Categories
Equality and Discrimination

Shop Assistant Awarded 2 Years’ Salary for Discriminatory Dismissal

workplace discrimination ireland

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.

Categories
Equality and Discrimination

Labour Court Awards €51,168 for Discrimination Based Dismissal After Maternity Leave

The Labour Court has awarded the maximum amount open to it-€51,168-for the effects of discrimination in a case involving an employee returning to work after maternity leave.

Background

Karen Kelly worked for G4S Secure Solutions (Ireland) Limited and had been awarded €11,602.50 at a Workplace Relations Commission hearing. Both employer and employee appealed this decision, the employee not being satisfied with the amount awarded and the employer not happy with the decision to find discrimination against Ms Kelly.

Ms Kelly had brought her claim for discrimination pursuant to the Employment Equality Acts 1998-2015 on the basis that the employer did not let her return to the post she had occupied prior going on maternity leave.

Ms Kelly had been employed on a site in Swords but after her return from maternity leave G4S had instructed her not to attend the Swords site. She was advised that she was not allowed to return to that site because the employer’s client in Swords had requested that she not return to their site.

Ms Kelly was offered a fixed term contract-of 3 months, later extended to 6 months-in the employer’s head office in Ballymount. This was problematic for the employee, however, as it involved a 4-hour round trip to work and no other offers were made to her.

In April 2018 the employer stopped paying Ms Kelly and Ms Kelly requested her P45 in June 2018.

Ms Kelly’s case was founded on discrimination on the basis that had she not gone on maternity leave she would in all probability continue to work in the Swords site on a permanent or CID contract.

The employee’s case

Ms Kelly’s side argued that where a dismissal is based on a discriminatory ground the Labour Court is obliged to take into account the manner and effects of the dismissal to ensure any award is effective, proportionate and dissuasive in accordance with the principles in the ECJ case of Von Colson& Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

The fact that she was not given her P45 was also raised as an issue which compounded Ms Kelly’s difficulties in accessing social welfare payments.

The employer’s case

The employer’s position was that she was not dismissed nor discriminated against but the employer’s hands were tied insofar as it was their client who insisted that Ms Kelly not be sent back to the Swords site. The employer also stated that Ms Kelly had resigned by reason of her seeking her P45 and they had done their best to get her back onto the Swords site, but the client would not agree to this.

For this reason, they claimed, no discriminatory dismissal had occurred.

Labour Court findings

The Labour Court referred to the general right to return to work on the expiry of protective leave, as set out in the Maternity Protection Act 1994 and to the Employment Equality Acts dealing with discrimination in relation to work.

The Court also referred to the right to suitable alternative work in certain circumstances on return to work.

The court found that the employer could not rely on the insistence of the employer’s client that she not return to Swords as trumping Ms Kelly’s statutory rights.

It also found that the employer could not rely on the argument that it was not reasonably practicable to return the employee to her previous job and that a role involving a 4 hour round trip was a suitable alternative as envisaged by the Maternity Protection Act 1994.

The Court found that prior to her maternity leave Ms Kelly was working 30 minutes from home on a permanent contract; after her protective leave she was expected to travel 4 hours each day and work on a fixed term contract. Based on those facts the Court did not accept that the terms of the contract offered were ‘not less favourable’. The Court noted that no other option was put to the Complainant at any stage in the process.

The Labour Court was satisfied that this was a discrimination-based dismissal and awarded the maximum amount the Court could award, €51,168, as the compensation in such cases must be proportionate, effective and dissuasive.

Read the full decision here.

Categories
Unfair Dismissal

Exceptions to the 12 Months’ Service Requirement in Unfair Dismissal Claims

fair-dismissal-procedures

If you are unfairly dismissed and wish to bring a claim under the Unfair Dismissals Act 1977 you will need to have been employed continuously for 12 months.

If you do not have 12 months’ service you cannot bring a claim for unfair dismissal or constructive dismissal if you cannot clear this hurdle.

That is the bad news; the good news is there are some important exceptions to this 12 months’ service requirement. Let’s take a look at them, shall we?

Exceptions to 12 Months’ Service Requirement

  1. Protected disclosure-if you are dismissed for having made a protected disclosure under the Protected Disclosures act 2014 you do not need 12 months’ service
  2. Discrimination-if you were dismissed on a discriminatory ground you will be able to bring a claim under the Employment Equality Acts without 12 months’ service
  3. Trade union-an employee who is dismissed for trade union membership or activity does not require 12 months’ service
  4. Pregnancy, birth, breastfeeding-any dismissal connected with these issues can be brought without 12 months’ service
  5. Maternity protection-any dismissal arising from the exercise of a maternity right does not need 12 months’ service
  6. Adoptive leave-any dismissal arising from the exercise of an adoptive leave right does not need 12 months’ service
  7. Parental leave and force majeure leave-12 months’ service is not required for unfair dismissal claims arising from these rights
  8. National Minimum Wage Act, 2000-any dismissal arising from the employee seeking to exercise rights under this act can be brought without 12 months’ service
  9. Carer’s Leave act-12 months’ continuous service is not required.

It is inevitable that if you bring a claim the employer may well argue that you do not have the necessary 12 months’ service and will deny that you were dismissed arising from any of the exceptions set out above.

Clearly, each case will be dealt with on its own facts and circumstances but you will need to be prepared for this argument and ready to put forward facts from which it can be inferred that your dismissal did arise from the exercise of one of the categories listed above.

Categories
Equality and Discrimination

Discriminatory Dismissal Leads to €46,000 Compensation Award

workplace discrimination ireland

Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.

But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.

An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.

The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.

The €46,000 award comprised 2 parts:

  1. €23,000 in respect of the actual discriminatory dismissal and
  2. €23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.

The award took into account the way the employer dismissed the employee: by telephone.

Background

The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:

  • Working from home
  • More rest breaks
  • Flexible working rosters
  • A temporary reduction in working hours.

The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.

However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”

In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.

She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.

The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.

Warning for employers

This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.

Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.

Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.

Categories
Equality and Discrimination Unfair Dismissal

Unfair Dismissal and Discriminatory Dismissal Are Parallel Claims-You Must Choose One or the Other

discriminatory dismissal

Did you know that you cannot bring a claim for unfair dismissal and discriminatory dismissal at the same time?

They are considered to be parallel complaints and you will have to choose one or the other.

Let me clarify: section 77 of the Employment Equality Act, 1988 states

77.— F117 [ (1) A person who claims —

( a ) to have been discriminated against or subjected to victimisation,

( b ) to have been dismissed in circumstances amounting to discrimination or victimisation,

( c ) not to be receiving remuneration in accordance with an equal remuneration term, or

( d ) not to be receiving a benefit under an equality clause,

in contravention of this Act may, subject to subsections (3) to (9) , seek redress by referring the case to the F118 [ Director General of the Workplace Relations Commission ] . ]

Thus, you are claiming that you have been dismissed in circumstances amounting to discrimination or victimisation.

You can also bring a claim under the Unfair Dismissals act, 1977 but you will have to choose which of these claims you will ultimately pursue.

Why? Because Section 101(4)(a) of the Employment Equality act, 1998 states:

(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.

(b) In this subsection —

‘ Act of 1977 ’ means the Unfair Dismissals Act 1977 ;

‘ dismissal ’ has the same meaning as it has in the Act of 1977;

‘ relevant date ’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation. ]

This means that the discrimination based claim under the Employment Equality act, 1988 will be deemed to be withdrawn unless, 41 days after notification from the WRC, you withdraw the claim under the Unfair Dismissals act, 1977.

Then, if you withdraw the claim under the Unfair Dismissals Act, 1977 your discrimination based claim under the Equality Act 1988 will go ahead.

If you don’t respond to the letter you receive from the WRC your claim under the Equality Act, 1988 will be deemed to be withdrawn and your unfair dismissal claim will be dealt with.

Section 101A of the Employment Equality Act, 1998 also prohibits parallel claims as follows:

101A. — Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003 , relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts.

Takeaway

If you bring claims to the Workplace Relations Commission sometimes your case will be straightforward, but sometimes you can easily fall into a technical or legal roadblock that may give you a nasty surprise.

You should always seek legal advice before you bring any claim as it is vital that you choose the correct cause of action. This cannot be remedied later on and I have seen some very silly, basic mistakes made by workers who ultimately make some simple but fatal mistakes and end up with nothing but heartache and disappointment.