Staff gain certain legal rights under the Unfair Dismissals Acts 1977 -2015 after completing one year’s service. If you dismiss an employee without giving them an opportunity to avail of fair procedures, you risk suffering a claim in the Workplace Relations Commission.
The unfair dismissals legislation sets out five fair reasons for dismissal. These potentially fair reasons are:
- capability, competence, or qualifications
- conduct
- redundancy
- statutory restrictions
- other substantial grounds justifying the dismissal.
For any type of dismissal, you will need to show if the reason for dismissal falls under one of these 5 fair reasons for dismissal.
Once you have confirmed which one of the 5 reasons for dismissal your proposed dismissal falls into, you’ll need to show the following prior to confirming the dismissal:
- the dismissal was reasonable, and
- you followed a fair, equitable and reasonable dismissal process.
When is dismissal necessary?
There are various reasons for dismissal at work. Poor performance or poor conduct are common reasons for dismissal. It is not just a case however of terminating an employee who has failed to meet the standards expected of your organisation.
You must also ensure that the employee receives the benefit of fair procedures before confirming that their termination of employment fell under one of the fair reasons for dismissal.
Dismissal during a probationary period
Many Peninsula clients ask if they need reasons for dismissal during a probationary period?
A probationary period differs in a few key aspects. First, a probationary period is unlikely to last more than one year in duration. If the employee has not completed one year’s continuous service, they will not be able to make a claim under the unfair dismissals legislation.
Secondly, dismissals during probation are not permitted without first following fair procedures. It’s important to have a probationary period clause in your contract allowing you to terminate the employee’s contract during the probation period.
Possible claims during the first year of employment
There are several automatically unfair reasons for dismissal. Employees with less than one year’s service can make claims if they have been dismissed for any of the following reasons:
- Trade union membership
- Pregnancy, giving birth, breastfeeding
- Exercising their rights under family friendly entitlements like maternity leave, paternity leave, carer’s leave, force majeure, parental leave, adoptive leave, parent’s leave
- Exercising rights under national minimum wage legislation, and
- Making a protected disclosure.
A number of other automatically unfair reasons for dismissal exist under the Employment Equality Acts 1998 – 2015 which prohibits employers from making discriminatory dismissals based on nine protected characteristics.
Summary dismissals
In certain circumstances, it may be necessary to dismiss an employee without first carrying out an investigation and following fair procedures. These are known as summary dismissals and usually involve gross misconduct by the employee.
Even in gross misconduct cases, you should communicate the reasons for dismissal of an employee to the relevant staff member before confirming their dismissal.
The most common reasons for immediate dismissal are typically conduct-based dismissals. Some reasons for instant dismissal include:
- Assault
- Intoxication at work
- Theft
- Serious breach of employer’s policies.
Even if you think there are reasons for summary dismissal, you must first be satisfied that the employee’s behaviour was so bad that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.
Don’t make an unfair dismissal
If you intend to dismiss an employee, you must provide written reasons for the dismissal.
One of the best ways to protect your business is to communicate your dismissal procedures clearly in the employee handbook and contract of employment.
If you then think you need to make a dismissal, call Peninsula for professional advice to avoid falling foul of the law. Peninsula clients get access to 24/7 HR specialists who can ensure your dismissal procedures follow the law.
And if you’re not yet a client, you can still enjoy a free advice call from one of our employment law experts. Simply call us on 0818 923 923
