Contempt of Court and the Employment Relations Authority
With effect from 26 August 2020, or such earlier date as an Order in Council prescribes, the Employment Relations Authority will have some further ability to control wayward litigants and their advisers.
For the last several years, the Authority has been concerned about its ability to manage bad behaviour during its investigations, especially by lay advocates.
Lawyers who misbehave in Authority processes can be referred to the Law Society, which the Authority has done on occasion.
But unless lay advocates are members of a professional body like the Employment Law Institute, and many are not, there is no prospect of engaging with the complaints process of a professional body.
Accordingly, the Authority has sought legislative support to give it the power to deal with parties or representatives who misbehave, refuse to comply with directions, or make false statements about the Authority.
It is well known that the Authority already has power to fine persons who impede the work of the Authority, but these new powers will not interfere with that existing power and will extend the ability of the Authority to manage poor behaviour.
The Contempt of Court Act 2020 gives the Authority a wide range of powers where it decides that a person has wilfully disrupted the Authority process or disobeyed an Authority order or direction. These powers include excluding that person from the Authority’s process, right up to imprisonment, and/or fines, and orders of community work.
Where a person fails to comply with the Authority’s orders, the Authority can commit the person to a term of imprisonment, impose a significant fine or require the person to perform community work.
Moreover, making a false statement about the Authority is an offence under the Act and is punishable by a term of imprisonment, a fine or an order of community work.
A false statement is one which is published, where the person making it knew and ought to have known the statement would undermine public confidence in the Authority and there is a real risk the statement could have that effect.
Finally, the High Court has the power to issue a take down order in respect to offending material. The effect of such an order is to require the perpetrator to remove material from the public domain.
These new powers will add to the Authority’s tool box for dealing with disruptive and disrespectful parties. While the Authority tries to run accessible and relatively informal investigations, it is nonetheless a part of the justice system and the Authority’s investigations are defined as judicial proceedings.
Parties who engage with the Authority will get far better service by collaborating with the Authority and facilitating its investigation process than they will by quarrelling with the Authority Member, or taking pot shots at the Authority’s investigation process.
Written by James Crichton, Employment Law Specialist.