UFD Scope of Act

Dismissal

Dismissal means the termination of the employment contract, whether or not a proper notice was given. A person is generally dismissed where he is unequivocally told that his employment is at an end or the circumstances make this abundantly clear that this so.  An employee’s repudiation of the contract is likely to be deemed a self-dismissal in highly exceptional circumstances only.

Dismissal may occur on expiry of a fixed term contract, under certain circumstances. It includes the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.


Date of Dismissal

The date of dismissal, where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, is the date on which that notice expires. Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, the date of dismissal is the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates

  • the earliest date that would be in compliance with the provisions of the contract of employment,
  • the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment
  • where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the durationof the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser.

​The  High Court has upheld a decision of the Employment Appeals Tribunal (“EAT”) in which it was held that the employee’s date of dismissal for the purposes of the Unfair Dismissal Acts 1977-2015  was the date on which her internal appeal against her dismissal was concluded and not the date, she was actually dismissed from her employment. In this case, the employer’s procedures did not address the status of the employee while appealing a dismissal.

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Continuity

Unfair dismissal rights apply to employees with at least 52 continuous weeks’ service. The requirement for 52 weeks’ service does not apply to a dismissal based on pregnancy (and certain related family grounds), trade union membership and certain health and safety and minimum wage related grounds. Continuity is not broken by strikes, layoffs of lockouts.

A dismissal and re-employment within 26 weeks does not break continuity. Where an employee is dismissed and re-engaged within 26 weeks, continuity of service is preserved if the dismissal is wholly or partly for the purpose of avoiding Unfair Dismissal Act rights. The Transfer of Undertaking Regulations preserve the continuity of service.

Most absences from employment due to lay off sickness or injury, do not break continuity of service.

Periods of notice required under minimum notice legislation are included in the qualification period. Therefore, in effect the rights after less than 52 weeks.


Fixed Term Contracts I

There are special provisions for employees on fixed term contracts.  A genuine fixed term contract may be excluded from the legislation subject to inclusion of a statement in writing excluding the Unfair Dismissals Act. Provided that the purpose of the contract is not to avoid the legislation, then the exclusion will be allowed.

Where employees are employed for fixed terms of less than 52 weeks, which are followed by second and subsequent contracts, which cumulatively exceed 52 weeks may be deemed to have the requisite continuous service. If the purpose of the successive contracts is to avoid liability for unfair dismissal, the periods may be added together, if re-employment takes place within three months of expiry of the prior contract, if the nature of the employment is the same or similar.


Fixed Term Contracts II

The original legislation provided an exception for a fixed term or fixed purpose contract in writing, signed by the parties which provided that the Unfair Dismissals Act would not apply by reason of termination.  There is now more extensive anti-avoidance legislation. Separately, after a period for renewed fixed term contracts, the employee may become entitled to a permanent contract. See the section on fixed term contract legislation.

The term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

A dismissal may be subject to the Act where it consists of the expiry of the term of the subsequent contract without the term being renewed or the cesser of the purpose of the contract. This is  where in the opinion of the adjudication officer or the Labour Court the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act.


Exclusions I

Certain categories of employees are or may be excluded from the Unfair Dismissal legislation. This includes

  • employees over the normal retiring age for employees of the same employer in similar employment;
  • employees under 16 years
  • members of the Defence Force and Garda Síochána;
  • FAS / Solas trainees and apprentices;
  • certain persons employed by the Government;
  • managers and senior officers of local authorities, vocational and HSE.

Most State sector officers and employees were formerly excluded from the Act. Since 2006, the Unfair Dismissal Act applies to most public sectors officers and employees. Some public-sector officers, such as members of the Defence Forces and An Garda Siochana are not protected by the Act.


Exclusions II

Persons who have reached the normal retirement age for their employment are excluded.

The Act does not apply to employees on probation or training under a contract in writing, where the duration of the probation or training is less than one year, and it is so specified in the contract.  There are also exclusions for certain categories of probationary employees undertaking training.

There is an exemption for statutory apprentices and trainees.  A statutory apprenticeship is one under Industrial Training Act or the Labour Services act.  However, the rules themselves may make provision for unfair dismissal.


Protected Leave

The expiry of a maternity or other protected leave contract is outside legislation.  The employer must inform the employee at commencement, that the employment will terminate on the resumption of work by the employee on maternity or equivalent leave. The exemption covers maternity leave, additional maternity leave, adoptive leave, carers leave and certain other categories of leave on health and safety grounds related, to maternity.

Persons employed under genuine fixed term contracts are excluded. If there is a succession of fixed-term contracts where the employee is re-employed within three months, the employment is similar, and the purpose is mainly to avoid the legislation, unfair dismissal rights applies.

Fixed term contracts may be entered by persons covering another’s maternity, adoptive, parental or career’s leave, to which unfair dismissal rights do not apply.


International Element

An employee who ordinarily works abroad is not entitled to the benefit of the legislation. An employee must be ordinary resident during the term of the contract or domiciled in the state during the term of the contract where the employer is ordinarily resident in the State or has his principal place of business was in the State.

The Act does not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless

  • he was ordinarily resident in the State during the term of the contract, or
  • he was domiciled in the State during the term of the contract; and
  • the employer in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract.

The “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.


Illegal Contract

Formerly an employment contract that involved the evasion of tax, was denied the benefit of the Act by the courts. The classic instance was where earning were under declared and money was paid “under the table.”

The legislation was amended to provide that where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, the employee shall, notwithstanding the contravention, be entitled to redress under the Unfair Dismissals Act, in respect of the dismissal.

Where, in proceedings under the Unfair Dismissals Act, it is shown that a term or condition of a contract of employment contravened any such provision as aforesaid, the adjudication officer or the Labour Court, as may be appropriate shall notify the Revenue Commissioners or the Minister for Social Welfare, as may be appropriate, of the matter.


References and Sources

Primary References

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

Acts

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

Legislation

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

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

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/

UK Texts

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