When Jimmy came to see me after he was dismissed from his job I advised him against bringing a claim for unfair dismissal. And that decision has now paid off handsomely.
Because Jimmy has now been awarded 2 years’ salary for the claim arising from his dismissal-a discrimination claim under the Employment Equality Act 1998, not the Unfair Dismissals Act 1977.
Let me explain why we made this decision.
I was confident that Jimmy was unfairly dismissed, but if he is successful in his unfair dismissal claim under the Unfair Dismissals Act 1977 he is only entitled to financial loss. Because Jimmy obtained a new job quickly after his dismissal, he would only have been entitled to 1 month’s wages if he was successful with an unfair dismissal claim.
However, if Jimmy could prove a discriminatory dismissal, he could be awarded up to 2 years’ salary, regardless of whether he got a new job or not. Because the award under the Employment Equality Act 1998 is for the act of discrimination and the WRC adjudicator has wide discretion as to the amount to be awarded, assuming he wins his case.
And that is what the adjudication officer has done in this case, the decision of which you can read at the bottom of this page.
Obviously in order to have a choice in a situation like Jimmy’s the employee must have been discriminated against on one of the 9 grounds of discrimination. Therefore, the choice may or may not arise, depending on the circumstances.
In Jimmy’s case he was dismissed whilst he was out on certified sick leave so we made the argument that this was a discriminatory dismissal on the basis that Jimmy was suffering from a disability at the time of the dismissal and it was a central factor in the termination of his employment.
Parallel or duplicate proceedings
Generally, you cannot bring a claim under two different acts arising from the same set of circumstances, and you may be forced to pick one claim or the other. In this case we chose, for the reasons set out above, to pursue the claim under the Employment Equality Act 1998.
A recent case which I have written about saw the employee being awarded compensation under the Employment Equality Act 1998 and the Maternity Protection Act 1994. But section 101 Employment Equality Act 1998 states, inter alia,
F183 [ (4A) (a) Where an employee refers —
(i) a case or claim under section 77 , and
(ii) a claim for redress under the Act of 1977,
to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.
Conclusion
Frequently the decisions you make before you submit your claim to the Workplace Relations Commission, and what claim you bring, will prove to be strategically important later.
Footnote: please note Jimmy is a pseudonym of my client’s real name.
Read the full anonymised decision here.