One of the new protections created by the recently-enacted Protected Disclosures Act 2014 allows an employee to apply for a court order seeking his/her reinstatement/re-engagement, in circumstances where the employee alleges (s)he has been dismissed either wholly or primarily as a result of making a protected disclosure.
The application should be made to the Circuit Court within 21 days of the date of dismissal. The Court can request the employer’s agreement to reinstate the employee to his/her role, or re-engage the employee in another position, with terms and conditions not less favourable than those originally held.
However, if an employer agrees to re-engage the employee in another position, it is open to the employee to refuse. If the Court is satisfied that the refusal by the employee is reasonable, it may instead order the continuation of the employee’s contract of employment without re-engagement. This order may also be made by the Court if an employer fails to attend court or declares an unwillingness to reinstate or re-engage the employee.
The continuation of the employee’s contract of employment means that the employee must continue to receive his/her salary, benefits and pension entitlements (as applicable) until the employee’s unfair dismissal claim is dealt with, or the case is settled. The employee’s period of continuous service must remain unbroken. Where an employer fails to comply with this order, the Court can direct compensation to be paid to the employee. The Act is silent as to any limit on this compensation, stating that it will be “just and equitable in all the circumstances”.
The ability to obtain such an order offers significant protection to an employee waiting for his or her unfair dismissal claim to be heard but could be a potentially heavy burden for an employer who may have to continue to pay his/her salary.
To date, the Circuit Court has not yet dealt with an application for this type of relief under the 2014 Act. It will be interesting to see how the Court will approach any such application made.
Contributed by Aisling Butler, Nuala Clayton.
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