Unfair Dismissals Act 1977

Unfair dismissal.

6

6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

( a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

F34 [ (aa) without prejudice to paragraph (a), the employee

(i) being a member of a trade union which made a request referred to in section 2 (1) of the Industrial Relations (Amendment) Act 2001 ,

(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request, ]

( b) the religious or political opinions of the employee,

F35 [ (ba) the employee having made a protected disclosure, ]

( c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

( d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

F36 [ ( dd ) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave under and in accordance with the Parental Leave Act, 1998 , or carer s leave under and in accordance with the Carer s Leave Act, 2001, ]

F37 [ ( e ) the race, colour or sexual orientation of the employee,

( ee ) the age of the employee,

( eee ) the employee s membership of the travelling community, ]

F38 [ ( f ) the employee s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith, ]

F38 [ ( g ) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act, ]

F39 [ ( h ) the exercise or contemplated exercise by an adoptive parent of the parent s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or F40 [ meetings, ] ]

F41 [ ( i ) the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act, ]

F42 [ ( j ) the exercise or proposed exercise by the employee of the right under the Parent s Leave and Benefit Act 2019 to parent s leave or transferred parent s leave within the meaning of that Act. ]

F43 [ (2A) Sections 3 and 4 of this Act do not apply to a case falling within paragraph ( f ), ( g ) F44 [ ( h ), ( i ) or ( j ) ] of subsection (2) of this section and, for the purposes of those paragraphs, employee and adopting parent include a person who would otherwise be excluded from this Act by paragraph ( a ), ( c ), ( f ) or ( g ) of section 2 (1) of this Act. ]

F45 [ (2B) Sections 3 and 4 do not apply to a case falling within subsection (2)( dd ) and, for the purpose of that paragraph, employee includes a person who would otherwise be excluded from this Act by paragraph ( a ), ( c ), ( f ) or ( g ) of section 2(1). ]

F46 [ (2C) Sections 3 and 4 do not apply to a case falling within subsection (2)( dd ) and, for the purpose of that paragraph, employee includes a person who would otherwise be excluded from this Act by paragraph ( a ), ( b ), ( c ), ( d ), ( e ), ( f ), ( g ), ( h ), ( i ) or ( j ) of section 2(1). ]

F47 [ (2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1). ]

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

( a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

( b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(5) ( a) Without prejudice to the generality of subsection (1) of this section, the dismissal by the Minister for Defence of a civilian employed with the Defence Forces under section 30 (1) ( g) of the Defence Act, 1954, shall be deemed for the purposes of this Act not to be an unfair dismissal if it is shown that the dismissal was for the purpose of safeguarding national security.

( b) A certificate purporting to be signed by the Minister for Defence and stating that a dismissal by the Minister for Defence of a civilian named in the certificate from employment with the Defence Forces under section 30 (1) ( g) of the Defence Act, 1954, was for the purpose of safeguarding national security shall be evidence, for the purposes of this Act, of the facts stated in the certificate without further proof.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

F37 [ (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if F48 [ the adjudication officer or the Labour Court ] , as the case may be, considers it appropriate to do so

( a ) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

( b ) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act. ]

Annotations:

Amendments:

F34

Inserted (1.08.2015) by Industrial Relations (Amendment) Act 2015 (27/2015), s. 39, S.I. No. 329 of 2015.

F35

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 11(1)(b), S.I. No. 327 of 2014.

F36

Substituted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 27(2)(a), commenced on enactment.

F37

Substituted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 5(a) and (b), commenced as per s. 17(4).

F38

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

F39

Inserted (28.11.2005) by Adoptive Leave Act 1995 (2/1995), s. 24, as substituted by Adoptive Leave Act 2005 (25/2005), s. 19, S.I. No. 724 of 2005.

F40

Substituted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 33(a)(i), S.I. No. 435 of 2016.

F41

Inserted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 33(a)(ii), S.I. No. 435 of 2016.

F42

Inserted (1.11.2019) by Parent’s Leave and Benefit Act 2019 (35/2019), s. 34(a), S.I. No. 629 of 2019.

F43

Substituted (20.03.1995) by Adoptive Leave Act 1995 (2/1995), s. 25, S.I. No. 64 of 1995.

F44

Substituted (1.11.2019) by Parent’s Leave and Benefit Act 2019 (35/2019), s. 34(b), S.I. No. 629 of 2019.

F45

Inserted (3.12.1998) by Parental Leave Act 1998 (30/1998) s. 25(2)(b), commenced as per s. 1(2).

F46

Inserted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 27(2)(b), commenced on enactment.

F47

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 11(1)(c), S.I. No. 327 of 2014.

F48

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

Modifications (not altering text):

C17

Provision for interim relief made and person referred to in subs. (2)(ba) excluded from alternative protection (15.07.2014) by Protected Disclosures Act 2014 (14/2014), ss. 11(2) and sch. 1, 12(2), S.I. No. 327 of 2014.

Protection of employees from dismissal for having made protected disclosure

11. ...

(2) Schedule 1 contains provisions for interim relief in cases where a claim is brought for redress for a dismissal which is an unfair dismissal by virtue of section 6(2)(ba) (inserted by subsection (1)) of the Unfair Dismissals Act 1977 .

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.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6 (2)(ba) of the Unfair Dismissals Act 1977 applies.

...

C18

Application of subs. (2)(a) continued in certain circumstances (11.04.2003) by European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003), reg. 7(3).

Representation of employees.

7. ...

(3) If the term of office of the representatives of the employees affected by the transfer expires as a result of the transfer, the former representatives of the employees shall continue to enjoy the protection provided by section 6(2)(a) of the Unfair Dismissals Act 1977 ( No. 10 of 1977 ) and any other enactment.

C19

Application of subs. (2)(f) extended (10.12.2001) by Standards in Public Office Act 2001 (31/2001), s. 5(3), S.I. No. 576 of 2001 and resolutions of both Houses of the Oireachtas.

Immunity etc., for complainants.

5.— ...

(3) Where an employer dismisses an employee to whom the Unfair Dismissals Act, 1977, applies and the dismissal constitutes disciplinary action taken in contravention of subsection (1) in relation to the employee, the dismissal is a dismissal deemed for the purposes of that Act, by virtue of section 6(2)(f) thereof, to be an unfair dismissal.

...

C20

Application of subs. (6) not restricted (18.07.2001) by European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), reg. 3(2).

Burden of proof in gender discrimination cases

3. ...

(2) This Regulation is without prejudice to section 6(6) of the Act of 1977 or any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to such a person.

...

C21

Requirement for one year’s continuous employment excluded in certain circumstances (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 36(2), S.I. No. 96 of 2000.

Prohibition of victimisation of employee by employer.

36.— ...

(2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly.

...

C22

Application of subss. (1) and (6) 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.

Editorial Notes:

E15

Previous affecting provision: subs. (2A) amended (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 33(b), S.I. No. 435 of 2016; substituted as per F-note above.

E16

Previous affecting provision: subss. (2)(dd) and (2B) inserted (3.12.1998) by Parental Leave Act 1998 (30/1998), s. 25(2)(a), commenced as per s. 1(2); superseded as per F-note above.

E17

Previous affecting provisions: subs. (2)(f)(g) substituted and subs. (2A) inserted (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 38(5), S.I. No. 16 of 1995; superseded as per F-note above.