Consumer Protection Act 2007

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SCHEDULE 6

Redress for contravention of section 87

Section 87 .

1. In this Schedule—

“ Act of 1994 ” means the Terms of Employment (Information) Act 1994 ;

“ employee ” and “ employer ” have the same meaning as they have in the Act of 1994.

2. (1) An employee may present a complaint to a rights commissioner that the employer has contravened section 87 (3) in relation to the employee and, if the employee does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(2) A decision of a rights commissioner under subparagraph (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to comply with section 87 (3) and, for that purpose, require the employer to take specified steps;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 ;

and the references in the foregoing clauses to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

3. For the purposes of this Schedule—

(a) subsections (3) to (6) and subsection (7)(a) of section 7 of the Act of 1994 shall apply in relation to a complaint presented under this Schedule as they apply in relation to a complaint presented under subsection (1) of that section 7, with the following modifications, namely:

(i) the deletion in that subsection (3) of all the words from “if it is presented” to the end of that subsection and the substitution of “unless it is presented to him within the period of 12 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period, not exceeding 6 months from the expiration of the said period of 12 months, as the rights commissioner considers reasonable”;

(ii) the substitution in that subsection (6) of a reference to a decision for the reference to a recommendation;

and any other necessary modifications,

(b) sections 8 to 10 of the Act of 1994 shall apply as they apply for the purposes of that Act, with the following modifications, namely:

(i) the substitution in those provisions of references to a decision for references to a recommendation;

(ii) the addition to section 8 of the following subsection:

“(7) Proceedings under this section before the Tribunal shall be heard otherwise than in public.”;

(iii) the substitution in section 9 of—

(I) references to the Circuit Court for references to the District Court, and

(II) the following subsection for subsection (3):

“(3) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade or business.”;

and any other necessary modifications.

4. (1) In proceedings under this Schedule before a rights commissioner or the Employment Appeals Tribunal in relation to a complaint that section 87 (3) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.

(2) If a penalisation of an employee, in contravention of section 87 (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee in respect of that penalisation both under this Schedule and under those Acts.