Employers who discriminate ‘should be identified’

Employers who have discriminated against their employees should be identified, the Irish Human Rights and Equality Commission (IHREC) has said.

IHREC chief commissioner Emily Logan said such a move would ensure that legal protections against discrimination are “effective and dissuasive”.

Her comments came after the IHREC raised concerns with the Workplace Relations Commission (WRC) about the anonymisation of decisions published on its website.

Since the passing of the Workplace Relations Act, 2015, employment appeals cases, such as those involving unfair dismissal and the incorrect payment of wages, have been heard in private at the WRC.

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While the decisions made in these cases can be published, they must be anonymised.

Cases taken under the Employment Equality Acts and Equal Status Acts are also heard in private at the WRC.

The requirement not to identify parties when publishing decisions does not apply in these cases, but anonymisation can be undertaken at the discretion of the adjudication officer.

Cases that are anonymised carry titles such as “Employee vs Employer”, “Student vs School” or “Driver vs Transport company”, and any information that could lead to the identification of the involved parties is removed.

The IHREC has contacted the Law Society, the Bar Council, legal practitioners and civil society advocates working in the area to clarify the issues surrounding anonymisation and highlight its concerns.

Ms Logan said the primary means of enforcing anti-discrimination law was the individual and their power to make complaints.

“The ability to publicly see this power in action, with employers and service providers who have engaged in discrimination or harassment identified through complaints, stimulates not only public discussion of the issues involved, but also awareness and empowerment for others to also challenge discrimination,” she said.

“The greatest enabler we have in challenging discrimination in our society is information, and where instances of discrimination are challenged, there should be visibility of those challenges and the outcomes.”

Equality cases

A spokesman for the Department of Jobs and Enterprise, on behalf of the WRC, said the naming of parties who were involved in cases taken under the equality Acts was not that straightforward.

“Where there are egregious issues identified in the course of a hearing, an adjudicator may exercise his or her discretion to name one or both of the parties to a dispute,” he said.

He said the legislation states that the director-general of the WRC may publish the decisions in such form and in such manner as she considers appropriate, but the nature of publication was ultimately a decision of the adjudication officer, “taking into account all matters, including the views of the parties.

“This is currently under consideration within the WRC.”

Richard Grogan, a specialist employment law solicitor, said he had serious concerns about the anonymisation of cases taken under the equality legislation.

“Somebody looking at it has no way of knowing where the problems are,” he said.

“They can’t even identify the industries where the problems are . . . it has become a cloak and a shield to completely anonymise the employer who has been involved in discrimination.”

He said he had the same view on the anonymisation of other employment appeals cases.

“It effectively is giving succour to those who are involved in abuse of workers,” he said.

“You can have cases where people haven’t got the correct holiday pay or they are being paid less than the national minimum wage; they may well win their case . . . [but] the employer can now hide behind the fact that their name is not disclosed.”

He described anonymisation as a worrying trend.

He said that, because of their anonymity, employers were settling fewer and fewer cases before hearing dates and were running up costs for the employee.

“Having the publicity element, on both sides, was an encouragement to seek resolution,” Mr Grogan said.

He said anonymising was “stuck in” to the Workplace Relations Act without anyone having any idea about how it was going to work.

A Siptu source said that when the Workplace Relations Act was introduced, both unions and employer groups gave their backing to private hearings and anonymised decisions.

“It was felt it was giving protection to a worker who might otherwise be punished by prospective employers if they were seen to be taking cases and winning them,” he said.

“The bigger the win and the more publicity, the more damaging it had proven to be, in some cases, for the victorious worker, when it comes to getting other employment.”

He said it was too early to fully assess the effect of the legislation.