This article will cover the following topics:
- Unfair Dismissal or Redundancy
- Protected Disclosure
- Covid-19 and discrimination against women
1. Unfair Dismissal or Redundancy – What to do?
An issue often arises as to whether a dismissal was an Unfair Dismissal or a Redundancy. You can claim both.
- In the UD (Unfair Dismissal) claim you put in "I was unfairly dismissed and if not a dismissal it was a Redundancy"
- In the Redundancy claim you put in "I was made redundant and if not a Redundancy it is an Unfair Dismissal"
- As the Burden of Proof is on an employer in both cases the employee need go no further. There is no need to set out the full argument or facts in the claim form.
Why would you do this? Reason if you go with one claim only say Unfair Dismissal and the employer claims it was a redundancy the employee gets nothing. Go with a Redundancy claim and the employer shows the employee was not made redundant just dismissed equally zero to the employee.
Put in both claims and you cover all the bases.
Put in a Section 14 UDA (Unfair Dismissal Act) request asking for grounds of dismissal. If replied to you, you know which Act is relevant and you can withdraw one. If no reply, then you keep both going and you have proof of asking. If the employee only puts in one claim and it is the wrong Act, then happy days for the employer - the employee gets zero.
When it comes to Employment Law disputes, the WRC (Workplace Relations Commission) or in the case of senior executives the Courts can be seen as the way of resolving disputes. Mediation is more effective. It is voluntary so both parties must agree to it. Either party can withdraw at any stage and let the proceedings take their course.
Unlike arbitration where once you are in the process you are bound by it in mediation unless you get a settlement nobody is bound by it unless an agreement is reached. Mediation is totally confidential and neither party can disclose what is said in mediation. A mediator acts as a facilitator in getting parties to reach an agreement but without giving any ruling. As accredited mediators we see the benefits for employers and employees. Now our mediation services are separate from the WRC.
Yes, they cost. The WRC is free. Our service is provided on a professional basis being CEDR and MII accredited. There are many accredited mediators who have extensive expertise in Employment Disputes. Rather than thinking about WRC mediation which can take months to set up. Mediation with us or another mediator can be set up very quickly to avoid an issue festering.
3. Protected Disclosures
Not everything done wrong can be reported as a Protected Disclosure.
Even if not an issue which is a Protected Disclosure provided the employee making it reasonably believes it is a Protected Disclosure the employee is protected from victimisation. Now that is not a carte blanche protection. While the test is a subjective not an objective test it still has to be reasonable.
Where an employee is victimised by being dismissed the compensation can be up to 5 years wages. In reality however as the Unfair Dismissal Acts tests apply to minimising loss it is the economic loss and the employee must be seeking work and if they obtain same the loss is the actual only. Where not dismissed the compensation can be 5 years under Section 12. There is a twist which some employees fail to see sometimes. If an employer does nothing with the disclosure , takes no action at all that is not a claim. The employee must show as a result of a disclosure some action was taken to victimise them.
An employer doing nothing is not victimisation.
4. Suspension - How Employers Get It Horribly Wrong , or alternative title - "How To Gift An Employee a 100% Guaranteed Unfair Dismissal Claim"
- It is said there is nothing certain in life but when it comes to suspension there are some certainties
- Suspending an employee without pay , prior to a full disciplinary hearing , is probably one of the most stupid things any employer can do . Why ? Because a suspension without pay at that stage is deemed a dismissal entitling the employee to sue for UD
- Suspension without pay is deemed a sanction and determination which taints any future process as "unfair".
- An unfair process is a "NO-NO" to successfully defending any UD claim.
- A suspension without pay is a repudiation of the Employment Contract entitling the employee to deem themselves dismissed.
When Can There Be A Suspension Without Pay?
There is one and only one situation. That is where after a disciplinary hearing it is imposed as a sanction.
An employer can suspend on full pay pending a disciplinary hearing. But note suspension in those circumstances is only allowed for serious disciplinary matters under investigation.
5. Has #COVID19 been an excuse to discriminate against women?
I don't know.
All I can say is we have seen a marked increase in claim by women. Maybe this Firm is out of step - but I doubt it. Lets look at some:
- Pregnancy Dismissal under the guise of Covid-19 reorganisations / redundancies. Lets be clear unless it is a collective redundancy or a business closure a woman who is pregnant, on maternity leave, or, breastfeeding cannot be dismissed. There is a CJEU case called Paquay which is very clear on this. We had done this in 2019 . Clearly message not getting through - You don't dismiss pregnant women . Compensation under Employment Equality Acts is up to 2 years wages / salary.
- Maternity Protection Act breaches. Cases involving women after maternity not being returned to the workplace or when returning not to their previous job. That is an egregious breach of rights also but limit is 26 weeks compensation.
- Women being first selected for redundancy , salary reductions not applied to men being Equality claims also.
Women have been disproportionally affected.
If you require further information please get in touch with Richard Grogan & Associates here.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.
Disclaimer: Any views and/or opinions expressed in this post by individual authors or contributors are their personal views and/or opinions and do not necessarily reflect the views and/or opinions of Lawyered.