FLAC: Promoting Access to Justice in Ireland, Lecture notes of Law

Download FLAC: Promoting Access to Justice in Ireland and more Lecture notes Law in PDF only on Docsity! 1 FLAC Submission to The Workplace Relations Commission on the “Consultation Paper on Remote Hearing and Written Submissions Dealing with Adjudication Complaints During the Period of Covid-19 related Restrictions” FLAC, April 2020 2 About FLAC: FLAC (Free Legal Advice Centres) is one of Ireland’s oldest civil society organisations. It is a voluntary, independent, legal and human rights organisation which for the last fifty years has been promoting access to justice. Our vision is of a society where everyone can access fair and accountable mechanisms to assert and vindicate their rights. FLAC works in a number of ways: • Operates a telephone information and referral line where approximately 12,000 people per annum receive basic legal information • Runs a nationwide network of legal advice clinics in 71 locations around the country where volunteer lawyers provide basic free legal advice to approximately 12,000 people per annum • Is an independent law centre that takes cases in the public interest, mainly in the area of homelessness, housing, discrimination and disability • During 2017 FLAC was an associate partner of and facilitated the JUSTROM programme, which promoted access to justice for Roma and Traveller women. FLAC currently operates a Roma legal clinic and is establishing a dedicated legal service for Travellers. • Operates the public interest law alliance PILA that operates a pro bono referral scheme, that facilitates social justice organisations receiving legal assistance from private practitioners acting pro bono. • Engages in research and advocates for policy and law reform in areas of law that most affect marginalised and disadvantaged, including legal aid, access to the courts, personal debt and social welfare. The submissions most relevant to the subject matter of this meeting include • FLAC Submission to the Joint Oireachtas Committee on Justice and Equality: Access to Justice & Costs • FLAC submissions to the Review of Administration of Civil Justice February and June 2018 • FLAC submission to the Courts Service Statement of Strategy 2018-2020, October 2017 • FLAC submission on High Court Practice Direction 81 You can access FLAC’s policy papers at: https://www.flac.ie/publications/category/policy/ For more information, contact us at: FLAC,85/86 Upper Dorset Street, Dublin D01P9Y3 01-8873600 | info@flac.ie | www.flac.ie | www.pila.ie |fb.me/flacireland | @flac.ie 5 FLAC regularly represents claimants before the WRC in claims of discrimination under the Equal Status Acts concerning goods and service, education and accommodation and in claims under the Employment Equality Acts. FLAC’s response to the Covid-19 Crisis Our Telephone Information and Referral Line remains open with staff working from home. In response to the Government issued guidelines, FLAC closed all of our free legal advice clinics around the country for the safety of our volunteers and service users. FLAC have organised Phone Legal Advice Clinics in response to the urgent need for legal advice. The most urgent queries and the areas of greatest legal need arise in relation to family law and employment law. FLAC have also produced a series of 'FLACsheets' to provide information on rights during the current, including a FLACsheet on Employment Law Rights during Covid-19 outbreak. As part of a series of webinars for charities on the law and Covid-19, PILA & TrustLaw hosted a webinar on Employment Law. We have drawn on this wealth of experience - in the information lines and advice clinics, our experience in litigation as well as the queries received through PILA – in making this submission. Specific Covid-19 Related Issues Payment of Wages The calls coming into FLAC’s phone line indicate that many employees are expressing concerns over payment of wages. This mirrors what happened around the period 2008- 2010 where employees were asked to take or forced to take pay cuts or have their hours of work compulsorily reduced. In many instances this was directly as a result of the economic difficulties being experienced by employers. However, in some instances some employers may have sought to exploit the opportunity to undermine contractual entitlements. 1 It is important to ensure that history is not allowed to repeat itself where large 1 There was also a dispute in relation to the admissibility of complaints concerning reduction in wages as potentially unlawful deductions in wages. It was not until the case of Earagail Eisc Toeranta V Doherty and Othersthat the High Court held that the EAT was entitled to and indeed obliged to consider complaints relating to wage reductions to investigate whether they constituted a breach of the Act: [2015] IEHC 347. 6 numbers of payment of wages complaints wait in a queue to be processed with the employees in question struggling to meet day-to-day expenses. Annual leave issues A further matter arising on FLAC’s phone line is the timing of annual leave. On the one hand, there are cases where an employee is seeking to avail of a period of paid annual leave, often for childcare purposes, and the employer refuses such a request. On the other, there are cases where the employer seeks to compel an employee to take periods of paid annual leave, potentially leading to the erosion of future leave entitlements that the employee might wish to avail of at a more suitable time for rest and recreation. These may be cases where the core facts are not in dispute but what is required is a clarification of the application of s.20 of the Organisation of Working Time Act 1997 to such cases. Equality issues A number of equality issues have arisen in relation to the Covid-19 pandemic which may be referred to the WRC under the Equal Status Acts or the Employment Equality Acts. For example: • People who are not being allowed avail of the wage subsidy as they had been on maternity leave on the critical date in February; • People being required to go on maternity leave early rather than avail of the wage subsidy; • The banning of children from attending supermarkets; • Allegations of discrimination in relation to difficulties faced by Travellers and people in direct provision in being able to engage social distancing and access basic facilities such as running water on halting sites. These issues – particularly the application of the wage subsidy scheme and how it interacts with contractual entitlements – are likely to give rise to litigation before the WRC. At this stage, it is too early to assess the level of complexity of such claims which may depend on the individual circumstances. *** Drawing on FLAC’s experience, we submit that these kinds of complaints should be prioritised and fast tracked so that they might be resolved quickly and allow individuals to vindicate their rights in a timely manner. Decisions in early course on these issues – which are likely to have significant implications across the State – would serve as valuable precedents. In this way, such fast-tracking and prioritisation may also have benefits for the WRC in terms of efficiency. 7 OVERARCHING CONSIDERATIONS: THE PUBLIC SECTORY DUTY AND ACCESS TO JUSTICE PUBLIC SECTOR DUTY Section 42 of the Irish Human Rights and Equality Commission Act 2014, introduced the Public Sector Duty, which imposes a positive obligation on a broad range of public bodies including the Workplace Relations Commission, in the performance of their functions, to have regard to the need to eliminate discrimination, to promote equality of opportunity and to protect the human rights of its members, staff and persons to whom it provides services. The scoping exercise and consultation process on remote hearings is a key instance of strategic planning by the WRC to which the Public Sector Duty applies. This being so, it is important that the WRC gives active consideration to the Duty in this process and addresses how this has been done in any outcome document. The scoping exercise should encompass an assessment of the impact of the proposed reform measures on those individuals with protected characteristics under the Employment Equality Acts and the Equal Status Acts.2 The impact of the shift in the mode of proceedings on individuals with characteristics under the equality legislation should be monitored (for example patterns in attrition at different and different types of outcome such as settlement or withdrawal from the system).3 There is some emerging evidence indicating that individuals who are neurodiverse, have a learning disability, or who are experiencing mental ill health which impacts on their communication and comprehension skills may be particularly adversely impacted by appearance via video link.4 2 The protected characteristics identified in the equality legislation are: gender, civil status, family status, age, disability, sexual orientation race, religion, membership of the Traveller Community and, under the equal status regime, housing assistance. 3 In the UK the HMCTS have designed systems for capturing characteristics under the UK Equality Acts 2010 as part of their ongoing programme of court reform: see Appendix 1 below. These 13 data points that could be collected in relation to individual users of the justice system in order to identify vulnerability and assess the impact of reform, may be of assistance to the WRC but would need to be adapted to include all of the grounds under Irish equality law. 4 UK Equality and Human Rights Commission Inquiry.See also: See House of Commons Justice Committee, “Court and Tribunal reforms” 31 October 2019 HC 190 31 October 2019, Second Report of Session pp24 para 67 10 implications of the different modes of participation and provided with an opportunity to access legal advice, including free legal advice, in advance of participating in the new form of hearing. Assisted digital programme Recent case law has affirmed the principle that access to formal legal processes must be “practical and effective” as opposed to “theoretical and illusory” and that the state has a duty not to place obstacles in the way of access to8 and that: “application processes are not so complex that users of the system cannot effectively use them.”9 In that regard the WRC already has experience of using an online process in relation to its Workplace Relations Complaint Form. This experience should inform the current scoping exercise. It has been the experience of FLAC that this form is somewhat difficult to use for practitioners and is especially difficult to use for people with literacy, language issues and for people who do not have easy acess to the internet or who may not know how to use an online form. The complaint form is not downloadable making it extremly diffcult to make a complaint off line. The forms ES1 and ES2 in relation to complaints under the Equal Status Acts are hard to find on the WRC website. Further the online form is directed to employment complaints, and the fields identifying the location of your employment and other employment related fields are compulsory even in complaints under the Equal Status Acts. It is unknown whether the WRC has carried out any research into the impact of the use of this form on the making of complaints under various pieces of legislation. In circumstances where there has been a decrease in the number of complaints under the Equal Status Act, there would be merit in researching whether this decrease may, at least in part, be due to the difficulties in making a complaint online. If the proposed changes are implemented, it is vital that practical support and safeguards be put in place to ensure that access is not impeded and that an assisted digital programme be introduced, which would be designed to help those who are ‘digitally excluded’ or lack digital skills to engage with new processes. In any event, an assisted digital programme should be introduced to assist in the completing of the online form. 8 Children’s Rights Alliance for England v Secretary of State for Juse for Justice [2013] EWCA Civ 34, [2013] HRLR 17 [38]. 8.3 As Adams and Prassl (2018) have argued, citing R(Unison) v Lord Chancellor [2017] UKSC 51 [96] this requires (amongst other things) 9 Adams, Byrom, Prassl, 2018 11 If the proposals are implemented it is important that the impact of the reforms on motivation and confidence in accessing the system would also be monitored. 12 THE CONTINUED EXISTENCE OF ADJUDICATION HEARINGS While FLAC acknowledges the challenges posed by the restrictions in place in response to the Covid-19 crisis, FLAC submits that the WRC should assess whether – and, if so, when – it would be possible to continue hearings safely within the WRC’s existing physical infrastructure. In this regard it is noted that the Courts are continuing to operate on an albeit limited basis so, subject to appropriate safeguards being in place, it may well be possible for the WRC to continue to operate safely with face to face hearings, at least as the restrictions are eased in the coming months. Recommendation FLAC recommends that the possibility of continuing with face-to-face hearings be explored as a matter of urgency, with appropriate measures in place to ensure to comply with Government restrictions in force. 15 REMOTE HEARINGS AND DISPOSAL BY WAY OF WRITTEN SUBMISSION Power to Hold Remote Hearings The paper notes that “The WRC is satisfied that it has the power to conduct hearings remotely by way of video-conference where the Director General considers this necessary and appropriate, subject to complying with the requirements of fair procedure and natural justice’. It is suggested in the paper that the WRC has such jurisdiction by virtue of Section 41(5) of the WRA 2015 read together with Section 11(4) of that Act. There is, however, no explicit power conferred on the WRC in this regard. Where the system is untested, a party may become unhappy with how it is operating or its fairness in the course of a hearing and it is difficult to see how the WRC could insist upon a hearing continuing in these circumstances. As such, in FLAC’s submission, any move to remote hearings should be based on the consent of the parties. Recommendation Any move to remote hearings or disposal by way of written submission only should be based on the consent of the parties. Right to an effective hearing: Adjudication by written submission or remotely: Assessment as to suitability FLAC notes the emphasis on adjudicating complaints by means of written submission and/or remote hearings. FLAC agrees with the consultation paper wherein it states that it considers that claims under the Unfair Dismissals Act, Employment Equality Acts and Protected Disclosures Acts are less suited to “Virtual Hearings”. In addition FLAC submits that claims under the Equal Status Acts would not ordinarily be suitable for “Virtual Hearings” given their complexity, the nature of the case and the requirement for oral evidence and cross examination. It is noted that the consultation paper considers that the types of complaint most suited to “Virtual hearings” include disputes/complaints in relation to trade disputes under Section 13, pay and hours of work (under the Organisation of Working Time Act 1977 and Payment of Wages Act, 1991), terms and conditions (under the Terms of Employment (Information) Act , 1994). There is no reference to the remainder of employment legislation that is adjudicated upon by the WRC and therefore it is unclear whether it is intended that claims would be decided by written submission or by remote hearings and, if so, what criteria will be used to determine this question (whether on the basis of the type of claim or a case-by-case assessment). In FLAC’s submission, this requires a case-by-case assessment, which should take account of the capacity and vulnerability of the parties as well as the suitability of the case. 16 Of course, it must be acknowledged that even apparently straightforward cases may give rise to complex disputes of fact and complex issues of law. Indeed, cases which initially appear straightforward can become more complex in the course of hearings by virtue of inconsistent or unexpected evidence on the day: “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’12 If a party has a concern about the suitability of a remote hearing of the claim, or the fairness of such a procedure, the parties should be afforded the opportunity of a face-to-face hearing in relation to the claim. Furthermore, if a serious dispute as to fact or law arises during the written submission procedure or a remote hearing, the parties should be afforded the opportunity of a face-to-face hearing in relation to these issues. Right to cross-examine Physical presence in court can be a very important part of both effective cross- examination of witnesses and assessing veracity in the context of an adversarial tribunal system. 13 Both claimant and respondents may be disadvantaged by the remote nature of the hearings if any remote witness examination is contemplated. This is particularly so in circumstances where the status of an unsworn written submission as evidence is unclear. An effective hearing requires both that individuals are able to present the information necessary to enable a decision maker to make a determination based on applying the law to the facts of the case and that the decision maker is able to comprehend this information. Demonstrating procedural fairness has been held to be important for a number of reasons. People are more willing to accept decisions when they feel that those decisions are made through decision-making procedures they view as fair. In addition, perceptions of procedural justice have been found to be linked 12 Per Megarry J in John v Rees [1970] 1 Ch 345 at 402 and quoted with approval by O’Flaherty J in Gallagher v Revenue Commissioners (No 2) [1995] 1 IR 55 at 82.” 13 The duty of the WRC to act in accordance with fair procedures, including by allowing cross-examination of witnesses, has recently been recognised in Zalewski v WRC [2020] IEHC 178. 17 to public trust and confidence in legal authorities and institutions, including courts14 . Further the right to be heard is a pillar principle of due process.15 Cregan J in Flynn v. National Asset Loan Management16 characterised the principle of audi alteram partem as follows “It is a command, a direction, to the court or tribunal: hear the other side, listen to the other side. This duty to hear gives rise to a corresponding right: the right to be heard. The right to be heard is a powerful and important right. Although it is expressed in the passive voice, it is in fact, an active right: a right to speak or a right to make representations to the court, tribunal or statutory body which seeks to make a decision which affects the person concerned. It is a right which is at the heart of our legal system. For if a person is denied a right to be heard, they are shut out of participation in the vital process which affects their interests.” Preserving such participative rights via written submission or online hearings presents real challenges. The WRC in making a decision to hear a claim by written submission or by remote hearing has to be satisfied that the parties are in a position to make their own case, present the information necessary and are not incapacitated by virtue or literacy, language or other incapacity. There are also concerns that individuals who lack legal knowledge, advice and support are unlikely to be well placed to assess the legality of a given process or procedure or issue. Therefore if a legal issue arises, during the course of a written or remote procedure, parties must be given an opportunity to obtain legal advice and make submissions in relation to them. 14 Tyler, 2000:117 and Tyler, 2001:216 15 See Further “Remote Hearings: Overview of UK Experience; Patricia Sheehy- Skeffington, the Bar of Ireland 16 [2014 ]IEHC 208