Can you lodge a claim before the WRC while on notice but not yet dismissed
And what is the true cost of say a €20k award
The Simple answer is YES.
A recent case was concluded where the Complainant received €20,000.00 for unfair dismissal.
The Respondent argued that the complaint had been submitted on 5 September 2018, during the three months’ notice period while the Complainant was still employed, the complaint was premature, and therefore the WRC had no jurisdiction to hear the complaint.
This is often the case, were an employer serves notice, and before the conclusion of the notice an employee informs the employer they will go to the WRC for redress. Normally an employer will consider that as the employee was not yet dismissed they have no grounds to make a claim and the employer may still be considering the need for dismissal.
Also, the Employer will take in to consideration that compensation for unfair dismissal is compensatory and therefore the Employee still has time to seek alternative employment so their exposure is limited.
However, the problem with the WRC as with any legal body is the variance of decisions within each adjudicator’s interpretation of the legislation. This is common in the civil courts hence this is one of the reasons you are afforded the right of appeal.
On the right to claim within your notice period is examined in line with Brady v EAT  E.L.R. 1 in the High Court, that case made reference to Matthews v Sandisk International Limited UD331/2010 and noted that The decision of the Tribunal hearing that case went on to say “that the filing of a notice in writing with the Tribunal prior to the date of termination of employment and therefore prior to the period of six months beginning on the date of dismissal but not withdrawn prior to the date of termination of employment constitutes the giving of notice in compliance with Section 8 of the Unfair Dismissals Acts.
Employers and HR experts should note,
That the notice period by statured is governed by the Minimum Notice and terms of Employment act 1973, so up to 13 weeks there is no notice, 12 weeks to 2 years there is 2 weeks’ notice, 2 years to 5 years there is 4 weeks’ notice, 5 years to 8 years there is 6 weeks’ notice, 8 years to 15 years there is 8 weeks’ notice and after 15 years it remains at 8 weeks’ notice. Unless your contract offers more.
While the Courts have stated that an employer can dismiss an employee for any reason or no reason whatsoever, nonetheless, and outside of redundancy and due process there should only be the most egregious set of circumstances that an employee would be summary dismissed. In all other cases the circumstances that would give rise to an unfair dismissal claim should be so remote that an employer would have a well prepared defence.
ESA works on the principle of preventing the need to defend such claims by assisting employers with the management of employee relationships. While you will always find an employee who will manipulate matters and find a solicitor to represent them, nonetheless having a history of fair procedures will at best limited any award and or defeat spurious claim.
The cost of defending any claim, Solicitors costs, your time, your management time and the award.
ESA case manage through it EXPD8/Tread System, You are not exposed to Representation Costs, so any award is the only issues.
Example: an award of this case €20k you can add ca €5K to €8k legal, €8k to €10k your costs, so you could be looking at ca €38k to €40k hit on your business.