CURRENT LEGAL ARTICLES

Introduction

Dismissal is the most consequential decision an employer can take in respect of an employee, and it is the decision most likely to be tested — retrospectively, and in detail — before the Workplace Relations Commission (“WRC”) or the Labour Court. The existence of a genuine ground for dismissal, whether misconduct, capability, redundancy or another substantial reason, is a necessary but not sufficient condition for a lawful termination.

Under the Unfair Dismissals Acts 1977–2015, the burden of proving that a dismissal was not unfair rests with the employer. Section 6(1) provides that a dismissal is deemed unfair unless, having regard to all the circumstances, there were substantial grounds justifying it. The reported jurisprudence — from the general standard of reasonableness articulated in Looney & Co Ltd v Looney UD 843/1984 through to the Supreme Court’s treatment of process in Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 — establishes that the WRC’s inquiry extends beyond the substantive merits of the decision to the fairness of the process by which it was reached. For the employer, the operative question is accordingly not confined to whether grounds for dismissal exist. It is whether the business can demonstrate, on the balance of probabilities and by reference to a contemporaneous record, that the decision was based on a genuine reason, supported by evidence, and reached through a procedure consistent with the principles of natural justice — audi alteram partem and nemo iudex in causa sua — as applied to employment relationships in Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 and, at a constitutional level, in Re Haughey [1971] IR 217.

I.  Establishing a Genuine and Evidenced Reason

The starting point is precise identification of the reason for the proposed dismissal — whether serious or repeated misconduct, poor performance or incapability, long-term sickness absence, breach of policy, breakdown of the employment relationship, redundancy, or another substantial reason recognised under section 6(4) of the Unfair Dismissals Acts.

The reason must be genuine and capable of evidential support. The relevant test is not what the employer can now assert, but what the employer can prove by reference to material that existed before the decision was taken: performance reviews, formal warnings, correspondence, investigation findings, or contemporaneous meeting notes. Evidence assembled after the fact, to justify a decision already made, carries materially less weight and is likely to be identified as such on adjudication.

Employers should also test the proposed reason against the employee’s documented history. A dismissal for performance following a run of positive appraisals is not thereby precluded, but it will require a considerably more detailed explanation of the intervening deterioration than a dismissal consistent with an established pattern of concern.

II.  Reviewing the Contract and Applicable Procedures

Before any procedural step is taken, the employer should review the contract of employment and the applicable internal policies — disciplinary, performance management, grievance, dignity at work, equality, and absence management procedures, together with any notice or probationary provisions engaged.

A contractual right to terminate on notice does not, of itself, discharge the employer’s obligation to observe fair procedures or comply with statutory protections; the two operate independently. The Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) remains the benchmark against which the WRC assesses procedural fairness, and a recurring feature of successful unfair dismissal complaints is the employer’s unexplained departure from its own published procedure. Where an employer has represented to its workforce that a particular

process will be followed, deviation from that process — without a clear and defensible reason — is itself a source of legal exposure independent of the substantive merits.

III.  Investigating the Facts Independently of the Anticipated Outcome

Where dismissal arises from disputed facts — alleged misconduct, contested performance concerns, or a similar issue — those facts must be established through a proper investigation before a conclusion is reached. This will typically involve document and correspondence review, witness interviews, examination of relevant records, consideration of any prior warnings, and a genuine opportunity for the employee to respond before findings are finalised.

The investigation’s function is fact-finding, not the construction of a justification for a decision already reached. This distinction is not academic: an investigation shown to have proceeded from a predetermined conclusion is one of the most reliably fatal defects in a subsequent WRC defence, because it undermines the employer’s central evidential claim — that the outcome followed from the evidence, rather than preceding it.

IV.  Affording a Genuine Opportunity to Respond

The employee must be given adequate particulars of the case against them, reasonable notice of any disciplinary or capability meeting, a genuine opportunity to make representations, and — where the applicable procedure provides for it — the right to representation. Critically, the employee’s response must be considered before, not after, the decision is effectively made.

The practical test is this: if an independent adjudicator examined the process, could the employee demonstrate that they were genuinely heard before the decision was reached, or only that they were informed of a decision already taken? Where the answer is uncertain, that uncertainty is itself the signal to pause and obtain advice before proceeding further.

V.  Assessing Discrimination and Protected-Rights Exposure

A dismissal decision must be tested against the protected characteristics under the Employment Equality Acts 1998–2015 — disability, age, gender, civil status, family status, sexual orientation, religion, race, and membership of the Traveller community — and against statutory protections including protected disclosures under the Protected Disclosures Act 2014 (as amended), health and safety complaints, and the exercise of other statutory employment rights.

Temporal proximity between a protected act — a discrimination complaint, a request for reasonable accommodation, a protected disclosure, a grievance — and the dismissal decision does not, without more, render the dismissal unlawful. It does, however, shift the practical burden onto the employer to demonstrate, by clear and independently supported evidence, that the decision was founded on a legitimate reason unconnected to the protected act. Where disability or long-term absence is engaged, the employer’s obligations under section 16 of the Employment Equality Acts — including reasonable accommodation, as considered by the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 — must be addressed before any decision on capability or dismissal is finalised.

VI.  Confirming Notice, Final Payments and Practical Consequences

Once the substantive decision is sound, its implementation must be equally correct. This requires confirmation of contractual and statutory notice under the Minimum Notice and Terms of Employment Act 1973, accrued but untaken annual leave, outstanding wages, bonus or commission entitlements, benefits, the return of company property and confidential information, and any post-termination restrictive covenants.

The manner in which the termination is communicated should be professional and consistent with the process already followed; written confirmation should be provided in accordance with the applicable contractual and statutory requirements. Deficiencies at this final stage — however sound the underlying decision — can unnecessarily convert a defensible dismissal into a contested one.

VII.  Assessing WRC Exposure Before the Final Step

Before confirming dismissal, the employer should undertake a final, candid assessment: whether the reason is genuine, documented and evidenced; whether fair procedure was observed; whether the employee had a real opportunity to respond; whether comparable cases were treated consistently, since inconsistent treatment of similar conduct or performance issues is a frequent basis for a successful complaint; whether any protected characteristic or statutory right is engaged; and whether the documentary record, read independently of management’s explanation, tells the same story as that explanation.

This exercise is not a formality preceding an inevitable outcome. It is the mechanism by which employers identify

— and correct — evidential and procedural weaknesses before they crystallise into a WRC claim.

Recurring Deficiencies in Employer Practice

The most common defect in contested dismissals is not the absence of a genuine underlying concern, but the failure to document and manage that concern properly in advance. An employer may have held legitimate performance concerns for months without raising them formally or recording the relevant discussions, such that when dismissal is eventually considered, the business cannot demonstrate the history it seeks to rely upon.

Inconsistency is the second recurring defect. Where comparable conduct by another employee previously resulted only in a warning, the WRC will expect the employer to explain the differential treatment; an unexplained divergence is treated as evidence of an illegitimate or disproportionate response. Dismissal should accordingly never be assessed as an isolated event — adjudicators routinely examine the wider employment history and the process that culminated in the decision.

Dismissal Involving Long-Term Sickness or Disability

Dismissal in circumstances involving sickness absence or disability requires particular care. The fact of extended absence does not, of itself, remove the requirement for careful consideration. Employers should obtain appropriate medical or occupational-health information, assess whether the employee can perform the essential functions of the role with or without accommodation, and consider whether the disproportionate burden qualification under section 16 is properly made out before reaching a final decision. Legal advice should be obtained before proceeding in these circumstances.

Illustrative Application

Consider a business with ongoing, informally discussed performance concerns regarding a member of staff, culminating in a further incident after which management concludes that dismissal is necessary. On review of the contract, correspondence and performance history, the business discovers that certain concerns were never formally communicated and that the documentary record does not clearly establish the progression relied upon.

The correct response is to pause the process, obtain advice, and address the procedural gap before proceeding — not because dismissal is thereby precluded, but because any eventual decision must rest on a properly established record and a defensible process. That distinction is frequently determinative if the dismissal is subsequently challenged.

When to Obtain Legal Advice

Advice is particularly valuable, and should be obtained before the decision is finalised, where the employee has threatened or lodged a WRC complaint; where a grievance or discrimination complaint has been raised; where disability or long-term sickness absence is involved; where a protected disclosure has been made; where serious misconduct is alleged; where previous warnings are disputed; where the employer is uncertain of its own disciplinary procedure; where the employee has significant length of service; or where the financial or reputational consequences of the decision could be substantial. Advice obtained before a procedural defect becomes embedded in the process is materially more valuable than advice obtained after a WRC complaint has been lodged.

Building a More Defensible Dismissal Process

Employers can materially reduce avoidable risk by investing, in advance of any specific dispute, in clearly drafted contracts of employment; disciplinary procedures that managers understand and apply consistently; performance management that is documented as it occurs rather than reconstructed retrospectively; dignity-at-work and equality policies that set out expected standards and complaint-handling processes; manager training on when to escalate a matter to HR or to specialist employment law advice; and a general discipline of contemporaneous documentation for significant employment decisions.

Concluding Observations

Dismissal is not properly analysed as the final step in an internal management process. Under the statutory framework governing unfair dismissal in Ireland, the process leading to the decision is frequently as legally significant as the reason for the decision itself. Establishing a genuine and evidenced reason, following the applicable procedure, affording the employee a real opportunity to respond, assessing discrimination and protected-rights exposure, confirming the practical mechanics of termination, and undertaking a final WRC risk assessment together constitute the analytical discipline a defensible dismissal requires.

For employers, particularly where the circumstances involve disability, discrimination, long-term absence, serious misconduct, an existing grievance, or an employee who has already signalled an intention to pursue a WRC claim, early legal advice is best understood not as a cost of caution but as the most efficient means of avoiding an entirely avoidable dispute.

Frequently Asked Questions

May an employer dismiss an employee in Ireland?

Yes, where there is a genuine basis for dismissal recognised under the Unfair Dismissals Acts and the applicable contractual, statutory and procedural requirements have been observed.

May an employee bring a WRC claim following dismissal?

Yes. Depending on the circumstances, an employee may bring a complaint under the Unfair Dismissals Acts, the Employment Equality Acts, or other applicable employment legislation, subject to statutory eligibility and time limits.

Is a warning always required before dismissal?

Not invariably. The appropriate procedure depends on the contract, the applicable policy, and the seriousness of the issue — serious misconduct may warrant a materially different approach from an ordinary performance concern.

What obligations arise where the employee has a disability?

The employer must consider its obligations under section 16 of the Employment Equality Acts, including reasonable accommodation, before reaching a decision on capability or dismissal.

Should legal advice be obtained before dismissal?

Where significant legal or commercial risk is present, advice obtained before the decision is finalised can identify procedural weaknesses, discrimination exposure and WRC risk while there is still time to address them.

Can the conduct of the dismissal process itself be challenged?

Yes. The WRC’s inquiry routinely extends to the fairness of the process, not merely the substantive reason relied upon, and significant dismissal decisions should accordingly be documented with corresponding care.

About Green & Associates Solicitors

Green & Associates Solicitors advises employers across Cork and Ireland on disciplinary procedures, workplace investigations, grievances, unfair dismissal, discrimination, bullying and harassment, and WRC proceedings. The firm’s approach is practical and commercially oriented: employers facing a difficult dismissal decision require more than a statement of the applicable law — they require a clear view of what that law means for the specific decision in front of them.

The firm’s employment practice is further informed by a sustained institutional engagement with equality and inclusive workplace practice, reflected in its 2025 Diversity & Inclusion Award — a perspective of direct relevance where dismissal decisions intersect with discrimination, disability, reasonable accommodation or other equality considerations.

For businesses, the objective is not merely to avoid legal claims. It is to reach sound employment decisions capable of withstanding scrutiny while protecting the organisation’s broader commercial interests.

Green & Associates Solicitors

Horgan’s Quay, Waterfront Square, Cork, T23 PPT8

Phone: 021 470 8570

Email: info@greensolicitors.ie

Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Employment law is fact-specific, and the appropriate process before dismissing an employee will depend on the circumstances, the employment contract, applicable workplace policies and relevant legislation. Employers considering dismissal should obtain specific legal advice before taking significant action.