Short service dismissal: How to follow fair dismissal procedures

Last updated: July 4th, 2023

First published: March 2nd 2022
Last updated: July 4th 2023

Short service dismissal is a common employer query that our HR consultants often deal with.

Short service dismissal typically arises when a new recruit isn’t working out. As employees with less than one year’s continuous service don’t have a right to make claims under the unfair dismissal acts, employers sometimes opt to dismiss a new employee who is failing to meet expected productivity or conduct standards in the first eleven months of employment.

Even though the unfair dismissals legislation may not apply to employees with less than one year’s continuous service, employers must nevertheless bear in mind the following risks…

Exemption to unfair short service dismissal

Article: How an effective redundancy procedure can prevent a claim for unfair dismissal

Ex-employees with less than twelve months’ service may make claims that are ‘automatically unfair’ or discriminatory. There are nine ‘discriminatory’ grounds under the Employment Equality Acts, 1998 – 2015.

Employees who can make out a case that they have been dismissed based on any of the nine grounds may seek to make a discrimination claim in the WRC. The nine grounds are:

  • Civil status
  • Family status
  • Gender
  • Sexual orientation
  • Age
  • Religious beliefs
  • Race
  • Disability
  • Membership of the Traveller community

Article: Why your Dignity and Respect at Work policy is so important

Automatically unfair dismissal in Ireland

The unfair dismissals acts set out the circumstances in which an employee’s dismissal will be deemed automatically unfair.

Employees with less than twelve months’ service will still be entitled to make an unfair dismissal claim if the dismissal was for any of the following reasons:

  • Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours
  • Religious or political opinions
  • The employee having made a protected disclosure
  • Legal proceedings against an employer where an employee is a party or a witness
  • Race, colour, sexual orientation, age, or membership of the Traveller community
  • Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
  • Availing of rights under legislation to maternity leave, adoptive leave, carer’s leave, parental or force majeure leave
  • Unfair selection for redundancy.

You should familiarise yourself with these scenarios if you intend to dismiss an employee with short service.

When do employers need to carry out fair procedures before confirming a short service dismissal?

The Court of Appeal examined this question in the case of O’Donovan v Over C Technology.

The decision is useful for employers as it clarified that employers may dismiss employees for performance reasons during a probation period without the need to go through formal hearings and without providing the employee with a right to appeal.

If a dismissal during probation relates to misconduct however, fair procedures must still precede any confirmation of termination as the employee’s good name is at stake.

As the Transparent and Predictable Working Conditions Regulations also contain new rules concerning probation periods, employers should review their contracts of employment to remove any ambiguity that might exist around the right to dismiss during probation and the duration of probation periods.

Expert HR advice with short service dismissal

Our expert HR consultants can help you manage short service dismissal issues or any other employment queries impacting your organisation.

Call today on 01 886 0350 or leave your details here and we’ll call you back.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Latest Resources

Employer’s guide to lay-off in Ireland

lay-off in Ireland
It’s common for businesses facing a downturn in trade to let employees go on a temporary basis. As an employer, you may also need to […]

Long-term sickness absence: When to conduct an informal welfare meeting

Everyone gets sick, so short-term sickness absence is something all employers will have to deal with from time to time and tends to cause minimal […]

Notice periods: an employer’s guide

Notice periods: an employer’s guide
Notice Period: Within a business, it’s constantly necessary to re-evaluate and adjust workforce planning. Whether this is due to employees looking for different career paths […]

Olga Shevchenko

Director/Advocate, Immigration Advice Bureau

Olga Shevchenko specialises in immigration advocacy and consultancy, in particular, employment permit, visas, family reunification, citizenship, etc, for those seeking to visit, reside or invest in Ireland.

Olga provides extensive information, knowledge, and support to her clients, enabling access to positive solutions for people struggling to handle the immigration law.

Minister Neale Richmond

Minister of State, Department of Enterprise, Trade and Employment

Neale Richmond TD was appointed as Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for Employment Affairs and Retail Business and the Department of Social Protection in January 2023.

Much of his work at the Department of Enterprise, Trade and Employment is with businesses, workers, their representative bodies and the State Agencies to ensure that the economic recovery and growth extends to all parts of the country. He works closely with the SME sector, including retail, on building resilience and on the transition to the green and digital economies.

Mark Carpenter

Director of Regulatory & Corporate Affairs, Sky

Mark Carpenter is Director of Regulatory & Corporate Affairs at Sky Ireland. In this role he has responsibility for External and Internal Communications, Public Policy and Regulatory Affairs and the company’s ‘Bigger Picture’ (CSR) programme. He also works closely with Sky Group teams on a variety of matters, in particular our partnerships with domestic broadcasters.

Prior to working at Sky, Mark worked as a Policy Officer in Houses of the Oireachtas and as a Management Consultant at Accenture. He has a BA in History from Oxford University and a PhD in Political Science from Trinity College Dublin.

Nora Cashe

Litigation and Compliance Manager, Peninsula

Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

Managing Director, Genos International Europe

Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

Rhiannon Coyne

Senior HR Consultant, Graphite HRM

Rhiannon Coyne is a Senior HR Consultant at Graphite HRM and will be providing an overview of best practice on how to deal with complaints of bullying and harassment in the workplace. 

With a number of recent updates to employment laws, Rhiannon will take a closer look at employment equality and how it is interlinked to Health & Safety and what employers can learn from recent case laws.

David Begg

Chairman, Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.