An unfair dismissal claim can send shivers down the spine of any business owner, HR professional or employee. And rightfully so. Dismissals which are found to be unfair can be damaging for the organisation’s reputation, can effect organisational culture, can bring undue pressure and stress on to the managers and parties handling the disciplinary process and/or claims, and most importantly, can be damaging and disruptive for the employee in question.
Although there are many protections, legislative instruments, best practices and suggested procedures to help avoid unfair dismissals, it is an issue that still appears in Irish workplaces. Anyone who has been following employment law news in recent months will tell you, there are still quite a number of cases coming before the courts, with a lot to be learned from the respective judgements.
So to help you gain a deeper understanding of this area, we’ve gathered the top questions we receive on this topic, and have answered them below.
P.S, we’ve also got a free HR Room Webinar – Unfair Dismissals with Barry Crushell (Crushell & Co | Law at Work), coming up. Save your spot here!
But for now, read on!
What does not count as ‘unfair’ dismissal?
In order to understand the remit of unfair dismissals, it is of utmost importance to understand what does not count as unfair dismissal. A dismissal from work is not ‘unfair’ if it results from:
- An employee’s capability, competence or qualifications for the job
- An employee’s conduct (behaviour)
- An employee being unable to work (or continue to work) in the position they held without breaking the law (for example, if their job involves driving and they are then legally disqualified from driving)
- An employee’s redundancy (unless made redundant unfairly or wrongfully)
What is an unfair dismissal?
Here in Ireland, the law and guidance states that if an employee is dismissed from work, the dismissal is automatically considered to be ‘unfair’ if they are dismissed for:
- Membership (or proposed membership) of a trade union, or for engaging in trade union activities
- Legal proceedings against an employer where the employee in question is a party or a witness
- Pregnancy, giving birth, breastfeeding, or any other matters connected with pregnancy or birth (such as attending antenatal classes)
- Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parent’s leave, parental leave or force majeure leave
- Unfair selection for redundancy
- Making a protected disclosure (that is, where an employee raises concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014. Check out our recent podcast on this Act here.
- And of course, employment equality legislation prohibits dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community.
Unfair dismissal happens where:
- An employer ends an employee’s contract of employment, with or without notice.
- An employee ends their own contract of employment, with or without notice, due to the conduct of their employer. This is known as constructive dismissal.
Is there a time limit for an employee to bring a claim against their employer?
An employee must complain about an unfair dismissal within 6 months of the dismissal happening. Under the Unfair Dismissals Acts, the ‘date of your dismissal’ is the date an employee’s notice expires.
Read about the statutory minimum period of notice, and check if your contracts of employment give a longer period of notice.
The 6-month time limit may be extended for a further 6 months, but only if the employee in question has a ‘reasonable cause’ for the delay.
Length of service
Usually, an employee must have at least 12 months’ continuous service with the employer before they can bring a claim for unfair dismissal.
Exceptions to the ‘length of service’ rule
If an employee has worked for an employer for less than 12 months, they may still bring a claim for unfair dismissal if they were dismissed for, as above:
- Trade union membership or activity
- Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
- Availing of rights to maternity leave, adoptive leave, paternity leave, parental leave, carer’s leave, parent’s leave, force majeure leave, or the national minimum wage
- Making a protected disclosure
- Or on any of the 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community.
If an employee has less than one year’s service and the employer has not followed fair procedures when dismissing the employee, the employee may be able to make a claim under Section 20(1) of the Industrial Relations Act 1969. And while any recommendation from the Court is not legally binding on the employer, be conscious of the effect these things have on your culture and employer brand.
Who must prove that a dismissal was unfair?
If an employer disputes the fact that a dismissal took place, it is the responsibility of the employee to prove that it did occur. Subsequent to proving the dismissal, the claim proceeds to the next stage of deciding if the dismissal was fair or unfair.
At this stage the onus is on the employer to prove it was fair, except in the case of constructive dismissal where the onus is on the employee to show that the conditions of employment were such that they had no option but to leave.
In these circumstances, the importance of a transparent and detailed paper trail of all stages of a disciplinary process, can not be understated. Failure to produce these kinds of records may result in an adjudicator finding that the dismissal was unfair.
Generally, the WRC will look at two issues:
- The procedures applied. Did the company apply fair procedures and follow their own disciplinary policy? The basics of procedural fairness are that the employee should know the case against them, know that dismissal is a potential outcome of the process, be allowed to make representations, be accompanied at disciplinary meetings, and be given a right of appeal.
- The substantive issue. Did the employee do what they were accused of and was the sanction of dismissal proportionate to what was said to have occurred? Substantive fairness looks at whether the employer’s decision fell within a band of reasonable responses that a reasonable employer in those circumstances, and in that business, might have adopted. The Adjudicator is not allowed to substitute their own view and determine whether they would have done things differently, but will look at whether the employer’s investigation and decision were reasonable.
Even if the employee did what the employer says they did, if the procedures applied were not fair the dismissal would automatically be considered unfair. Again, a clear and transparent paper trail is key to mounting a defence against an unfair dismissal claim, and it is important to keep this at the top of your mind at the beginning of a performance improvement or disciplinary process.
Are there any recent cases of note in this area?
While there have, of course, been a wide range of unfair dismissal cases brought to the courts, there have been a particularly high number of notable cases this year. Take a look at some of the well-documented judgements regarding unfair dismissals below.
- Catherine Branagan v Exela Technologies Limited, ADJ-00029964
- Prison Officer v The State, ADJ-00032015
- Amy Meredith v Bolway Investments Limited T/A The Odeon Group, ADJ-00037364
- A Sales Executive v A Software Company, ADJ-00027573
- Esker Property Holdings Limited v Tyrrell, ADJ-00021679 CA-00028413-00
Take a look back at coverage of some of the cases outlined above, at our recent #Case Studies webinar and both of our recent #CaseStudies podcasts, here and here.
What is the outcome if an employee succeeds in their claim?
If an employee is successful in their claim for unfair dismissal, the body that heard their claim may award them one of the following remedies, as provided for in the Unfair Dismissals Act:
Reinstatement
This means that the employee treated as if they had never been dismissed. Not only are they entitled to loss of earnings from the date of the dismissal to the date of the hearing, they are also entitled to any favourable changes in the terms of employment during that period, and for example, pay rises.
Re-engagement
This means that they will be given their job back but only from a particular date, for example, the date of the decision in their favour. This means that they will not be entitled to compensation for any loss of earnings.
Compensation
Maximum compensation one can obtain is 104 weeks remuneration or 2 years of their salary.
It is essential to note that compensation is only awarded in respect of financial loss. An employee cannot therefore claim any compensation for such matters as injury to their feelings or stress caused by the dismissal, and must prove they attempted to mitigate their loss by providing proof that they attempted to find other work.
How do you prevent a claim of unfair dismissal?
Although it is difficult for employers and HR teams to entirely remove the possibility of being faced with a claim of unfair dismissal, there are a wide range of steps you can take the reduce the risks and ensure your employees also never have to face being dismissed unfairly.
- Investigate the matter and ensure you have a robust report that you can rely upon and a clear paper trail showing that you took the employee through the disciplinary process fairly.
- Follow your procedures and advise the employee that dismissal may be a possible sanction from the disciplinary process.
- Give plenty of notice of the hearing in writing and offer the employee the option to be represented at the disciplinary hearing.
- Carefully select the disciplinary panel and ensure they are not the same people conducting the investigation. The disciplinary panel needs to be trained in handling disciplinary matters.
- Give the employee adequate time to put forward a defence during the meeting. You must not argue with the employee, but you can ask probing questions to establish the facts before making a decision.
- Take notes and share them with the employee so that there is an agreed record of the meeting. Make sure that you are happy to stand over anything written in the notes at a WRC hearing or court case. Remember, the media may pick up your case as hearings are now open to the public (except cases where there are ‘special circumstances’). Decisions are no longer anonymised on publication and WRC adjudicators have statutory powers to administer an oath or affirmation.
- Don’t decide on a sanction at the meeting or immediately after the meeting. Take time to consider what the employee has said and consider if dismissal is appropriate in the circumstances. It is always wise to get a second opinion from a HR advisor or employment lawyer you trust.
- Treat the employee with dignity and respect throughout the process, irrespective of what they have done. An angry employee who feels they have been poorly treated is more likely to seek legal advice and take a claim against the company than an employee who you treated well.
- Set out the reasons for terminating the employment contract in writing.
- Ensure that the employee receives all their statutory entitlements such as annual leave, outstanding pay, public holiday pay, notice pay (if not dismissed for gross misconduct) etc.
- Offer the option of appeal and identify the person to whom the employee can direct the appeal.
- Training managers is key to avoiding claims, as they can make mistakes while managing performance, disciplinary processes and hearings.
Where can I go for help?
“If you’re not confident in this area, pick up the phone, get advice. Half an hour talking to an expert goes a long way towards HR people getting this kind of thing right.” – Mary Cullen
Insight HR has been helping employers figure out all aspects of employment law, disciplinary processes, and much more, for over 20 years.
We can work directly with the employer and provide advice and guidance on how to deal with a disciplinary procedure, dismissal claim, or anything related. Prior to disciplinary action, we can help with workplace investigations. Once it has been decided that a disciplinary action cannot be avoided, we can advise you on how to handle the formal procedures and if required attend the meeting as an independent chairperson and note taker.
To find out more or to talk to one of our consultants in confidence call us on 056 770 1060 or email info@insighthr.ie.
For further guidance why not register for our next free HR Room Webinar – Unfair Dismissals with Barry Crushell (Crushell & Co | Law at Work), to get live interactive guidance from the experts. Save your spot here!