Anne O'Connell http://www.sor-solicitors.ie 6m 1,543 #dismissal
The views of this article are the perspective of the author and may not be reflective of Confessions of the Professions.
The Procedures to Follow and the Pitfalls to Avoid
Employers need to be careful whenever they intend to dismiss an employee in Ireland. There are a number of procedures that they need to adhere to. This detailed infographic created by leading employment law experts SOR Solicitors gives an in depth overview of the numerous items that need to be taking into consideration.
Discrimination, Minimum Notice and Probation
All employers must re-visit the nine grounds of discrimination that exist within the employment equality acts when first considering dismissing an employee to ensure that they are not guilty of discrimination. Minimum notice has to be adhered to which is dependent on the length of the employee’s service or as per the contract, whichever is the longer. It is worth noting that employees on probation do not have standard fair procedure employment rights, however, equality acts do apply.
Performance Related Dismissal
An employee can only be charged with poor performance after they have been made aware of the work standard required. This infographic highlights the dutiful dozen or essentially the twelve bases employers need to have covered before considering letting an employee go for any form of performance related dismissal. A performance improvement plan (PIP) forms a large part of the procedural process that is required.
The Employment Appeals Tribunal requires employers to meticulously adhere to fair procedures when dismissing any employee for misconduct. The onus always falls on the employer to prove that the dismissal was fair. Fair procedures need to be established and procedures such as a disciplinary hearing invitation need to be facilitated.
The Irish Government plans to introduce legislation that will give the employee the right to accrue annual leave while on sick leave. An employer intending to dismiss an employee on sick leave must be mindful of potential claims such as discriminatory dismissal, unfair dismissal and breach of contract. Sick leave policy rights and consents exist and must be adhered to, medical reports must be created and the employer must facilitate the employee returning to work.
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Dismissing Employees in Ireland
Procedures + Pitfalls
Employers should always keep the following in mind when intending to dismiss an employee from their service.
9 The Employment Equality Acts Grounds of Discrimination:
- Civil status
- Family status
- Sexual orientation
- Religious belief
- Race, colour, nationality, ethnic, or national origins
- Membership of the Traveller community
Employers must give their employees minimum notice which is dependent on the length of the employee’s service or as per the contact, whichever is the longer. If the employer does not require the employee to work out any part of their notice, the employer has to pay the employee in lieu of that period.
Length of Service: Minimum Notice
- 13 weeks to 2 years: 1 week
- 2 to 5 years: 2 weeks
- 5 to 10 years: weeks
- 10 to 15 years: weeks
- 15+ years: weeks
Employees on probation do not have standard fair procedure employment rights. After an employee has 1 year of service, they have the protection of the Unfair Dismissal Acts and cannot be dismissed without fair procedures being followed.
5 Step Checklist
- Ensure a ‘probationary period’ clause is in their employment contract.
- Include the right to dismiss the employee at any time during the period.
- 6 months is the ideal probationary period and should be less than 1 year.
- The notice entitlement should be limited to 1 week for both parties.
- If a Director is being dismissed, the employer must follow the company’s memorandum and articles of association.
Note: Equality Acts Apply
Performance Related Dismissal
An employee can only be charged with poor performance after they have been made aware of the work standard required.
The Dutiful Dozen
- Check the standard required of the employee is reasonable and achievable.
- Point out the employee that he or she is falling short of the standard before it becomes a disciplinary issue.
- Create a performance improvement plan (PIP).
- Set out what objectives the employee is not meeting but is required to meet and the deadlines the employee has to meet each objective in the PIP.
- Talk through the PIP with the employee so that they understand it.
- Urge the employee to notify them if they need assistance, training, or more time.
- Ensure that the employee’s work situation allows for a focus on imporving.
- Set regular review dates during the PIP period.
- Inform the employee that should they not meet the deadlines set out in the PIP, then the disciplinary process will be initiated.
- Inform the employee sanctions results from the disciplinary process could result in dismissal.
- Follow company disciplinary procedures and go through the sanctions of verbal and written warnings before dismissal.
- Proceed to dismissal only as a last resort.
The Employment Appeals Tribunal (EAT) expects employers to meticulously adhere to fair procedures and natural justice when dismissing an employee for misconduct. It is up to the employer to prove that the dismissal was fair.
Establishing Fair Procedures
- Confine the investigation to establishing the facts.
- Suspend the employee only if necessary.
- Clarify that suspension is not a disciplinary sanction.
- Provide the employee with a written copy of the investigation outcome.
- Give the employee sufficient time to prepare for a disciplinary hearing.
- The individual conducting the hearing must be impartial.
- The decision maker must take time to consider everything before making a decision.
- Check if follow ups to anything said during the hearing are necessary.
- Ensure the decision is balanced and based on all of the facts.
- Take lesser disciplinary sanctions into consideration.
- Inform the employee of the appeal procedure.
- An appeal must be heard by an impartial and independent individual.
- A written copy of the appeal outcome must be sent to the employee; it must reflect what was put forward in the appeal and illustrate that the appeal was not predetermined.
7 Specifics of the Disciplinary Hearing Invitation
- Detail the disciplinary process allegations.
- Name the conductor and note take of the hearing.
- State that the disciplinary sanction (if any), may include dismissal.
- Remind the employee of their right to representation in line with company policy.
- Request the employee name anybody he/she wishes to question.
- State that the employee’s suspension may be extended to facilitate the disciplinary process.
- Attach all relevant documents and a copy of the company disciplinary policy.
5 Specifics of the Dismissal Letter
- Reflect what was said at the hearing.
- Decide on conflicting statements.
- State whether or not he/she is required to work notice.
- Remind the employee of their right to appeal in writing.
- State that an appeal will not change the dismissal date but if successful they will be reinstated.
Grievances and Sick Leave
- Employees may attempt to derail the process by taking sick leave or submitting a grievance.
- The company doctor should examine the employee to determine if he or she is fit to participate in the process.
- A grievance should be dealt with separately.
- It should not delay or interfere with the disciplinary process.
The Irish government plans to introduce legislation that will give the employee the right to accrue annual leave while on sick leave. An employer intending to dismiss an employee on sick leave must be mindful of potential claims.
Potential Employee Claims
- Discriminatory Dismissal
- Unfair Dismissal
- Breach of contract
3 Procedural Steps Employers Need to Take
- Possess all of the material facts about the employee’s condition.
- Inform the employee that the company is considering incapacity dismissal.
- Give the employee an opportunity to give his or her input in advance of any decision.
Sick Leave Policy Rights and Consents
- Specify the employer’s right to get an employee medically assessed by an employer appointed doctor, at the employer’s expense, in the sick leave policy.
- Include the employee’s consent to give any medical report that is produced, to their employer.
The Medical Report
- Ask the doctor to address the employee’s incapacity, expected return to work date and the measures needed to facilitate a return to work.
- Give a copy of the medical report to the employee for his or her medical advisors to review.
Examples of Employer Measures to Facilitate ‘Return to Work’
- Adaption of the premises and equipment.
- Patterns of working time and distribution of tasks.
- The provision of training and integration of resources.
Note: The measures should not impose a disproportionate burden on the employer’s financial resources e.g. covering the cost of a treatment facility.
4 Checks for Meeting the Employee
- Request a meeting with the employee together with a witness.
- Inform the employee that the purpose of the meeting is to discuss potential termination on the basis of incapacity.
- Ask the employee for his or her input regarding the medical reports and return to work measures.
- Take time to consider the employee’s input.
Termination of Employment
- If appropriate, issue the employee with a written notice of dismissal in accordance with the employee’s contract of employment.
- Ensure to provide for a right of appeal against the decision of dismissal.
What to Watch Out For
- If an employer provides its employees with permanent health insurance, the policy needs to be considered before any dismissal decision is made.
- A dismissal in some cases could lead to a breach of contract claim before the Circuit Court or High Court, which could be very costly for employers.