Employment Equality Complaints After Resignation: What Employers Need To Know

The Law

Section 82(4) of the EEA provides that the maximum amount which may be ordered by way of compensation under the EEA is: 

“(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of 104 times the amount of that remuneration, determined on a weekly basis; 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned; or €40,000; or (b) in any other case, €13,000.”

In other words, the greater of 104 weeks' remuneration or €40,000in compensation is only available where the complainant was in receipt of remuneration at the date the complaint was made or at the time of their dismissal.

Where a complainant was not in receipt of remuneration at the date the complaint was made (and was not dismissed), section 82(4) of the EEA imposes a ceiling of €13,000 compensation. This distinction has significant consequences in practice, particularly for employees who allege discrimination or harassment but choose to resignprior to lodging a complaint with the WRC.

Recent WRC Decisions

Three recent WRC decisions illuminate the application and potential circumvention of the €13,000 cap set by section 82(4)(b) of the EEA. While the first two decisions confirm the cap as a hard ceiling, the third raises a more fundamental question of whether the cap is in compliance with EU law at all.

Olaru v Remo Foods Limited t/a Domino's Pizza ADJ-00044923 (Olaru)

The Complainant in this case brought a complaint under section 77 of the EEA in respect of gender discrimination, sexual harassment, and victimisation, as well as a complaint under section 27 of the Organisation of Working Time Act 1997 in respect of rest breaks. The Complainant submitted that she suffered a continuum of discrimination throughout her employment and that the discrimination last occurred on 19 September 2022, on which date she tendered her resignation.

In respect of the EEA claim, the Adjudication Officer was satisfied that the Complainant had been discriminated against on the ground of gender and sexually harassed, in violation of the EEA. However, the Adjudication Officer also held that as the Complainant was not in receipt of remuneration at the date of the reference of the case (nor was she dismissed), the maximum amount that could be awarded under section 82(4) of the EEA was €13,000. 

In view of the serious nature of the Complainant's uncontested evidence, the Complainant was awarded the maximum award of €13,000.

An Employee v A Café ADJ-00047296 

The Complainant in this matter was an employee of the Respondent café for a period of about 12 weeks in spring/summer 2023. She resigned on 21 June 2023 and later submitted a complaint under the EEA citing gender discrimination and sexual harassment.

In finding that the complaint was well found, the Adjudication Officer applied section 82(4)(b) of the EEA directly and held that as the Complainant had resigned, was not in receipt of remuneration at the relevant date, and was not dismissed, the maximum amount that could be awarded under section 82(4) of the EEA was €13,000. 

Taking into consideration the employee’s length of service and that the Complainant was extremely affected by the harassment, the Complainant was awarded €12,000 by way of compensation. 

What Do These Decisions Mean In Practice?

Taken together, the decisions in Olaru and An Employee v A Café  are strong authority for the proposition that where a complainant has voluntarily resigned and was not in receipt of remuneration at the date of referral, the compensation cap of €13,000 applies as a hard ceiling, even where the conduct established is of the most serious nature.

For employers, these decisions indicate that the financial exposure associated with equality claims brought by former employees who have resigned and who were not dismissed is subject to a meaningful statutory ceiling. They also underscore that the manner and timing of an employee's departure can have a direct bearing on the quantum of any award ultimately made against an employer.

Recent Uncertainty 

Unfortunately, the subsequent decision in Noel O’Connell v National Council for Special Education ADJ-00042837 (O’Connell) doesintroduce a significant degree of uncertainty for employers in respect of the WRC’s interpretation of section 82(4) of the EEA.

In that case, the WRC found that the National Council for Special Education ("NCSE") indirectly discriminated against a deaf applicant on grounds of disability when it required candidates for the role of "Advisor Deaf/Hard of Hearing (ISL)" to hold a formal Irish Sign Language ("ISL") qualification. The Complainant did not hold such a qualification despite being a fluent ISL user. The Complainant's application was rejected at the outset, and although an internal review upheld his complaint and found that he met the essential criteria, the NCSE did not reopen the competition for the role.

The Adjudication Officer found the discrimination claim well founded. However, it is the approach to redress that makes this decision particularly significant for employers. 

As discussed above, section 82(4) of the EEA imposes a statutory ceiling of €13,000 on compensation awards in certain circumstances. This includes access-to-employment discrimination claims. Relying on Article 17 of Directive 2000/78, which requires that sanctions for breaches of the Directive be “effective, proportionate and dissuasive”, the Adjudication Officer disapplied the €13,000 limit and awarded compensation of €40,000.

Practical Tips for Employers 

While Olaru and An Employee v A Café may bring some comfort to employers in respect of their potential financial exposure where an employee has resigned before bringing an EEA claim, the O'Connell decision shows there is a real prospect that the WRC will disapply the €13,000 ceiling on EU law grounds and award significantly higher compensation in certain cases.

Employers should also be alive to the significance of the timing and circumstances of an employee’s resignation. Where an employee departs in circumstances connected to alleged discrimination or harassment, this may directly affect the quantum of any subsequent award, and employers would be well advised to seek legal advice promptly in such situations.