Kady O'Connell

The business law firm surveyed 450 employers in both the public and private sectors at a recent employment law webinar on navigating effective fair dismissals.

Of those who responded, 44 per cent said dismissals on performance grounds were the most challenging, followed by dismissals on capability grounds (35 per cent) and conduct grounds (21 per cent).

The webinar focused on how and when an employer can lawfully and safely effect dismissals on various grounds, including misconduct, performance and incapacity.

Kady O’Connell, employment law and benefits partner at Mason Hayes & Curran, said: “Under Irish law, performance can be one of the most difficult grounds on which to lawfully dismiss an employee.

“Employers can be surprised to learn that, even where there are serious performance concerns, they cannot go straight to dismissal. They must be able to demonstrate that they have warned the employee about their performance issues and provided fair opportunities for improvement before they move to dismiss.”

She added: “We advise clients that it can often take between six to 12 months to fairly and appropriately go through a performance improvement process before you reach the dismissal stage.

“As a general note, where employers commonly run into difficulty is where performance issues are not addressed as they arise, or are not addressed in a timely manner. This can often lead to issues down the line.”

The Mason Hayes & Curran survey revealed that 85 per cent of employers feel only “somewhat” (66 per cent) or not confident (19 per cent) in their understanding of fair dismissal practices.

Jessica Bielenberg, senior employment law associate at Mason Hayes & Curran, said: “The findings shed light on the challenges faced by employers and reveal a gap in confidence and understanding around fair employee dismissals. Understanding the legal framework around dismissals is fundamental for protecting both the rights of employees and the interests of employers.”

The survey also found that more than half (54 per cent) are concerned about potential legal repercussions when conducting meetings to address incapacity or capability concerns.

Ms Bielenberg said: “Ireland’s employment equality legislation places a very high burden on employers seeking to terminate the employment of an employee who suffers from a disability affecting their ability to work. Dismissal due to incapacity will generally only be permitted as a last resort.

“Employers have a duty to reasonably accommodate any employee who has a disability. That can range from offering a phased return to work after a period of sick leave, to altering their duties or working arrangements, or adjusting to their working hours.

“If an employer ends up before the Workplace Relations Commission, they must show that they had considered and offered all reasonable accommodation and that they had independent and up-to-date medical advice which supports their position. They would also need to demonstrate that they consulted with the employee, and provided them with fair notice that dismissal on the grounds of incapacity was being considered.”