First published: March 2nd 2022
Last updated: July 4th 2023
Short service dismissal is a common employer query that our HR consultants often deal with.
Short service dismissal typically arises when a new recruit isn’t working out. As employees with less than one year’s continuous service don’t have a right to make claims under the unfair dismissal acts, employers sometimes opt to dismiss a new employee who is failing to meet expected productivity or conduct standards in the first eleven months of employment.
Even though the unfair dismissals legislation may not apply to employees with less than one year’s continuous service, employers must nevertheless bear in mind the following risks…
Exemption to unfair short service dismissal
Ex-employees with less than twelve months’ service may make claims that are ‘automatically unfair’ or discriminatory. There are nine ‘discriminatory’ grounds under the Employment Equality Acts, 1998 – 2015.
Employees who can make out a case that they have been dismissed based on any of the nine grounds may seek to make a discrimination claim in the WRC. The nine grounds are:
- Civil status
- Family status
- Sexual orientation
- Religious beliefs
- Membership of the Traveller community
Automatically unfair dismissal in Ireland
The unfair dismissals acts set out the circumstances in which an employee’s dismissal will be deemed automatically unfair.
Employees with less than twelve months’ service will still be entitled to make an unfair dismissal claim if the dismissal was 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
- The employee having made a protected disclosure
- Legal proceedings against an employer where an employee is 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, carer’s leave, parental or force majeure leave
- Unfair selection for redundancy.
You should familiarise yourself with these scenarios if you intend to dismiss an employee with short service.
When do employers need to carry out fair procedures before confirming a short service dismissal?
The Court of Appeal examined this question in the case of O’Donovan v Over C Technology.
The decision is useful for employers as it clarified that employers may dismiss employees for performance reasons during a probation period without the need to go through formal hearings and without providing the employee with a right to appeal.
If a dismissal during probation relates to misconduct however, fair procedures must still precede any confirmation of termination as the employee’s good name is at stake.
As the Transparent and Predictable Working Conditions Regulations also contain new rules concerning probation periods, employers should review their contracts of employment to remove any ambiguity that might exist around the right to dismiss during probation and the duration of probation periods.
Expert HR advice with short service dismissal
Our expert HR consultants can help you manage short service dismissal issues or any other employment queries impacting your organisation.
Call today on 01 886 0350 or leave your details here and we’ll call you back.