How does unfair dismissal work for employers?
HR Dept
With the FIFA world cup set to kick off in Mexico, The USA and Canada this week, goals will soon be flying, and so too a few red cards.
When you give a red card in your business by dismissing someone, it’s bad for them; but if you do not manage it correctly, it could pose trouble for you.
Unfair dismissal remains a risk to Irish employers when employment relationships are terminated. Understanding of the rules and good practice are an excellent line of defence.
A fair dismissal
The starting point for avoiding an unfair dismissal claim is to ensure you dismiss someone for a fair reason. There are several such justifications, and these fall under the categories of:
- Capability (competence in doing the job).
- Conduct (behaviour).
- Redundancy (as long as the person is selected for a fair reason), and a proper redundancy process has been followed.
- A legal barrier to work, such as a driving ban for someone in a driving role, expired work permit, etc
One of these factors should always form the basis of a dismissal, and you should be on relatively safe ground, as long as you have followed proper procedures too.
As long as you have grounded the dismissal in one of these reasons, an employee is prevented from bringing an unfair dismissal claim against you if they have been employed for less than 12 months.
There are a number of other excluding factors that prevent an employee bringing an unfair dismissal claim against you, some of the main ones including: under the age of 16, being a close relative to you (and living in the same property) and taking part in full time training or apprenticeship. There are other more obscure disqualifying factors.
An unfair dismissal
In Irish law there are many factors which could automatically make a dismissal unfair, regardless of length of service.
Perhaps the most obvious is dismissing someone based on discrimination under equality law. As you may know, the nine protected grounds are:
- Gender
- Civil status
- Family status
- Age
- Disability
- Religious belief
- Race
- Sexual orientation
- Membership of the Traveller community
There are other reasons for unfair dismissal beyond these, including trade union membership or activity, you not following a fair procedure and whistleblowing.
An employee has up to six months to lodge an unfair dismissal claim, which can be extended by a further 6 months in extenuating circumstances
After an unfair dismissal claim is made
Unfair dismissal claims are brought by employees to the Workplace Relations Commission (WRC). An adjudicator will arrange a hearing to decide whether the claim should be upheld, and you can present your side along with evidence to defend the claim.
Either side can make an appeal of the adjudicator’s decision to the Labour Court.
If the claim is found against you, a number of measures can be imposed, including reinstating the person in the role and the payment of compensation to cover a wide range of losses. Normally compensation is capped at two years’ pay, which is significant. But if whistleblowing was the cause, the cap rises to five years’ pay. Discriminatory dismissals tend to attract large awards too, irrespective of the employees loss, because in EU regulations and law, there exists a requirement in such cases to award amounts that are dissuasive to other employers, and are punitive to the actual employer.
By your side
At The HR Dept, we are here to support you as an employer in all aspects of HR. If you are thinking about dismissing someone, it is wise to seek professional advice to ensure that not only is it a cast iron fair reason, but also that you get the dismissal procedure correct. Please contact us if you are in this situation. We talk you through the process, we prepare the letters and can help to ensure that the process and the decision to dismiss is fair, and not emotionally charged, as it would be in most SME settings.
