Judgments of the Employment Appeals Tribunal, equality officers, rights commissioners and the Labour Court may be open to legal challenge.
This is because members of these bodies are appointed by the Government and do not meet the requirements of the European Convention on Human Rights that they be "independent and impartial" tribunals.
The Labour Relations Commission and equality officers are full-time civil servants and the other positions are filled by the Minister for Enterprise, Trade and Employment on the nomination of employer and trade-union bodies.
Grounds for questioning the impartiality of these agencies are particularly strong where they are investigating complaints against other State bodies, according to the latest issue of Employment Law Today (ELT), a Brussels-based journal.
The article comes as the Office of the Director of Equality Investigations examines a complaint about sexual harassment at its sister organisation, the Equality Authority.
The article, written by ELT editor and industrial relations consultant Mr Tom Hayes, quotes Article 6 of the convention.
This states: "In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal."
It continues: "Given that the members of the EAT, the Labour Court and rights commissioners are directly appointed by the Minister for Enterprise, Trade and Employment, while equality officers are civil servants whose careers can be impacted by the way they are perceived to do their job, the question has been raised, as a result of recent developments in the UK, as to whether such bodies can be considered as independent within the meaning of the convention, especially when dealing with cases which involve the government.
"The EAT is actually housed in the Department of Enterprise, Trade and Employment, further emphasising its dependence on the Department. If the contention that the EAT and other bodies are not convention-compliant is correct, then the procedures through which members are appointed would have to be changed to guarantee independence. This could involve publicly advertising such appointments and having applications processed by, for example, the Civil Service Commission."
It cites two recent cases at the Employment Appeals Tribunal in the UK, which is roughly equivalent to the Irish High Court in terms of its jurisdiction. These involved appeals against decisions of the Employment Tribunal which operates under the Secretary of State for Trade and Industry. The British EAT ruled: "In our judgment, the fair-minded and informed observer in 1999 would have harboured an objectively justifiable fear that the Employment Tribunal, as it was in April-June 1999, lacked both impartiality and independence within the meaning of that expression in Article 6.
"The applicant in the above case had argued that the Employment Tribunal was not truly independent within the meaning of Article 6 by reason of an aggregate of factors, namely that the two lay members were appointed by the Secretary of State, a party to the proceedings, because their remuneration was fixed by that Secretary of State, because their [short] term of office was fixed by him and their potential for further appointment depended upon him."
A spokesman for the Department of Enterprise, Trade and Employment said yesterday it would not comment on the article.
However, he said all the institutions mentioned were established and operated under statute, as did the staff appointed to them.
