Exceptions to the 12 Months’ Service Requirement in Unfair Dismissal Claims

fair-dismissal-procedures

If you are unfairly dismissed and wish to bring a claim under the Unfair Dismissals Act 1977 you will need to have been employed continuously for 12 months.

If you do not have 12 months’ service you cannot bring a claim for unfair dismissal or constructive dismissal if you cannot clear this hurdle.

That is the bad news; the good news is there are some important exceptions to this 12 months’ service requirement. Let’s take a look at them, shall we?

Exceptions to 12 Months’ Service Requirement

  1. Protected disclosure-if you are dismissed for having made a protected disclosure under the Protected Disclosures act 2014 you do not need 12 months’ service
  2. Discrimination-if you were dismissed on a discriminatory ground you will be able to bring a claim under the Employment Equality Acts without 12 months’ service
  3. Trade union-an employee who is dismissed for trade union membership or activity does not require 12 months’ service
  4. Pregnancy, birth, breastfeeding-any dismissal connected with these issues can be brought without 12 months’ service
  5. Maternity protection-any dismissal arising from the exercise of a maternity right does not need 12 months’ service
  6. Adoptive leave-any dismissal arising from the exercise of an adoptive leave right does not need 12 months’ service
  7. Parental leave and force majeure leave-12 months’ service is not required for unfair dismissal claims arising from these rights
  8. National Minimum Wage Act, 2000-any dismissal arising from the employee seeking to exercise rights under this act can be brought without 12 months’ service
  9. Carer’s Leave act-12 months’ continuous service is not required.

It is inevitable that if you bring a claim the employer may well argue that you do not have the necessary 12 months’ service and will deny that you were dismissed arising from any of the exceptions set out above.

Clearly, each case will be dealt with on its own facts and circumstances but you will need to be prepared for this argument and ready to put forward facts from which it can be inferred that your dismissal did arise from the exercise of one of the categories listed above.

Summary of Statutory Leave Entitlements in Ireland-a Quick and Easy Guide

parental-leave-ireland

Are you confused about statutory leave in Ireland?

I don’t blame you-it can be very confusing.

Here is a quick and easy guide to statutory leave entitlements in Ireland. I hope you find it helpful. (Please read this disclaimer, though).

Annual Leave

Full time employee

4 working weeks where employee works in excess of 1,365 hours

Part time employee

8% of the hours worked in a leave year or

1/3 of a working week for each month in which the employee worked in excess of 117 hours

Relevant legislation: Organisation of Working Time Act, 1997.

Read also: How to calculate holiday entitlements

 

Public Holidays

There are 9 public holidays in Ireland.

The employee is entitled to a paid day off on the holiday, or a paid day off that month, or an extra day’s annual leave, or an extra day’s pay.

Relevant legislation: Organisation of Working Time Act, 1997.

 

Maternity Leave

Female employee is entitled to

  • 26 weeks’ unpaid maternity leave (may qualify for maternity benefit)
  • 16 weeks’ additional maternity leave (no maternity benefit)

Note: the contract of employment may provide for pay during maternity leave, but there is no legal obligation on the employer otherwise.

  • Reasonable time off for medical visits connected with pregnancy

Relevant legislation: Maternity Leave Act, 1994 and Maternity Protection (Amendment) Act, 2004.

Read: Maternity Leave in Ireland-what you need to know

 

Adoptive Leave

24 consecutive weeks’ unpaid leave for female, and additional 16 consecutive weeks unpaid.

Relevant legislation: Adoptive Leave Acts, 1995-2005

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

 

Carer’s Leave

13-104 weeks if continuously employed by that employer for 12 months.

Relevant legislation: Carer’s Leave Act, 2001.

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

 

Parental Leave

18 weeks unpaid leave for each child under the age of 8 (child with long term illness under 16 years). There is no social welfare benefit like maternity benefit.

Read also: New Parental Leave Law in Ireland

 

Paternity Leave

2 weeks’ paternity leave for fathers. This will be paid at a rate of €230 per week and will be based on the same prsi requirements as maternity leave.

 

Force Majeure Leave

3 days in any 12-month period or 5 days in a 36-month period. Force Majeure leave is paid leave.

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

Parental, Carers, Maternity and Adoptive Leave Claims to the Workplace Relations Commission (WRC)

parental-leave-ireland

There are a number of claims you can bring to the Workplace Relations Commission (WRC) in respect of adoptive leave, carer’s leave, parental leave, force majeure leave, and maternity leave.

Adoptive Leave

  1. Have you been granted adoptive leave entitlements?

Section 6 of the Adoptive Leave Act, 1995 entitles employed adoptive mothers or sole male adopters to a minimum period of adoptive leave of 24 weeks.

Section 9 of the Adoptive Leave Act, 1995 entitles an adopting father to adoptive leave where the adopting mother has died.

  1. Have you been granted additional adoptive leave rights?

Section 8 of the Adoptive Leave Act, 1995 entitles you are also entitled to take an additional 16 weeks’ unpaid additional leave after your adoptive leave end

Section 10 of the Adoptive Leave Act, 1995 entitles the adopting father to additional adoptive leave where the adopting mother has died

 

Carer’s Leave

  1. Have you been granted your carer’s leave?

An employee with 12 months’ continuous service is entitled to carer’s leave of 104 weeks to provide full-time care and attention to a relevant person.

An employee shall not be entitled to carer’s leave during the same period in which another employee is absent from employment on carer’s leave for the purpose of providing full-time care and attention to the same relevant person.

Section 6 of Carer’s Leave Act, 2001.

  1. Have you, on the expiry of your carer’s leave, been allowed to return to work or been offered a suitable alternative employment
  • An employee’s contract on return to work must not be less favourable than that under which they were employed before the absence on Carer’s Leave

Section 14 Carer’s Leave Act, 2001

  • An employee is entitled to return to work but it is not reasonably practicable for the employer to permit the employee to return to work the employee shall be entitled to be offered by their employer a suitable alternative employment under new contact of employment

Section 15 Carer’s Leave Act, 2001

 

Parental Leave

  1. Did you receive your entitlement to parental leave?

            An employee who is the natural, adopting or adoptive parent of a child who has complete on year’s continuous employment is entitle to unpaid parental leave of 14 working weeks.

Section 6 Parental Leave Act, 1998

Note: this entitlement has changed to 18 working weeks-read the new parental leave entitlements in Ireland.

Section 7 Parental Leave Act, 1998 sets out the manner in which the leave can be taken.

         Force Majeure Leave

Where an employee shall be entitled to leave with pay from his employment for urgent family reasons (injury, illness etc)

Maximum force majeure leave which may be availed is 3 days in 12 consecutive months or 5 days in 36 consecutive months

Section 13 Parental Leave act, 1998.

  1. On the expiry of your parental leave have you been allowed to return to work or were offered suitable alternative employment?

An employee’s contract on return to work must not be less favourable than under which they were employed before the absence on parental leave

Section 15 Parental Leave Act, 1998.

Where it is not reasonably practicable for the employer to permit the employee to return to work the employee shall be entitled to be offered by the employer suitable alternative employment under a new contract of employment

Section 16 Parental Leave Act, 1998

Maternity Leave

  1. Did you receive your entitlement to maternity leave?
  • Pregnant employees are entitled to 26 weeks’ maternity leave
  • If the baby’s late birth means that an employee was less than 4 weeks’ maternity leave remaining after the week in which her baby was born she may extend her maternity leave to ensure that she has a full 4 weeks off following the week of the birth
  • An employee who has taken her maternity leave may be entitled to additional maternity leave of up to 16 weeks

Section 8 Maternity Protection Act, 1994