The 12-month dismissal myth

There is a common misconception that an employee who has less than 12 months’ service can be dismissed without any repercussions for the employer. This is completely inaccurate, as employees with minimal service have several ways of pursuing a legal action against their employer if they feel aggrieved at their dismissal (or any other breach of rights).

The Unfair Dismissals Acts 1977 to 2007 require an employee to have a minimum of 52 weeks’ service before they can take a claim against their former employer. This claim must be taken within six months of the termination date, but this can be extended to 12 months if exceptional circumstances are highlighted.

There are key exemptions to this 52-week service requirement:
• If an employee is dismissed for trade union activity or membership;
• If an employee is dismissed due to pregnancy, giving birth, breastfeeding or any matter connected with pregnancy or birth; and,
• If an employee avails of the rights granted to them under the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carers Leave Act 2001.

An employee is also free to pursue a claim for discriminatory dismissal under the Employment Equality Acts 1998-2011 if they do not have 52 weeks’ service but they feel they have been wronged under one of the nine grounds for discrimination:
• Race;
• Sexual orientation;
• Gender;
• Age;
• Religion;
• Disability
• Marital or civil status;
• Family status; and,
• Member of the Travelling Community.

Section 20 of the Industrial Relations Act allows an employee, or employees, with a genuine trade dispute with their employer, pursue an unfair, or wrongful, dismissal claim to the Labour Court. This particular avenue of litigation has grown in popularity recently. An adjudication officer of the Workplace Relations Commission, or the Labour Court on appeal, examines the facts of a dismissal where the employee has not been in employment for 52 weeks and generally benchmarks the facts of a case against Statutory Instrument 146/2000, the Code of Practice on Grievance and Disciplinary Procedures. Under this legislation, however, only a recommendation – rather than a binding determination – would be produced.

An employee with fewer than 52 weeks’ service is also able to lodge a legal claim against their employer under legislation relating to written terms of employment, payment or wages, health and safety, bullying and harassment, public holidays, rest breaks and working hours, to name but a few.

Probation

Employers should include a probation period in all contracts of employment they issue, which allows them set a certain defined period at the start of the employment relationship, generally three to nine months, where they assess an employee to see if their skills match the employer’s requirements. It is still important, even during a probation period, that an employer is seen to be fair and reasonable in their assessment of an employee’s progress and, if they are challenged in the event of a failed probation period, they can provide evidence that the employee deserved to go!

Procedure, procedure, procedure

Any client ringing our offices for HR advice is likely sick of hearing the word ‘procedure’, but whether a staff member is employed for under, or over, 52 weeks, it is critical the employer can provide evidence to prove a fair, transparent and logical decision was made in terms of their departure from employment. Employers must ensure a contract of employment is given to the employee and if a probation period it operated, it should be specifically mentioned in the contract (or at least the employee handbook).

Mark dates in a diary, or reminders in a phone, to conduct reviews with new employees and ensure that any review notes are presented to the employee in writing to ensure that you can prove the feedback that was given.

Seek advice from your HR adviser before making any decision to dismiss an employee, at any stage, to ensure that your reasons for termination are sound and that you follow a procedural path that, firstly, minimises the risk of getting sued, but also provides a sound defence in case of litigation.

Tom Smyth is Managing Director of Tom Smyth & Associates, a HR consultancy, established in 1991, that, in association with HAI, gives Irish employers practical advice on HR, industrial relations and employment law issues.