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Victimisation

The Acts clearly set out that it is unlawful for an employer to penalise an employee for taking action around the enforcement of the Acts and/or the Equal Status Act 2000 – 2004.

The Acts state that victimisation occurs where the dismissal or other adverse treatment of an employee is a reaction by the employer to a complaint of discrimination made by the employee to the employer or an employee having given notice of an intention to take any of the action relating to discriminatory treatment perceived or otherwise.

The Acts define victimisation as occurring where dismissal or some other adverse treatment of an employee by his or her employer occurs as a reaction to-

  1. a complaint of discrimination made by the employee to the employer,
  2. any proceedings by a Claimant.

Victimisation occurs where the dismissal or other adverse treatment of an employee is a reaction by the employer to

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a Claimant,

(c) an employee having represented or otherwise supported a Claimant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of these Acts or any enactment repealed by these Acts,

(e) an employee having been witness in any proceedings under these Acts or any such repealed enactment

(f) an employee having opposed by lawful means an act which is unlawful under these Acts or any such repealed enactment, or

(g) an employee having given notice or an intention to take any of the actions mentioned in the preceding paragraphs.

Section 74(2) explicitly states: “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a Claimant,

(c) an employee having represented or otherwise supported a Claimant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the Labour Court in the case of Toni and Guy Blackrock Limited v Paul O’Neill Determination No HSD095, it was noted that the Court is not concerned with the fairness of the dismissal per se.  Its sole function is to establish whether or not the dismissal was caused by the Applicant having committed an act protected by Section 27(3) of the Act.  The decision further states that: “…in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3.”

Although not explicitly dealing with victimisation under the Acts this is a good indication of how the Workplace Relations Hearing will consider such matters.  The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.  Where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment.  This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”.