Termination by Notice
There is a strong presumption that an employment contract may be terminated by either employer or employee, by giving notice to terminate. This will be so, even if the contract appears to provide for perpetual employment. In the absence of a specific clause in the contract, reasonable notice only is required to terminate the contract.
Although it may be possible to terminate the contract for no reason or for a “bad” reason at common law, the employee will usually have a statutory right to minimum notice and may have a statutory claim for unfair dismissal. This latter right fundamentally enhances the rights of the employee and effectively guarantees, that the employment contract cannot be terminated without good cause.
The minimum notice legislation provides for mandatory minimum notice periods for the termination of employment contracts. Minimum notice legislation overrides employment contracts so as to provide minimum notice periods. The contract will apply if it allows for greater rights.
Prior to unfair dismissal legislation, the only legal remedy for an employee who was dismissed in breach of contract was so-called “wrongful” dismissal. Wrongful dismissal remains an alternative to an unfair dismissal claim. It is the employee’s option whether to bring a wrongful dismissal claim to court or an unfair dismissal claim to the Employment Appeals Tribunal, now the Workplace Relations Commission.
In a wrongful dismissal claim, it is necessary to show that the employer terminated the contract in breach of contract. Generally, this will occur by failure to give notice or to follow express or implied provisions in relation to fair procedures. It is most likely to yield significant compensation, in the case of longer term fixed contracts only.
An employee will not generally obtain substantial compensation in a wrongful dismissal case based on failure to give proper notice. The employer would be entitled on giving reasonable notice to terminate the contract so that the loss is generally no more that the salary for the notice period. In some cases, particularly in relation to senior employees with favourable contracts, a wrongful dismissal claim may yield substantial damages, where a long notice period is provided, or where there are express or implied requirement in relation to fair procedures on employment termination.
Contract Notice Period I
Minimum notice terms are commonly provided in employment contracts. They must be set out in the written statement of the terms of employment.
What constitutes reasonable notice depends on the circumstances and particular factors, including the following;
- the seniority of the position;
- the length of service;
- the age and experience;
- custom and practice in the industry.
Contract Notice Period II
Even if a job is described as permanent and pensionable, it does not necessarily follow that the employment cannot be terminated by reasonable notice. If a contract is to be indefinite or perpetual, this is must be stated in the clearest language.
Exceptionally a long notice period may be implied. The courts have sometimes held that in the case of particular senior employees with considerable qualifications and experience, that up to 12 months’ notice was required to terminate the employment contract.
Notices to terminate an employment contract need not be in writing but should be clear. The period should commence on the day following the date on which it is given. Notice given by employers during most (but not all) periods of protective leave (such as maternity leave) is void.
The minimum notice legislation requires periods of notice ranging from one week for those employed up to two years, up to eight weeks for those employed for fifteen years or more. The employee must give one week’s notice. In either case, the contract may express or imply a longer period. Employees will commonly be obliged to give longer periods of notice. Senior employees will be commonly entitled to longer notice.
Failure to give the requisite minimum notice constitutes a breach of statute, and certain legal consequences follow. There will not necessarily be a breach of contract, which would entitle the employee to sue for damages in court. The employee has a statutory right under the minimum notice legislation, to apply to the Workplace Relations Commission for redress.
It is not necessary to give separate periods of notice under the statute and under the contract. Both will run together. The periods of notice themselves, constitute periods of employment. This is relevant in the context of unfair dismissals and redundancy legislation, which require certain qualification periods. The notice period may, in some cases, carry the employee over the threshold to the minimum period.
Generally, an employer can require the employee to work or to take pay in lieu of notice. “Gardening leave” describes the position where an employee is given pay in lieu of notice but is required not to commence employment with a new employer.
Application of Minimum Notice Legislation
The minimum notice legislation applies to employees and to certain other categories of worker. An employee means an individual who has entered into or works under an employment contract with an employer. It also applies to persons so serve under contracts of apprenticeship
An employee is deemed to include a civil servant. This is so regardless of his technical status as an officer
The legislation does not apply to an employee who is normally expected to work for the same employer for less than eighteen hours in a week. It does not apply to employment by an employer of an employee who is
- the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the employer and
- who is a member of the employer’s household and whose place of employment is a private dwelling house or a farm in or on which both the employee and the employer reside,
The legislation does not apply to employment
- as a member of the Permanent Defence Forces and
- employment as a member of the Garda Síochána,
The Minister may by order declare that any provision of this Act shall not apply to a class or classes of employment specified in the order. Conversely, the Minister may declare that the Act applies to any of the above categories of person.
Statutory Minimum Notice
An employer must in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee the minimum period of notice calculated as below.
The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
- if the employee has been in the continuous service of his employer for less than two years, one week;
- if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks;
- if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks;
- if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks;
- if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
The Minister may by order vary the minimum period of notice specified above
Any term in a contract of employment which provides for a period of notice which is less than the above period has effect as if that contract provided for the above period of notice.
During Notice Period
During the period of notice, the employee must be paid by his employer in accordance with the terms of his contract of employment. He has the same rights to sick pay and holidays with pay as he would have had if notice of termination of his contract of employment had not been given.
An employee must be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work, but no work is provided for him by his employer. Normal working hours in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.
Where an employee’s pay is not wholly calculated by reference to time, the sum which his employer is bound to pay him is calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.
An employer shall pay to an employee, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice. The obligation to pay does not apply where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer.
An employer is not liable to pay to his employee as above unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned.
Notice to Employer
An employer is entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more, of that employee’s intention to terminate his contract of employment. As with notice by the employee, a longer period may be provided by the employment contract.
This is subject to the right of an employee to give counter-notice in the case of layoff or to give notice of intention to claim redundancy payment in respect of lay-off or short-time. Lay-off” “short-time” and strike” have the meaning in the redundancy payments legislation;
Continuity of Service
The service of an employee in his employment is deemed to be continuous unless that service is terminated by—
- the dismissal of the employee by his employer, or
- the employee voluntarily leaving his employment.
A lock-out is not a dismissal of the employee by his employer. A lay-off does not amount to the termination by an employer of his employee’s service. A strike by an employee does not amount to that employee’s voluntarily leaving his employment. However, an employee who claims and receives redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment.
The continuous service of an employee in his employment is not broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.
Where the whole or part of a trade, business or undertaking was or is transferred to another person, the service of an employee before the transfer in the trade, business or undertaking, or the part thereof so transferred Is reckoned as part of the service of the employee with the transferee, and the transfer shall not operate to break the continuity of the service of the employee, unless the employee received and retained redundancy payment from the transferor at the time of and by reason of the transfer.
Any week in which an employee is not normally expected to work for at least eighteen hours or more does not count in computing a period of service. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence does count as a period of service.
If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of
- a lay-off;
- sickness or injury, or
- by agreement with his employer,
such period shall count as a period of service.
If in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week does not count as a period of service.
If in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week counts as a period of service.
If in any week or part of a week, an employee is absent from his employment by reason of a strike or lock-out in a trade or business other than that in which he is employed, that week counts as a period of service.
An employee or an employer may waive his right to notice. He may accept payment in lieu of notice. Where an employee accepts payment in lieu of notice, the date of termination of employment shall be, for the purposes of redundancy legislation, the date on which notice, if given, would have expired.
Nothing in the legislation affects the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.
Where there has been a breach of the legislation, a decision of an adjudication officer may include a direction that the employer concerned to pay to the employee compensation for any loss sustained by the employee by reason of the contravention.
References and Sources
References and Sources
Employment Law Meenan 2014 Ch.
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009
Dismissal Law in Ireland Redmond 2007
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016