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Employment Law

How to Draft an Employment Contract-What Express Terms Should Be Included?

An employment contract in Irish employment law is made up of implied terms and express terms.

employment-contract-express-terms

Implied terms fall into 4 categories:

1. Those implied by statute

2. Terms implied by custom and practice

3. Terms implied by law

4. Terms implied by collective agreements in unionized employment.

There is nothing the employer can do about these implied terms. However, the express terms-agreed between employer and employee-are a matter for negotiation and agreement between the parties.

What express terms should be included in a contract of employment? (Note: there are some terms which must, by law, be included in a statement of the terms of employment which must be given to an employee under the Terms of Employment (Information) Act 1994. There are other terms which are strongly advisable. And there are yet more terms to consider depending on the particular role)

1. The Parties

Who the employer is is a vital term and it may not be entirely clear unless set out in the contract.

2. Job Function/Description

The temptation for the employer here is to have as widely drafted a job description as possible. However, this can cause problems if the need for redundancy arises as the employee may claim that their job description requires them to carry out duties different from those which the employer wishes to make redundant.

3. Hours of Work

The hours of work term of the contract should deal with

• Overtime (paid or not)

• Shifts

• Breaks.

The most important piece of legislation in this area is the Organisation of Working Time Act, 1997.

It is advisable for the employer to also provide for the right to lay off or place employees on short time (there is no general right in law to do this).

4. Place of Work

It is advisable for employers to have a geographical mobility clause in the contract as an express term. Here is an example:

The company reserves the right when determined by requirements of operational efficiency to transfer employees to alternative work and it is a condition of employment that they are willing to do so when required.

However, the employer must act reasonable and responsibly in this regard.

5. Exclusive Service

Decisions in Irish employment law have held that employees have the right to work for another employer in their spare time. However, this work could not conflict with their duties of confidentialiy and loyalty to their employer.

6. Probation

Any probationary clause should not exceed 12 months. It should also provide for an extension of the initial period (say 6 months) and should have a notice period less than outside the probation period.

Reference should also be made to the disciplinary procedures of the company not applying during the probation period. However, if this is the case, then a probationary policy should be drafted by the company setting out what procedure will apply during the probationary period.

Even though an employee is on probation, s/he is still entitled to fair procedures and natural justice when it comes to termination.

The wording of the probationary period is also important. The District Court in Ireland has held that the following clause gave rise to an entitlement to the employee to be paid for the remaining 5 months of a probationary period when he was dismissed after one month:

The first six months of this contract shall be a probationary period.

This one clause is a good example of why you should have a legal professional draft any contract of employment you require.

7. Term of Contract

The term or duration of the contract is only applicable for a fixed term or specified purpose contract.

8. Salary/Pay

This, clearly, is a very important clause in any contract of employment. Setting out basic salary is straightforward; bonuses and commissions can cause problems if not set out clearly.

The employer will seek to have the payment of a bonus at his/her discretion; employees will be keen to see how they can become entitled to a bonus.

Termination during a bonus period should also be clarified and agreed.

9. Holidays/Annual Leave

Minimum holiday entitlements are provided for in the Organisation of Working Time Act, 1997. (See how to calculate holiday entitlements)

However, this clause should also make provision for when holidays can be taken as well as recognising that any extra holidays would be over and above the statutory entitlement to holidays and public holidays.

10. Company Car

The entitlement to a company car should be set out in this clause with clarity as to the make, model, value, etc. allowable.

11. Sick Pay

The sick pay clause will set out whether the employer operates a sick pay scheme or not. There is no general entitlement to sick pay in Ireland.

However, this entitlement may be implied from custom and practice in the workplace.

The employers may operate a sick pay scheme or an income continuance plan or health care insurance entitlements.

This needs to be clear from the outset in the employment contract as sick pay is an area which causes great difficulty for both employer and employee in the absence of clarity.

12. Pension

If a pension is part of the remuneration package, reference should be made to it in the contract and if there is a company pension scheme it is important that an employee is not excluded in such a way as to leave the employer open to a successful claim for direct/indirect discrimination.

13. Retirement Age

There is no statutory retirement age in Ireland (save for in the public service and a small number of industries). For this reason, a retirement age should be spelled out in the contract.

It is worth noting that just because there is a retirement age specified in the pension scheme does not mean that there is an implied retirement age in the contract of employment.

14. Grievance Procedure

The method of processing grievances in the employment should be referenced here. Employees should be bound to exhaust the internal grievance procedure first before resorting to outside bodies.

The statutory code of practice, Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (Statutory Instrument 146/2000) contains the principles to be applied by the employer in any grievance and disciplinary procedure.

15. Disciplinary Procedure

Employers should have a disciplinary procedure to ensure fair procedures and natural justice where necessary.

SI 146/2000 sets out the basic principles which any disciplinary procedure should follow. These include:

• What will happen to deal with a complaint/allegation

• How many stages will be followed in each event

• The employer’s right to choose which stage to commence the procedure and the penalty to be imposed

• The right of representation of the employee

• Whether there is a right of appeal to any decision taken to impose a penalty.

 

16. Restrictive Covenant

This clause deals with the right of employees to compete with their former employer once they have left employment with that employer. There are 2 aspects to any ‘non compete’ clause:

• The common law entitlement of the employer to protect trade secrets and confidential information

• The Competition Act 1991.

Regardless of the express term in any contract of employment dealing with this area, the Courts recognise the common law right of the employer to protect confidential information and trade secrets-even when the employment relationship is terminated.

However, there is no common law restriction on an employee competing with a former employer once she leaves employment. This is why a ‘restrictive covenant’ is a good idea in the contract-to protect, for a reasonable time and over a reasonable geographic area, the employer’s legitimate interest.

This is not a restriction on normal trade or general competition post-employment though; it must be a restriction to protect a specific legitimate interest.

However, if the employer breaks or repudiates the contract, he will generally be unable to rely on any restrictive covenant in this connection.

17. Termination of Contract

The notice period for termination of employment is a critical clause. If there is none and the contract is silent in this regard, then ‘reasonable’ notice must be given by the employer.

This will vary from contract to contract depending on a number of factors such as job function, length of service, age of employee, custom and practice, etc. In short, what is ‘reasonable notice’ in each case will depend on the facts of the individual case, bearing in mind the factors outlined above.

It is strongly advisable for the employer to specify a notice period in the contract in order to avoid a claim for wrongful dismissal.

Unless it is stated in the contract, notice does not have to be in writing; but it does have to be clear and unequivocal.

Notice given during times of leave or illness is valid, except for during maternity leave which is protected.

The notice period in the contract cannot be less than that provided for in the Minimum Notice and Terms of Employment Act, 1973 (as amended).However, if an employee is dismissed for misconduct s/he loses his/her entitlement to notice.

The employment does not come to an end until the end of the notice period, even where a person is not required to work the notice period and has been ‘paid off’.

18. Search Clause

A search clause is commonly used in many contracts allowing the employer to search the employee’s locker, baggage, vehicle, etc.

Without this search clause, any search, without consent, could be considered to be an assault.

19. Patents, Inventions, and Copyright

Unless there is agreement to the contrary, any copyright in material which is made by the employee in the course of employment is the property of the employer. The same principle applies to research and development work carried out which leads to an invention.

20. Share Options

A share options clause may be necessary. Provision should be made for the employee moving location or changing job function.

21. Bullying and Harassment

An anti-bullying and harassment policy should be appended to the contract of employment as the employer is obliged by law to prevent bullying and harassment occurring in the workplace.

22. Internet and email

Reference should be made to the company’s policy on internet access, email and internet use. A separate policy in this regard should be provided by the company to the employee.

23. Resignation of Office or Directorships

Resignation from offices held, including directorships, should be provided for in the contract of employment.

24. Proper Law

The law governing the contract should be spelled out and is very important where an employee may be required to work abroad.

25. Other

Other clauses which may be included, depending on the specific requirements of the employer, may include

• Wearing of uniforms, dress code

• Punctuality and attendance

• Responsibility for tools, property, uniforms, clothing, boots, etc

• Requirement to hold a driving licence

• Compassionate leave

• Parental leave (subject to statutory entitlements)

• Work standards

• And more.

If you are an employer and you don’t have existing contracts of employment for your employees, or you are concerned about the contracts you do have, we provide a professional, cost effective contract review and drafting service. We also provide staff handbooks containing the policies and procedures you need for your workplace including grievance, disciplinary, dignity at work, and health and safety at a minimum.

Simply use the contact us form to make an enquiry.

If you are an employer, you may be interested in our employment law services for employers which are designed to give you peace of mind in this area and allow you to spend your valuable time running your business.

Categories
Employment Law

4 Commonly Misunderstood and Potentially Costly Situations in the Irish Workplace

The four scenarios below are quite common in the Irish workplace.

Each of them has the potential to be very costly for the employer if he/she acts on the common misconceptions contained in these hypothetical situations.

employment-law-questions
Mistakes by employers can be costly

My employee is 67 and I want him/her to retire-can I just tell him/her that he/she must retire soon?

No, not unless you have stipulated a retirement age in the contract of employment. There is no general statutory fixed retirement age in Ireland. There is a retirement age set in some public sector jobs and in occupations such as Gardai, the fire service, and the Judiciary.

However in the private sector, if it is not in the contract of employment, the employee can continue working.

I never gave my employee a contract. He has worked with me for 7 years but now I want to give him a contract to reflect the changed economic circumstances.

Firstly, just because you failed to give your employee a written contract does not mean he doesn’t have a contract. He does.

And whatever written contract you propose giving him now must reflect the terms and conditions he has enjoyed to date. Any changes to these terms must be with his consent as not to obtain his consent will amount to a unilateral changing of the contract by you as employer.

This is not permissible and will leave you open to a claim for breach of contract and/or constructive dismissal.

I am not happy with my employee’s performance and I want to replace him with someone who will do the job properly.

You cannot do so without going through a procedure which is fair and allows the employee to improve after you have brought to his attention the failings in his work. This will involve in making clear the standards required of your employee and how he is falling short.

You will need to set out the improvements required and give him a reasonable time period within which to come up to the mark. You will also need to give warnings that failure to improve sufficiently may lead to dismissal (ultimately).

My employee has been out on certified sick leave for ages and I have been told I cannot dismiss her while she is on sick leave so I am stuck with her..

This is not the case-you can fairly dismiss in certain circumstances, even when your employee is out sick. However it will depend on the needs of your workplace, the length of service of your employee, whether the sickness is a long term absence or a series of short term illness related absences.

So, while it is not easy to fairly dismiss while your employee is on sick leave, it is possible.

Always consult a solicitor in relation to cases like those outlined above; each case will be hugely influenced by the particular circumstances and making decisions based on misunderstandings can prove very costly.

See EmploymentRightsIreland.com also.

Categories
Employment Law

The Employment Contract-3 Critical Areas for Employers to Consider Prior to Contract

Before entering into a contract of employment there are three areas that an employer needs to consider carefully.

These areas can be broadly categorized as follows:

  1. Advertising the position
  2. Interviewing for the job
  3. Conditions precedent.

Job Advertising

Advertising the job can be fraught with danger for the employer as it is easy to fall foul of employment equality legislation. In addition the wording of the advertisement can be held to form part of the subsequent contract of employment.

Interviewing for the job

Employers need to be careful not to ask questions which fall foul of the Employment Equality Acts, 1998-2004 and avoid asking questions that could be considered discriminatory on the grounds of age, marital status, sex, and the other grounds referred to in employment equality legislation.

Keeping note of the interview is a smart practice as what is said at interview (by both parties) can be held to form part of the subsequent contract.

Conditions precedent

The employer should make a job offer conditional on certain conditions being fulfilled, depending on the position. These conditions may cover Garda vetting, clean driving licence, health to do the job, suitable references, registration with professional bodies, and others-this will depend very much on the nature of the work and position.

The areas of references and medical examinations can cause problems and the key principle always for the employers is that you have the employee’s consent to take up references and medical reports/evidence.

Employers-How to Avoid Costly Employment Claims

Categories
Employment Law

The Contract Of Employment-the Essentials

employment contract ireland

The contract of employment in Ireland is made up of both express terms and implied terms with the Terms of Employment (Information) Act, 1994 stipulating that certain basic information must be given to the employee in writing.

This includes the names and addresses of both employer and employee, the place of work, the title of the job, pay, any terms relating to sick pay, periods of notice and many other basic details.

Implied Terms

In every contract of employment, written or otherwise, there are 4 categories of implied terms which fall under the headings of

a) terms implied by custom/practice(depending on the industry)

b) terms implied by statute (right to redundancy, right not to be unfairly dismissed, right to notice, right not to be discriminated against as per Employment Equality Acts, right to breaks, annual leave, holidays as per Organisation of Working Time Act, 1997, protective leave including maternity leave, payment of wages as per Payment of Wages Act 1991, atypical workers such as part timers and fixed term workers protected by the Protection of Employment Acts, health and safety provisions as per Health and Safety at Work Act 2005)

c) terms implied by law (employers duty of care and employees duty of trust and confidence)

d) collective agreements in unionized employment.

 

Express Terms of Employment

The express terms of employment are those terms clearly agreed between the employer and employee and can be oral or in writing.

Terms of Employment (Information) Acts

The Terms of Employment (Information) Acts 1994-2001 provide that employees must be given a statement, signed by the employer, of certain of their terms and conditions of employment within 2 months of their employment.

What must be included in this statement?

  • The names of the employer and employee
  • The address of the employer
  • The place of work (This can be a thorny issue if you need the employee to move to another location or provide geographical mobility in the course of employment and it has not been provided for in the contract of employment)
  • Hours of work (this needs to be clear about shifts, overtime, work breaks, lay offs, short time, and so forth)
  • The job title or nature of the work for which they are employed (Drafting this too widely can give problems when it comes to redundancy; drafting too narrowly can lead to practical, on the ground difficulties)
  • The date of commencement of employment (when does employment start is an important question as most statutory entitlements will be dependent on the length of service)
  • The duration of the contract and expiry date if the contract is a fixed term/temporary contract
  • The rate of pay or method of calculation (the salary package and the breakdown between basic salary, commission, bonuses, allowances, and so forth should be set out)
  • How often/the intervals at which pay will be paid
  • Terms and conditions re paid leave (what is the position re holidays and is there extra days over and above those set down by statute in the Organization of Working Time Act,1997)
  • Terms and conditions re illness/sickness or injury and pensions (what is the situation re sick pay; there is no general right to be paid while out sick but the contract can provide for it expressly or custom and practice of the industry/job can imply it but this may need to be proven if questioned)
  • The period of notice obliged to be given by both parties
  • If any collective agreement affects the contract
  • Times of breaks/rest periods both daily and weekly
  • The company’s pay reference period.

In addition to the above statutory minimum terms and conditions it is prudent and advisable for the employer to include other terms in the contract dealing with

  • Short time/lay offs
  • Illness pay
  • Retirement age
  • Time off work
  • A probationary period (cannot exceed one year)
  • Bullying and harassment procedures
  • Grievance and disciplinary procedures (a specified disciplinary procedure should be in place and a copy of this together with the grievance procedure should be given to the employee along with the contract/letter of offer)
  • Company car
  • Share options
  • Retirement age (should be specified by the employer)
  • Any restrictions re competition and setting up against the employer in the future using trade secrets/contacts. Note that common law implies a duty of loyalty in the employment contract; common law also protects confidential information and trade secrets in the absence of an express or written term in the contract covering this area. However there is no common law barrier to soliciting for business done by the employer once the employee leaves the employment. (Restrictive covenants and termination of employment are dealt with in greater detail elsewhere on the site.)
  • Email and internet use
In addition to the above, the employer must give new employees, within 28 days of starting employment, a written summary of the procedures to be used should it be necessary to dismiss them.

As an employer you need to be clear what terms and conditions are obligatory in the employment contract as a result of the Terms of Employment (Information) Acts and the additional terms and conditions which might be advisable and prudent for the employer.

Legal advice is recommended as the consequences of a badly drafted contract with an employee will be far more costly than the cost of having a properly drafted contract of employment by a legal professional.

You may also be interested in

Employers-How to Avoid Costly Employment Claims

Categories
Employment Law

Termination of Employment | Fair Dismissal | Unfair Dismissals | Dismissal Procedures-Some Essential Facts You Should Know

constructive-dismissa

Termination of employment issues have the potential to cause the employer a lot of money, and a lot of grief and heartache for the employee.

It is important for any small business to have a basic understanding of the procedures and the rights of employees and employers when it comes to terminating employment.

The most commonly litigated aspect of employment law is instances involving the termination of the employment contract itself.

Although disputes are not uncommon in the workplace, most will be resolved without the parties involved being compelled to terminate the employment contract.

However in some instances this may be the only reasonable avenue available to either or both parties.

Contracts of employment may be terminated in a number ways including: agreement, dismissal, repudiation and frustration. (Check out our other employment law in Ireland articles)

Termination of employment by Agreement

As is the case with all contracts, contracts of employment may be terminated with the consent of both parties.

In certain circumstances a term of the contract may be inserted to deal with the termination of the contract, by means of notice by either party. In this instance it is generally understood that a certain minimum time must have elapsed prior to the term being activated.

An alternative means by which the contract of employment may be brought to an end involves the payment of an agreed sum, made with the intention that the contract shall be terminated forthwith.

In certain circumstances where the interests of both parties are served by the immediate termination of the contract of employment, then no such monies may be necessary i.e. the employer is actively seeking to cut back on staff numbers and the employee has been offered more lucrative terms with another employer.

Termination of employment by Repudiation

A repudiation of the employment contract occurs where either party unilaterally fails to abide by the terms agreed, eg forced resignations, failure to pay remuneration, unilaterally changing the nature of the work..

In circumstances where an employee is the one alleged to have committed a repudiatory breach of the employment contract, for example by means of unambiguously leaving the job at issue, the contract is not deemed to be terminated and it is still at the discretion of the employer to retain the services of the employee.

The reasoning behind this principle is to avoid rewarding employees who seek to prematurely end their contracts deliberately.

Termination of employment by Dismissal

A dismissal for the purposes of employment law is legally defined as the unilateral termination of the contract of employment by the employer.

Where the employer fails to give adequate notice of the dismissal he/ she will be held to have repudiated on the fundamental conditions of any employment contract, payment for work completed.

In circumstances where an employee refuses to accept this repudiation, then he/she may elect to sue for damages for wrongful dismissal.

Note: there is a significant difference between wrongful dismissal and unfair dismissal.

Termination of employment by Frustration

One of the more recent innovations in the law of contract is the legal principal of frustration, whereby circumstances outside of the control of either party mean that the contract comes to an end and any further contractual obligations are set aside.

In the context of the contract of employment, the factors accepted are inclusive of but not limited to: the destruction of the workplace, illness on the part of the employee, employee’s imprisonment or liquidation of the business.

Notice of Termination

One of the terms of any contract of employment will generally be the length of notice required to lawfully terminate the contract. In the event that no such clause is deemed to exist then reasonable notice must be given (this will be determined by the individual circumstances of any contract).

(Read more about notice periods for termination of the contract of employment.)

However where an employee is being dismissed for a very serious breach of contract, there is no entitlement to any notice.

The process whereby an employer decides to immediately terminate an employment contract is legally regarded as a summary dismissal. This power may be exercised in circumstances where the contract of employment expressly stipulates or alternatively where the employee is guilty of serious misconduct.

The exact factors which constitute a serious misconduct may be cited in the contract or alternatively where this is not the case, the individual circumstances of the employment may be considered. However, some actions are so nefarious as to be instantly regarded as such including: deliberately destroying the employer’s valuable property, stealing from the employer, and gross insubordination.

In addition to the grounds previously specified an employee’s action representing to the employer that he possessed a certain skill or qualification, which was not in fact the case, would have seriously misrepresented the situation and this action would warrant summary dismissal.

However, inability to do a job may be regarded due to the employer’s inadequate training methods or to inefficient techniques for selecting employees.

Dismissal Procedures

In most cases the employment contract should specify or directly incorporate the manner in which dismissal procedures should be conducted.

Indeed statute compels all employers to issue new employees with a directive on appropriate dismissal procedures within one month on initiating employment under section 14 of the Unfair Dismissals Act 1977.In the event that this directive is altered, a minimum of 28 days notice must be given to the employee.

However this obligation does not apply where no agreed procedural framework was in place between the parties or the employee’s trade union or where no such procedure is based on custom and practice.

It is estimated that as much as 80% of employers’ lost unfair dismissal cases are lost because of procedural unfairness.

Codes of Practice on Disciplinary Procedures

In the advent of any dismissal procedures being initiated, the employee has a Constitutional right to expect fair procedures.

In essence this means that an employee must be made aware of any evidence against them and should be afforded the opportunity to respond to the allegations.

In the event that a breach of fair procedures is found then the courts can order that the employee be continued to be paid pending a full hearing of the action.

Procedures are necessary to ensure that discipline is maintained in the workplace and that disciplinary measures can be applied in a friar and consistent manner.

The procedures must comply with the principles of natural justice and fair procedures including

1. Details of the allegations or complaints are put to the employee concerned.
2. The employee concerned is given the opportunity to avail of representation.
3. The employee concerned has the right to affair and impartial determination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the employee to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence factors or circumstances.

It is advisable that allegations be set out in writing, that the source of the allegation or complaint be given or that the employee concerned be allowed to confront or question the witnesses

Disciplinary action may include:

1. An oral warning
2. A written warning
3. A final written warning
4. Suspension without pay ( not advisable)
5. Transfer to another task
6. Some other disciplinary short of dismissal

See Labour Relations Commission codes of practice also.

Dismissal

Fair Dismissal

In circumstances where an employee can demonstrate that they were dismissed from a contract of employment, then the onus is on the employer to demonstrate that this dismissal was justified and  fair.

In order to achieve this an employer must show that the dismissal was premised upon one or more of the grounds set out in the Unfair Dismissals Act 1977. In doing so the employer must also rebut any allegation of dismissal on any improper grounds alleged by the employee.

The grounds upon which dismissal may be premised include: capability, competence, qualifications, conduct, redundancy, illegality or another case premised on unnamed “substantial grounds”.

1) Capability

Capability grounds are usually premised on issues like lateness, absenteeism, and persistent absence through illness.

If lateness or absenteeism is at issue then the employer will be expected to have documentary evidence to substantiate this claim such as clocking in records, or absenteeism files that are not medically certified. In addition the employer should have evident of the severity of the absences being brought to the attention of the employee.

If illness or injury is at issue, it is often assumed that you cannot be dismissed while on certified sick leave from you work. However, this is not true.

It is difficult to lay down hard and fast rules to apply to these cases as each are different and each will be treated on its own merits. Accordingly these instances are usually divided into short term and long term categories.

Short term illnesses are taken to include medical illnesses which require the individual to be absent for short periods from the work place. Assuming that the employer is not actually questioning the validity of the terms cited they will be expected to have:

1. Established that a pattern of absences exists and it that it is causing problems

2. Satisfied themselves that the problem is unlikely to get better in the long run.

3. Warned the employee the dismissal may occur if things do not improve.

Many of the same considerations exist in a long term absence cases. However, employers will in this instance be expected to secure detailed medical evidence which suggests that an early return is unlikely.

The precise time frame in which an absence will be considered unreasonable will vary from case to case depending on it effect on the work place.

In circumstances where there is a deviation in the medical evidence to both parties as to the likely date of return, the employer should seek a third opinion in advance of taking a decision to dismiss.

2) Competence

Competence is taken to refer to the standards which are expected of an individual employee as regards their job. The employer should take the earliest opportunity to outline these expectations to the employee so that each party is fully aware.

In the circumstances where you fall short of the standards expected, it is understood that this should be communicated to the employee through formal procedures in addition to a specification as to the improvements necessary. The improvements should be achievable and be within a reasonable time timeframe.

Ultimately, a final warning should be given to the employee setting out the likely hood of dismissal should there not be a marked improvement.

3) Qualifications

This kind of situation envisages two potential forms: either the employee misled the employer about qualifications during the process of applications or the job was offered contingent on certain qualifications being secured which have subsequently not been secured.

4) Conduct

Conduct is taken to cover a very large area of behaviour and might be accurately termed misconduct. In this regard there is a very clear need to differentiate between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to summary dismissal without notice or pay in lieu of notice.

Alternatively a series of instances may collectively lead to dismissal. In the case of instances of minor misconduct warnings as to future behaviour must be issued.

5) Redundancy

In this case the employer should establish that the current levels of staff are unsustainable and that accordingly the dismissal of the employee was justified.

This may be countered by the employee in circumstances where evidence suggests that:

  • There was no economic imperative or justification for the redundancies eg. Company continues to operate profitably
  • That the space vacated had been refilled
  • That the process of selection for redundancy was unfair
  • That the basis for selection was premised on discrimination

6) Illegality

This situation is taken to occur in a situation where the employee’s continued employment in their current situation would be a breach of the law. The most obvious example of this may be said to occur where a valid driving license is required to continue work in a haulage business as a truck driver.

In certain circumstances, the court may be prepared to accept an argument that reasonable accommodation of the employee should have been considered prior to dismissal, that is to say, an employee no longer able to carry out a specific task may be used in a different role.

7) Other Substantial Grounds

In circumstances whereby the employer cannot rely on any of the grounds as aforementioned, then an onus will be imposed upon them to justify the dismissal on the basis of other “substantial grounds”.

Unfair Reasons

The Unfair Dismissals Act lists numerous grounds upon which dismissal premised upon, if proven to be so, will be unfair including:

1. Taking part in a strike action
2. Membership of a trade union or participation in union activities
3. Religious or political opinions
4. Actual or threatened civil or criminal proceedings to be taken against the employer. This is taken to extend to situations whereby the individual is merely to act as a witness
5. Race, colour or sexual orientation
6. Membership of the traveller community
7. Pregnancy
8. Exercising right under the Adoptive Leave Act 1995
9. Exercising right under the Parental Leave Act 1998
10. Exercising right under the National Minimum Wage Act 2000
11. Unfair selection for redundancy
12. Exercising right under the Maternity Protection Act 1994
13. Exercising right under the Carer’s Leave Act 2001

Learn more about employment law in Ireland.