Unfair Dismissals Act 1977

Exclusions.

2

2. (1) F8 [ Except in so far as any provision of this Act otherwise provides ] This Act shall not apply in relation to any of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him F9 [ ],

( b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment F10 [ or who on that date had not attained the age of 16 years ],

( c) a person who is employed by his spouse F11 [ , civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ], father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother or half-sister, is a member of his employer’s household and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside,

( d) a person in employment as a member of the Defence Forces, the Judge Advocate-General, the chairman of the Army Pensions Board or the ordinary member thereof who is not an officer of the Medical Corps of the Defence Forces,

( e) a member of the Garda Síochána,

( f) a person (other than a person employed under a contract of employment) who is receiving a training allowance from or undergoing instruction by An Chomhairle Oiliúna or is receiving a training allowance from and undergoing instruction by that body,

( g) a person who is employed by An Chomhairle Oiliúna under a contract of apprenticeship,

F12 [ ( h ) subject to the provisions of this subsection a person who was employed by or under the State who was dismissed by the Government, ]

F13 [ (i) a chief executive of a local authority for the purposes of section 144 of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), ]

( j) F14 [ ]

F15 [ (k) the Director General of the Health Service Executive for the purposes of section 17 of the Health Act 2004 ,

(l) the chief executive officer of the Child and Family Agency appointed under section 28 of the Child and Family Agency Act 2013. ]

(2) F16 [ Subject to subsection (2A), this Act ] shall not apply in relation to—

( a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

( b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

F17 [ ]

F18 [ , or

F19 [ ( c ) dismissal where the employee s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994, or is absent from work attending ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act, and the dismissal of the first-mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee. ] ]

F20 [ ( d ) dismissal where

(i) the employee s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of an adopting parent who is absent from work in accordance with the Adoptive Leave Acts 1995 and 2005 during a period of adoptive leave or additional adoptive leave or a period of time off from work while attending certain pre-adoption classes or meetings, and

(ii) the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the adopting parent F21 [ , or

( e ) dismissal where the employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of an employee who is absent from work while on carer s leave under the Carer s Leave Act, 2001, and the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the employee who has been on carer s leave. ] ]

F22 [ (2A) Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) ( the prior contract ) without the term being renewed under the contract or the cesser of the purpose of the contract

( a ) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee ( the subsequent contract ) and the nature of the employment is the same as or similar to that of the employment under the prior contract,

( b ) the employee is dismissed from the employment,

( c ) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

( d ) in the opinion of F23 [ the adjudication officer or the Labour Court ] , as the case may be, the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,

then

(i) this Act shall, subject to its other provisions, apply to the dismissal, and

(ii) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

(2B) In subsection (2A), antecedent contract , in relation to a prior contract, means

( a ) a contract of employment of the kind mentioned in subsection (2) the term of which expired not more than 3 months before the commencement of the prior contract, or

( b ) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series,

being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same as or similar to that of the employment under the prior contract. ]

(3) ( a) This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless—

(i) he was ordinarily resident in the State during the term of the contract, or

(ii) he was domiciled in the State during the term of the contract, and the employer—

(I) in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or

(II) in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract.

( b) In this subsection “ term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.

(4) The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as amended by section 20 of this Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous.

F24 [ (5) Notwithstanding subsection (4) of this section, the dismissal (not being a dismissal referred to in the F25 [ subsection (2A) ] of an employee followed by his re-employment by the same employer not later than 26 weeks after the dismissal shall not operate to break the continuity of service of the employee with the employer if the dismissal was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act. ]

Annotations:

Amendments:

F8

Inserted (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 38(1), S.I. No. 16 of 1995.

F9

Deleted (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 38(1), S.I. No. 16 of 1995.

F10

Substituted by Employment Equality Act 1998 (21/1998), s. 6(3)(d), as substituted (18.07.2004) by Equality Act 2004 (24/2004), s. 4(c), commenced on enactment.

F11

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 170 and sch. pt. 5, item 7, S.I. No. 648 of 2010.

F12

Substituted (4.07.2006) by Civil Service Regulation (Amendment) Act 2005 (18/2005), s. 22(a), S.I. No. 363 of 2006.

F13

Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(8) and sch. 2, part 6, S.I. No. 214 of 2014.

F14

Repealed (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 64, S.I. No. 211 of 2013.

F15

Substituted (1.01.2014) by Child and Family Agency Act 2013 (40/2013), s. 97 and sch. 2, part 3 item 1, S. I. No. 502 of 2013.

F16

Substituted (8.05.2007) by Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), s. 25(1)(a), commenced on enactment.

F17

Deleted (8.05.2007) by Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), s. 25(1)(b), commenced on enactment.

F18

Inserted (6.04.1981) by Maternity Protection of Employees Act 1981 (2/1981), s. 24, commenced as per s. 1.

F19

Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 23(a), S.I. No. 652 of 2004.

F20

Inserted by Adoptive Leave Act 1995 (2/1995), s. 23, as substituted (28.11.2005) by Adoptive Leave Act 2005 (25/2005), s. 18, S.I. No. 724 of 2005.

F21

Inserted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 27(1), commenced on enactment.

F22

Inserted (8.05.2007) by Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), s. 25(2), commenced on enactment.

F23

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 80(1)(b), S.I. No. 410 of 2015, subject to transitional provisions in subss. (1A) and (2).

F24

Inserted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 3(c), commenced as per s. 17(4).

F25

Substituted (8.05.2007) by Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), s. 25(3), commenced on enactment.

Modifications (not altering text):

C11

Remedy for persons defined in subs. (1)(d) excluded (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 12(4), S.I. No. 237 of 2014.

Other protection of employees from penalisation for having made protected disclosure

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

...

(3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1).

(4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) of section 2 (1) of the Unfair Dismissals Act 1977.

...

C12

Application of section restricted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 14, commenced as per s. 17(4).

Dismissal of persons during apprenticeship, training, etc., or during first year of service, for trade union membership or activities.

14.—Sections 2 (1), 3 and 4 and subsections (1) and (6) of section 6 of the Principal Act shall not apply to a person referred to in paragraph (a) or (b) of the said section 2 (1) or the said section 3 or 4 who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of the said section 6.

C13

Reference in s. 2(4) construed (30.11.1984) by Protection of Employees (Employers’ Insolvency) Act 1984 (21/1984), s. 11(6), commenced on enactment.

Power to amend Act.

11. — ...

(6) The reference in section 2 (4) of the Act of 1977 to the First Schedule to the Act of 1973 shall be construed as being a reference—

(a) in case an order under this section amending that Schedule is for the time being in force, that Schedule as amended by section 20 of the Act of 1977, by section 13 of this Act and by the order,

(b) in case no such order is so in force, that Schedule as amended both by the said section 20 and the said section 13.

...

C14

Application of section restricted (6.11.1996) by Health (Amendment) (No. 3) Act 1996 (32/1996), s. 14(6), commenced on enactment.

Appointment and removal from office of chief executive officer.

14.— ...

(6) A person appointed as chief executive officer in accordance with this section shall not be deemed to be a temporary officer of a health board for the purposes of section 2 (1) (j) (as amended by section 3 (a) of the Unfair Dismissals (Amendment) Act, 1993) of the Unfair Dismissals Act, 1977.

Editorial Notes:

E7

Previous affecting provision: subs. 2(1)(j) substituted (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 6, pt. 6, S.I. No. 887 of 2004; repealed as per F-note above.

E8

Previous affecting provision: subs. (1)(i) substituted (1.01.2002) by Local Government Act 2001 (37/2001), s. 164, S.I. No. 588 of 2001; substituted as per F-note above.

E9

Previous affecting provision: subs. (2)(d) inserted (20.03.1995) by Adoptive Leave Act 1995 (2/1995), s. 23, S.I. No. 64 of 1995; substituted as per F-note above.

E10

Previous affecting provision: subs. (1)(j) substituted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 3(a), commenced as per s. 17(4); substituted as per F-note above.

E11

Previous affecting provision: proviso inserted after s. 2(2)(b) (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 3(b), commenced as per s. 17(4); deleted as per F-note above.

E12

Previous affecting provision: application of section restricted (23.10.1981) by Maternity Protection (Disputes and Appeals) Regulations 1981 (S.I. No. 357 of 1981), reg. 4; these regulations lapsed on repeal of enabling Act (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 6(1), S.I. No. 16 of 1995, subject to transitional and continuation provisions.

E13

Previous affecting provision: subs. (2)(c) inserted (6.04.1981) by Maternity Protection of Employees Act 1981 (2/1981), s. 24, commenced as per s. 1; substituted (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 38(2), S.I. No. 16 of 1995; substituted as per F-note above.