Employment law in Ireland provides strong protection for employees who feel their rights have been breached. Complaints, disputes and grievances are heard before a Rights Commissioner who will listen to both sides before completing an investigation of the complaint and issuing a recommendation. Recommendations issued by the Rights Commissioner can be binding or non-binding, depending on the type of law under which the case is heard.
Claims under equality legislation are brought to the Equality Tribunal.
Lalloo & Co Solicitors have specialist experience and expertise in all areas of employment law.
We have experience in cases related to:
Discrimination in the workplace
Redundancy
Unfair Dismissal
Constructive Dismissal
Discrimination in the workplace
Equality Law in Ireland
Every employer in the State is affected by The Employment Equality Act, 1998 which outlaws discrimination in employment on a number of specified grounds.
Discrimination
A person is said to be directly or indirectly discriminated against if he/she is treated less favourably than another is, has been or would be treated in a comparable situation on any of the following 9 grounds:
Gender. It should be noted that this includes discrimination faced by a female employee during pregnancy or on her return from maternity leave.
Marital Status
Family Status
Sexual Orientation
Religion
Age
Disability
Race
Membership of the Traveller community
Forms of Discrimination
Bullying
"Bullying is repeated inappropriate behavior that undermines your right to dignity at work. It is usually done by one person and aimed at a person or group to make them feel inferior to other people. Bullying can be verbal bullying, physical bullying or otherwise."
If a person is being bullied at work in relation to one of the 9 discriminatory grounds it is covered by the Employment Equality Acts and can be taken to the Equality Tribunal. If a claim does not relate to one of the discriminatory grounds then it is a Health & Safety issue.
Harassment
Harassment is defined by The Employment Equality Acts 1998 and 2004 as "unwanted conduct" which is related to any of the 9 discriminatory grounds. Unwanted conduct refers to spoken words, gestures or the production and display of unwritten words, pictures and other material. Sexual harassment is any form of "unwanted verbal, non-verbal or physical conduct of a sexual nature".
Harassment at work can be inflicted by a fellow worker, a boss, a superior, a client, a customer or any business contact. An employer should have a policy setting out the guidelines for what is considered appropriate behaviour.
If a person is being harassed at work in relation to one of the 9 discriminatory grounds it is covered by the Employment Equality Acts and can be taken to the Equality Tribunal. If a claim does not relate to one of the discriminatory grounds then it is a Health & Safety issue.
Making a Complaint
The Equality Tribunal
Complaints may be brought to "The Equality Tribunal", which is otherwise known as the Office of the Director of Equality Investigations).
The Equality Tribunal is an independent state body in Ireland with the function of investigating or mediating claims of discrimination.
Steps of a case brought before "The Equality Tribunal:
A case referred to the Director of Equality will be delegated to an equality officer for investigation and decision.
The equality officer will seek the views of both parties by written exchange
The equality officer has statutory powers to obtain further information if they so wish
A hearing proceeds
The equality officer issues a detailed written decision which is legally binding
Remedies
The Equality Tribunal may provide one or more of the following remedies as may be appropriate:
In an equal pay claim, compensation in the form of arrears of pay for up to three years before the date of the referral of the claim
An order for equal pay from the date of the referral of the claim
Compensation in an amount up to 2 years' remuneration.
An equal treatment order
Employer Liability
The Employment Equality Act, 1998, affects every employer in the State. The Act also provides that employers may be found vicariously liable for the discriminatory actions of an employee towards a fellow employee.
Statute of Limitations
The time limit imposed for submitting a claim in relation to discrimination in the workplace is 6 months; however it may be extended to 12 months if "reasonable cause" for the delay can be shown.
Redundancy
Redundancy occurs when a person loses their job due to closure of a company or a reduction in staff levels. The key element of redundancy is that the job ceases and the person is not replaced by another person. This situation may arise due to lack of work, financial limitations, dismantling of the corporate structure.
Who is eligible for statutory redundancy payment?
Redundancy may be covered in your contract of employment. If it is, then employers are obliged to pay the amount contracted for. If it is not provided for in your contract or your contract provides for less in the statutory minimum then you are covered by the aforementioned Acts. The statutory redundancy entitlement is related to the employee's length of service and normal weekly earnings i.e. gross weekly wage, average regular overtime and payment in kind, all added together, up to a maximum wage of €700 per week.
You are covered if:-
You are aged between 16 and 66;
You have 104 weeks (two years) continuous service.
You are in employment that is insurable under the Social Welfare Acts.
Full-time workers, part-time workers, agency workers and apprentices are covered under the Redundancy legislation; however they must fulfil the criteria listed above.
Disputes concerning redundancy payments can be submitted to the Employment Appeals Tribunal.
Under what conditions is redundancy selection permitted?
A valid redundancy situation is deemed to have occurred where a dismissal occurs due to one of the following reasons:
An employer has ceased (or intends to cease) to carry on the business for the purposes that the employee was originally employed
An employer has ceased (or intends to cease) to carry on that particular business in the place where the employee was employed.
The business no longer requires an employee to carry out the particular work that the employee was originally employed to do so.
An employer has decided to carry on the business with fewer or no employees. (The employer may require the work for which the employee had been employed to be done by other employees or otherwise.
Where an employer has decided that the work for which the employee has been employed should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained.
Where an employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work, for which the employee is not sufficiently qualified or trained.
When is redundancy selection prohibited? (Unfair Selection for Redundancy)
Although a redundancy situation exists, you may have grounds for complaint if the manner of your selection for redundancy was unfair.
In selecting a particular employee for redundancy, an employer should apply selection criteria that are reasonable and are applied in a fair manner. You are entitled to bring a claim for unfair dismissal if you consider that you were unfairly selected for redundancy or consider that a genuine redundancy situation did not exist. Examples of these situations might include where the custom and practice in your workplace has been last in, first out and your selection did not follow this procedure. Another example may be where your contract of employment sets out criteria for selection which were not subsequently followed.
If an employee can establish that a redundancy was as a result of any of the following conditions then it is automatically deemed as unfair selection for redundancy i.e. Redundancy on the basis of:
Trade Union Activity
Pregnancy
Religious or political opinion
In addition, according to the Employment Equality legislation, selection for redundancy may not be due to any of the following grounds:
Gender
Marital status
Family status
Age
Disability
Religious belief
Race
Sexual orientation
Membership of the travelling community
Remedies available:
If an individual is successful in establishing a claim for unfair selection for redundancy, then the following remedies are available before the Rights Commissioner or the Employment Appeals Tribunal (or the Equality Tribunal if it relates to a breach of the Employment Equality Acts):
Reinstatement: This involves being reinstated to your position as if you had never been dismissed. You are entitled to all Lost Earnings from the date of the dismissal to the date of the hearing and also entitled to any favourable changes in the interim period, such as pay rises.
Re-engagement: This involves being restored to your prior position but only from a particular date, for example from the date of the decision in your favour. You are not entitled to compensation for lost earnings.
Compensation: This is the most common remedy. The Employment Appeals Tribunal are entitled to award compensation up to a maximum of two years lost remuneration and will reference their awards to earnings which have been lost during the period spent attempting to secure alternative employment. In that regard it is important that an applicant has documentation to evidence continual attempts to secure employment as there is also a duty at law to mitigate or reduce the loss of earnings claim by obtaining or endeavouring to obtain alternative employment.
Unfair Dismissal
Time Limit- Statute of Limitations
The time limit imposed for submitting a claim in relation to Unfair Dismissal to the EAT is 6 months from the date the notice period expires; however it may be extended to 12 months if there are exceptional circumstances. It should be noted that this extension is rarely given.
The time limit imposed for submitting a claim to the Equality Tribunal in relation to discriminatory dismissal is also 6 months; however it may be extended to 12 months if "reasonable cause" for the delay can be shown.
What is Unfair Dismissal?
According to The Unfair Dismissals Act 1977-2001 substantial grounds must exist to justify the termination of a contract of engagement and fair procedures must be adhered to in effecting the termination in order to ensure that an unfair dismissal claim does not arise.
Unfair dismissal may arise in the following situations:
An employer terminates an employee's employment, with or without notice
An employee terminates their employment, with or without notice, due to the conduct of the employer (constructive dismissal)
In what situation is a dismissal considered an Unfair Dismissal?
A dismissal is automatically considered an Unfair Dismissal if an employee is dismissed on the basis of any of the following grounds:
Trade union activity
Pregnancy
Religious or political opinions
Availing of rights under legislation to maternity leave, adoptive leave, carer's leave, parental or force majeure leave
Unfair selection for redundancy
Legal proceedings against an employer where an employee is a party or a witness
In addition, according to the Employment Equality legislation, dismissal may not be due to any of the following grounds:
Gender
Marital status
Family status
Age
Disability
Religious belief
Race
Sexual orientation
Membership of the travelling community
It is important to note that even if a dismissal is not automatically unfair, as defined above, it may be held so as a result of a lack of fair procedures surrounding the dismissal.
Who is eligible for an Unfair Dismissal claim?
In order to qualify to submit a claim for Unfair Dismissal the following conditions must be met:
At least 1 years service (an exception to this rule includes dismissals in contravention of the Employment Equality Acts and unfair dismissal due to trade union activity, pregnancy or availing of rights in relation to maternity, parental leave, wages or carers legislation).
Employed under a contract of service (as opposed to a contract for service)
Dismissal occurred i.e. employment terminated (an exception to this rule is constructive dismissal where the employee resigns).
If an employer disputes the fact that a dismissal took place it is the responsibility of the employee to prove that it did occur. Subsequent to proving the dismissal, the claim proceeds to the next stage of deciding if the dismissal was fair or unfair. At this stage the onus is on the employer to prove it was fair, except in the case of constructive dismissal where the onus is on the employee to show that the conditions of employment were such that they had no option but to leave. .
Remedies available:
If you qualify under the unfair dismissals legislation, you may bring your claim to a Rights Commissioner, alternatively you may proceed directly to the Employment Appeals Tribunal.
If a claim is heard by a Rights Commissioner, the Rights Commissioner will issue a recommendation and either you or your employer may appeal that recommendation to the Employment Appeals Tribunal.
Where a claim or an appeal is heard by the Employment Appeals Tribunal, the Tribunal will issue a determination. There is a right of appeal by either party to the Circuit Court from a determination of the Tribunal.
Complaints of discriminatory dismissal under equality legislation should be referred to the Equality Tribunal.
Remedies available if an individual is successful in establishing a claim
If an individual is successful in establishing a claim for Unfair Dismissal, then the following remedies are available before The Employment Appeals Tribunal:
Reinstatement: This involves being reinstated to your position as if you had never been dismissed. You are entitled to all Lost Earnings from the date of the dismissal to the date of the hearing and also entitled to any favourable changes in the interim period, such as pay rises.
Re-engagement: This involves being restored to your prior position but only from a particular date, for example from the date of the decision in your favour. You are not entitled to compensation for lost earnings.
Compensation: This is the most common remedy. The Employment Appeals Tribunal are entitled to award compensation up to a maximum of two years lost remuneration and will reference their awards to earnings which have been lost during the period spent attempting to secure alternative employment. In that regard it is important that an applicant has documentation to evidence continual attempts to secure employment as there is also a duty at law to mitigate or reduce the loss of earnings claim by obtaining or endeavouring to obtain alternative employment.
Time Limit- Statute of Limitations
The time limit imposed for submitting a claim in relation to Unfair Dismissal is 6 months from the date the notice period expires; however it may be extended to 12 months if there are exceptional circumstances. It should be noted that this extension is rarely given.
Constructive Dismissal
Constructive Dismissal
Constructive dismissal arises where an employee terminates their contract of employment due to the conduct of an employer or other employees of the company whose behavior they have previously brought to the attention of management.
If an employee claims constructive dismissal under the Unfair Dismissal legislation the onus will be on the employee to prove that their resignation was justified, unlike an unfair dismissal situation where the onus is on the employer to prove the dismissal was fair.
Who is eligible for an Unfair Dismissal claim?
In order to qualify to submit a claim for Unfair Dismissal the following conditions must be met:
At least 1 years service (an exception to this rule includes unfair dismissal due to trade union activity, pregnancy or availing of rights in relation to maternity, parental leave, wages or carers legislation).
Employed under a contract of service
Utilised all available grievance procedures (complaint systems) prior to resignation
Issues you should be aware of before submitting a constructive dismissal
It is up to the employee to prove the resignation was justified
A grievance procedure should be utilised prior to resignation
Industrial relations procedures should be utilised prior to resignation
Seek advice before resigning as it is a complex legal area
Resignation should only be utilised as a last resort, when all other avenues for resolving the issue have been exhausted.
Remedies available:
If an individual is successful in establishing a claim for Unfair Dismissal, then the following remedies are available before The Employment Appeals Tribunal:
Reinstatement: This involves being reinstated to your position as if you had never been dismissed. You are entitled to all Lost Earnings from the date of the dismissal to the date of the hearing and also entitled to any favourable changes in the interim period, such as pay rises.
Re-engagement: This involves being restored to your prior position but only from a particular date, for example from the date of the decision in your favour. You are not entitled to compensation for lost earnings.
Compensation: This is the most common remedy. The Employment Appeals Tribunal are entitled to award compensation up to a maximum of two years lost remuneration and will reference their awards to earnings which have been lost during the period spent attempting to secure alternative employment. In that regard it is important that an applicant has documentation to evidence continual attempts to secure employment as there is also a duty at law to mitigate or reduce the loss of earnings claim by obtaining or endeavouring to obtain alternative employment.
Time Limit- Statute of Limitations
The time limit imposed for submitting a claim in relation to Constructive Dismissal is 6 months; however it may be extended to 12 months if "reasonable cause" for the delay can be shown.
For further information please contact Dalippe Lalloo – dalippe@LACS.ie
Disclaimer
This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Lalloo & Company Solicitors for any action taken in reliance on the information contained herein. Any and all information is subject to change
Employment Law Solicitor Dublin
