Are you at breaking point?
Are you considering bringing a claim against your employer?
Are you unsure of the procedure and what to do?
Are you worried about legal costs?
By the end of this piece, I hope you will have a well informed grasp of what’s involved and what you need to consider.
The 1st thing you must do
Before deciding to bring a claim against your employer, there is one thing you must do.
You must raise your issue internally in your workplace. This will involve using the grievance procedure in use in your employment.
Because when you go to a Rights Commissioner hearing or an Employment Appeals Tribunal or any other venue, including Court, it will help your case enormously that you have tried to sort out the problem in the workplace.
You simply must give the employer the opportunity to put right what you say is wrong. Even if he doesn’t, and you know he won’t, it is strongly advisable to make your best efforts to sort out the problem.
Because later, if you do bring a claim, you will appear to have been the reasonable one and mainly concerned with having the difficulty sorted out, not making a claim.
Where can you bring your claim?
There are three types of venue to bring a claim:
- the specialist employment related forums such as the Rights Commissioner Service and the Employment Appeals Tribunal (this is set to change in October, 2015 with the Workplace Relations Act coming into law)
- Civil Court, for example the District Court, Circuit Court or High Court
- the Equality Tribunal.
The EAT and Rights Commissioner service can hear most employment related claims, and, for many claims you have a choice of which one to use.
The Rights Commissioner service is the bottom rung of the ladder and is probably the least intimidating place to bring a claim. One Rights Commissioner sitting alone at the head of a table hears the complaint with the parties sitting both sides of the table to present their case.
This service is designed to be informal and not at all intimidating.
The EAT hearing is a bit more formal with 3 people sitting to hear the complaint. The Chairperson will be a barrister or solicitor appointed to the Tribunal by Government; there will also be an employer representative from a body such as IBEC, and an employee representative from a trade union.
Civil Courts might be chosen in certain circumstances:
- where you are bring a case for breach of contract or wrongful dismissal
- where your claim is for a non physical personal injury such as stress (you would have brought this the Injuries Board in the first place but they tend not to deal with non physical injury cases and simply authorise you to bring your claim in Court by way of legal proceedings)
- gender discrimination claims can go straight to the Circuit Court
The Equality Tribunal deals with all forms of discrimination in the workplace and they will be your 1st port of call if you are claiming that you have suffered discrimination in your job. Bear in mind that your discrimination must be on one of 9 grounds.
The 9 grounds are
- Marital status
- Family status
- Sexual orientation
- Race/colour/nationality/ethnic or national origins
- Membership of the travelling community.
The procedure and the 1 form you will need
The vast majority of employment related claims will start by the filling out of the Workplace Relations Complaint Form. You can access this form here on the Workplace Relations website.
The form can be filled in and submitted online. It will ask you for your details, the details of your employer, your complaint, what legislation you are claiming under and some other relevant details.
You should receive an acknowledgment of receipt of your complaint immediately once you have submitted the form. However you could be waiting 12-18 months for a hearing date.
It’s during this time that some efforts may be made to settle the dispute. This can occur by the Workplace Relations Early Resolutions service contacting the parties or by the parties themselves, perhaps through their solicitors, trying to settle the problem.
How much will it cost?
When you go to Court, the winner takes all.
By this I mean that if you win your case, the other side will almost certainly be ordered to pay your costs (as well as their own).
That’s not the case in employment cases at the EAT or Rights Commissioner service-each side pays their own costs.
So, how much will you have to pay? Well, it depends on how much time goes into preparing your case, how much time is spent at the hearing, whether counsel is instructed, and so on.
You should discuss this aspect of your case at the outset with your solicitor. He should be able to give you a good idea, but it will only be an estimate.
The difficulty in giving you exact figures lies the the huge difference between cases. For example, a half hour hearing with a Rights Commissioner over a very straightforward issue compared to a complex case involving counsel before the Employment Appeals Tribunal over a number of days will incur wildly different costs.
Enforcing decisions-what happens next?
If you are successful and win a positive decision, then the employer has 6 weeks within which to implement it. If he fails to do so you can make a complaint to another body in order to have your decision enforced.
A Rights Commissioner decision can be referred to the Labour Court for confirmation of the original decision. Once the Labour Court confirms it you can go to the Circuit Court for a Court Order which can be enforced against the employer.
An EAT decision can also be enforced through the Circuit Court with an order for payment being made.
How to decide what to do next
Deciding to bring a claim is a big decision.
It’s not easy, and the consequences of bringing one and losing, or winning, can be enormous.
You don’t have to suffer in silence though, or say nothing and stand idly by if your rights are being ignored or trampled upon. But you do have to be sure that you have a good chance of success and you do need to know whether there is, in fact, a breach of your rights.
Weigh up the pros and cons carefully. Don’t let your heart rule your head.
I know it’s difficult for you to be dispassionate about your problem, especially if going to work every day is a heavy chore. But you do need to have a good idea of the chances of success.
Friends and family mean well and don’t want to see you suffer.
So, before you do anything, get the best professional advice you can to give you a voice and ensure that your employment rights are upheld.
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