Potentially Fair Grounds for Dismissal
There are a number of potentially fair grounds for dismissal. It is not sufficient that the employer labels one of the ground as applicable. The application of the ground in the circumstances must be real and substantial. In addition, the employee must have been afforded fair procedure in relation to the investigation and finding that the ground applies. There be actual substantive and procedural fairness.
The principal grounds on which a dismissal may be potentially be justified as fair are
- capability, competence and qualifications;
- conduct (or more accurately; misconduct);
- other sufficient reason
Deemed Unfair Dismissal I
Certain grounds for dismissal are deemed unfair. They are
- trade union membership or activities
- legal proceedings against employer,
- religious or political beliefs
- race colour or sexual orientation
- pregnancy issues
- exercising statutory rights
- age (see above exemptions)
- membership of travelling community
- unfair selection for redundancy
Deemed Unfair II
The employee must show that the dismissal took place mainly or principally by reason of one of these grounds and are not otherwise. The WRC will look at the substantial reason for dismissal, taking a common-sense view.
A dismissal due to pregnancy may be justified if the employee is unable to do the work because of pregnancy or contravention of statute. There are strict conditions. There must be no other employment suitable for her for which there is a vacancy or she must have refused an offer of alternative employment on terms and conditions corresponding to those previously held.
An employer may be obliged to conduct a risk assessment in relation to pregnant employees. A pregnant woman may be at risk to her health and safety, in which event an alternative position or arrangement may be required. If this is not feasible, the employee may be entitled to leave employment during pregnancy.
Other Substantial Grounds of Dismissal
There is a residual category of potentially fair or substantial grounds for dismissal provided for in the Unfair Dismissals Act. The Act provides that “other substantial grounds” may justify dismissal. This applies where any of the specific potentially fair grounds of dismissal set out above, are not applicable.
It covers other good reasons which are sufficient in the circumstances, to justify dismissal. The reason must be significant and relate to the employer’s interest. It might be financial or otherwise.
What constitutes sufficient grounds will depend on the circumstances. Generally, the ground must be based on some important objective interest of the employer, which compels dismissal.
The reason may relate to the employer’s financial interests. In a case where an employer was unable to obtain insurance because of the record of a particular employee, a dismissal was potentially fair. However, an employer should not readily dismiss an employee in this scenario. It should be a very last resort. Alternative steps should be taken where at all possible.
An infamous case in the 1980s concerned the dismissal of a teacher in a religiously sponsored school. Controversially, the High Court on appeal held that the decision was reasonable in the context of the ethos of the school’s patron. The employee had engaged in a relationship with a married man in a country town. She had been requested to end the relationship on the basis that it was giving a bad example to the school children.
There have been cases where a third party has threatened to pull its business unless a particular employee is dismissed. It should not be assumed that this is sufficient justification. The employee must examine whether there are any reasonable grounds for this pressure. If the threat seeks to effect unlawful discrimination, the dismissal is unlikely to be justifiable. It may also incur liability under Employment Equality legislation.
There have been cases where an employee has been dismissed, due to criminal charges (as opposed to convictions) which impacted upon the employee’s ability to deal with the public, notwithstanding that the accusation was unproven. If the employee is convicted of an offence which would interfere with the employer’s business, then this may justify dismissal. However, the threat must be real and immediate and have an objective basis. If the nature of the organisation is such that the offence is irrelevant to the job, the dismissal may be unfair.
A dismissal by reason of the contravention of a statute or other legislation is deemed fair. Where continuation of employment would be a breach of legislation, this may justify dismissal. For example, there may be a requirement that the employee holds a licence to undertake a particular task.
The EAT has permitted employers to rely on the alleged illegality of the employment contract as a ground for justifying dismissal. A non-EU national may not enter employment without an employment permit. An “employment permit” may include two requirements such as a working visa and a work permit.
A work permit is applied for by the employer. Where the failure to obtain the work, a permit is due to the employer’s failure to apply or renew, dismissal is unlikely to be unfair. Generally, it will be implied that the employer must renew the work permit. As the employer only can obtain the permit, the tribunal or courts will readily hold that the obligation has expressly or impliedly fallen on the employer.
Trade Union Activity
It is deemed an unfair dismissal if an employee is dismissed on the basis of trade union membership or activity. Trade union activity must be lawful activity connected with the employment relationship or the union. The activity must be engaged in outside working hours or during hours where it is permitted under the employment contract or by legislation.
The connection must be with the union activity as such. It is the union’s activities which are protected. Personal activity outside the scope of the union activities is not covered. It may not extend to individual disputes on behalf of others. The privilege may not be abused. If the procedures are not being used reasonably and in good faith, the exemption would not be available.
Industrial Action I
Where there has been a strike, adverse selection on the basis of participation in the strike is almost always unfair. Exceptionally, it may be the case that the strike contributed to circumstances which objectively necessitate the dismissals or the particular dismissals / redundancies.
However, dismissals for taking part in a strike are deemed unfair if one or more employees of the same employer who took part in the strike were not dismissed for taking part, or one or more of them were dismissed, for taking part but were subsequently re-employed on terms at least as favourable. It does not follow that the dismissal of all workers after a strike necessarily constitute fair dismissals.
Things done in the course of the strike may themselves justify dismissal. The general criteria for misconduct apply to such a dismissal. Participation in an ordinary strike activity in itself, would be unlikely to suffice for this purpose.
Industrial Action II
Arguments may be made that a strike constitutes a voluntary resignation. However, legislation protects strikers, even if it is held that they have repudiated their contract or resigned. The Supreme Court has taken the view that that provided that the strike is preceded by due notice, the employment contract is neither frustrated nor repudiated. On this view, employment contracts are suspended during an industrial dispute.
A lockout is an action taken by one or more employers to a dispute which consists of the exclusion of one or more employees from their place of work or suspension of work in one or more places or the collective, simultaneous or otherwise connected termination or suspension of employment of a group of employees.
A lockout is deemed a dismissal. It is deemed unfair if, after the lockout, the employee is not permitted to resume employment on terms and conditions as least as favourable as previously applied and if one or more other employees were so permitted.
Dismissal for Exercising Rights
The Unfair Dismissals Act deems certain reasons for dismissal is to be automatically unfair. They include the following;
- dismissals arising from actual or threatened legal proceedings against the employer whether criminal or civil; this includes making statements or complaints to any prosecuting or regulatory authority;
- age discrimination (formerly, other than retirement age);
- pregnancy and associated
- matters including breastfeeding and attending ante-natal classes;
- the exercise of maternity protection rights;
- the exercise of parental leave or adoptive leave rights.
See generally the sections on discrimination including European Union law derived anti-discrimination rights.
Where a dismissal is based on a prohibited ground, it is a matter for the employee to prove on the balance of probabilities, that this was the basis for dismissal. There may be other operative factors, and the employer may be able to demonstrate other justifiable grounds. The WRC determines whether the prohibited grounds are the real grounds for dismissal, notwithstanding that the dismissal purports to be on other grounds.
There may be an automatically unfair dismissal when an employee is dismissed in exercising a right to return to employment after maternity or similar protected leave. The right is to return to the employer by whom she was employed prior to the commencement of maternity leave. If there is a change in ownership, the employee has a right to return to the successor employer.
In each case, the right is to return on the same contract of employment on which she was previously employed. The terms and conditions are not to be less favourable than those which would have applied if she had not been absent. They should incorporate any improvements to the terms of employments, to which the employee would have been entitled if she had not been absent. If the employee was undertaking another role prior to the period of leave, she is entitled to return to her normal or usual job as soon as practicable and lawful.
If it is not reasonably practicable for an employer to permit an employee to return, the employee must be offered suitable alternative employment, under a new contract of employment with the employer or an associated employer. It must be suitable for the employee and appropriate to the circumstances, including as to the place where the work is to be done, the role or capacity and the terms and condition.
References and Sources
Employment Law Meenan 2014 Ch. 20
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.14 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.21
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
Unfair Dismissals Act 1977 (10/1977)
Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),
Unfair Dismissals (Amendment) Act 1993 (22/1993)
Protection of Employees (Part-Time Work) Act 2001 (45/2001
Civil Service Regulation (Amendment) Act 2005 (18/2005) (Part 6)
Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007)
Industrial Relations (Amendment) Act 2015 (27/2015), s. 39
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