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Unfair Dismissal

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What is Unfair Dismissal?

According to The Unfair Dismissals Act 1977-2001 substantial grounds must exist to justify the termination of a contract of engagement and fair procedures must be adhered to in effecting the termination in order to ensure that an unfair dismissal claim does not arise.


Unfair dismissal may arise in the following situations:

  1. An employer terminates an employee's employment, with or without notice
  2. An employee terminates their employment, with or without notice, due to the conduct of the employer (constructive dismissal)

In what situation is a dismissal considered an Unfair Dismissal?

A dismissal is automatically considered an Unfair Dismissal if an employee is dismissed on the basis of any of the following grounds:

  1. Trade union activity
  2. Pregnancy
  3. Religious or political opinions
  4. Availing of rights under legislation to maternity leave, adoptive leave, carer's leave, parental or force majeure leave
  5. Unfair selection for redundancy
  6. Legal proceedings against an employer where an employee is a party or a witness

In addition, according to the Employment Equality legislation, dismissal may not be due to any of the following grounds:

  1. Gender
  2. Marital status
  3. Family status
  4. Age
  5. Disability
  6. Religious belief
  7. Race
  8. Sexual orientation
  9. Membership of the travelling community

It is important to note that even if a dismissal is not automatically unfair, as defined above, it may be held so as a result of a lack of fair procedures surrounding the dismissal.

Who is eligible for an Unfair Dismissal claim?


In order to qualify to submit a claim for Unfair Dismissal the following conditions must be met:

  1. At least 1 years service (an exception to this rule includes dismissals in contravention of the Employment Equality Acts and unfair dismissal due to trade union activity, pregnancy or availing of rights in relation to maternity, parental leave, wages or carers legislation).
  2. Employed under a contract of service (as opposed to a contract for service)
  3. Dismissal occurred i.e. employment terminated (an exception to this rule is constructive dismissal where the employee resigns).

If an employer disputes the fact that a dismissal took place it is the responsibility of the employee to prove that it did occur. Subsequent to proving the dismissal, the claim proceeds to the next stage of deciding if the dismissal was fair or unfair. At this stage the onus is on the employer to prove it was fair, except in the case of constructive dismissal where the onus is on the employee to show that the conditions of employment were such that they had no option but to leave. .

Remedies available:


If you qualify under the unfair dismissals legislation, you may bring your claim to a Rights Commissioner, alternatively you may proceed directly to the Employment Appeals Tribunal.


If a claim is heard by a Rights Commissioner, the Rights Commissioner will issue a recommendation and either you or your employer may appeal that recommendation to the Employment Appeals Tribunal.


Where a claim or an appeal is heard by the Employment Appeals Tribunal, the Tribunal will issue a determination. There is a right of appeal by either party to the Circuit Court from a determination of the Tribunal.


Complaints of discriminatory dismissal under equality legislation should be referred to the Equality Tribunal.

Remedies available if an individual is successful in establishing a claim

If an individual is successful in establishing a claim for Unfair Dismissal, then the following remedies are available before The Employment Appeals Tribunal:

  1. Reinstatement: This involves being reinstated to your position as if you had never been dismissed. You are entitled to all Lost Earnings from the date of the dismissal to the date of the hearing and also entitled to any favourable changes in the interim period, such as pay rises.
  2. Re-engagement: This involves being restored to your prior position but only from a particular date, for example from the date of the decision in your favour. You are not entitled to compensation for lost earnings.
  3. Compensation: This is the most common remedy. The Employment Appeals Tribunal are entitled to award compensation up to a maximum of two years lost remuneration and will reference their awards to earnings which have been lost during the period spent attempting to secure alternative employment. In that regard it is important that an applicant has documentation to evidence continual attempts to secure employment as there is also a duty at law to mitigate or reduce the loss of earnings claim by obtaining or endeavouring to obtain alternative employment.

Time Limit- Statute of Limitations

The time limit imposed for submitting a claim in relation to Unfair Dismissal is 6 months from the date the notice period expires; however it may be extended to 12 months if there are exceptional circumstances. It should be noted that this extension is rarely given.

Seeking Employment Law Advice

If you would like to set up a consultation with an Employment Law Solicitor please contact Malcomson Law by calling 01 8744422.