First published: December 21st, 2021
Last updated: February 13th, 2023
What is short service dismissal?
A short service dismissal occurs in a scenario where an employer wants to terminate the contract of employment of a staff member who has recently joined a business.
New hires don’t always settle into a new role and sometimes it’s simply necessary to terminate the employment contract if it becomes clear there is a bad fit.
As employees need more than one year’s continuous service to gain unfair dismissal rights, it’s sometimes preferable to terminate an employment contract before the new hire acquires their statutory rights.
If you are planning to confirm a short service dismissal in your business, there are some issues to first consider to ensure you stay on the right side of employment law.
Short service dismissal and unfair dismissal claims
‘Short service dismissal’, simply put, refers to the dismissal of an employee who has worked for you for a short period.
You can terminate an employee’s employment at any time, but unless the dismissal complies with employment law, you may be found guilty of unfair dismissal. Employees generally require 12 months of continuous service before they can raise a claim of unfair dismissal under the Unfair Dismissals Acts 1977-2015. However, there are exclusions to this rule and in some instances, an employee can bring a claim without the need to satisfy this requirement.
Before confirming any dismissal, it’s a good idea to consider these exclusions which we explore in more detail below.
Legal considerations and exemptions to unfair short service dismissal
While employees generally require 12 months of continuous service before they can claim for unfair dismissal in Ireland, you still need to consider both unfair dismissals and employment equality legislation.
There is no minimum service requirement for employees who want to make a discriminatory dismissal claim under employment equality law. A discriminatory dismissal occurs if the employee can make a prima facie case that their dismissal was related to any of the following ‘protected characteristics’ as set out in the Employment Equality Acts 1998-2015:
- Gender
- Civil status
- Family status
- Sexual orientation
- Religious beliefs
- Age
- Disability
- Race
- Membership of the Traveller community
Guide: Discrimination in the workplace
Once an employee can establish a prima facie case of discrimination, the burden of proof is on the employer to prove the contrary.
Avoiding automatic unfair dismissal claims
There are also automatic unfair dismissal claims that employees with less than one year’s continuous service are entitled to make. Employees don’t need one year of qualifying service if they were dismissed for:
- Trade union membership.
- Any pregnancy-related reasons.
- Exercising rights under protected leave legislation (maternity, paternity, parental etc) or minimum wage legislation
- Making a protected disclosure under the Protected Disclosures (Amendment) Act 2022.
When you should follow fair procedures before a short service dismissal
The Court of Appeal has set out the law on dismissals during probation periods.
The Court made a distinction between probationary period dismissals for performance reasons and probationary period dismissals for conduct reasons.
If your new hire is not meeting the standards of performance you have set for them, you are entitled to dismiss them during the probation period in line with the relevant probation terms in your contract of employment. You should notify the employee in writing that you are terminating employment with the appropriate contractual notice and confirming that the dismissal is performance related.
If on the other hand, a dismissal during a probationary period is related to misconduct, you should carry out a dismissal process that applies fair procedures and the principles of natural justice before confirming termination of employment.
You should also bear in mind that the European Union (Transparent and Predictable Working Conditions) Regulations 2022 limit the duration of probation periods to six months subject to some exceptions.
Guide: Dismissal procedure
Questions about short service dismissals?
If you have questions regarding short service dismissals that you need answered, speak with one of our experienced HR consultants today on 1800 719 216.
