Mr. Philip Sack:

In my briefing note, I set out a number of problems with the procedure, and this is compliant to breaches of the subsidiary requirements and a limited number of other breaches, which are prosecutable as offences. I mentioned the fact that this is a criminal prosecution with a high standard of proof, which will be difficult for the WRC to prove, given the nature of the offences, and I have described some examples which could almost amount to a difference of view.

Let us say there is a difference of view over whether information should have been provided to the EWC one week in advance of the meeting. Would that have given it adequate time or was two days in advance enough time? One can see very fine judgments involved. That is a typical sort of dispute that could come up under the subsidiary requirements. I have been involved in a number of cases in the UK where we brought disputes about exactly these sorts of points and it seems to me that a civil standard of proof, which is on the balance of probabilities, is a much more appropriate procedure for this type of offence. This applies in the UK but I cannot speak for the rest of Europe.

There was also the fact that an EWC would have to rely on the WRC to bring the dispute on its behalf. It cannot bring the complaint on its own behalf and make its own case in court. It has to rely on the Workplace Relations Commission to do it and the WRC may not even be willing to do it, in the first place, because of all the factors that it weighs up, including efficient use of its resources. Those, plus the absence of an effective remedy and the rather low financial penalty that would apply for a breach, are reasons I do not see it as appropriate.