In order for an employee to bring an unfair dismissals claim, generally the employee must have one year’s continuous service which includes the individual’s notice entitlement (eleven months service plus one month’s notice equals one year’s continuous service).
Employees whose employment has been terminated on the grounds of the employee’s trade union activity or maternity related reasons including pregnancy or in relation to their rights under the Parental, Adoptive, Carers Leave and Minimum Wage Acts can claim for unfair dismissal, even if they have served less than a year.
The dismissed employee must lodge their claim within six months of the dismissal or ‘in exceptional circumstances’ within twelve months.
Where an unfair dismissals claim is brought, it is presumed that the dismissal has been unfair, leaving the employer with the burden of proving that the dismissal was fair.
What is fair and unfair?
Dismissals arising from the following grounds are automatically unfair:
- the employee’s membership of or trade union activities
- the employee’s religious or political opinions
- legal proceedings by the employee against the employer
- the employee’s race, colour or sexual orientation
- the employee’s age
- the employee’s membership of the travelling community
- maternity related dismissals
- dismissals related to Parental, Adoptive, Carers Leave and Minimum Wage Acts
- unfair selection for redundancy
The Protected Disclosures Act 2014 amends the unfair dismissals legislation so that it is unlawful to dismiss an employee wholly or mainly because they have made a protected disclosure. There is no service threshold required for such claims.
Dismissals arising from the following grounds are regarded as fair:
- the employee’s capability, competence or qualifications (This definition allows employers to dismiss by reason both of incompetence or poor performance.)
- the conduct of the employee (Examples of misconduct include late arrival to work, absenteeism, failure to obey reasonable orders, and incidents of gross misconduct such as sexual harassment, violence and theft.)
- the fact that continuation of the employment would contravene another statutory requirement
- there were other substantial grounds justifying the dismissal
The successful employee may be awarded reinstatement, re-engagement and/or compensation.
Where reinstatement occurs the employee is put back into their old job and receives remuneration for the period from dismissal up to the hearing of the case and there is no break in continuity of service.
Where re-engagement occurs the employee is put back into their old job, or a suitable alternative position, but does not receive remuneration during the interim and continuity of service is broken.
Where compensation is ordered the employee can receive compensation of up to a maximum of two years' remuneration. The employee is, however, under a duty to mitigate their loss by looking for alternative work. Compensation is confined to economic loss only and a person cannot be compensated for the stress/emotional trauma of being dismissed. Compensation of up to five years' remuneration may be awarded to an employee who is dismissed for having made a protected disclosure.
Decisions of the EAT may be appealed by the employer or employee to the Circuit Court and from there to the High Court.