Occasionally, employers may be faced with a scenario they feel should give rise to the dismissal of an employee. There have been cases where employers and/or managers have wielded what might be described as a strong ‘knee-jerk’ reaction to a particular scenario or series of incidents. Where an isolated incident may be reported or witnessed, and where it has met a particular threshold of severity (for example, theft, a serious breach of conduct, an act of violence or threat, sexual harassment etc), many have moved swiftly to dismiss an employee with immediate effect. These decisions are normally made while emotions are running high and can often be a reaction that is quite easy to relate to on an emotional level.
Often employers describe this moment for them as ‘the final straw’, or a case where ‘enough is enough’. Often lines such as ‘it just couldn’t be tolerated’ or ‘we have to have zero tolerance’ are relayed. While the incidents that may have warranted such a ‘knee jerk’ decision can certainly raise the blood pressure, or cause the jaw to drop, the employer is often at risk following the utterance of those two words (“you’re fired”) to an employee. The reason for this risk is that a process is missing. For example, the company’s disciplinary policy, which should include dismissal as one of four main potential outcomes to the disciplinary process, is often far from the mindset of the employer and/or manager responding to an intolerable scenario.
Cause to Dismiss
First, the cause to dismiss an employee must fall under specific categories under the Unfair Dismissals Acts 1997-2021 in order for it not to automatically be deemed unfair. These are: Reasons of capability, conduct, capacity, redundancy, contravening the law (i.e. where the employee’s continued employment would result in breaking the law), or for another substantial reason.
Minimum Notice Periods for Dismissal
Further, the notice period set out in the contract should be fully honoured (even if a person does not work during that notice, they must be paid for it). Where no notice period for termination is set out in the contract, the following minimum notice periods apply, based on the person’s duration in employment:
- 13 weeks – 2 years = 1 week
- 2 – 5 years = 2 weeks
- 5 – 10 years = 4 weeks
- 10 – 15 years = 6 weeks
- 15 years + = 8 weeks
The Unfair Dismissals Acts protects those who have a minimum one year of continuous employment within the company. However, one common misconception is that an employee can be dismissed (without having to follow any process) while in Probation. Employers often fail to consider the risks under the Equality Acts 1998 – 2015, where there are 9 categories of discrimination set out. These categories may be pursued by any employee, or potential employee, regardless of time in employment.
Option to Suspend
Where allegations (for example, misconduct) have been made against an employee and reported to the employer/manager, an employer may decide to suspend the employee on full pay, pending an investigation. This is a route some overlook, moving straight to a ‘Summary Dismissal’ (immediate, without following the disciplinary policy/procedure) for gross misconduct. A point often missed is that allegations (regardless of their severity) are just that – allegations. They are not necessarily automatic truths. Anyone responding to allegations must be very careful to ensure their own judgement or opinion does not cloud the way in which they respond. Sentiments such as “He’s the type,” or “It’s not the first time” or “It’s something she would definitely do,” have no place in a fair process and should not impact any decisions made, even where the various stages of a disciplinary policy have been followed.
Allegations, following an investigation, may be founded as a result, partly founded, or unfounded. Suspending an employee is a process in itself, with certain criteria required. It may minimise the risk of the alleged breaches continuing or recurring, without assuming too soon, and without evidence, that someone is “guilty”. Doing so would be contrary to the Principles of Natural Justice, and a breach of the Code of Practice on Disciplinary Procedures, and likely, the company’s own policies and procedures.
The Main Take-Aways for Employers
Any employee dismissed from employment can pursue an external claim, regardless of the circumstances that led to that decision. Those who have been employed for a minimum of 12 months are recognised under the Unfair Dismissals Acts. Those with less time may pursue a discriminatory claim under any of the nine grounds set out. Unfair Dismissal claims are quite common, and the employer is answerable to them to prove that a Dismissal was fair. Therefore, an employer must ensure that the process leading to that point adheres not only to the Principles of Natural Justice, the Code of Practice (Disciplinary Procedures) and to the company’s own disciplinary policies and procedures. A paper trail record of all stages leading to the point of dismissal is essential should a claim be pursued. Employees have 6 months from the date of dismissal to lodge a claim, but this may be requested to be extended to 12 months where there are legitimate circumstances for not lodging a claim within 6 months.
An explanatory booklet on the Unfair Dismissals Acts for employers and employees can be found on www.workplacerelations.ie
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