Working in HR is infinitely rewarding. Alongside everyday interactions, HR teams get to build long-lasting, meaningful relationships with colleagues. From taking on a new hire and watching them develop personally and professionally to waving them off on parental leave and then meeting their new arrival when they pop by for a visit, HR leaders are there to see and support employees through the moments that matter in their lives.
HR professionals are also at the forefront when it comes to employees transitioning out of their roles. This includes celebratory moments like presenting a gold watch at a retirement party, wishing them all the best when they’re promoted, or providing a reference for someone embarking on a new journey.
However, HR’s role extends to the more challenging aspects as well. No one who works in HR can say they enjoy it when their company initiates layoffs, redundancies, terminations, or sackings. While dismissing someone is never easy, it is an important part of the machinery of business and, like every other aspect of HR work, must be handled with the utmost sensitivity, professionalism, and strict adherence to legal frameworks.
Understandably, you may need to learn how and where to start with dismissals. They can be a quagmire that your company could easily fall into. As there are potentially severe financial and reputational damages at stake, HR must ensure dismissals are done fairly and in line with these laws so they don’t end up as court cases and sanctions.
In this article, we look at what you need to know about fair and unfair dismissal. But first, let’s clarify what we mean when we use the term dismissal.
In Ireland, the Workplace Relations Commission (WRC)—the responsible statutory body—states that dismissal is when an employer decides to end a contract of employment. Redundancy, termination, layoffs, sacking—whatever the terminology used, dismissal is the action taken by an employer that affects a single employee or group of employees.
A dismissal isn’t necessarily related to an employee’s behaviour or ability. It can be used when an organisation needs to make changes, like cutting staff numbers due to financial hardships. The same can be said for making a position redundant because customer needs have changed, new innovative solutions have become available, or production mechanisms have evolved.
No matter the reason, dismissal shouldn’t be confused with other instances where employees leave employment, namely:
Resignation – this is when an employee decides to leave the organisation.
Retirement – is when an employee reaches the age where they automatically, or choose to, stop working.
Involuntary job loss and unemployment take a massive toll on employees and their families. From financial distress, relationship breakdowns and a lessening of life chances to impacts on physical health and mental wellbeing the impact of losing a job hits hard. Because of this, the state protects people from being dismissed without a sound reason. The judgment as to whether the decision to issue a dismissal is just or unjust is weighted in favour of employees, so it’s talked about in terms of being ‘fair’ or ‘unfair’.
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According to the Irish Citizens Information Board (CIB), there are certain circumstances under which dismissals are automatically considered unfair. That is, if they are based on an employee’s:
It’s also considered unfair dismissal when an employer ends a contract of employment without providing a good reason, known as 'grounds for dismissal', or without following fair procedures and taking appropriate actions laid out by law.
Constructive dismissal is another form of unfair dismissal. It differs because, instead of the employer initiating the parting of ways, the employee leaves their job due to the employer making working conditions so difficult that it's unreasonable for them to stay.
The reasons an employee gives must be serious enough to justify their decision to leave. The employee must also have proof that an employer behaved in a way that made resigning their only choice. For example, the employer is:
The CIB and WRC advise employees to raise the issue and try to resolve it before taking action when considering resigning under constructive dismissal. As HR professionals, it’s vital that employees are supported through this process, as covered by the regulations and using workplace complaints or grievance procedures.
Put simply, a fair dismissal is one that cannot be judged to have been unfair. The Law Society of Ireland says that a dismissal must satisfy three conditions to be considered genuinely justified.
The onus is always on the employer to prove a dismissal following natural justice and fairness rules. To be considered fair, the dismissal process must be:
As per the first critical condition, dismissals must be backed up by legitimate reasoning to be considered fair. Known as ‘grounds’, these reasons are clearly laid out by law. In short, the dismissal is deemed not to be unfair if it results from one or more of the following:
Some other substantial grounds (SOSG): This umbrella term covers issues that don’t fall under any other grounds. SOSG typically refers to conduct. Behaviour can range from a series of minor incidents to a case of gross misconduct. Some examples are an employee engaging in bullying, creating conflicts of interest, or having personality clashes. However, SOSG also includes instances when dismissals follow pressure from customers or investors, reputational damage, a breakdown in trust or confidence, and the expiry of fixed-term contracts.
Employment laws and codes of practice are complex areas to deal with. Especially if it’s the first time you or your company is considering dismissing an employee. Ensuring a dismissal is fair is like walking across a balance beam. One tiny sway either way, and it’s a potential case of unfair dismissal and all that it carries with it.
As an HR professional, you’re caught between ensuring the employee’s rights and upholding the company’s interests. To avoid undue harm to the employee and the potential claims and subsequent sanctions and reputational damage that come with unfair dismissals, you must follow correct procedures and have reasonable grounds. If in doubt, it’s always best to consult an expert for legal advice.
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Dismissals are never easy. But, having the right information, policies and practices will help you through the processes, make certain it’s fair for the employee, and protect your organisation from the consequences of unfair dismissal.