Protected Disclosures Act 2014

SCHEDULE 1

Interim Relief Pending Determination of Claim for Unfair Dismissal

Section 11 .

Application for interim relief.

1. (1) An employee who claims to have been dismissed by the employee’s employer wholly or mainly for having made a protected disclosure may apply to the Circuit Court for interim relief.

(2) The Circuit Court shall not entertain an application for interim relief unless it is presented to the Court before the end of the period of 21 days immediately following the date of dismissal (whether before, on or after that date) or such longer period as the Court may allow.

(3) The Court shall determine the application for interim relief as soon as practicable.

(4) The employee shall give the employer prior written notice of intention to make the application for interim relief.

(5) The Court shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

Procedure on hearing of application and making of order.

2. (1) This paragraph applies where, on hearing an employee’s application for interim relief, it appears to the Court that it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.

(2) The Court shall announce its findings and explain to both parties (if present)—

(a) what powers the Court may exercise on the application, and

(b) in what circumstances it will exercise them.

(3) The Court shall ask the employer (if present) whether the employer is willing, pending the determination or settlement of the claim—

(a) to reinstate the employee (that is, to treat the employee in all respects as if the employee had not been dismissed), or

(b) if not, to re-engage the employee in another position on terms and conditions not less favourable than those which would have been applicable to the employee if the employee had not been dismissed.

(4) For the purposes of subparagraph (3)(b)“terms and conditions not less favourable than those which would have been applicable to the employee if the employee had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period before the dismissal should be regarded as continuous with the employee’s employment following the dismissal.

(5) If the employer states a willingness to reinstate the employee, the Court shall make an order to that effect.

(6) If the employer—

(a) states a willingness to re-engage the employee in another position, and

(b) specifies the terms and conditions on which the employer is willing to do so,

the Court shall ask the employee whether he or she is willing to accept the position on those terms and conditions.

(7) If the employee is willing to accept the position on those terms and conditions, the Court shall make an order to that effect.

(8) If the employee is not willing to accept the position on those terms and conditions—

(a) where the Court is of the opinion that the refusal is reasonable, the Court shall make an order for the continuation of the employee’s contract of employment, and

(b) otherwise, the Court shall make no order.

(9) If on the hearing of an application for interim relief the employer—

(a) fails to attend before the Court, or

(b) states an unwillingness either to reinstate or to re-engage the employee as mentioned in subparagraph (3),

the Court shall make an order for the continuation of the employee’s contract of employment.

Order for continuation of contract of employment.

3. (1) An order under paragraph 2 for the continuation of an employee’s contract of employment is an order that the contract of employment continue in force—

(a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and

(b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the order) until the determination or settlement of the claim.

(2) Where the Court makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the claim.

(3) Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—

(a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and

(b) in the case of a payment for any past period, within such time as may be specified in the order.

(4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.

(5) Any payment made to an employee by an employer under his or her contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period, or part of any such period, goes towards discharging the employer’s liability in respect of that period under subparagraph (2) ; and, conversely, any payment under that subparagraph in respect of a period goes towards discharging any liability of the employer under, or in respect of breach of, the terms and conditions of employment or contract of employment in respect of that period.

(6) If an employee, on or after being dismissed, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the Court shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.

(7) For the purposes of this paragraph, the amount which an employee could reasonably have been expected to earn, the employee’s normal pay period and the normal pay day for each such period shall be determined as if the employee had not been dismissed.

Application for variation or revocation of order.

4. (1) At any time between—

(a) the making of an order under paragraph 2, and

(b) the determination or settlement of the claim,

the employer or the employee may apply to the Court for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.

(2) Paragraphs 1 and 2 apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, paragraph 1(4) has effect with the substitution of a reference to the employee for the reference to the employer and of a reference to the employer for the reference to the employee.

Consequence of failure to comply with order.

5. (1) If, on the application of an employee, the Court is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under paragraph 2, the Court shall—

(a) make an order for the continuation of the employee’s contract of employment, and

(b) order the employer to pay compensation to the employee.

(2) Compensation under subparagraph (1)(b) shall be of such amount as the Court considers just and equitable in all the circumstances having regard—

(a) to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and

(b) to any loss suffered by the employee in consequence of the non-compliance.

(3) Paragraph 3 applies to an order under subparagraph (1)(a) as in relation to an order under paragraph 2.

(4) If on the application of an employee the Court is satisfied that the employer has not complied with the terms of an order under subparagraph (1)(a) for the continuation of the employee’s contract of employment subparagraph (5) or (6) applies.

(5) Where the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the Court shall determine the amount owed by the employer on the date of the determination.

(6) In any other case, the Court shall order the employer to pay the employee such compensation as the Court considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non- compliance.

(7) Any sum awarded to the employee on the determination of the claim that he or she has been unfairly dismissed shall be specified separately from any amount determined under subparagraph (5).

Annotations:

Modifications (not altering text):

C1

Schedule (other than para. 1(1)) applied with modifications by Industrial Relations (Amendment) Act 2001 (11/2001), s. 11A, as inserted (1.08.2015) by Industrial Relations (Amendment) Act 2015 (27/2015), s. 34, S.I. No. 329 of 2015.

[Interim relief pending determination of claim for unfair dismissal

11A. (1) Where a worker has made a claim under paragraph (aa) of section 6(2) of the Unfair Dismissals Act 1977, he or she may apply to the Circuit Court for interim relief pending determination of that claim.

(2) Schedule 1 (other than paragraph 1(1)) to the Protected Disclosures Act 2014 shall apply to an application under subsection (1) with the following modifications:

(a) the references to ‘employee’ shall be construed as references to ‘worker or employee’;

(b) in paragraph 2(1) the reference to ‘the employee having made a protected disclosure’ shall be construed as a reference to ‘the grounds specified in paragraph (aa) of section 6(2) of the Unfair Dismissals Act 1977’.

(3) An application to the Circuit Court under this section shall be made to the Circuit Court sitting in the circuit in which the employer concerned carries on his or her business. ]