VICTIMISATION AT WORK

The term victimisation is used to describe unfair treatment of a worker by an employer because of some action the worker has taken. Some employment legislation protects you from victimisation if you are seeking to avail of or availing of your rights under the legislation. This means that your employer may not penalise you by dismissal, unfair treatment or an unfavourable change in your conditions of employment. Some legislation refers to this conduct as “penalising” an employee, other legislation refers to it as victimisation. If you are being victimised but not because you are claiming your rights under certain employment legislation then the issue may be harassment or bullying in the workplace.

Employment legislation prohibiting victimisation

Minimum wage

The National Minimum Wage Act 2000 prohibits your employer from victimising you for exercising your rights under the Act. If you are due a pay increase under this Act you may not be victimised by your employer, for example, by a reduction in your hours of work.

Employment equality
If you brought a claim or gave evidence in proceedings against your employer under the Employment Equality Acts 1998-2011 you are protected against victimisation. If you are victimised by your employer you may bring another claim to the Equality Tribunal – see ‘How to apply’ below. Your employer may be obliged to pay you compensation. This applies whether or not you lost your original case against your employer.

Health and safety
Under the Safety, Health and Welfare at Work Act 2005 you may not be penalised for exercising your rights under safety and health legislation. For example, your employer may not penalise or dismiss you for making a complaint about health and safety at work to the Health and Safety Authority

Carer’s leave
Under the Carer’s Leave Act 2001 you are protected against being victimised for taking carer’s leave, or proposing to take it.

Part-time employees
If you are a part-time employee you may not be penalised for claiming your rights under the Protection of Employees (Part-Time Work) Act 2001.

Fixed-term employees
An employer is prohibited from victimising a fixed-term employee who seeks to avail of rights under the Protection of Employees (Fixed-Term Work) Act 2003. Victimisation includes dismissal in order to avoid a fixed-term contract being considered an open-ended contract.

Agency workers

An agency worker is protected against being victimised for reporting breaches of the Protection of Employees (Temporary Agency Work) Act 2012. This means that the hirer or the agency may not penalise an agency worker by dismissal, unfair treatment or an unfavourable change in their conditions of employment.

Whistleblowers

Under the Protected Disclosures Act 2014, employees who make disclosures about wrongdoing which comes to their attention in the workplace are protected against penalisation. This Act applies to all employees, contractors, agency workers, members of the Garda Síochána and the Defence Forces.

Under the Criminal Justice Act 2011 if you disclose information to the Gardaí or give evidence about relevant offences, your employer is prohibited from penalising or dismissing you for this. Relevant offences are those relating to white collar crime in areas such as banking, company law, fraud and corruption.

Employment legislation and unfair dismissal

Other employment legislation protects you against dismissal for seeking to avail of or availing of your rights under the legislation but does not protect you against victimisation. If you are dismissed because of your pregnancy or for claiming your rights under maternity protection legislation your dismissal is unfair. You are also protected against unfair dismissal if you are taking or proposing to take adoptive, parental or force majeure leave. In these circumstances you do not need any particular period of service with your employer in order to bring a claim for unfair dismissal – see ‘How to apply’ below.

How to apply

Victimisation: If you have been victimised you may make a complaint to a Rights Commissioner. The complaint must be made within 6 months of the alleged victimisation. This time limit may be extended to 12 months at the discretion of the Rights Commissioner.
Complaints of victimisation can be referred to a Rights Commissioner – see ‘Complaints’ below – under the following legislation:
National Minimum Wage Act 2000
Carer’s Leave Act 2001
Safety, Health and Welfare at Work Act 2005
Protection of Employees (Part-Time Work) Act 2001
Protection of Employees (Fixed-Term Work) Act 2003
Criminal Justice Act 2011
Protection of Employees (Temporary Agency Work) Act 2012

Unfair dismissal: You can make a complaint of unfair dismissal to the Employment Appeals Tribunal – see ‘Complaints’ below. Applications must be made within 6 months of the dismissal. This time limit can be extended to 12 months if there are “exceptional circumstances”. Complaints of dismissal which come under employment equality legislation should be made to the Equality Tribunal – see ‘Complaints’ below.

If you have been dismissed for claiming your rights under maternity protection, adoptive leave, parental leave or carer’s leave legislation you do not need 1 year’s service to make a claim under unfair dismissals legislation.

If you have been penalised by being dismissed, and you make a claim under the Unfair Dismissals Acts 1977 to 2007 you cannot also make a complaint to a Rights Commissioner.

Employment equality
Complaints under the Employment Equality Acts about victimisation including dismissal and complaints about discriminatory dismissal must be referred to the Equality Tribunal – see ‘Complaints’ below. The complaint must be brought within 6 months of the last act of victimisation or the date of dismissal. This time limit can be increased to 12 months when there is “reasonable cause” for the delay.

Complaints
If you are making a complaint to the Rights Commissioner Service, the Employment Appeals Tribunal or the Equality Tribunal you should use the new online complaint form (available by selecting ‘Make a complaint in relation to employment rights’ on workplace relations.ie).

Extracted From: Citizens Information