E MPLOYEE T YPE

Respondents in Phase A indicated that employers would be more in favour of collaborative law where the dispute involved highly skilled employees as opposed to unskilled employees. All interviewees concurred with this finding.

Indeed, it was argued the desire to engage in dispute resolution processes is very much “results driven”, that is, employers will be more inclined to attempt to resolve disputes with employees who are continually meeting and exceeding targets (Interviewee A and D).

Finally it was claimed for non-unionised organisations with highly skilled employees, collaborative law could be “sold” to employers as a real advantage for the retention of workers. Interviewee C suggested that “Collaborative law could be seen as a valuable remuneration package, because you could say to your

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employees while there is no trade union, the manner in which we deal with disputes is highly professional. Furthermore employees could feel confident that it will be someone external to the organisation representing them”.

Finally it was maintained that length of service may play a part in an employer’s desire to use collaborative law. Interviewee B argued that

“Employees with lengthy service may be offered more opportunities to resolve their disputes than an employee who is relatively new”. There are dual factors at play here; (1) the employer may have greater loyalty to an employee who has served them for many years; and (2) the employee’s experience and knowledge of the job may be difficult to replace.

5.11 R

As noted in the literature reinstatement and reengagement are seldom used remedies by the EAT (EAT, 2010). However, the findings from Phase A of this study indicate that reinstatement and reengagement would be workable remedies when using collaborative law. Interviewees in Phase B somewhat disagreed, they observed that perhaps it was too late for collaborative law after the employee had been dismissed. Interviewees A, B and E argued collaborative law would need to be used before dismissal occurred.

Interviewees indicated that the problems with reinstatement and reengagement are that by the time an employee has been dismissed there has

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been a breakdown of trust. Interviewee C observed “Employers/employees are entitled to place trust in the other party and when that trust is broken there is very little chance of it being repaired”. Furthermore, Interviewee noted that “In many instances the organisation has done all it can to retain the employee through informal measures, however the employee’s continued poor performance/behavior have made retention unfeasible, and similarly reinstatement/reengagement unworkable”.

Compensation was deemed the only feasible option when it came to dismissal cases. However, when deciding to dismiss and facing the likelihood of having to pay compensation, organisations should evaluate the potential value of the compensation versus the value of the manager’s time dealing with the employee, the detrimental effect on the workplace of the dispute and the employee replacement costs.

5.12 T

P

R

Irish legislators have attempted to address the employer/employee power imbalance with the enactment of so much employment rights legislation over the last 10-15 years. Although this may be the case, interviewees agreed that in the majority of instances, the employer holds the power in the employment relationship and employment disputes particularly when dealing with things like ratings or promotion. However it was noted that there are occasions when the employee perhaps has greater power. One such occasion is where the

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employee has a certain level and type of expertise required by the employer.

This skilled employee has a greater bargaining position than an unskilled employee would have.

Interviewees felt that collaborative law had the potential to address the power imbalance that exists in the employment relationship. Interviewee A and E observed that solicitor presence could be particularly beneficial to unskilled employees.

5.13 I

T

M

The interviewees were presented with the list of potential interdisciplinary team members which came about as a result of Phase A. All interviewees agreed with inclusion of all, bar one. Interviewee B felt that an organisation’s own HR manager should not be included in the process, because if the collaborative law process failed to yield a settlement the HR manager would be excluded from representing the organisation at any of the employment tribunals. It was indicated that perhaps a HR consultant or an industry specific HR manager might be more appropriate.

Furthermore, it was noted that from a public service perspective whatever team members are included they need to be aware of national agreements e.g.

Croke Park, as this will dictate what can and cannot be agreed in terms of settling the dispute.

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5.14 C

This chapter has presented the findings from the empirical research carried out for this study. The chapter has outlined, in Phase A, that practitioners feel collaborative law could be used in employment disputes while interviewees in Phase B concurred. The benefits of collaborative law were identified as flexible outcomes, timely resolution, cost effectiveness, preservation of ongoing relationships and the ability to address power imbalances in the employment relationship.

Furthermore, the research identified the differences in attitudes to individual and collective disputes and their applicability to collaborative law. It was concluded that the final model developed should take cognisance of these differences.

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