Employees entitled to a Claim

Employers need to be cautious when dismissing employees as the Unfair Dismissals Acts 1977-2007 regulate the area and provide remedies to employees who have been unfairly dismissed.  

Redress for unfair dismissal under the Unfair Dismissals Acts 1977-2007 apply to employees who:  

  •  are employed under a contract of employment, either oral or in writing;  
  •  have been dismissed or can prove that the your conduct as an employer was so unreasonable that resignation was justified;  
  •  have one year’s continuous service. However, this is not necessary where dismissal is on grounds of pregnancy or related matters, race, age, religion or trade union activity; 
  •  are aged 16 years and over. 

The Acts also apply where an individual is employed by employment agencies or directly by the employer.  

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Obligations & Disciplinary Procedures

The onus is on you as the employer to prove the dismissal was not unfair and there are grounds which justify dismissal including: 

  • capability, competence or qualification  
  •  conduct  
  • Redundancy (provided selection criteria fair) 
  • fixed term contracts (with certain exceptions). 

There is a legal obligation on you to supply employees with written procedures that you will follow before dismissing an employee no later than 28 days after they commence employment. Any changes to the procedure must be notified to them within 28 days of the change being made. 

The use of disciplinary procedures is strongly recommended to employers where an employee’s conduct, attendance or performance is of concern. The best practice on disciplinary and grievance procedures can be found in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) Declaration Order, 2000, (S.I. 146/2000). It sets out that the procedures be rational and fair, the basis for disciplinary action is clear, the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available to employees. As employment laws and circumstances in the workplace may change, disciplinary and grievance procedures should be reviewed and updated regularly. It is good practice to have a number of stages in the procedure for discipline and grievances including being handled by an immediate manager in the first instance and then progressing through more senior management and if appropriate, being referred to a third party. Failure to use or comply with procedures may cause a dismissal to be deemed unfair.  

Disciplinary action may include: 

  •  an oral warning; 
  •  a written warning; 
  •  a final written warning; 
  •  suspension without pay; 
  •  transfer to another section of the company; 
  •  demotion. 

There is no rule about how many warnings should be given in any case but the test laid out is – what would a reasonable employer do? Where serious misconduct has occured, it may be appropriate to move to a later stage of the procedure more quickly than usual. 

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If an employee appeals a claim under the Unfair Dismissals Acts and is successful, they may be entitled to reinstatement, re-engagement or compensation. 

If you are need guidance on the dismissal of an employee, we will help you step-by-step. Your convenience is important to us and we aim to minimise the amount of time you have to spend on the process. We offer video calls to save you from travelling to meet us and you can meet us at times convenient to you.  

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Gary O’Sullivan

Solicitor, Head of Department

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