Automatically Unfair Dismissals in Ireland

Automatically unfair dismissals in Ireland are the dismissals that section 6(2) of the Unfair Dismissals Acts 1977-2015 deems unfair because they result wholly or mainly from a listed ground. Every other dismissal is also deemed unfair under section 6(1) unless the employer shows substantial grounds justifying it, so the label does not mean the employee has nothing to prove. What it means is that once the dismissal is shown to result wholly or mainly from a section 6(2) ground, the employer cannot rescue it by pointing to capability, conduct or redundancy. Some of the grounds also remove the one-year service requirement, and one of them, a protected disclosure, carries its own statute with a shifted burden and a 260-week compensation cap. This guide lists the grounds, separates those that waive the service rule from those that do not, and explains the routes that run alongside.

1. Automatically Unfair Dismissals: The Section 6(2) Grounds

Section 6(2) provides that a dismissal is deemed unfair where it results wholly or mainly from one or more of the following:

• Trade union membership or activities;
• Religious or political opinions;
• Making a protected disclosure;
• Civil or criminal proceedings against the employer to which the employee is or will be a party or witness;
• Race, colour or sexual orientation;
• Age;
• Membership of the Traveller community;
• Pregnancy, attendance at ante-natal classes, giving birth, breastfeeding or related matters;
• Availing of rights to maternity, adoptive, paternity, parental, force majeure, carer’s or parent’s leave;
• Exercising rights under the National Minimum Wage Act 2000.

The words that matter are “wholly or mainly”. The listed ground does not have to be the only reason, but it has to be the main one. A dismissal in which pregnancy was one factor among several genuine performance concerns is argued differently from one in which the performance concerns appeared the week after the pregnancy was announced. That is why the evidence in these cases is almost always evidence of timing.

2. Which Grounds Waive the One-Year Service Rule

Section 2(1)(a) requires one year’s continuous service before the Acts apply, and section 3 excludes a dismissal during a written probation or training period of one year or less. Section 6(2A) lifts both of those exclusions, but only for some of the section 6(2) grounds:

• Pregnancy, giving birth, breastfeeding or related matters;
• Availing of maternity, adoptive, paternity, parental, carer’s, parent’s or force majeure leave;
• Trade union membership or activity;
• A protected disclosure;
• Exercising rights under the National Minimum Wage Act.

An employee dismissed in the first year, or during probation, for one of these reasons can bring an unfair dismissal complaint as if the service rule did not exist. The pregnancy and family leave grounds are the ones most often met in practice, and the way the timing evidence is built in those cases is set out in dismissed while pregnant or on maternity leave. The wider set of routes open to an employee in the first year, including the ones that have nothing to do with section 6(2), is in dismissed with less than 12 months’ service: your options.

3. The Grounds That Do Not, and the Equality Route

The remaining section 6(2) grounds do not waive the service requirement. A dismissal for religious or political opinions, for being a party or witness in proceedings against the employer, for race, colour or sexual orientation, for age, or for membership of the Traveller community is deemed unfair under section 6(2), but only an employee with a year’s service can say so at the WRC under the Unfair Dismissals Acts. For most of those grounds there is a second route. The Employment Equality Acts 1998-2015 prohibit discriminatory dismissal on nine grounds, which are gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community, and a complaint under those Acts has no service requirement. Race, religion, sexual orientation, age and Traveller community membership therefore have an equality route for the employee with less than a year’s service, and a parallel route for the employee with more. Political opinion and proceedings against the employer are not equality grounds and depend on the service rule. The Dismissal Claim Route Finder works through service, the reason given and the dates to identify which of these routes are open on a given set of facts.

4. The Burden of Proof in a Section 6(2) Case

Under section 6(1) a dismissal is deemed unfair unless the employer shows substantial grounds justifying it, and that burden does not move in a section 6(2) case. What changes is what the employer has to show. It must establish that the dismissal resulted wholly or mainly from a section 6(4) ground, which are capability, competence or qualifications, conduct, redundancy or contravention of statute, or from other substantial grounds, and not from the prohibited reason the employee has put in issue. The employee’s task is to put that reason in issue with evidence: the date the pregnancy was announced, the union meeting attended, the complaint made, the proceedings threatened, set against the date of the first adverse step. An employer whose stated reason appeared only after the protected event, or whose process departed from the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) in a way it cannot explain, will struggle to show that the stated reason was the main one. For a protected disclosure the statute goes further: under the Protected Disclosures Act 2014 as amended by the Protected Disclosures (Amendment) Act 2022, which commenced on 1 January 2023, the burden shifts expressly to the employer to show the dismissal was not penalisation.

5. Protected Disclosures: The 260-Week Cap and Interim Relief

A dismissal that results from a protected disclosure is deemed unfair under section 6(2), waives the service requirement under section 6(2A), and is the one ground with its own enhanced remedies. Compensation for financial loss attributable to the dismissal is capped at 260 weeks’ remuneration rather than the 104 weeks that applies to other unfair dismissals. Interim relief may be sought in the Circuit Court within 21 days of the dismissal or other penalisation, or such longer period as the Court allows, which is the shortest deadline in dismissal law and the first date to diarise. The burden sits on the employer to show the dismissal was not penalisation. The practice page on dismissal after a protected disclosure sets out what counts as a disclosure and how the 21 days is used. Whether a complaint amounts to a protected disclosure, rather than an ordinary grievance, is the first question to settle.

6. Unfair Selection for Redundancy Under Section 6(3)

Redundancy is a fair ground under section 6(4), and an employer will usually be able to show that a role went. Section 6(3) addresses the selection rather than the redundancy. A dismissal is deemed unfair where the employee was selected for redundancy in breach of an agreed procedure or custom without special reason, or where the selection resulted wholly or mainly from a section 6(2) ground. The employee on maternity leave whose role is the one chosen, the union representative who alone fails the selection matrix, the employee who made a protected disclosure and is then placed in a pool of one, are each arguing section 6(3), and the evidence is the selection criteria, how they were scored, who else was in the pool, and the timing of the selection against the protected event. Redundancy law has its own procedure, entitlements and pitfalls beyond the selection question, and the firm’s sister practice at Redundancy Solicitors covers statutory redundancy, consultation and collective redundancies in their own right. This page deals only with the point at which a redundancy becomes an unfair dismissal.

7. Timing Is the Evidence

Few employers write down a section 6(2) reason. The case is built from sequence: the date of the protected event and the date of the first adverse step, with everything that happened between them. The documents that establish it are:

• The protected event, dated. The pregnancy announcement, the leave application, the union membership or meeting, the disclosure, the proceedings, the minimum wage query, with proof of when the employer knew;
• The record before it. Appraisals, pay reviews, emails and messages showing how the employee was regarded before the event;
• The record after it. The first criticism, the first meeting, the first mention of performance, conduct or redundancy, each dated;
• The stated reason. The dismissal letter and the written statement of reasons under section 14(4), which may be requested and is due within 14 days;
• Comparators. How colleagues without the protected characteristic or event were treated in the same period;
• The dates for the complaint. Six months from the date of dismissal, extendable to twelve for reasonable cause, and 21 days for interim relief in a protected disclosure case.

8. Choosing the Route

A single set of facts can support an unfair dismissal complaint under section 6(2), a discriminatory dismissal complaint under the Employment Equality Acts, a penalisation complaint under the Protected Disclosures Act, or more than one of these, and the choice is made before lodging, on service, on the ground, on the remedy and on the evidence. Employers who receive a complaint on a section 6(2) ground get the same analysis from the other side: whether the stated reason predates the protected event and whether the process will withstand a hearing. The firm acts for employers as well as employees and never acts for both sides of the same dispute. The practice page on unfair dismissal claims sets out how the firm frames the routes from the first consultation.