Employment Equality Act 1998

Penalty for dismissal of employee for exercising rights.

98

98. (1) If an employee is dismissed in circumstances amounting to victimisation, the employee’s employer shall be guilty of an offence and if, in a prosecution for an offence under this section, it is proved—

( a) that the employee was dismissed, and

( b) that the employee, in good faith, did one or more of the acts specified in F171 [ paragraphs (a ) to ( g ) ] of section 74(2) ,

that proof shall, without more, be evidence until the contrary is proved, that the sole or main reason for the dismissal of the employee was that the employee, in good faith, did one or more of those acts.

(2) Subject to subsection (4), on a conviction of an offence under this section, the court may, if it thinks fit and considers that the F172 [ Director General of the Workplace Relations Commission ] would have power to do so—

( a) make an order for the re-instatement of the employee by the employer, or

( b) make an order for the re-engagement of the employee by the employer.

(3) Subject to subsection (4), if the court by which a person is convicted of an offence under this section does not make an order under subsection (2) (a) or (b), it may, if it thinks fit, in addition to imposing a fine for the offence, order the employer to pay to the employee concerned such amount of compensation as, subject to subsection (5), the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the employer or the employee concerned.

(4) The court shall not exercise its powers under subsection (2) or (3) unless the employee concerned consents.

(5) The amount of compensation which may be ordered under subsection (3) shall not exceed either—

( a) the amount which, having regard to subsections (4) and (5) of section 82 , the F172 [ Director General of the Workplace Relations Commission ] could order by way of compensation under F173 [ paragraph (c ) or ( f ) of section 81(1) ] on a claim for redress in respect of the dismissal, or

( b) if the order is made by the District Court, £5,000 or such other amount as may stand prescribed for the time being by law as the limit of that court’s jurisdiction in tort,

and, in applying any provision of section 82 for the purposes of paragraph (a), any reference to the date of the reference shall be construed as a reference to the date of the dismissal and any reference to the date of the F172 [ Director General of the Workplace Relations Commission ] shall be construed as a reference to the date of the conviction of the offence.

(6) Where, on conviction of an employer for an offence under this section, the court makes an order under subsection (2) (a) or (b) or subsection (3)

( a) whether or not the employer appeals against the conviction or sentence, the employer may appeal against the order to the court to which an appeal lies against the conviction, and

( b) the court hearing an appeal against the conviction or sentence, or an appeal against the order alone, may revoke or vary the order and, in particular, where the order was made under subsection (3), may vary the amount of the compensation.

(7) Where the court makes an order under subsection (3) for the payment of an amount of compensation—

( a) without prejudice to any right of appeal by any other person, the employee concerned shall have a right of appeal, limited to the amount of the compensation, to either the High Court or, as the case may be, to the judge of the Circuit Court in whose circuit is situated the district (or any part thereof) of the judge of the District Court by whom the compensation was ordered, and

( b) to the extent of the amount of compensation paid, the payment by the employer of the compensation shall be a good defence in any civil proceedings brought by the employee concerned in respect of the remuneration which the employee would have received if the dismissal had not occurred.

(8) Where an appeal is brought under subsection (7)(a), the decision of the High Court or, as the case may be, the judge of the Circuit Court shall be final.

Annotations:

Amendments:

F171

Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 40, commenced on enactment.

F172

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 83(1)(c)(ii), S.I. No. 410 of 2015, subject to transitional provision in subs. (2).

F173

Substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 28 and 29, commenced on enactment.

Modifications (not altering text):

C47

Application of section extended with modifications by Pensions Act 1990 (25/1990), s. 81J and sch. 4, as inserted (5.04.2004) by Social Welfare (Miscellaneous Provisions) Act 2004 (9/2004), s. 22, S.I. No. 141 of 2004, as amended (18.07.2004) by Equality Act 2004 24/2004), s. 66(3)(e), commenced on enactment.

Application of Employment Equality Act 1998.

81J.—(1) In this section ‘the Act of 1998’ means the Employment Equality Act 1998.

(2) Sections 74, [76, 77A], 78 to 81, 83 to 85 and 86 to 104 of the Act of 1998 shall, where appropriate, apply in relation to this Part as they apply in relation to that Act but with the following modifications.

(3) Those modifications are that for the words set out in column (3) of the Fourth Schedule at a particular reference number, being words appearing in a section or sections of the Act of 1998 specified in column (2) of that Schedule at that reference number, there shall be substituted in the place or, as the case may be, each place where those words occur in that section or sections the words set out in column (4) of that Schedule at that reference number.

Editorial Notes:

E64

Previous affecting provision: subss. (2), (5) amended (18.07.2004) by Equality Act 2004 (24/2004), s. 46 and sch. paras. 28 and 29, commenced on enactment; substituted as per F-note above.