without the cost of going to full blown legal proceedings including a Court trial.

And if you are an employer it cannot do you any harm to insert a clause in your contract of employment providing for the use of mediation before instituting legal proceedings.

‘Building a Case’-It’s Time to Put the Shovel Down

building a legal case

From time to time I am approached by a potential client who wants to ‘build a case’ against their former employer.

I quickly let the person know I have no interest in ‘building a case’, and advise them against it, too.

Let me tell you why.

If you have a valid legal claim or cause of action the ‘case/claim’ should be able to stand on its own two feet, without any requirement for ‘building’. To win a legal case you will need to do two things:

  1. Prove the facts that support your case
  2. Prove the law that supports your case

If you do not have facts that support a case from the outset all the building in the world will do you no good. You will be scrabbling around in desperation to try to cobble together some mish mash to get one over on your former employer, or the other party if it is not an employment related dispute. You would be far better off recognising that you are aggrieved, perhaps insensibly angry, and want to teach him/her a lesson.

But you run the risk of making an even bigger mess for yourself, and wasting time and money in the process if you embark on a course of ‘building a case’.

Look: when you are in a hole the first thing you need to do is put the goddamned shovel down.

Don’t misunderstand me. If you have a case a decent lawyer will recognise it very quickly.

What you need to do is give him/her the facts and relevant documentation surrounding your employment. Your solicitor will quickly recognise

  1. Whether you have a cause of action
  2. What the likelihood of success is
  3. What the possible remedies are.

When you have this information you will be ready to make a cool, rational decision about proceeding or not.

‘Building a case’

Building a case is not like building a wall or a dog house. When you are building a wall and there are no blocks you can use bricks, or stones. Building a dog house can involve all sorts of alternative materials.

But a legal case or claim must stand on its own facts. You cannot make them up. You cannot have ‘alternative facts’ as the White House spokesperson claimed in relation to Trump’s vainglorious claim that his inauguration crowd was the biggest since the pan was sliced.

Alternative facts are an oxymoron-a contradiction in terms.

Neither can you have alternative law-there has either been a breach of the law, and a consequent breach of your rights, or not.

It doesn’t matter whether it is an employment matter, defamation, property dispute, personal injury, breach of constitutional right, probate dispute, a commercial dispute, or a family law row.

The facts are the facts and the law is the law. Sooner or later your ‘case’ is going to have to face these inescapable facts and you are going to have to discharge the burden of proof to win your case.

As Charles Dickens said in Hard Times,

“Now, what I want is Facts. Teach these boys and girls nothing but Facts. Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon Facts; nothing else will ever be of any service to them.”

I do not agree with this quotation, not in the slightest. Children should be taught much more than facts. Things like decency, honesty, kindness, generosity, an appreciation for beauty, art, literature, etc.

But when you are considering commencing legal proceedings or bringing an employment related claim you would do well to remember this quotation, for your case will walk slowly at first, and then run; or fall flat on its face.

Spend your time scrambling around in the weeds for stuff to ‘build a case’ and you will almost certainly fall.

Cross Border Employment Issues-Applicable Law, Jurisdiction, and Statutory Regime

cross border employment law

If employers and employees are located in different jurisdictions confusion can arise as to where an employee may enforce their legal entitlements. There are many types of legal rights, however, arising from a number of sources-for example the contract itself, statute, the constitution.

The questions arise as to what statutory regime will apply in any given situation, what is the applicable law of the contract of employment, and what Courts have jurisdiction to hear disputes.

Statutory regime?

The employee can rely on the statute law in force in the country where he/she works. This is so regardless of whether the contract says otherwise.

So, an employee working in Ireland for a US employer can rely on the Irish statutory employment law regime.

Likewise, an Irish employee working in Germany or France can enforce their rights in accordance with German or French employment law.

If the employee moves between two or more countries he can choose the statutory regime that is most favourable for his particular cause of action or issue.

Contract-what is the applicable law?

What is the applicable that will govern disputes between the parties arising from the contract?

What if the dispute is about the contract of employment and you will usually see a contract will state the ‘jurisdiction’ of the contract in the event of a dispute. However, the exclusive jurisdiction claimed by this clause in the contract can be curtailed or limited.

And jurisdiction is a different issue, in any event, than what is the applicable law in the evend of a dispute.

The ‘Rome 1 Regulation’ ( in respect of contracts of employment entered into on or after 17 December 2009, Article 8 of Regulation (EC) 593/2008, Rome) is the EU regulation which covers this area.

It states that the parties are free to choose what law will apply to the contract. If the parties have not chosen the rules are:

  1. The contract law applicable is the law of the country where the employee carries out his work
  2. if the employee is not fixed in one country the applicable law will be the law of the country where the business is located.

There is an exception to these two broad principles:if a contract is more closely connected to a particular country the law of that country will apply.

In looking at this ‘connection’ courts will look at a number of factors including

  • Where the employee is based
  • Where the employer is based
  • How the employee is paid
  • What currency
  • How the employee is managed
  • How disciplinary issues are dealt with, and from where

Jurisdiction-the Courts which can apply the applicable law

What courts have jurisdiction to hear an employment contract dispute?

The relevant regulation is Regulation (EU) 1215/2012, Brussels I (recast)

This Regulation allows the employee to sue

  1. Where the employer has its registered office or is domiciled
  2. Where the employee works

The employer can only sue on foot of the contract of employment where the employee is domiciled, notwithstanding the jurisdiction clause in the contract.

The Posted Workers Directive

The Posted Workers directive,Directive 96/71/EC, protects workers who are temporarily transferred or posted to another EU member state, by ensuring that they enjoy the same rights, terms and conditions as workers in the host state.

Conclusion

This is a potentially complex area of law; if you are involved in a potential dispute concerning cross border employment entitlements you ought to obtain legal advice.

Attention Employers: the Problem With Using HR Consultants for Legal Advice

legal advice privilege

Are you an employer?

Do you use the services of HR consultants?

Did you know you may have a major problem concerning advice you may receive from your HR consultants if you face a claim from an employee?

This is as a result of an Employment Appeals Tribunal unfair dismissal case concerning a man in Monaghan, Mr. Carron.

Let me explain.

Legal Advice Privilege

An EAT decision in a claim for unfair dismissal, Richard Carron (claimant) against Fastcom Broadband Limited t/a Fastcom (respondent) UD1515/2013
held that legal advice privilege did not attach to advice given by HR consultants or non lawyers.

Think about this: the advice given by HR consultants to you as an employer may be available to a disgruntled employee once he makes a data protection request.

The background in Mr. Carron’s case was that his employer, Fastcom had been advised by Peninsula Business Services (Ireland) Limited, a well known provider of HR services to employers. Mr. Carron made a data protection request of his employer in preparation for his unfair dismissal claim.

This request obliges the employer to give all records in electronic or paper form which mention the employee, the data subject. Fastcom, in complying with this request, did not hand over the advice they received from Peninsula claiming legal advice privilege.

However, this was challenged by Mr. Carron and his solicitor, Mr Brian Morgan of Morgan McManus Solicitors.

The EAT looked at the case law here and in the UK, and other authorities, which dealt with this issue of legal advice privilege and held as follows:

The authorities are to the effect that legal advice privilege is privilege over communication made either to or by a lawyer during the course of a professional legal relationship. The definition of a lawyer for this purpose includes Solicitors, Barristers, In-House Lawyers, Foreign Lawyers and the Attorney General see (“Evidence” Declan McGrath Second Ed), Pages 663 and 664). For the purposes of this Determination the Tribunal accepts that legal advice privilege attaches only to such communications between lawyer and client and vice versa which seek or contain legal advice. Giving legal advice by a non-lawyer does not appear to attract the protection of legal advice privilege.

So, the EAT held that legal advice privilege only applied to the lawyer and client relationship, and consultants or representative bodies or non lawyers were not entitled to this privilege.

Litigation Advice Privilege

That is not the end of the matter, however, as there is a second type of legal advice privilege long recognised by Courts: litigation advice privilege.

Litigation advice privilege is advice given by a lawyer to his client when preparing for litigation. The EAT in this case held that litigation advice privilege may apply to advice given by non lawyers-for example consultants or representative bodies or other advisers. This would only apply to advice given after the employer has been notified of a claim and litigation is in being or pending.

The EAT held:

“Once litigation is in prospect or pending, communications between a client and his solicitor or agent or between one of them and a third party is privileged if it comes into existence for the sole or dominant purpose of giving or getting legal advice for the purpose of the litigation or collecting evidence for that purpose.” Flannery v Catharsis Technology [2015] IEHC 714 per McGovern J. The Tribunal accepts that privilege attaches to the communications between the respondent and their advisors Peninsula Business Services (Ireland) Limited from the time when they were notified of the complaint of unfair dismissal being made to the Workplace Relations Service on the 29th of October, 2013.”

Here is the full decision of the EAT in Carron v Fastband Broadcom Limited UD1515/2013; it is worth a read. (Please note this case is under appeal to the Circuit Court, and I also understand there is a High Court case dealing with the same issue of privilege for HR consultants in employment law cases.)

The type of advice an employer may obtain from a HR consultant, and which may be available to an employee in compliance with a data protection request from the employee, includes:

  • Information about an employer’s exposure to claim(s) from a particular employee,
  • Advice on getting rid of troublesome employee(s)
  • Confirmation of liability of the employer in any particular set of circumstances
  • Advice about investigations or disciplinary procedures in respect of an employee
  • Possible sanctions against an employee
  • What might be included in a settlement agreement to negotiate the employee out of the workplace.

What does this mean for employers?

As things stand you may want to consider carefully the type of services and advice you ask your HR provider to give you. Clearly, getting a staff handbook or contracts of employment or assistance with an investigation is one thing.

But getting advice about a problematic employee or an issue that has arisen in the workplace which may ultimately lead to a claim from the employee may see that advice being made available to the employee in question.

Getting advice from a lawyer, however, solves this problem as it is long recognised as attracting the benefit of privilege. In fact, it is recognised as a fundamental human right which is particularly important in criminal defence cases.

Legal advice privilege is a fundamental of the lawyer/client relationship and is confidential communication between a lawyer and his/her client for the purpose of giving or seeking legal advice.

Litigation privilege, on the other hand, is not restricted to lawyers and their clients but includes third parties and allows the preparation of a case free from the fear of premature disclosure.

But litigation privilege only arises once litigation is in being or ‘reasonably in prospect or contemplated’ and the sole or dominant purpose of the communication is for preparing or dealing with the litigation. A mere possibility of litigation, or ‘a distinct possibility’ or ‘sooner or later someone might make a claim’ is not enough for litigation privilege to arise.

Litigation privilege-dominant purpose

This dominant purpose test is important; if documents were prepared which had as their dominant purpose dealing with the litigation then they will have litigation privilege and will not have to be disclosed to the other side.

This ‘dominant purpose’ test has been endorsed by the Supreme Court in Gallagher v Stanley [1198] 2 IR 267. Other authorities for the ‘dominant purpose’ test when it comes to litigation privilege include Silver Hill Duck v Minister for Agriculture [1987] IR 289 and Flannery v Lexington Services Ltd [2015] IEHC 714.

Moreover, the dominant purpose has a relatively high threshold as held in Tchenquiz and others v Director of the Serious Fraud Office and others [2013] EWHC 2297(QB).

Conclusion

If the advice given my HR consultants/advisors is not given legal advice privilege the significant question which then arises is whether litigation privilege arises. This will depend on the particular facts and circumstances of the case and there is a wide range of possibilities.

For example, an assault in the workplace, which is reasonably expected to lead to litigation, to a minor matter which will only lead to a verbal or first written warning in the disciplinary procedure.

(The above is my brief summary of a detailed paper on this topic which Brian Morgan of Morgan McManus Solicitors delivered in the Law Society Employment Law Masterclass on 9th March, 2018).

Appeals to the Labour Court-What You Should Know

Labour Court Appeals

If you are not satisfied with a decision in the Workplace Relations Commission you may appeal the decision to the Labour Court.

The Labour Court is quasi-judicial and an adversarial forum (Donnelly v Timber Factors Ltd [1991] 1 IR 553). However, administrative tribunals such as the Labour Court are not bound as strictly as the criminal or civil courts in relation to the rules of evidence, including the rule against hearsay.

Section 44, Workplace Relations Act 2015 provides for an Appeal to Labour Court from decision of adjudication officer. The Labour Court can also deal with an appeal from an employer arising from a compliance notice he has received pursuant to section 28, Workplace Relations Act, 2015.

Each case is dealt with by a Division of the Labour Court; a Division comprises a Chairman, an Employer Member, and an Employee Member.

The time limit for an appeal from a decision of an Adjudication Officer is 42 days from the date of the decision. The day of the decision is the first day of the 42 days and time can only be extended in ‘exceptional circumstances’.

Labour Court business, unlike WRC hearings, is conducted in public and the Labour Court rules are set out in four parts as follows:

  1. Procedure for appeals of adjudication officer in relation to employment equality and unfair dismissal
  2. Procedure for appeals of Compliance notices served on employers
  3. Procedure for appeals in respect of other employment enactments
  4. The Procedure to be followed at the hearing itself.

The Labour Court rules can be found here.

Appeals re unfair dismissal and employment equality acts

The appeal is commenced by using a standard form and a copy of the Adjudication Officer decision. Three weeks later you must submit your written submission which is then sent to the Respondent.

Respondent then has three weeks to file a replying submission.

Extending time- ‘exceptional circumstances’

The time of 42 days allowed for the appeal can only be extended in exceptional circumstances. Useful cases in relation to what is accepted as exceptional circumstances include:

  • SAP Landscapes Ltd v Gutkin & O’Neill UDD 6 & 7/2016
  • Kildare and Wicklow Education and Training Board v Igoe PWD 26, 27 & 28/2016
  • Galway & Roscommon Education Training Board v Kenny UDD 24/2016
  • HSE West v Barry UDD 32/2016

Pre-Hearing Witness Statements

Both parties are required to send in pre hearing witness statements at least 7 days in advance of the hearing. These statements should state

  • The name of the witness
  • A summary of the witness’s evidence
  • Copy documents which will be relied upon at the hearing

A De Novo Appeal

The appeal in the Labour Court is de novo; this means the partries start from scratch and the decision of the adjudication officer of the WRC is completely ignored and has no influence on the decision of the Labour Court.

Fitzgibbon v Law Society [2014] IESC 48 makes this clear, and the appeal body is required come to its own conclusions on the evidence available to it.

However, the party appealing must canvas the same claim, not an entirely new one. (See Dawn Country Meats Ltd v Hill DWT 141/2012).

Written submissions

The parties are expected, in their written submissions, set out

  • The facts which are agreed and in issue
  • The legal basis for the submission
  • The remedy sought (in the case of the complainant)
  • Transcript of the decisions/judgments relied upon

In essence, the parties are to set out their case in full and not focus on the adjudication officer’s decision or how he/she conducted the WRC hearing.

The hearing commences with the party bearing the burden of proof reading his submission; the respondent reads his submission and the parties are invited to comment on the other’s submission.

Eacn party then examinses and cross-examines each side’s witnesses and the Court may have questions for the witnesses.

Parties can represent themselves or engage the services of a solicitor/barrister/HR representative, or whoever he chooses.

Adjournments and witness summonses

A party can seek an adjournment in writing in advance of the hearing, after seeking the consent of the other side first.

The Labour Court has the power, pursuant to section 21, Industrial Relations Act, 1946 to summons witnesses if it so decides.

Appeals

A party can appeal a determination of the Labour Court to the High Court on a point of law only.

(The above is a summary of what I learned from a paper delivered by Alan Haugh BL, Deputy Chairman of the Labour Court, at a Law Society CPD Masterclass on 9th March, 2018).