Unfair dismissal

Introduction

Under the Unfair Dismissals Acts 1977-2015, unfair dismissal can occur where:

  • Your employer terminates your contract of employment, with or without notice.
  • You terminate your contract of employment, with or without notice, due to the conduct of your employer. This is known as constructive dismissal.

If you are dismissed from your employment, you may bring a claim for unfair dismissal against your employer, under certain conditions. The unfair dismissals legislation does not actually protect you from dismissal, but it offers a way to appeal against your dismissal and to question its fairness after it has occurred.

You will have to show that you qualify to bring a claim under the legislation (see ‘Rules’ below). If you do this and your employer accepts that they dismissed you, your employer will have to show that there were fair grounds for the dismissal. Except in cases of constructive dismissal, a dismissal is presumed to be unfair unless your employer can show substantial grounds to justify it.

Under the legislation, you may ask your employer for a written statement of the reasons for your dismissal. Your employer should provide this within 14 days of your request.

If you are found to have been unfairly dismissed, you may get your job back or, more commonly, you may receive compensation for the loss of earnings caused by the dismissal.

Unfair dismissals

A dismissal is automatically considered to be unfair if you are dismissed for any of the following reasons:

  • Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours
  • Religious or political opinions
  • Legal proceedings against an employer where you are a party or a witness
  • Race, colour, sexual orientation, age or membership of the Traveller community
  • Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
  • Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental leave or force majeure leave
  • Unfair selection for redundancy
  • Making a protected disclosure (that is, where you raise concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014

Redundancy

Under the unfair dismissals legislation, redundancy is considered to be a fair reason for dismissal. However, you may have grounds for complaint if you were unfairly selected for redundancy or consider there was no genuine need for redundancy. Your dismissal may be considered unfair unless your employer can prove there was a genuine redundancy situation and that they followed fair procedures.

If you make a claim for unfair dismissal, you cannot also claim redundancy.

Rules

To qualify to bring a claim for unfair dismissal, you must meet the following requirements relating to time limits, length of service, employment status and fact of dismissal.

Time limits

You must start your claim for unfair dismissal within 6 months from the date of the dismissal. If you have reasonable cause to delay, you may be allowed to extend this period for up to 12 months from the date of dismissal. However, the reason must be strong and convincing – saying you did not know the law will not be enough.

Under the Unfair Dismissals Acts, the date of your dismissal is the date that the notice you are entitled to expires. If you have worked at least 13 weeks for your employer, you are entitled to a statutory minimum period of notice. Your written contract of employment may set a longer period of notice.

Length of service

Normally you must have at least 12 months’ continuous service with your employer before you can bring a claim for unfair dismissal. Continuous service is generally broken only if the employer dismisses you or you terminate your employment.

However, there are important exceptions to this general rule on 12 months’ service. Even if you have served for less than 12 months, you may bring a claim for unfair dismissal where you are dismissed for:

  • Trade union membership or activity
  • Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
  • Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Paternity Leave and Benefit Act 2016, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001
  • Making a protected disclosure under the Protected Disclosures Act 2014

Dismissal based on any of the following nine grounds for discrimination is illegal under employment equality legislation:

  • Gender
  • Civil status
  • Family status
  • Age
  • Disability
  • Religious belief
  • Race
  • Sexual orientation
  • Membership of the Traveller community

For example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal under employment equality legislation. See ‘How to make a complaint’ below.

Employment status

To be an employee under the law, you must be working for an employer under a ‘contract of service’. This is different from a ‘contract for services’, where a contractor or self-employed worker performs a service in return for payment. If you work for an agency, you can generally bring a claim under the Unfair Dismissals Acts against the employer who has hired you from the agency. See our information on agency employees.

The fact of dismissal

You must have been dismissed in order to bring a claim. The one exception to this is in a case of constructive dismissal, where you resign but claim that your employer’s conduct towards you forced your resignation.

If your employer disputes that a dismissal actually took place, you will have to establish that it did. Only then will your claim continue to the next stage of deciding whether the dismissal was fair. This is a matter for your employer to prove.

Who cannot claim for unfair dismissal?

The Acts do not apply if you are:

(a) An employee who is under 16, or an employee who has reached normal retiring age or who is not covered by the Redundancy Payments Acts because of your age

(b) Working for a close relative in a private house or farm, where you both also live in the same house or farm

(c) A member of the Defence Forces

(d) A member of the Garda Síochána (since 4 July 2006, the Acts apply to most State employees)

(e) Undergoing full-time training or apprenticeship

(f) An officer of education and training boards, a county or city manager, or the chief executive of the HSE

(g) Employed under a fixed-term/specified-purpose contract – this contract will be in writing and signed by both parties and will state that the Acts do not apply if you are dismissed only because the fixed-term contract has expired or the specified purpose has been completed

(h) An employee who works outside the State (unless, while the contract is in force, you are resident or domiciled in the State or are domiciled in the State and your employer is resident in the State)

(i) A statutory apprentice who is dismissed within 6 months after beginning your apprenticeship or within one month of completing the apprenticeship

(j) An employee who is on probation or undergoing training for up to a year at the beginning of employment, where the duration of your probation or training is specified in the written contract of employment

(k) An employee who is dismissed while training to qualify or register as a nurse or other specified para-medical employment

If point (b), (e), (i), (j) or (k) applies to you, you may still claim for unfair dismissal where the dismissal results from:

  • Pregnancy, giving birth or breastfeeding
  • Availing of rights under the Maternity Protection Acts 1994 and 2004
  • Availing of rights to adoptive leave or additional adoptive leave, paternity leave, parental leave, force majeure leave or carer’s leave

If point (a) or (d) applies to you, you may still claim for unfair dismissal where you are dismissed for taking parental leave, force majeure leave or carer’s leave.

If point (d) or (e) applies to you, you may still claim for unfair dismissal where you are dismissed for making a protected disclosure.

You cannot claim under the Unfair Dismissals Acts where your employer informs you in writing when you start work that your employment will end when another employee comes back to work after taking maternity leave, adoptive leave, paternity leave or carer’s leave.

Adjudication decision

Once your employer has sent you a written statement explaining the reasons for your dismissal, your claim can continue to the next stage. At this point, your complaint will be referred to a Workplace Relations Commission (WRC) adjudication officer for a hearing to decide whether the dismissal was fair.

The adjudicator has the power to make witnesses attend a hearing and give evidence in cases taken under the Unfair Dismissals Acts 1977-2015. This power came into effect with the passing of The Employment (Miscellaneous provisions) Act 2018.

Redress

If you are successful in your claim for unfair dismissal, the body that heard your claim may award you one of the following remedies: reinstatement, re-engagement or compensation.

Reinstatement

This means you are treated as if you had never been dismissed. Reinstatement entitles you to repayment for earnings lost between the date of the dismissal and the date of the hearing, and also to any favourable changes in the terms of employment during that period, such as pay rises. This remedy is rarely used.

Re-engagement

Re-engagement means you will be given your job back but only from a particular date, such as the date of the decision in your favour. This means that you will not be entitled to compensation for any loss of earnings. Often this remedy is used where the adjudicator feels the employee contributed to the dismissal, even though the actual dismissal was unfair. This remedy is rarely used.

Compensation

This is the most common remedy – where compensation is awarded in respect of financial loss only.

Generally, the maximum compensation is 2 years’ pay. If you were dismissed for making a protected disclosure, the maximum is 5 years’ pay. You cannot claim any compensation for such matters as injury to your feelings or stress caused by the dismissal.

Compensation takes the following into account:

  • Present loss – your loss of earnings from the date of the dismissal to the hearing of your claim. Any money you earn during this period is deducted from this amount, and any payment you received in lieu of notice when you were dismissed. By law, you must try to lessen your losses during the period from your dismissal to the hearing by being available for and seeking alternative employment. If you have no actual loss because, for example, you took up other employment immediately after your dismissal, you are entitled to a token compensation of 4 weeks’ pay.
  • Future loss – an assessment of your future loss, based on how long you are likely to take to get alternative work.
  • Pension loss – a calculation of how the unfair dismissal has affected your pension entitlements.
  • Loss of statutory protection - a calculation dealing with protection you may have lost under the unfair dismissals, redundancy and minimum notice legislation.
  • Contributory conduct – a calculation that takes into account any conduct by you that contributed to the dismissal, even though it was an unfair dismissal. The degree of contribution is stated as a percentage and your overall award is reduced by the same percentage.

Fixed-term or specified-purpose contracts

A fixed-term contract is a contract of a specific length, agreed by you and your employer from the outset. A specified-purpose contract is also of a limited duration and is expected to end when the job is completed, but neither you nor your employer know from the outset how long it will take.

Dismissal at the end of a contract

Dismissal at the end of a fixed-term or specified-purpose contract may be considered unfair under the Unfair Dismissals Acts. However, the employer can prevent this by meeting these 3 conditions:

  • The contract must be in writing and must set out the specific duration of the fixed-term contract or, in the case of a specified-purpose contract, the object of the contract.
  • The contract must be signed by both the employee and the employer.
  • The contract must contain a specific clause stating that the expiry of the contract will not make it liable to a claim under the Unfair Dismissals Acts. If these conditions are not met, then you may be able to claim for unfair dismissal despite having been employed under a fixed-term or specified-purpose contract, as long as you are eligible to claim (see ‘Rules’ above).

Successive fixed-term contracts

Employees cannot be employed on a series of fixed-term contracts indefinitely.

If an employee whose employment started on or after 14 July 2003 has been employed on 2 or more continuous fixed-term contracts, the total duration of those contracts may not exceed 4 years. After this, if the employer wants the employee to continue in the job, they must be employed under a contract of indefinite duration.

The only exception to this statutory provision is where there are objective grounds justifying the renewal of a fixed term contract. The employer must be able to demonstrate that a further renewal is appropriate and necessary to achieve a legitimate objective.

The Unfair Dismissal Acts contain a provision aimed at ensuring that successive temporary contracts are not used in order to avoid that legislation. Where a fixed-term or specified-purpose contract expires and the individual is re-employed within 3 months, the individual is deemed to have continuous service.

Therefore, even if an employer excludes the unfair dismissals legislation in the manner described above, an adjudicator of the Workplace Relations Commission will consider whether the use of such contracts was wholly or partly to avoid the employee having the protection of the unfair dismissals legislation. If it is considered that this was the case and the contracts were not separated by more than 3 months and the job was at least similar, then the case can be dealt with as if there was continuous employment and the employer will be required to justify the dismissal in the normal manner.

How to make a complaint

If you wish to make a claim for unfair dismissal, you should do so within 6 months of the date of dismissal. This time limit may be extended to 12 months if there are reasonable circumstances which prevented you from bringing the compliant within the normal limit.

You should make your complaint to the Workplace Relations Commission using the online complaint form.

Complaints will be referred for investigation to an adjudication officer. All decisions of an adjudication officer can be appealed to the Labour Court.

For information on seeking redress under the Acts contact Workplace Relations Commission's Information and Customer Service.

Where to make a complaint

Workplace Relations Commission - Information and Customer Service

O'Brien Road
Carlow
R93 W7W2

Opening Hours: Mon. to Fri. 9.30am to 5pm
Tel: (059) 917 8990
Locall: 1890 80 80 90

Page edited: 4 March 2019