Dismissing employees

As an employer, you may sometimes need to dismiss members of staff.

And when you do, it’s imperative that you make it clear that you are dismissing the employee for the right reasons and in the correct way.

In fact, there are 5 different types of dismissal: fair, unfair, constructive, summary, and wrongful.

Let’s go through them in more detail:

Fair dismissal

For a dismissal to be considered fair, the employer must have a valid reason for the dismissal, and they must also act reasonably during the disciplinary and/or dismissal process.

Examples of valid reasons include if the employee is:

• Being made redundant (see our step-by-step guide to redundancy here)
• Incapable of performing their job properly
• Capable of performing their job, but unwilling to do so
• Not permitted to perform their job by law (if a professional driver loses their driving license, for example)
• The employee’s contract clearly shows the planned end date (for employees hired to cover employees on maternity leave, for example)
• Known to have committed misconduct (see our step-by-step guide to misconduct here)

Examples of acting reasonably include if the employer:

• Genuinely believes the reason for dismissal is fair
• Follows the correct dismissal procedures
• Investigates further into the situation, if appropriate
• Clearly describes (preferably in writing) to the employee the reasons for dismissal, invites them to share their views on the matter, and (if being dismissed due to misconduct) is confident that the employee understands the consequences of their behaviour
• Advises the employee of their rights to bring a colleague or trade union rep with them to any disciplinary and/or dismissal meetings
• Offers the employee the right to appeal the dismissal decision

Unfair dismissal

If an employer does anything contrary to the actions in the ‘fair dismissal’ information above, they could well be challenged by their employee for having dismissed the employee unfairly.

Automatic’ unfairness

In addition, there are specific reasons that have been defined as automatically unfair by the WRC and courts.

A dismissal is automatically considered to be unfair if an employee is dismissed for any of the following reasons:

• Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours
• Religious or political opinions
• Legal proceedings against an employer where you are a party or a witness
• Race, colour, sexual orientation, age or membership of the Traveller community
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
• Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental leave or force majeure leave
• Unfair selection for redundancy
• Making a protected disclosure (that is, where you raise concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014

Constructive dismissal

This is where an employee leaves because their employer breaches the employment contract in a significant way, leaving the employee feeling as though they have no choice but to leave.

Breaches of this magnitude could include things like an unfair workload increase, unsafe work conditions, unagreed wage decreases, work location changes without ample notice, for example.

It might be a combination of several of these things, or a series of lesser events that, taken together, amount to a serious problem for the employee, forcing them, in their view, to leave.

Summary dismissal

This describes when an employer dismisses an employee without notice, or pay, because the employee has committed gross misconduct (see our guide to misconduct here)

Summary dismissal is only considered fair if:

1. it is based on employer rights that are clearly evident in the employment contract, and

2. the employer follows their disciplinary procedure in the same way that they would in any other situation.

Wrongful dismissal

If an employer breaches an employee’s employment contract, this is known as wrongful dismissal.

For example, not giving an employee the notice period or pay that they’re entitled to.

Consequences of making unfair, constructive or wrongful dismissals

Employees who have been working for a period of 12 months or more, have a right to take their employers to the Workplace Relations Commission (WRC) if they feel they haven’t been dismissed in the proper way.

However, if the dismissal reason is one that’s automatically deemed as unfair (as listed above), they may go to WRC regardless of their time in the business.

An employee wouldn’t be eligible to take their case to the WRC, if they are:

• Reaching an agreement with their employer through a settlement/compromise agreement as a result of taking legal advice
• Working under a dismissal procedure agreement that’s legally exempt from the unfair dismissal rules
• Self-employed or independent contractors
• Working with an illegal contract (e.g., working in a bar at 15 years old)
• A member of the armed forces
• Employed as police staff (unless the dismissal reason is regarding health and safety and/or whistleblowing)
• Being paid by a share in the profits/gross earnings of a fishing vessel they work on
• Taking part in unofficial industrial action (unless the dismissal reason is automatically unfair)

If the tribunal agrees with the employee, you may need to give them their job back, or give them an alternative job, and/or pay them compensation.

How to reduce the risk of problems during employee dismissals

Make sure your dismissal and disciplinary policies and procedures are set out clearly in writing and you’ve verified that the employee has read, understood, and has access to the policy.

You should include clear examples of what would be considered as misconduct, and you should follow the detailed advice given in the WRC code of practice for disciplinary and grievance procedures.

Read our guide to handling employee misconduct.

If you do terminate an employee

Once you’ve gone through your disciplinary (if applicable) and dismissal procedures, you can hold an exit interview (ideally with another co-worker to act as a witness and to keep a record of what is said).

You’ll find detailed advice on what’s involved and how to manage this step successfully in our guide to exit interviews.

Protect your data and equipment

Make sure that the employee hands back any business-owned property they have, such as documents, phones, and security passes.

It’s also prudent to check that they don’t copy any sensitive business information before they go, and to ensure that you deactivate all their passwords when they leave.

Don’t forget to remind them of any restrictive covenants that they’ve agreed to in their employment contract.

You’ll also need to ensure you deal with their pay, pension, and benefits correctly once they are dismissed.