In this month's First Tuesday Q&A, Ciarán Lyng, Associate in A&L Goodbody's Employment Practice Group, provides an insight into what employers need to know when faced with the most common, and often tricky, dismissals in Ireland.

Probationary and performance dismissals

1. What do employers need to consider when including a probation clause in employment contracts?

It is important that the probation clause in contracts of employment complies with the European Union (Transparent and Predictable Working Conditions) Regulations 2022. This sets a statutory limit of six months for probationary periods. On an exceptional basis, a probationary period may be up to 12 months where this would be in the interest of the employee.

2. What should an employer do if they notice unsatisfactory performance by the employee?

Address unsatisfactory performance as soon as it has been identified. Bring the underperformance to the employee’s attention as it arises and document every step with the employee. Where there is no improvement, consider appropriate next steps such as a performance improvement plan.

Misconduct related dismissals

3. What is the starting point in a misconduct related dismissal?

It is critical that the employer first addresses the nature of the allegation. Once this is established, it should guide you to the relevant company policy that this type of allegation should be investigated under. Therefore, employers should regularly review, know, and follow their policies and their employment contracts.

4. How can employers protect themselves when carrying out a misconduct related dismissal?

Employers need to follow their relevant policy. Employers should also ensure that their invitation and outcome letters are thorough and accurate. These documents are essential. For example, it is crucial to carefully consider investigation findings, to properly set out allegations in the invitation letter and to properly set out the basis for dismissal in your outcome letter. These documents will be very important, and will be scrutinised if there is a legal challenge to dismissal.

Employers should also ensure that they have a good notetaker present at any meetings they have with an employee and ensure they have the capacity to take and produce an accurate (and typed) record of the meeting.

Redundancy

5. What do you need to prove for a fair dismissal?

Employers should ensure at the outset that the proposed redundancy falls within the definition of redundancy outlined in the Redundancy Payments Acts (which is more nuanced than simply cost-cutting). Employers should remember that this alone doesn’t mean there has been a fair dismissal. You need a genuine redundancy and a fair process to amount to a fair dismissal on the grounds of redundancy.

6. What additional obligations arise from a collective redundancy?

Employers should review the collective redundancy thresholds to ascertain if the number of proposed redundancies triggers the applicable collective threshold. If so, additional obligations arise, including:

(1) notification to the Minister for Enterprise Trade and Employment;

(2) engagement and consultation with employee representatives; and

(3) a mandatory 30-day consultation period during which an employer is prohibited from issuing any notice of termination.

7. How can an employer ensure they provide a meaningful consultation process?

Carefully plan the consultation process, ensuring that a sufficient amount of time and number of meetings are allocated. All alternatives to redundancy should be explored as part of the consultation process and alternative roles should be identified, and if available, proposed to the employee as part of the consultation process.

8. Are there any special considerations in a redundancy process?

Special consideration is required where employees who are impacted by the proposed redundancy are on sick leave, in receipt of income continuance or are on any type of statutory leave. Remember – even though employees on maternity leave are protected from dismissal, it does not mean that they should be excluded entirely from the redundancy process as to do so may result in complaints from them and indeed other impacted employees.

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