CURRENT LEGAL ARTICLES

  

This is an illustrative legal graphic comparing wrongful dismissal as a breach of contract with automatically unfair dismissal due to discrimination and retaliation under Irish employment law.

A dismissal from a job is a stressful event for any employee, and understanding your rights under Irish law is crucial. At Green & Associates, we often advise clients on the nuances of employment termination, particularly the distinction between Wrongful Dismissal and Unfair Dismissal.

While the terms are often used interchangeably in general conversation, legally, they serve two distinct purposes in Irish employment law, which can significantly affect the avenue of redress an employee may pursue.

In essence, wrongful dismissal is a common law claim based on a breach of the employment contract. It does not necessarily mean that the employer’s reason for dismissal was morally unjustified or unfair; rather, it means they breached a fundamental term of the contract in the process of terminating the employment.

The most common basis for a wrongful dismissal claim is: 

● Breach of Notice Period: The employment contract, whether written or implied, specifies a period of notice that must be given before termination (e.g., one month, three months, etc.). If an employer terminates the employment without providing the contractually mandated notice or payment in lieu of that notice, a wrongful dismissal has occurred. Statutory minimum notice periods must be observed; however, a contract may require a longer period.

● Failure to follow contractual procedures: Many employment contracts incorporate specific disciplinary or grievance procedures. If the agreement stipulates that employment can only be terminated following a prescribed process, and the employer fails to adhere to this procedure, it may constitute a breach of contract and thus, a wrongful dismissal. 

● Breach of a Fixed-Term Contract: If a fixed-term contract is terminated before the agreed end date, without an express contractual right to terminate early (and without cause, e.g, gross misconduct), it is likely a wrongful dismissal. 

A claim for wrongful dismissal is typically pursued through the Civil Courts,  as it is a pure contractual claim. It is often limited to damages equal to the wages and benefits the employee would have earned had the correct notice period been given. 

While wrongful dismissal focuses on the process of termination as a breach of contract, unfair dismissal focuses on the reason for the termination and whether fair procedures were followed in the termination process. This right is a statutory protection afforded by the Unfair Dismissals Acts 1977-2015 (UDA) and heard by the Workplace Relations Commission (WRC). 

For dismissal to be fair, the employer must demonstrate that there were substantial grounds justifying the dismissal and that they followed fair procedures. 

Grounds for Automatically Unfair Dismissal

The UDA identifies specific grounds for dismissal that are automatically unfair, irrespective of the employee’s length of service (which is usually 12 months for an ordinary unfair dismissal claim). These grounds directly address two crucial areas of concern: 

Discrimination and Retaliation. 

Dismissal based on any of the nine grounds of discrimination is protected under the Employment Equality Acts 1998-2015 and is considered automatically unfair (and unlawful under the Equality Acts). These protected grounds are: 

● Gender

● Civil Status

● Family Status

● Sexual Orientation

● Age

● Disability

● Religious Belief 

● Race

● Membership of the Traveller Community

Example: Employee dismissed solely because they have reached a certain age, or because they announced a pregnancy, would have a strong claim for discriminatory (and thus, automatically unfair dismissal) 

Retaliation, often referred to as penalisation in Irish legislation, is a key component of automatically unfair dismissal. Dismissal is automatically unfair if it results wholly or mainly from an employee exercising their statutory rights or engaging in protected activities. Key examples include dismissal for: 

● Making a Protected Disclosure (Whistleblowing): Dismissal in response to an employee making a report about wrongdoing in the workplace under the Protected Disclosures Act 2014

● Trade Union Activity: Dismissal relating to membership or activities of a trade union.

● Exercising Statutory Leave Rights:  Dismissal for taking or proposing to take statutory leave, such as maternity leave, paternal leave, or force majeure leave. 

● Legal proceedings: Dismissal for being a party or witness in legal proceedings against the employer. 

Example: If an employee raises a formal safety concern with the Health and Safety Authority and is then dismissed shortly after, this is likely an automatically unfair dismissal due to penalisation/retaliation. 

If you believe your employment has been terminated in a way that breaches your contract, or suspect the reasons for your dismissal are unjust, discriminatory, or retaliatory, seeking legal advice immediately is paramount. The time limits for bringing both types of claims are strict, and expert guidance is necessary to determine the most effective legal route for your unique circumstances.