Dismissal advice guide

16 April 2019

Dismissal is the term used when an employer decides to terminate the contract of employment.

A dismissal from work isn’t always related to the employee’s conduct or capability. A dismissal can also take place if the employer needs to make the employee’s position redundant.

So the question of what does dismissed from a job mean encapsulates a number of termination of employment scenarios.

You would be entitled to dismiss an employee if s/he was found guilty of gross misconduct for instance.

If it emerges that an employee is not capable of doing the job, you would also be entitled to dismiss the employee.

Sometimes, changes in your industry or an advance in technology renders a job redundant. In these scenarios, you would dismiss the employee by reason of redundancy.

Whatever the reason for a dismissal, you must ensure that you comply with any relevant employment laws, fair procedures and natural justice before dismissing an employee.

Are dismissal and termination the same?

A dismissal is the term used to describe the employer’s decision to terminate the employment contract.

Termination tends to be used to describe a broader range of employment relationship breakdowns including a voluntary decision to resign by the employee.

So while there is no specific conflict between dismissal v termination, dismissal is more generally used to describe the employer’s decision to end the employment relationship for conduct or capability reasons.

How to carry out a fair dismissal

Under Irish employment law, dismissals by employers need to adhere to fair procedures and natural justice.

Under the Unfair Dismissals Acts 1977 – 2015, a dismissal will not be unfair if it arises from any of the following legal reasons for dismissal:

  • The employee’s capability, competence or qualifications for the job he or she was employed to do.
  • The employee’s conduct.
  • The employee would be breaching another law by remaining in employment.

The most common mistake employers make when it comes to dismissals is failing to follow a fair procedure before dismissing the employee.

To make sure a dismissal is fair employers should follow the general principles of natural justice and fair procedures set out in the Code of Practice on Grievance and Disciplinary Procedures.

For a discipline-related dismissal, the Code of Practice recommends:

  • That the details of any allegations are put to the employee concerned.
  • That the employee concerned is given the opportunity to respond fully to any such allegations.
  • That the employee is given the opportunity to avail of the right to be represented during the procedure.
  • That the employee has the right to a fair and impartial determination of the allegation taking into account all appropriate evidence, factors or circumstances.

There should be a number of stages in a disciplinary procedure. These include raising the issue with the immediate manager in the first instance. If not resolved, the matter progresses to more senior management or HR/IR staff and employee representatives and if necessary referral to a third party, either internal or external.

In practice, employers should write to the employee to notify him/her that a formal disciplinary meeting will be held.

The letter should include:

  • A summary of the allegation against the employee and confirmation that sanctions up to and including dismissal may apply.
  • A notification that the employee has the right to representation at the meeting. In general, the representative will be a work colleague or trade union representative. In exceptional cases involving difficult facts or legal issues, employees may have the right to legal representation at a disciplinary meeting. If an employee asks to be accompanied by a lawyer, consider the facts of the case and whether there is a need to involve a lawyer.

At the meeting, the employee should have an opportunity to respond to the allegations and the employee’s responses must be carefully considered before deciding on a sanction.

Any sanction that is imposed must be a proportionate response to the allegation complained of.

If the meeting concludes that dismissal is the only option, it is vital to provide the employee with the right to appeal the decision to dismiss.

Disciplinary action

A common query from employers is how many written warnings to issue before dismissal.

Ireland’s Code of Practice on Grievance and Disciplinary Procedures outlines that disciplinary action may include:

  • An oral warning.
  • A written warning.
  • A final written warning.
  • Suspension without pay.
  • Transfer to another task, or section of the enterprise.
  • Some other appropriate disciplinary action short of dismissal.

The disciplinary action required will depend on the allegation against the employee. If the employee is found guilty of gross misconduct, there may be no requirement to issue a written warning.

What is a notice of dismissal?

The employee has a right to request the reasons in writing for their dismissal within 14 days of the disciplinary hearing.

It’s good practice to issue a written notice of dismissal to an employee setting out the reasons for the dismissal after a disciplinary hearing and confirming that they have the right to appeal the decision.

What does without prejudice mean?

If you make a settlement offer on a without prejudice basis in a bid to reach a mutual agreement on the employee’s departure from your business, it means the offer cannot be used against you in a subsequent legal claim the employee makes.

Proposing a without prejudice settlement must be carefully considered. A without prejudice offer should only be made if the employee is contemplating legal proceedings.

If the employee receives the offer during a disciplinary process, he or she could argue that the outcome of the process has been predetermined.

If the employee is sending solicitor’s letters which are headed “without prejudice” then it becomes more straightforward to agree a mutual termination on a without prejudice basis.

Pensions and dismissal

Some employers may be curious to know how does dismissal effect pension contributions?

Broadly speaking, dismissals will not affect an employee’s entitlement to draw down their pension or reduce the amount of the contributions both employer and employee made towards the pension prior to the dismissal.

The implications of dismissal on the employee’s pension entitlement will depend on the rules of the individual pension scheme.

Need more information?

If you would like further complimentary advice from an expert, our advisors are ready to take your call any time day or night. Call us on 0818 923 923. Or request a callback here.

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