Categories
Equality and Discrimination

Parallel Proceedings-WRC Decides Both Maternity Protection Act and Employment Equality Act Claims Can Be Pursued

maternity-leave-ireland

This case involved a woman who worked as a HR manager returning to work after her maternity leave and discovering she was not, according to her, returning to the same job she had left.

She brought claims under the Maternity Protection Act 1994 and the Employment Equality Act 1998.

Preliminary issue

The employer’s legal team raised a preliminary point: that the Complainant could not pursue claims under the two different acts arising from the same set of facts.

They argued this would be an example of parallel proceedings and they relied on a Labour Court case, Power v Jahan Company t/a Irema Ireland Limited EDA 1326.

In that case the Labour Court decided the employee could not bring a claim to the Labour Court under the Employment Equality Acts because the employee had already received a decision arising from the same circumstances from a Rights Commissioner hearing under the Maternity Protection Act 1994’

The matter was held to be res judicata.

In the instant case the Complainant argued she could bring a claim under both statutes, but if forced to choose would opt for the Employment Equality act 1998.

The Adjudicator Decision

The WRC adjudicator looked at the decision of the Labour Court and its reliance on Cunningham v Intel Ireland Limited (2013) IEHC 207 and noted the High Court held

All matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings

The Labour Court had decided that the employee could not ventilate her complaint under the Employment Equality Acts as the complaint had already been adjudicated at the Rights Commissioner hearing and a remedy applied. It was, therefore, res judicata.

However, the adjudicator distinguished that case from the instant one because no previous hearing of this complaint had been heard or adjudged. Res judicata did not apply.

Also, the present claim under the two different acts would be adjudged at one sitting, not two as had occurred in Power.

Reference was also made to Financial Administrator v a Telecommunications Provider, ADJ 15172 where the adjudicator awarded redress under both acts where the same facts grounded complaints under the Maternity Protection acts and the Employment Equality Acts.

For these reasons the adjudicator decided she was not prohibited from hearing both complaints, notwithstanding that they were arising from the same set of facts.

The Decision

The adjudicator found that there was a breach of the Maternity Protection Act 1994 insofar as the complainant was not allowed to return to the position she had left prior to going on maternity leave. The job to which she was expected to return saw her being relegated to a lower position-that is, she would have been one of three HR Business Partners reporting to more senior HR manager.

Her role was, therefore, reduced and the new role was not a suitable alternative under a new contract and she experienced less favourable terms and conditions.

The adjudicator found that the complaint was well founded and awarded her €9,547 -that is, 6 weeks remuneration. This was compensation for breach of the Maternity Protection act 1994 and takes into account the redress awarded in respect of her complaint under the Employment Equality Act 1998.

The decision on the WRC website does not specify any compensation awarded under the Employment Equality act 1998.

However a report on the website IRN.ie which deals with industrial relations matters, and which has reported on the case, has reported here that the employee was also awarded €41,370 for gender discrimination. I have contacted the website to try to reconcile the difference and to ask where they obtained the figure of €41,370 for gender discrimination.

Read the full decision here. This is the WRC decision as reported on their website.

The Employment Equality Act Claim

The decision under the employment equality acts for discrimination was given here and you will note that the employee was awarded 6 months salary in the sum of €41,370.

Read the full decision in ADJ-00023183

Takeaway

This employee was awarded €50,917 in total under the two acts for claims which arose from the same set of facts and circumstances.

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.