changing your claim, under the EAT

psalbmb

say, someone puts in a claim for discrimination of sexual orientation and victimisation, under the Employment Equality Act 1998, and includes in that claim, the option for : dismissed as a result of sexual orientation, but you were sacked, for what ever reason, and want to take that "option" out as you don't want it to be included in the case when it goes to court, do or can you re-apply or what can one do?

I know that you've 6 months to change you're claim , but it also states, that it can be extended with reasonable cause... Any suggestions

sorry if its a bit unclear, unfortunately, i have to be careful what I post here, for legal reasons

Pat Mustard

Sounds like a claim for discriminatory dismissal has been made before the Equality Tribunal (not the EAT, as stated in the OP), but that somebody now wants to make a complaint of unfair dismissal before the EAT, even though it is suspected that the 6 month time limit may be up.

Consider if 6 months have passed since the P45 was given, or if there is still some time from receipt of P45. Not saying it's a banker, but consider it.

Consider if there has been a reason for extension of of time to make a complaint before the EAT, from 6 to 12 months.

Consider that it may now be necessary to get a good solicitor to advise and possibly argue the case, as matters may now be more complicated.

psalbmb

The Mustard wrote: »

Sounds like a claim for discriminatory dismissal has been made before the Equality Tribunal (not the EAT, as stated in the OP), but that somebody now wants to make a complaint of unfair dismissal before the EAT, even though it is suspected that the 6 month time limit may be up.

Consider if 6 months have passed since the P45 was given, or if there is still some time from receipt of P45. Not saying it's a banker, but consider it.

Consider if there has been a reason for extension of of time to make a complaint before the EAT, from 6 to 12 months.

Consider that it may now be necessary to get a good solicitor to advise and possibly argue the case, as matters may now be more complicated.

thanks for the reply. I was dismissed in July and didn't receive my p45 until November, so would that be a reason for changing one's claim? to cut a long story short, i accidently included the option of discriminatory dismissal but i want to proceed to the EAT without this and just take Discrimination of Sexual Orientation and Victimization, under the Employment Equality Act 1998, if that makes any sense?>

Pat Mustard

Calculate any holidays you may have been owed, gather all of your paperwork and P.45 and get to a solicitor as a matter of urgency, by which I mean immediately.

psalbmb

The Mustard wrote: »

Calculate any holidays you may have been owed, gather all of your paperwork and P.45 and get to a solicitor as a matter of urgency, by which I mean immediately.

what do you mean? as in to be within the timeframe to change the claim?

Pat Mustard

Section 8(2) of the Unfair Dismissals Act 1977, as amended:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section ) to a rights commissioner or the Tribunal, as the case may be—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,

You ask about bringing a claim for unfair dismissal. You wrote that you were dismissed in July. See the time limits set out in the quoted legislation. We can't give legal advice on this forum. You need legal advice straight away.

McCrack

A cut and paste of something I happen to be working on very recently that may assist the OP in understanding 'exceptional circumstances' (allowing the EAT to entertain a claim beyond 6 months) which I have edited somewhat to keep it non-identifying and gender neutral.


"In the alternative if we are to show “exceptionalcircumstances” (S8 (2)(b) of the Unfair Dismissals Act 1977) to excuse our client bring their application outside the statutory six month period and have the EAT exercise its discretion we look to case law.

UDA Act 1977 is in the nature of being a remedial statute it is appropriate that it should be construed “as widely and liberally as can fairly be done”: Bank of Ireland v Purcell 1989 IR 327 per Walsh J on statutes that are remedial in nature.

Traditionally the EAT put the test ‘exceptional circumstances’ as:

To be something out of the ordinary, the circumstances mustbe unusual, probably quite unusual but not necessarily highly unusual and they must prevent client lodging the claim and arose during the first 6 months.

Recent judgment of AG vRIRB 2012 IEHC Hogan J delivered 6/11/12 teases out the meaning and import of “exceptional circumstances” in the context of extending time for late applications to the RIRB.
TheJudge said ‘exceptional’ means“something unusual or out of the ordinary. The RIRB which the Judgeappeared to endorse (partly because he was constrained by previous authority interpreting the meaning) said it (exceptional circumstances)as a general analysis as being of a nature of forming an exception, out of the ordinary course, unusual, special, essentially something out of the ordinary and a test of uniqueness is applied to each particular case."